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Case 8:13-cr-00252-RAL-TBM Document 39 Filed 06/24/13 Page 1 of 7 PageID 243

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA, Plaintiff,

v.

Case No. 8:13-cr-252-T-26TBM

JOHN ANDREW WELDEN, Defendant. / ORDER Before the Court is the Defendant’s Motion for Release Pending Trial (Dkt. No. 21) and Supplemental Exhibits (Dkt. Nos. 34, 36) and the United States’ Response in Opposition to Defendant’s Motion (Dkt. No. 32). Previously, on May 15, 2013, a detention hearing was conducted by the Court in accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), and due to the seriousness of the offense, the strength of the government’s case, and the potential penalties associated with the case, the Defendant was ordered to be detained as a serious risk of flight and a danger to the community (Dkt. No. 8). By his Motion, the Defendant has presented material information not known during the May 15th hearing, which justifies reopening the bond hearing. See 18 U.S.C. § 3142(f). The Court conducted the reopened bond hearing on June 20, 2013, during which the United States and the Defendant presented further evidence and argument on the bond issue. As discussed below, upon due consideration of the record, the Court finds that a combination of conditions of release can be imposed to address issues of risk of flight and danger to the community, but those

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Case 8:13-cr-00252-RAL-TBM Document 39 Filed 06/24/13 Page 2 of 7 PageID 244

conditions must specifically include a condition that the Defendant be detained at his home and under the custody of trained security personnel at his own expense. The Defendant is charged in a two-count Indictment for one count of causing serious bodily injury to an individual by tampering with a consumer product in violation of 18 U.S.C. § 1365 (“Count One”), and for one count of causing the death of an unborn child in violation of 18 U.S.C. §§ 1841 and 1111(a) (“Count Two”). Count Two is punishable by a mandatory sentence of life imprisonment. 18 U.S.C. §§ 1841(a)(2)(c), 1111(a) (emphasis added). The United States requested that the Defendant be detained as a danger to the community and risk of flight pursuant to 18 U.S.C. § 3142(f)(1)(A) & (B). Under the Bail Reform Act, except in specific enumerated serious crimes, pre-trial release is the expected norm, and detention is the exception. United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”); United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992) (“There can be no doubt that this Act clearly favors nondetention.”). Further, pre-trial detention should never promote the aims of punishment - retribution or deterrence. See United States v. Millan, 4 F.3d 1038, 1043 (1993) (“The government may detain a defendant prior to trial consistent with the Due Process Clause of the Fifth Amendment so long as confinement does not amount to punishment of the detainee.”). Notably, the Act reaffirms the notion that pre-trial detention should not be construed as modifying the presumption of innocence. 18 U.S.C. § 3142(j). The clear intent of the Bail Reform Act is that pre-trial detention is only warranted when necessary to prevent flight and to protect the safety of the community. See S. Rep. No. 98-225, at 8 (1984); S. Rep. No. 98-147, at 3435 (1983); S. Rep. No. 97-317, at 21 (1982). Thus, under the Bail Reform Act, the court must order

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an accused’s pre-trial release, with or without conditions, unless it “finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community[.]” 18 U.S.C. § 3142(e). In order to assess whether the Defendant can be released on certain conditions, the Court must take into consideration: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence ... or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including— (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. 18 U.S.C. § 3142(g)(1)-(4). Here, in consideration of the United States’ request to detain the Defendant, the factors of primary significance to the Court are the nature and circumstances of the offense, the strength of the government’s case, the potential penalties associated with the case, and the potential danger the Defendant would pose to the alleged victim if released. The Defendant, during multiple statements, has admitted to inexplicable, deplorable, and deceitful acts pertaining to the allegations

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as charged in the Indictment. See Gov’t Exs. 1, 2. Specifically, during an interview with law enforcement, the Defendant acknowledged the following facts, amongst others: he had dated the victim; soon after he stopped dating the victim, the victim informed him that she was pregnant; he did not want the victim to have the child; he told the victim that she needed to take an antibiotic; he gave the victim Cytotec but tricked the victim into taking Cytotec by telling her it was Amoxicillin; he knew that Cytotec causes uterine contractions and cuts off nutrients to soften the cervix, which would result in a miscarriage; and he provided the victim Cytotec with the intent that the victim’s pregnancy would be terminated. See Gov’t Exs. 2, 5-10. At this stage in the proceeding, the Court finds the evidence against the Defendant detailed and compelling. Although the Defendant has no criminal history and has significant ties to the community, the Court finds that Defendant is an overwhelming significant risk of flight based upon the combination of the record evidence, and the sobering fact that if convicted of Count Two, the Defendant must be sentenced to life imprisonment. The Defendant raises a relevant issue as to the strength of the United States’ case relating to whether the United States will be able to meet its burden in establishing that the Cytotec was the cause of the unborn child’s death. According to the Defendant’s expert, Dr. Rebecca Allen, “it is impossible for any medical professional to definitively conclude that one 200 microgram tablet of Misoprostol actually caused the death of the unborn embryo in question.” Defendant Ex. 17 at ¶ 18. Curiously, the United States has not proffered nor admitted any expert medical evidence to rebut Dr. Allen’s opinion. Nonetheless, the significance of Dr. Allen’s opinion is that the causation of the unborn child’s death is a potential issue of fact to be decided either by the District Court or a jury. Dr. Allen’s opinion does not in any way modify the Defendant’s own statements, which taken alone could still subject the Defendant to significant penalties for an attempt to kill the unborn child.

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See 18 U.S.C. §§ 1841(a)(2)(c), 1113. Therefore, the overwhelming issue of risk of flight still predominates this matter. The Defendant attempts to alleviate the issue of risk of flight by suggesting a variety of conditions of release, to specifically include: a bond secured by properties valued at approximately $500,000.00; a $200,000.00 personal surety bond, co-signed by more than twenty persons willing to co-sign for $10,000.00 each; home detention with electronic monitoring; and the Defendant’s father and step-mother to act as custodians for the Defendant. The Defendant’s proposed conditions are certainly significant and sizable, but the Court still has concerns regarding the Defendant’s risk of flight because under the Defendant’s proposed conditions: the Defendant would suffer no financial hardship should he flee; home detention with electronic monitoring cannot prevent the Defendant’s flight, but rather only provides information as to when the Defendant fled; and the Defendant’s father and step-mother would have an inherent conflict of interest in acting as the Defendant’s custodian.1 Simply stated, taken together or individually, the Court finds that the Defendant’s proposed conditions are not adequate to reasonably assure that the Defendant is not a risk of flight in light of the nature and seriousness of the charged offenses, the strength of the government’s case, and the significant penalty provisions, including the possible mandatory life sentence. However, the Court is still obligated to determine which, if any, of the least restrictive conditions of release will assure that the Defendant is not a risk of flight or a danger to the community. When faced with such an overwhelming risk of flight, such as in this case, this Court

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The United States has already demonstrated how difficult it would be for the Defendant’s father and step-mother to act as custodians for the Defendant given their understandable and unconditional love for their son. See Gov’t Ex. 4 (containing a recorded conversation on May 16, 2013, at approximately 8:13 a.m., between the Defendant and the Defendant’s step-mother, during which the Defendant’s step-mother suggested a method of concealing an asset to protect the asset from the victim’s civil lawsuit). 5

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has previously ordered under 18 U.S.C. § 3142(c)(B)(I), a defendant, at his or her own expense, to be placed in the custody of a trained security detail and confined to his or her home. See, e.g., Order Setting Conditions of Release at Dkt. No. 182, United States v. Mark Anthony Myrie, No. 8:09-cr572-T-30TBM (M.D. Fla. Nov. 10, 2010); Order Setting Conditions of Release at Dkt. No. 30, United States v. Friedlander, No. 8:08-cr-318-T-27TGW (M.D. Fla. Aug. 22, 2008). Although a very effective and appropriate condition of release to address both of the issues of risk of flight and danger to the community, this condition is not often utilized because of the potential costs associated with the condition. However, in light of the overwhelming risk of flight in this case, the Court finds by clear and convincing evidence that the condition of home confinement in conjunction with the Defendant being placed in the custody of a trained security detail at his own expense is an absolute necessary condition to assure that the Defendant will appear before the Court as required. After careful consideration, the Court finds that there is a combination of conditions of release that the Court can impose to reasonably assure that the Defendant will appear before the Court as required and that the Defendant is not a danger to the community.2 However, any combination of conditions imposed by the Court must include the condition that the Defendant be placed in the custody of a trained security detail. Otherwise, the Defendant should be detained.

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Although the Court’s primary focus has been on the issue of risk of flight, that does not diminish that the United States has satisfactorily established that the Defendant poses a significant danger to the victim in this case. However, home detention with a security detail along with other conditions of release will appropriately address the issue of danger to the community, and in particular, danger to the victim. 6

Case 8:13-cr-00252-RAL-TBM Document 39 Filed 06/24/13 Page 7 of 7 PageID 249

Accordingly, the Defendant’s Motion for Release Pending Trial (Dkt. No. 21) is GRANTED. A hearing is hereby scheduled for July 1, 2013, at 10:00 a.m. in Tampa, Courtroom 10A, so that conditions of release may be set by the Court. The parties shall be prepared to discuss all potential conditions of release. Specifically, the parties should be prepared to address: the feasibility of the Defendant being placed in the custody of an acceptable security detail; home confinement with GPS tracking; and a bond of $250,000.00 to be secured by property. DONE AND ORDERED in Tampa, Florida, on this 24th day of June, 2013.

Copies to: Counsel of Record Pretrial Services U.S. Marshal Service

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