from the United States District Court for the District of
Kansas (D.C. No. 6:17-CR-10104-EFM-1)
A. Nichols, Assistant Federal Public Defender (Melody
Brannon, Federal Public Defender, and Jennifer A. Amyx,
Assistant Federal Public Defender, with counsel on the
briefs), Kansas Federal Public Defender's Office, Topeka,
Kansas, for Defendant-Appellant.
I. Anderson, Assistant United States Attorney (Thomas E.
Beall, United States Attorney, with counsel on the brief),
United States Attorney's Office, District of Kansas,
Wichita, Kansas, for Plaintiff-Appellee.
LUCERO, O'BRIEN, and PHILLIPS, Circuit Judges.
expedited consideration of this bail appeal to consider Mario
Ailon-Ailon's argument that the government has
misinterpreted the word "flee" as it appears in 18
U.S.C. § 3142(f)(2), resulting in his illegal pre-trial
detention. He argues that involuntary removal by the Bureau
of Immigration and Customs Enforcement ("ICE") does
not constitute flight of the sort that would justify
detention. On initial consideration, a magistrate judge
agreed and determined that Ailon-Ailon should not be detained
before trial. On review of the magistrate judge, the district
court reversed, ordering that he be detained. We conclude
that the plain meaning of "flee" refers to a
volitional act rather than involuntary removal, and that the
structure of the Bail Reform Act supports this plain-text
reading. Exercising jurisdiction under 18 U.S.C. §
3145(c), we reverse and remand for further proceedings.
a citizen of Guatemala, has lived in Dodge City, Kansas, for
at least seven years. In July 2017, he was arrested by ICE
agents, who determined that he had reentered the United
States illegally after he was ordered removed in 2001. Rather
than immediately removing him again, ICE referred the matter
for criminal prosecution. Ailon-Ailon was charged with one
count of illegal reentry in violation of 8 U.S.C. §
1326(a), as enhanced by § 1326(b)(1). He is subject to a
reinstated removal order, and ICE has lodged a detainer with
the United States Marshals Service, requesting custody of
Ailon-Ailon if he is released from the Marshals' custody.
government moved to detain Ailon-Ailon prior to trial on the
ground that, if he was released, he would be removed from the
country by ICE before trial. It argued that because he is
subject to a reinstated order of removal, ICE would be
obligated to remove him within ninety days. He would
therefore not be present for trial. A magistrate judge denied
the government's motion, concluding that Ailon-Ailon was
not a flight risk because "the risk of flight that the
[Bail Reform Act] is concerned with is not a flight paid for
by the U.S. Government, and if the Government can't
decide whether to keep him and prosecute him or deport him,
that's on them." The magistrate judge ordered that
Ailon-Ailon be released subject to a ten-thousand dollar bond
and certain conditions.
appeal of the magistrate's decision to the district
court, the government reasserted its definition of
"flee." By written order, the district court
reversed, but specifically concluded in doing so that
Ailon-Ailon was not a voluntary flight risk, and acknowledged
that "[a]s a policy matter, . . . if the United States
government, through the Department of Justice, wanted
[Ailon-Ailon] present for prosecution, it should not . . .
complain [about his] non-appearance due solely to the actions
of the United States government, through the Department of
Homeland Security." However, the district court found by
a preponderance of the evidence that ICE would remove him
before trial and that such removal qualified as flight. It
ordered that Ailon-Ailon be detained. This appeal followed.
our society liberty is the norm, and detention prior to trial
or without trial is the carefully limited exception."
United States v. Salerno, 481 U.S. 739, 755 (1987).
The Bail Reform Act sets forth one such exception. Under that
Act, individuals charged with a crime are generally
"released on personal recognizance or upon execution of
an unsecured appearance bond, " 18 U.S.C. §
3142(a)(1), or they may be "released on a condition or
combination of conditions" that will reasonably ensure
their appearance in court and the safety of the community.
§ 3142(a)(2), (c)(1).
establishes a two-step process for detaining an individual
before trial. § 3142(f). First, the government may move
for pre-trial detention if the defendant has been charged
with certain enumerated offenses or "in a case that
involves . . . a serious risk that such person will flee; or
. . . a serious risk that such person will obstruct or
attempt to obstruct justice, or threaten, injure, or
intimidate, or attempt to threaten, injure, or intimidate, a
prospective witness or juror." Id. If the court
determines that there is such a risk, the government must
prove at the second step of the process that there "is
no condition or combination of conditions" that
"will reasonably assure the [defendant's] appearance
. . . as required [as well as] the safety of any other person
and the community." Id. The district court is
directed to consider various factors in making this
determination, including "the nature and circumstances
of the offense charged, " "the weight of the
evidence against the person, " "the history and
characteristics of the person, " and "the nature
and seriousness of the danger to any person or the community
that would be posed by the person's release." §
case, the government did not allege that Ailon-Ailon
represented a danger to the community; it relied solely on
the risk that Ailon-Ailon would flee in urging pre-trial
detention. The government bears the burden of proving a
defendant is a flight risk by a preponderance of the
evidence. United States v. Cisneros, 328 F.3d 610,
616 (10th Cir. 2003). "We apply de novo review to mixed
questions of law and fact concerning the detention or release
decision, but we accept the ...