United States of America v. Quan Pham Howard

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
QUAN PHAM HOWARD,
Defendant-Appellant.
No. 15-10259
D.C. No.
5:14-cr-00390-
LHK-1 (PSG)
ORDER
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted to Motions Panel
July 17, 2015
Filed July 17, 2015
Before: Mary M. Schroeder, William C. Canby, Jr.,
and Alex Kozinski, Circuit Judges.
Order;
Concurrence by Judge Kozinski

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UNITED STATES V. HOWARD 2
SUMMARY*
Criminal Law
The panel remanded to the district court for clarification
and for further findings, to the extent further findings are
necessary, a case in which a defendant’s pretrial release order
had been revoked.
The panel concluded that the nature of the conduct on
which the district court had based the revocation order was
not clear from the record. In particular, it was not clear
whether the district court had found that there was probable
cause to believe that the defendant had committed a crime
while on release. Nor was it clear whether the district court
had found that there was clear and convincing evidence that
the defendant had violated any other condition of release.
The panel ordered the mandate to issue forthwith.
Concurring, Judge Kozinski wrote that he joined his
colleagues in remanding for further findings. But he was
troubled by the condition of release that the defendant had
been found to have violated. Judge Kozinski wrote that
conditions prohibiting the defendant from having contact with
postal service employees struck him as unjustified and
probably unconstitutional in the absence of any specific
showing that the defendant had engaged in witness
intimidation or tampering. Because the government had
made no such showing, Judge Kozinski would order the
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. HOWARD 3
defendant released at once pending further fact-finding by the
district court.
COUNSEL
Daniel L. Barton, Nolan Barton Bradford & Olmos LLP, Palo
Alto, California, for Defendant-Appellant.
Michelle Rodriguez, Special Attorney to the United States
Attorney General, United States Department of Justice,
Eastern District of California, Sacramento, California, for
Plaintiff-Appellee.
ORDER
This is an appeal from the district court’s revocation of
appellant’s pretrial release order. We have jurisdiction
pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291.
We review the district court’s factual findings concerning
the danger that appellant poses to the community under a
“‘deferential, clearly erroneous standard.’” United States v.
Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting United
States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990)). The
conclusions based on such factual findings, however, present
a mixed question of fact and law. Hir, 517 F.3d at 1086.
Thus, “the question of whether the district court’s factual
determinations justify the pretrial detention order is reviewed
de novo.” Id. at 1086–87 (citations omitted).
The district court may enter an order of revocation and
detention if, after a hearing, the court: (1) finds that there is

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UNITED STATES V. HOWARD 4
either “probable cause to believe that the person has
committed a Federal, State, or local crime while on release”
or “clear and convincing evidence that the person has violated
any other condition of release”; and (2) finds that “based on
the factors set forth in [18 U.S.C. § 3142(g)], there is no
condition or combination of conditions of release that will
assure that the person will not flee or pose a danger to the
safety of any other person or the community” or “the person
is unlikely to abide by any condition or combination of
conditions of release.” 18 U.S.C. § 3148(b)(1) & (2).
The nature of the conduct on which the district court
based the revocation order is not clear from the record. In
particular, it is not clear whether the district court found that
there is probable cause to believe that appellant has
committed a crime while on release. Nor is it clear whether
the district court found that there is clear and convincing
evidence that appellant violated any other condition of
release. We therefore remand the matter to the district court
for clarification and for further findings, to the extent further
findings are necessary.
REMANDED.
The mandate shall issue forthwith.
KOZINSKI, Circuit Judge, concurring:
I join my colleagues in remanding for further findings.
But, I’m troubled by the condition of release that defendant
has been found to have violated. As a condition for staying
out of jail pending trial, defendant was ordered to “have no

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UNITED STATES V. HOWARD 5
contact with any employee of the USPS except his
supervisors,” and the order was later expanded to prevent him
from “mak[ing] contact with any postal service employees,
former or current.” Defendant’s counsel unwisely consented
to these conditions, but they strike me as unjustified and
probably unconstitutional.
According to our law, there are only two considerations
the district court may take into account in determining
whether to release a defendant, and what condition to impose
on such release: (a) ensure that he is not a flight risk; and
(b) ensure that he is not a danger to the community.
18 U.S.C. § 3142(c)(1). Preventing the defendant from
talking to individuals who are potential witnesses at trial falls
into neither of these categories. It certainly does not show a
propensity to flee nor, of itself, is it evidence of being a
danger to the community. Merely talking to a potential
witness, even about the subject of his likely testimony, is not
illegal. The government does this again and again with every
potential witness, as long and as often as it wishes. It seems
wholly inappropriate and unfair to give the government
unhindered access to witnesses yet throw the defendant in the
slammer for doing the same. Defendant, no less than the
government, has a legitimate interest in discussing the case
with the witnesses, testing their recollections and helping
them articulate the events in terms favorable to his case.
When the government does this, we call it witness prep; there
is no justification for calling it witness tampering when the
defendant does precisely the same.
It is possible, of course, that one side or the other will step
beyond witness preparation and onto witness intimidation or
tampering. Both the defendant and the government can be
guilty of such practices. See Alex Kozinski, Preface:

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UNITED STATES V. HOWARD 6
Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc., at iii,
vii, xxiii n.117 (2015). But I see no justification for
precluding only one side from talking to the witnesses.
Defendants should not be presumed to engage in witness
tampering or intimidation; only if there is actual proof of
tampering or intimidation should the district judge get
involved. Here there is no such proof. All we’ve been told
is that, as to one witness, defendant suggested a version of the
facts consistent with his theory of the case. As the district
court found, “Mr. Howard . . . [was] putting pressure on a
potential witness. It may not be saying lie. It may not be
saying testify X, Y, Z, but I think that is pressure on a
potential witness.” The district court seems to define “putting
pressure” as any discussion with the witness of his potential
testimony. This is far too broad.
I see nothing wrong with Howard’s behavior. If he is not
encouraging witnesses to lie or testify in particular ways, how
is this “pressure”? Why isn’t he entitled—just as well as the
government—to test the witness’s memory and let him know
the facts as he (Howard) remembers them? If this amounts to
pressuring witnesses, it is far less than the pressure the
government often puts on witnesses when it tries to prep them
to testify in its favor. The government does such things all
the time. Id. If we’re going to call what defendant did here
tampering, I doubt there are more than a handful of
prosecutors or police in the land who have not been guilty of
witness tampering.
Judges have no dog in this fight. Our duty is to apply the
rules fairly and equally to both sides. If Howard is to be
prevented from talking to the post office witnesses, then there
must be an equal prohibition applied to the government. But

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UNITED STATES V. HOWARD 7
if the government is going to be allowed to talk to the
witness, defendant must have equal access. It’s only fair.
I would therefore disapprove—and disregard—any
condition on Howard’s liberty that is not tied closely to the
two statutory requirements for the granting of pretrial release,
and any condition involving access to evidence of witnesses
that is not enforced with equal vigor against the
government—unless there is a specific showing that the
defendant has engaged in witness intimidation or tampering,
as those terms are strictly defined by the criminal laws
prohibiting such conduct. The government here has shown
nothing close, so I would order Howard released at once
pending further fact-finding by the district court.

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