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MARK J. REICHEL, Bar #155034 Attorney at Law 655 University Ave., Suite 215 Sacramento, California 95825 Telephone: (916) 974-7033

Attorney for Defendant ERIC MCDAVID

IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant, through counsel, hereby moves for release upon conditions, and submits this brief in support of that request. The failure to release him upon the conditions set forth herein will result in his detention being unconstitutional under the Eighth Amendment. FACTUAL BACKGROUND Defendant is charged by criminal complaint, he has not yet been indicted. There has been no probable cause hearing held, either by The evidence ERIC MCDAVID Defendant(s). ____________________________ ) ) ) ) ) ) ) ) ) ) NO. CR-S-06-0021-GGH MOTION FOR RELEASE ON CONDITIONS UNDER THE BAIL REFORM ACT HEARING: January 24, 2005 TIME: 2:00 p.m. JUDGE: GREGORY G.HOLLOWS

way of preliminary examination or grand jury indictment.

is presently based solely upon the untested word of an informant stated to an officer. While the present complaint sets forth a charge which at least triggers the presumption on dangerousness, there is nothing to

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trigger the issue of flight as the statute requires a serious risk of flight which has not been shown by the filing of the criminal complaint. The defendant offers the following: 1. House arrest and electronic monitoring at his parents residence. He will reside at his parents house in Forest Hill, California. He will be under house arrest, and will be subject to electronic monitoring. He will agree to have no telephonic contact

with anyone except as approved by pretrial services; he will agree to no access to the computer. The parents property is a 20 acre parcel

with a 1,400 square foot home in good shape. It is appraised at approximately $800,000 and has a mortgage of about $280,000. The equity is approximately $500,000. His parents are both law abiding citizens

and long term residents of California, with 3 children in the area including the defendant. 2. 3rd Party custody. The defendant would be in the 3rd party custody of his parents and his sister Sarah, a college student who also live sin the area. The defendant is extremely close with his family His family members have no prior criminal

and his sister as well. record.

3. Secured appearance bond. He will secure his appearance with the equity in his parents home. 4. Submit to other terms of release: drug testing and mental health counseling and any other suggested by the pretrial services agency.

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ARGUMENT Background on Bail Reform Act. The

The Bail Reform Act favors release in all but a few cases. Act provides that: Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be -(1) released on personal recognizance or upon execution of an unsecured appearance bond . . . ; (2) released on a condition or combination of conditions . . . ; (3) temporarily detained [for certain reasons]; or (4) detained [if conditions set forth in subdivision (e) are met]. 18 U.S.C. 3142(a).

Conditions of release range from release on

personal recognizance or unsecured bond, subd. (b), to the least restrictive further condition, or combination of conditions, that [the] judicial officer determines will reasonably assure the appearance of the person as required, subd. . A long list of useful conditions is

provided in the statute in order to facilitate release rather than detention. See subd. (c)(1)(B). Ordinarily, the United States

The presumption is overcome.

bears the burden of proof, to show by clear and convincing evidence, that the defendant is a danger to the community. 18 U.S.C. 3142(f)(2)(B). This burden shifts when certain crimes are charged, as

is the instant charge. However, a defendant cannot be detained on dangerousness grounds even in a presumption case unless the Court makes a finding that no release condition will reasonably assure the safety of the community. The presumption only shifts the burden of production, and not persuasion, to the defendant. United States v. Reuben, 974 F.2d 580 3

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(5th Cir. 1992), cert denied 504 U.S. 940 (1993).

The burden of

production requires the defendant to produce only some credible evidence showing reasonable assurance of appearance and/or no danger to the community. United States v. Clairborne, 793 F.2d 559 (3rd Cir. 1986). Once the defendant rebuts the presumption with production of evidence, the government nears the burden of proof on dangerousness beyond clear and convincing evidence. United States v. Giampa 755 F. Supp. 665, 668 (W.D. P.A. 1990). Such findings cannot be based upon

evidence that the defendant has been a danger in the past except insofar as the past suggests future misconduct. United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986). Regardless of the United

Statess proof, the Court may not insist upon a guarantee that the defendant will not pose a threat to the community; objectively reasonable assurance is all that is required. United States v. Orta,

760 F.2d 887 (8th Cir. 1985). The standard is whether any combination of conditions will reasonably assure the Court that the defendant will not be a danger to the community. United States v. Gerbo, 948 F.2d 1118, 1121 (9th Cir. 1991). Finally, the preventive detention provisions on dangerousness should not be invoked to safeguard against harms unrelated to the federal prosecution that has given rise to the bail hearing. States v. Ploof, 851 F.2d 7 (1st Cir. 1988). United

There, the defendant

allegedly made a threat to kill his girlfriends husband; this fact could not be considered for detention unless it could somehow be connected to the present case of bank fraud and false bank loan charges. Id at 11. There, the Court reasoned 4

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The evidence that defendant has plotted to kill the girlfriends husband presents a different question. If the husband is likely to be a material witness against defendant on the present federal charges and if there is a serious risk that defendant will attempt to intimidate the husband if released, the statute authorizes detention (provided no condition or combination of conditions would reasonable assure the husbands safety, 3142(e)). Or if the district Court were to conclude from defendants past behavior that there is a serious risk that defendant, if released, will attempt to injure or intimidate other prospective witnesses (and if the evidence supports said conclusion) then, too, detention is authorized in accordance with 3142(e) and (f)(2)(B). But if instead defendants grudge against the husband is personal, unrelated to and unlikely to affect proceedings on the present charges, we are unable to conclude that the statute authorizes preventive detention. (Id at p. 11.) In the present case, allegations of the defendants dangerousness unrelated to the present charges are irrelevant and should not be before the Court at a detention hearing. Defendant must make this motion in order to be released so as to prevent grave physical harm from happening to him because of the pretrial conditions under which he is housed at the Sacramento County Jail. Specifically, defendant is housed in almost complete isolation

and granted outside of cell activity only 1 time since his arrest 12 days ago. He is a vegan. He has been a vegan for over 3 years. It is a

health decision as well as a moral decision to eat nothing which was used with animal products. He needs vegan food, which is unavailable at the jail. He has not had any protein in 12 days and is getting very

sick. He is not offered fruit as well. The jail commissary does not provide any protein but only candy and chips and popcorn. He also needs vitamins, specifically Vitamin B12 to stay healthy, as vegans must often supplement their diet with this vitamin. at the jail. 5 He is not provided this

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He must be released from the jail or else his continued detention in these conditions results in the Bail Reform Act being unconstitutional as applied to this defendant. The defendant is a

pretrial detainee who has not yet been determined to be guilty of any charges. As such, as was re reiterated very recently by the Ninth

Circuit Court of Appeals, the U.S. Constitution prohibits his punishment in any manner whatsoever, and this includes any medical or dental treatment which amounts to punishment. Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004).1 DATED: January 23, 2006 Respectfully submitted, /s/ Mark Reichel _________________________ MARK J. REICHEL Attorney at Law

Even just in the area of exercise, there is substantial agreement

among the case law in this area that regular outdoor exercise is 23 essential to the psychological and physical well being of the inmates. 24 Frazier v. Ward, 426 F. Supp. 1354, 1367-69 (N.D.N.Y.1977); Rhem v. 25 Malcolm, 389 F. Supp. 964, 972 (S.D.N.Y.), Aff'd on other grounds, 527 26 F.2d 1041 (2d Cir. 1975); Hamilton v. Landrieu, 351 F. Supp. 549, 550 27 (E.D.La.1972); Taylor v. Sterrett, 344 F. Supp. 411, 420 28 (N.D.Tex.1972). It is even more essential when a woman is pregnant. 6