051810 Stanford Motion to Dismiss

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA § § § v. § CR. NO.4:09-342-01 § § ROBERT ALLEN STANFORD §

DEFENDANT ROBERT ALLEN STANFORD’S MOTION FOR RELEASE FROM DETENTION OR DISMISSAL OF THE INDICTMENT

BASED ON VIOLATIONS OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT AND THE SIXTH AND EIGHTH AMENDMENTS TO TH E UNITED

STATES CONSTITUTION

TO THE HONORABLE DAVID HITTNER, UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION: COMES NOW Robert Allen Stanford, by and through his attorneys of record, and

respectfully moves, pursuant to the Due Process Clause of the Fifth Amendment to the United

States Constitution, the Effective Assistance of Counsel and Speedy Trial Clauses of the Sixth

Amendment to the United States Constitution, the prohibition against excessive bail clause of the

Eighth Amendment to the United States Constitution, 18 U.S.C. §3142, and 18 U.S.C. §3164,

that this Honorable Court order Mr. Stanford released from detention forthwith on terms and

conditions which will assure his appearance for trial, as addressed further herein.

In United States v. Salerno, 481 U.S. 739, 746-47 (1987), while upholding the Bail

Reform Act in 1987 against a substantive due process challenge, the Supreme Court observed

that there exists a “point at which detention in a particular case might become excessively

prolonged, and therefore punitive, in relation to Congress’ regulatory goal.” Id. at 747 n.4. That

point has clearly been reached here. Moreover, Mr. Stanford’s continued detention will also

Case 4:09-cr-00342 Document 222 Filed in TXSD on 05/18/10 of 37

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extinguish his right to a fair and speedy trial and deprive him of his Sixth Amendment right to

the effective assistance of counsel. See Sections I(B)(1)-(3), infra. Mr. Stanford’s continued

detention also violates his Eighth Amendment right not to be subjected to the imposition of

excessive bail, i.e., “[b]ail set at a figure higher than an amount reasonably calculated [to ensure

the defendant’s presence at trial].” Stack v. Boyle, 342 U.S. 1, 5 (1951). Indefinite detention

without release conditions when there clearly are conditions that will reasonably assure Mr.

Stanford’s appearance as required must be regarded as constitutionally excessive bail. See

Section I(D), infra.

Importantly, this motion does not simply seek reconsideration of the Court’s two prior

detention decisions, each of which was affirmed on appeal, nor does it simply echo the statutory

contentions upon which each of the prior motions was founded. Instead, this motion is based on

constitutional as well as statutory principles such as those incorporated into the Speedy Trial Act

and the Bail Reform Act. At its essence, this motion is based on due process imperatives, which

have ripened after nearly one year of imprisonment, into a compelling basis for release based on

the extended duration of Mr. Stanford’s detention. This motion is premised on the obligation of

counsel to illuminate ongoing constitutional violations and to seek judicial redress so that those

violations do not become irremediable obstacles to a fair trial, as the continued pretrial

incarceration of Mr. Stanford will do if it is not abated without delay.

Mr. Stanford had been detained for only a few weeks at the time of the Court’s initial

detention order, and at the time of the Court’s ruling on Mr. Stanford’s Motion for

Reconsideration of Order of Detention Due to Changed Circumstances (Doc. 172)(“Changed

Circumstances Reconsideration Motion”), the period of detention had been approximately six


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months. This Court has not previously been asked to consider the issues as a constitutional

matter involving detention of a predictable minimum of more than two years from arrest through

trial and based on a demonstrable record of prejudice to Mr. Stanford’s rights to adequately

prepare for trial, as detailed herein. Many of the constitutional arguments addressed herein would

have been premature at the time of the earlier filings and are, accordingly, being raised for the

first time in this motion. As such, this motion demands de novo decision-making and not simply

application of the standard under which motions for reconsideration of a prior adverse decision

are judged.

Under the American system of criminal justice, cornerstone principles such as the

presumption of innocence are founded on the fundamental premise that punishment can occur, if

at all, only after conviction by trial or guilty plea, but never before. In this case, that fundamental

– and constitutionally mandated – paradigm has been turned on its head. For more than 200

years, our justice system, following the Eighth Amendment prohibition of “excessive bail,”

rejected concepts such as preventive detention. See, e.g., United States v. Lawrence, 4 Cranch

C.C. 518, 26 F.Cas. 887 (1835) (bail set for defendant who attempted to murder President

Andrew Jackson because the Constitution forbade requiring excessive bail). In 1984 Congress

enacted the Bail Reform Act. Congress did so following a debate in which the Senate was

assured that 90 days of detention was the “worst case limit,” 130 Cong. Rec. S941 (statement of

Senator Thurmond), and the “upper bound” of pretrial detention, 130 Cong. Rec. S943

(statement of Senator Laxalt). Notably, one of the factors on which the Salerno Court relied in

upholding the constitutionality of the detention provisions of the Bail Reform Act was that “the

maximum length of pretrial detention is limited by the stringent time limitations of the Speedy


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Trial Act.” Salerno, 481 U.S. at 747. That maximum length has now been surpassed, thus

requiring that this Court, either: release Mr. Stanford under a combination of bail conditions that

will reconcile the statutory bail framework with the separate due process mandates addressed

herein or dismiss the indictment.

Mr. Stanford, a man who is presumed to be innocent, is being, and has been, subjected to

substantial and undeniable punishment long before the trial of his case has even begun. He has

been physically assaulted; he has suffered significant medical injury and psychological

debilitation; he was held in solitary confinement two separate times for a total of 40 days; he has

been subjected to 335 days of pretrial incarceration as of May 18, 2010; and before his scheduled

trial concludes, he will predictably serve another nonspeculative 439 days.1 Pivotally, he has, and

will continue to have his constitutional rights compromised, including his fundamental right to

assist counsel in the preparation of his defense, to personally review even a small fraction of the

evidence that is material to his prosecution, to locate exculpatory evidence, and to have his core

cognitive faculties undiminished by unnecessary conditions of confinement in a high-security

prison which, in a myriad of ways detailed infra, have prevented and will prevent him from

preparing for trial. “[T]he conditions of confinement envisioned by the [Bail Reform] Act,” may

facially “‘appear to reflect the regulatory purposes relied upon by the’ government” to validate

the Act, Salerno, 481 U.S. at 747-48, quoting Schall v. Martin, 467 U.S. 253, 270 (1984), but the

conditions of confinement to which Mr. Stanford has been subjected have been and continue to

be manifestly punitive.

The government cannot, consistently with the Due Process Clause and the Sixth and

Eighth Amendments, bring and maintain an extraordinarily complex prosecution involving at

1 See Dr. Victor R. Scarano’s Declaration and Report, submitted herewith as Exhibit “A”; Declaration of Dr. Nhan H. Nguyen, ND,JD, MSF, pgs. 4-5, submitted herewith as Exhibit “B”.


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least 8 million pages of documents and hundreds of thousands of financial transactions and at the

same time have Mr. Stanford incarcerated in a high-security prison under extremely restrictive

conditions which severely compromise his ability to defend himself against the serious

allegations brought against him, allegations which could potentially condemn him to

imprisonment for the rest of his life, when there are conditions of release which would both

reasonably assure Mr. Stanford’s appearance at trial and enable him to provide counsel with the

assistance they need in preparing his defenses.2 The Due Process Clause and the Sixth and

Eighth Amendments requires that Mr. Stanford be released on conditions or that the indictment

be dismissed.

On June 18, 2009, when Mr. Stanford surrendered to authorities, he was a healthy 59

year-old man, with no substantial physical or mental health issues. Now, nearly one year in

detention later, Mr. Stanford’s pretrial incarceration has reduced him to a wreck of a man: he has

suffered potentially life-impairing illnesses; he has been so savagely beaten that he has lost all

feeling in the right side of his face and has lost near field vision in his right eye. The major

injuries from his assault while in prison required reconstructive surgery under general anesthesia

and was performed while he was under restraint. Rather than placed in medical isolation or the

general population to recover, immediately post-operation, Mr. Stanford was placed in the

maximum security Special Housing Unit (“SHU”) area of the prison where he remained detained

in solitary confinement for roughly 23 days,3 and denied all outside human contact with the

exception of his attorneys; extreme measures which are generally reserved for only the most

2 See Dr. Rogers’ Spreadsheet formula and attached credentials, submitted herewith as Exhibit “C”. 3 Note that Mr. Stanford was also previously in solitary confinement for roughly 17 days at Joe Corley post-surgery for an aneurism. See Exhibit “A”, Scarano Declaration at 2-3, attachment “A” at 8-9, 25-26.


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violent of convicted criminals.4 Mr. Stanford has experienced, according to the Declarations

attached hereto, a precipitate, severe, and ongoing deterioration of his mental and emotional

health caused by the conditions of his confinement.5

Mr. Stanford has, moreover, been denied his Sixth Amendment right to counsel, to assist

counsel in the preparation of his defense, and has been for the entire 335 days of his ongoing

critical pretrial period deprived of the requisite confidentiality of his discussions with his

attorneys by enforced institutional review of every document which his attorneys wished to

discuss with him during their meetings.6 Trial of this case is not scheduled to begin until January

24, 2011, and is expected to last six months,7 bringing the total, non-speculative, duration of

pretrial detention to a minimum of 774 days; well over two full years without a determination

that he is guilty of any crime.

Mr. Stanford continues to contend that at the time this Court ordered him detained, as

well as at the time he sought reconsideration of the Court’s detention order, there were

conditions of release which would have reasonably assured his presence as required. This Court

ruled otherwise, but to the extent that there was a valid regulatory purpose for Mr. Stanford’s

detention in the past (which Mr. Stanford disputes), his continued confinement and the expected

duration of that confinement have crossed the line from regulatory to punitive in violation of the

Due Process Clause. A critical element of that punishment – and also an independent reason

why Mr. Stanford must be released from detention – lies in the ongoing deprivation of his

fundamental Sixth Amendment right to assist in the preparation of his defenses and to have the

4 Exhibit “A”, Scarano Declaration at 3, attachment “A” at 11-13. 5 See Declaration of Ashley Summer Tse, pg. 3, submitted herewith as Exhibit “D”; Declaration of Evelyn V. Saravia, pgs. 6-8, submitted herewith as Exhibit “E”; Declaration of Tom Hefele, pg. 3, submitted herewith as Exhibit “F”; Exhibit “B”, Nguyen Declaration. 6 See Exhibit “B”, Nguyen Declaration at 2-6. 7 See Exhibit “B”, Nguyen Declaration at 5.


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effective assistance of counsel in his defense. Continued detention will make it impossible for

Mr. Stanford to adequately review the immense volume of discovery – one of the most

voluminous in the history of federal criminal prosecutions – in the very limited time available

before trial, to educate his counsel regarding the meaning and significance of the documents

provided in discovery, as well as other aspects of the government’s case, to identify the

documents that will advance his defenses, and to locate discovery documents that are

exculpatory. His continued detention will, as attested in the attached Declarations, predictably

prevent Mr. Stanford from effectively assisting counsel during the anticipated lengthy trial which

will involve matters of great complexity.8 Continued incarceration will inexorably impair Mr.

8 See Exhibit “A”, Scarano’s Declaration, attachment “B”, Letter to Mr. Bennett and Mr. Essmyer dated April 25, 2010, pgs. 3-4. Mr. Stanford’s inability to assist counsel during trial will be magnified by the reality of the system for bringing detained defendants to court, which forces defendants to undergo procedures which result in elapsed time of 14-17 hours between wake-up in the morning and return to cell in the evening. The physically and mentally exhausting and degrading procedures which Mr. Stanford would be forced to endure day in and day out during the six month trial if he remains incarcerated – procedures which leave insufficient time for sleep and virtually no time for additional preparation – are roughly as follows:

The inmates are awakened at around 4:00 to 4:30 AM. A body search is done before leaving the cell. They are then taken to a receiving area where they have to strip naked, go through another body search, and then given a set of green clothes. The inmates are then placed in a concrete holding cell where they may sit for 2 to 3 hours. GEO guards come into the holding cell where they shackle the inmates’ hands to a chain around their waist and shackle the ankles. After they are shackled, the inmates are taken down to the first floor and placed in a van. After about a 30 minute wait, they are driven to the U.S. Marshal’s office at the Federal Courthouse. * * * * The inmates are then searched by the U.S. Marshals and placed in a steel cell where they wait until they are called and taken to their hearing. Mr. Stanford stated that he goes to the hearing with his shackles in place. After the hearing, the inmates are taken back to the steel holding cell and they remain there until everyone is done with their hearing. By the time all the hearings are done it can be anywhere from 5:00 to 7:00 PM. At that time, the inmates are taken to the van and driven back to the FDC. At the FDC, the inmates strip naked, undergo a body search, and change back into their regular jail garb. The inmates remain in the holding cell while a counselor spends 5 minutes with each inmate asking what


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Stanford’s current and future decision-making ability regarding matters as fundamental as the

right to call witnesses and the right of a defendant to testify in his own behalf. Mr. Stanford has a

basic right to regain the mental acuity and cognitive clarity that he has lost due to his lengthy

incarceration and the many health issues that he has endured. Mr. Stanford must regain his

physical, mental, and emotional health if he is to meet the challenges of being a defendant in a

case of this magnitude. In short, if Mr. Stanford is not released, a fair trial of this case cannot be

had. See Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-

Balancing Approaches to Due Process, 85 Mich. L. Rev. 510, 516 (Dec. 1986)(“incarceration

affects a defendant’s appearance and impedes his ability to consult lawyers, locate witnesses, and

otherwise prepare a defense. The available empirical studies of effects of detention may not be

conclusive, for perfect controls are unattainable. Nevertheless, these studies strongly suggest that

pretrial incarceration makes both conviction and a severe sentence more likely”).

For all the reasons discussed in greater detail infra, Mr. Stanford’s due process and Sixth

and Eighth Amendment rights are being violated daily by his continued detention, and there exist

conditions of release that will amply assure his appearance as required. He should, therefore, be

released from detention immediately.

INTRODUCTION

Before Congress enacted the nation's first pretrial preventive detention law in 1984, many

congressmen and senators were concerned lest it deny defendants their Eighth Amendment right

to bail. The nightmare scenario that worried many lawmakers was the spectre of a presumptively

innocent defendant locked up for “months” while awaiting trial. Supporters of the Bail Reform

Act assured such skeptics that this nightmare could never come to pass, so long as our courts sit.

happened at their hearing, whether they feel suicidal, etc. After everyone is interviewed, the inmates are taken back to their cells somewhere around 7:00 to 9:30 PM.


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That nightmare has become a reality for Mr. Stanford. Even the law’s most vocal critics

would never have imagined that the circumstances in which Mr. Stanford finds himself – denied

his liberty for more than two years prior to verdict, subjected to physical brutality and mental

erosion as documented herein, and largely deprived of any meaningful opportunity to review

materials provided in discovery and to assist his counsel in the preparation of his defenses –

could be reconciled with the statute Congress enacted and found to be consistent with the

Constitution, the provisions of which ultimately govern the treatment of defendants awaiting trial

for crimes of which they are presumed innocent.

The government has the burden to prove both that the defendant presents a risk of flight

and that no condition or combination of conditions will reasonably assure the defendant’s

appearance as required. Allegations that the defendant has the incentive and resources to flee do

not suffice to meet the requirements of the statute, and that is all that the government relied upon

in this case.9 For detention to be valid under the statute, the government’s proof must be taken a

critical step further: no matter how great the flight risk may appear to be, the government still

must demonstrate, as a second element of the proof required of it, that that there are no

conditions or combination of conditions which will reasonably assure the defendant’s

appearance. Even where the risk of flight is shown to be severe (as Mr. Stanford continues to

contend it is not and never was in this case), the defendant must, nonetheless, be released on

conditions where, as here, there exists a combination of conditions which will reasonably assure

the defendant’s appearance. See Section I(A), infra. When a constitutional challenge to the

detention is mounted, as it is in this motion, the government’s burden is all the more stringent.

That burden becomes even greater when pretrial detention severely compromises a defendant’s

9 See Tr. 6/29/09 at 37, submitted herewith as Exhibit “G”. Government tells Court that it was “relying on the fact that [Mr. Stanford] has the motive, the means, and the opportunity to flee” (emphasis added).


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ability to prepare for trial, particularly one, as here, which will be one of the most complex and

financially sophisticated cases in the country’s history, involving more than 8 million pages that

have been provided by the government through a searchable Internet-access only program, which

is not available to Mr. Stanford due to his being denied access to the Internet at the high-security

prison where he is being held.

The government cannot meet its heavy burden in this case. On this score, Mr. Stanford’s

conduct speaks for itself: even after having had all his worldly personal and corporate assets

seized by the SEC and knowing that he would likely be indicted, Mr. Stanford did not flee or

even make the slightest move toward doing so between the time of the February 17, 2009 SEC

action and the June 18, 2009 indictment. Instead, Mr. Stanford spent the four months prior to his

surrender on June 18, 2009, seeking to select and organize a defense team to help him to contest

the civil charges and actions that the SEC has brought against him, and the Department of Justice

charges that would predictably be brought against him, and repeatedly assuring the government

that he would voluntarily surrender if he was indicted, which he did. Any regulatory interest

which the government may have in Mr. Stanford’s continued detention (and Mr. Stanford

contends there is none) is far outweighed by Mr. Stanford’s fundamental right to liberty and his

due process and Sixth and Eighth Amendment rights.

I. THE LENGTH OF MR. STANFORD’S PRESENT AND FUTURE DETENTION CONSTITUTES PUNISHMENT IN VIOLATION OF THE DUE PROC ESS CLAUSE.

A. Mr. Stanford’s Continued Detention Violates the Due Process Clause. In upholding the constitutionality of the Bail Reform Act in 1987 against a substantive

due process challenge, the Supreme Court ruled that detention under the statute was a regulatory


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measure rather than a punitive one. United States v. Salerno, 481 U.S. at 746-47.10 In so doing,

however, it specifically left open the question of “the point at which detention in a particular case

might become excessively prolonged, and therefore, punitive in relation to Congress’ regulatory

goal.” Id. at 747 n.4. In the succeeding years, courts have uniformly recognized that, at some

point, the duration of the pretrial detention of the defendant may cross the line separating the

regulatory from the punitive, and thereby, violate the Due Process Clause. See United States v.

Hare, 873 F.2d 796, 801 (5th Cir. 1989), and cases cited therein at nn.22-24. Indeed, a number of

courts have found due process violations in prolonged detention and ordered the defendants

released on conditions, both before and after the decision in Salerno. United States v. Ojeda

Rios, 846 F.2d 167 (2d Cir. 1988); United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir.

1986); United States v. Theron, 782 F.2d 1510 (10th Cir. 1986); United States v. Ailemen, 165

F.R.D. 571 (N.D. Cal. 1996); United States v. Shareef, 907 F.Supp. 1481 (D.Kan 1995); United

States v. Chen, 820 F.Supp. 1205 (N.D. Cal. 1992); United States v. Gatto, 750 F.Supp. 664

(D.N.J. 1990); United States v. Gallo, 653 F.Supp. 320 (E.D.N.Y. 1986).

In Hare, the Fifth Circuit adopted the following standard for determining whether the

length of the defendant’s pretrial detention, presently or in the future, violates the Due Process

Clause:

Like other circuits, we find that the due-process limit on the duration of preventive detention requires assessment on a case-by-case basis. In determining whether due process

10 It is important to note at the outset that Salerno and a number of other cases which have considered the due process implications of lengthy pretrial detention involved defendants who were detained on dangerousness grounds, which the government has never contended are applicable here. See United States v. Millan, 4 F.3d 1038, 1048 (2d Cir. 1993)(“the constitutional limits on a detention period based on dangerousness to the community may be looser than the limits on a detention period based solely on risk of flight”), cert. denied, 511 U.S. 1006, 1011 (1994). This is also not a case, as were a substantial number of the cases considering the issue, where the statutory presumption that there are no conditions of release which will safeguard the public from the defendant’s future dangerousness was applicable. These factors materially distinguish this case from many of the cases which have found no due process violation in the length of the detention at issue in those particular cases.


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has been violated, a court must consider not only factors relevant in the initial detention decision, such as the seriousness of the charges, the strength of the government’s proof that the defendant poses a risk of flight . . . and the strength of the government’s case on the merits, but also additional factors, such as the length of the detention that has in fact occurred or may occur in the future, the non-speculative nature of future detention, the complexity of the case, and whether the strategy of one side or the other occasions the delay.

Hare, 873 F.2d at 801 (remanding case to magistrate for hearing regarding whether continued

detention would violate the Due Process Clause because magistrate had not considered some of

these factors, “most importantly the length of Hare’s detention,” which at that time had extended

to ten months). An assessment of these factors in this case must lead to the conclusion that

Mr. Stanford’s detention is punishment, both by intent and in effect, which violates the Due

Process Clause. Mr. Stanford’s continued incarceration is inconsistent with the presumption of

innocence, an inconsistency which is only aggravated by the public’s knowledge, including that

of the community from which the venire will be drawn for the trial of this case, that this Court

ordered Mr. Stanford detained and by the hundreds of photographs of him in prison clothes while

handcuffed and shackled, which have already appeared and will continue to appear if he is not

released, thus threatening his very right to a fair and unbiased jury. See United States v.

McVeigh, 918 F.Supp. 1467 (W.D.Okla. 1996)(citing widely publicized photographs of

McVeigh clad in an orange prison jumpsuit and in restraints as part of the prejudicial publicity

which required a change of venue). In addition to actual and ongoing punishment, there is also

the appearance of punishment before trial as a means of appeasing investors who subjectively

believe that Mr. Stanford is personally responsible for their losses. The conclusion that Mr.

Stanford’s incarceration constitutes punishment in violation of the Due Process Clause is further

compelled by the inevitable interference with Mr. Stanford’s ability to assist counsel in the


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preparation of his defenses, which pretrial detention and the conditions thereof, have caused, and

continue to cause, day after day after day. See Sections I(B)(1)-(3), infra.

1. The length of detention and non-speculative length of future detention supports the conclusion that continued detention would violate the Due Process Clause.

Mr. Stanford has now been incarcerated for almost an entire year. With trial scheduled

for January 24, 2011, and expected to last at least 6 months,11 the total, non-speculative length of

Mr. Stanford’s pretrial detention will be a minimum of 774 days - well over two years. That

length of detention is strongly indicative of a due process violation. See Gonzales Claudio, 806

F.2d at 341, 343 (“Detention that has lasted for fourteen months and, without speculation is

scheduled to last considerably longer, points strongly to a denial of due process;” holding that

detention beyond 14 months “would exceed even the flexible standards of due process”); United

States v. Zannino, 798 F.2d 544, 548 (1st Cir. 1986)(“we shall assume that in many, perhaps

most, cases, sixteen months would be found to exceed the due process limitations on the duration

of pretrial confinement”); see also United States v. Warneke, 199 F.3d 906, 908-09 (7th Cir.

1999)(not reaching the due process issue but expressing “deep concern” regarding the length of

time defendants had been in pretrial detention and stating that if defendants’ trial did not begin

by a designated time, “the district court would be obliged to consider ordering a less restrictive

alternative to straight pretrial detention”).

2. The conditions which Mr. Stanford has proposed will ensure his appearance at trial.

The factors based on which the Court initially ordered detention, Doc. 52 at 8-12, may in

the abstract show that Mr. Stanford could flee if he so chose, but the government’s evidence that

there is a strong enough risk that he will do so and that no conditions which the court could 11 See Exhibit “B”, Nguyen Declaration at 5.


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impose would reasonably assure Mr. Stanford’s appearance as required, falls far short of

showing that only pretrial detention will suffice.12 Where the constitutionality of a defendant’s

pretrial detention is at issue (as opposed to an issue of statutory validity), the Court must take a

more stringent view of the flight issue and hold the government to a higher burden of proof. See,

e.g., United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994)(noting that, if trial was

substantially delayed beyond current predictions, “the government may be required to make a

more convincing showing of his . . . risk of flight”); United States v. Accetturo, 783 F.2d 382,

388 (3d Cir. 1986)(at hearing to determine whether duration of pretrial detention violates due

process, “more is required of the government than is mandated by section 3142"); United States

v. Cos, 2006 WL 4061168 at *8 (D.N.M. 2006)(constitutional review of a defendant’s pretrial

detention involves a higher level of scrutiny than does §3142); see also United States v. Millan, 4

F.3d 1038, 1044 (2d Cir. 1993)(“we are entitled to apply a broader standard of review in

determining the extent to which the facts regarding risk of flight, as found by the District Court,

have significance on the constitutional issue of whether continued detention violates due process

limitations”); Aileman, 165 F.R.D. at 588 n.23 (collecting cases which, in the court’s view,

suggest the possibility that the Supreme Court “might be open to using somewhat more

demanding standards when reviewing long pretrial detentions to determine whether they have

crossed the line that separates ‘regulation’ from ‘punishment’”). It is also important to stress at

the outset that:

the proper focus is not how big [the threat of flight] would be if the defendant were released on no conditions, but, instead, the focus should be on how big [the threat of flight]

12 See Tr. 6/25/09 at 207, submitted herewith as Exhibit “H”. This Court has never actually made the particularized findings essential under the statute to a ruling that there are no release conditions which will reasonably assure Mr. Stanford’s appearance. It has, to be sure, made findings supporting its conclusion that Mr. Stanford presents a risk of flight, but it has not made detailed findings regarding why no combination of conditions of release would reasonably ensure his appearance.


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would be if the defendant were released on stringent conditions. In other words, the issue is not how much [flight risk] the defendant would pose if he were as free as any law-abiding citizen, but on how much threat he would be if he were released on the most stringent conditions.

Aileman, 165 F.R.D. at 580 (emphasis added). Furthermore, it is the government which bears the

burden to prove that no conditions of release would reasonably assure Mr. Stanford’s

appearance. United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007).

Because Mr. Stanford is challenging his continued detention on constitutional grounds,

the Court is required to consider the flight issue – indeed, all the issues – based on Mr. Stanford’s

current and likely future status and cannot simply rely on the findings it made nearly eleven

months ago. Of critical importance is the deterioration in Mr. Stanford’s physical and mental

health since his detention on June 18, 2009. The state of Mr. Stanford’s physical and mental

health as of December 21, 2009, was addressed in Mr. Stanford’s Changed Circumstances

Reconsideration Motion at pages 8-15, and that discussion is incorporated by reference herein.

To briefly summarize the discussion in that earlier filing, a savage beating by another inmate left

Mr. Stanford with right orbital fractures, fractures of the nose, and severe nerve trauma, which

required reconstructive surgery under general anesthesia and has left him without normal sight in

one eye and without sensation in a portion of his face. He has been diagnosed with potentially

lethal atrial fibrillation and has undergone surgery to repair an aneurysm. Mr. Stanford was

taken into the operating room, for both surgeries, with handcuffs secured by a chain around his

waist and his feet shackled. He has been prescribed numerous medications for his heart

condition, his blood pressure, and ulcers, as well as psychotropic medications for a major

depression disorder.


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Since that time, Mr. Stanford’s physical and mental health has continued to deteriorate

markedly, as described in the Declaration of Victor R. Scarano, M.D.,J.D., Mr. Stanford has had

abnormal liver function tests and is currently prescribed seven medications: mirtazapine (45 mg

daily at night); sertraline (Zoloft)(50 mg daily in the morning); clonazepan (1 mg twice daily,

morning and evening); omeprazole (20 mg twice daily); lisinopril (5 mg daily in the morning);

metoprolol (25 mg once daily); and aniodaraone (200 mg once daily).13 He remains in the throes

of a major depression, which is becoming progressively more debilitating, the symptoms of

which include

1. Disheveled appearance and he had not shaved in several days. 2. Unable to sleep without the aid of the mirtazapine and clonazepan. 3. Energy level is low, does not want to get out of bed in the morning, feels like he has

to drag himself around, and has not exercised. 4. Unable to concentrate, short term memory is poor and is getting worse, and

complains of memory gaps. 5. No appetite but forces himself to eat. 6. Exhibits psyschomotor retardation with slow thinking and decreasing mental

sharpness. 7. Denies suicidal thoughts but worries that when he falls into one of the black

depressive holes he will be unable to come back.14 In addition, counsel have noted during their legal visits that Mr. Stanford “appeared physically

and mentally exhausted, . . . slow in his speech and thoughts,” and “had difficulty with reading

and near vision in his right eye, and he often had to pause while reading and writing due to

described ‘splitting headaches’ over his right forehead.”15 Dr. Nguyen has also observed that Mr.

Stanford “often repeated the same sentences and topics during the course of a single visit . . .

forgot that he discussed the exact topics during prior visits,” has “continuing deterioration of his

13 See Exhibit “A”, Scarano Declaration at 3-4. 14 See Exhibit “A”, Scarano Declaration at 6. 15 See Exhibit “B”, Nguyen Declaration at 2.


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mental and emotional well-being . . . and his mental anxiety and depression have increased.”16

Additionally, attorney Nguyen has “witnessed [mental black hole] episodes firsthand where in

the middle of a discussion, Mr. Stanford will immediate[ly] cease speaking mid-conversation,

appearing lost with a glazed look in his eyes staring at the wall without focus, only to refocus

seconds to minutes later asking what was being discussed.”17 In short, Mr. Stanford is far from

the man who stood before the Court in June 2009.18

In addition, as the Hare Court stated, in conjunction with the Court’s reconsideration of

the flight issue, Mr. Stanford is entitled to present to the Court “any condition he is willing to

abide by if he is released.” Hare, 873 F.2d 801. The conditions of release which Mr. Stanford

proposes are:

1. He would live at the home of Ms. Carin Stoelker, his fiancée’s sister, at 907 Hawthorne Street, Houston, Texas 77006.

2. He would be placed under house arrest with GPS ankle bracelet monitoring.

16 See Exhibit “B”, Nguyen Declaration at 2. 17 See Exhibit “B”, Nguyen Declaration at 3. 18 Other attorneys have also witnessed the similar experiences with Mr. Stanford. See Exhibit “D”, Tse Declaration at 2-3:

“I have personally witnessed Mr. Stanford begin speaking, then stop mid sentence to stare at a wall, then completely forget what we were discussing prior to his memory lapse. We will have a conversation one meeting, and hours later he completely forgets we ever had a conversation. It is noticeable that Mr. Stanford’s cognition has deteriorated, even to a non-physician, over the short duration I have been working with him. I believe Mr. Stanford’s deteriorating behavior is organic as I can see his frustration and conscious effort to fight back tears when trying to remember something he wanted to tell me, but is unable to recall the information. ” “Not only unable to recall names and recognize people he sees frequently, I have personally witnessed Mr. Stanford forget his inmate id number. During one visit, the officers called him out of the attorney-client room for counts; this happens daily and is standard protocol. The inmate is supposed to say his name, and repeat his inmate id number. Mr. Stanford was only able to say his name and could not remember his id number. After a minute, one of the officers told him, ‘your number starts with a three.’ Mr. Stanford was still unable to remember his number. After another two minutes, the other officer then stated, ‘there is a five in your number too.’ Mr. Stanford then guessed that his inmate number was ‘35183-381.’ The officers told Mr. Stanford it was ‘close enough, you better sit down.’ Mr. Stanford’s number is 35017-183. Mr. Stanford was barely able to speak and could not form a coherent sentence the entire meeting. Even one of the officers that day asked me if Mr. Stanford was okay, because it appeared as if he was being mentally worked ‘too-hard’.”


18

3. He will agree to allow a third-party custodian to advise the court of any violation of any of these conditions.

4. Ms. Stoelker will agree to modify her telephone system to meet the requirements of

electronic monitoring, including providing a land line telephone which does not have call forwarding, a modem, caller ID, call waiting, or portable cordless telephone connection, and will make any other accommodations necessary to the facilitation of the home arrest/monitoring condition.

5. He will waive his right to object to random electronic monitoring of non-privileged

telephone calls at Ms. Stoelker’s home telephone line. 6. He will not leave Ms. Stoelker’s home except for meetings at his local attorneys’

offices of Mr. Bennett at 515 Louisiana, Suite #200, Houston, Texas 77002 , medical appointments, appointments with Pretrial services, or court appearances; and he will notify Pretrial Services in advance of such meetings or appointments.

7. He will report telephonically to Pretrial Services from an approved landline either at

Ms. Stoelker’s home or at the offices of his attorneys multiple times daily, the required schedule to be set by Pretrial Services.

8. He will personally meet with the Pretrial Services officer assigned to him at a

designated time and location a minimum of 2-3 times per week (or more if the Court so requires).

9. He will agree to allow Pretrial Services to visit Ms. Stoelker’s home or his attorney’s

offices at unannounced, random, and unexpected times for confirmation as to his location.

10. He will agree to assign to the Court any civil claims he has as against the SEC

Receiver for the Receiver’s actions in forfeiting and seizing Mr. Stanford’s assets, subject to the compliance with these bail conditions.

These conditions will provide even more than reasonable assurance that Mr. Stanford will

appear as required on every day which he is required to appear in court. The language of §3142

is mandatory: if the court finds that the conditions outlined in §3142(b) – personal recognizance

or an unsecured appearance bond – will not suffice to reasonably assure the defendant’s

appearance, then the court “shall order the pretrial release of the person . . . subject to the least


19

restrictive further conditions or combination of conditions that the [judicial] officer determines

will reasonably assure the appearance of the person as required . . . ” §§3142(c)(1),

(c)(1)(B)(emphasis added).

Nothing which the government has submitted to the Court – and nothing it will submit –

comes, or will come, even close to demonstrating that there are no conditions of release, no

matter how stringently they limit his liberty, which would reasonably assure Mr. Stanford’s

presence. This conclusion becomes even more compelling when the risk of flight/availability of

conditions issues are subjected to the stricter standard required in the context of constitutional

challenges to pretrial detention. The right to liberty is a fundamental one, and the Supreme Court

has “always been careful not to ‘minimize the importance and fundamental nature’ of the

individual’s right to liberty.” Hamdi v. Rumsfeld, 542 U.S. 507, 529-30 (2004), quoting Foucha

v. Louisiana, 541 U.S. 71, 80 (1992). See Salerno, 481 U.S. at 755 (“In our society liberty is the

norm, and detention prior to trial and without trial is the carefully limited exception”). As the

Supreme Court stressed in Stack v. Boyle:

From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present . . . federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. The traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent infliction of punishment prior to conviction. Unless this right to bail is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

342 U.S. at 3. Liberty as the norm remains an essential part of our system today, even after the

advent of the Bail Reform Act of 1984, which limits the application of pretrial detention to a

small category of offenders in a limited number of circumstances. See United States v. Salerno,

481 U.S. at 747 (noting that the Act “carefully limits the circumstances under which detention

may be sought to the most serious of crimes”); United States v. Himler, 797 F.2d 156, 160 (3d


20

Cir. 1986)(Bail Reform Act of 1984 is a “narrowly-drafted statute” that focuses its pretrial

detention provision on “a small but identifiable group of particularly dangerous defendants”).

Any regulatory interest which the government may have in securing Mr. Stanford’s

attendance at trial will be fully satisfied by the conditions proposed by Mr. Stanford.

Accordingly, his fundamental right to liberty must prevail.

3. Mr. Stanford has not contributed in any way to the length of his detention.

None of the period of detention to which Mr. Stanford has been subjected, and will be

subjected if not released, is attributable to any action on his part. He did, to be sure, file two

appeals from this Court’s bail orders, but bail appeals concern matters ancillary to the merits of

the prosecution and do not affect the district court’s jurisdiction to proceed to adjudicate the

merits of the case. The filing of those appeals did not, therefore, prolong these proceedings to

any extent whatsoever. Instead, Mr. Stanford and his present counsel have been expending

massive amounts of time and energy to be ready for trial,19 on its presently scheduled date and

since the Court set the trial date in December of 2009 have not waived any of his constitutional

or statutory speedy trial rights. See Section I(D), infra.

Under any analysis, Mr. Stanford’s incarceration and continued incarceration is now

punishment, as opposed to regulatory confinement. The punishment to which he is subjected to is

magnified by the ongoing deprivation of his Sixth Amendment right to assist counsel in the

preparation of his defenses, as addressed in the next section of this motion. Accordingly, Mr.

Stanford is being unconstitutionally detained and must be released subject to the proposed

19 See Exhibit “B”, Nguyen Declaration at 5; Declaration of Nicholas Scott Coons, pgs. 1-2, submitted herewith as Exhibit “I”.


21

conditions, as well as any other conditions which this Court deems necessary which will not

interfere with his Sixth Amendment rights.

B. The Deprivation of Mr. Stanford’s Sixth Amendment Rights Only Adds to the Punitive Nature of His Present and Any Future Detention.

1. The Sixth Amendment rights of pretrial detainees are critical to their

ability to obtain a fair trial. The Sixth Amendment guarantees that in all criminal prosecutions the defendant has the

right to “have the Assistance of Counsel in his defense,” and “unreasonable interference with the

accused’s ability to consult counsel is itself an impairment of the right.” Benjamin v. Fraser, 264

F.3d 175, 185 (2d Cir. 2001)(upholding prospective relief for pretrial detainees whose attorneys

were forced to wait at the institution from 45 minutes to more than two hours before they were

able to see their clients as unreasonable interference with the Sixth Amendment right to counsel,

stating that ‘[r]egulations and practices that unjustifiably obstruct the availability of professional

representation or other aspects of the right of access to the courts are invalid,’” quoting

Procunier v. Martinez, 416 U.S. 396, 419 (1974), overruled in part on other grounds,

Thornburgh v. Abbott, 490 U.S. 401 (1989);20 Tucker v. Randall, 948 F.2d 388, 390-91 (7th Cir.

1991)(failure to permit detainee to contact counsel during the four days following his arrest

would implicate the Sixth Amendment);21 Lynch v. Leis, 2002 WL 33001391 at *5 (S.D. Ohio

20While Benjamin and the other cases cited arose in the context of civil challenges to prison practices or rules which infringed detainees’ Sixth Amendment rights, their discussions of the importance of the preservation of detainees’ Sixth Amendment rights is equally applicable in the present context.

See Exhibit “B”, Nguyen Declaration at 5, discussing 2 hour waiting time to see Mr. Stanford; Exhibit “D”, Tse Declaration at 3 discussing 1 hour wait time to see Mr. Stanford; Exhibit “E”, Saravia Declaration at 5, discussing 30 minutes to 1 hour waiting time to see Mr. Stanford; Declaration of Lane Parish, submitted herewith as Exhibit “J”, pg. 2 stating:

“I also experience about 30 to 45 minutes of wait time for Mr. Stanford to arrive at the attorney/client meeting room at the FDC when I go to visit with him.”

21 Mr. Stanford was denied attorney contact for the first seven days of his incarceration, from June 18, 2009, until June 25, 2009.


22

2002)(“Absent justification, restrictions which impose severe constraints on a detainee’s ability

to contact his attorneys and discuss matters of substance violate the Sixth Amendment;” court

orders permanent injunction against institution’s telephone policies, concluding that they

unreasonably interfered with detainees’ ability to contact counsel); Cobb v. Aytch, 643 F.2d 946

(3d Cir. 1981)(pretrial detainees entitled to injunctive relief against being transferred to

institutions at some distance from place of trial and location of their attorneys as infringement on

right to counsel).22

The assistance of counsel during the period of pretrial preparation is particularly critical.

Indeed, it is indispensable to a defendant’s ability to obtain a fair trial. As the Supreme Court has

recognized: “the assistance of counsel cannot be limited to participation in a trial; to deprive a

person of counsel during the period prior to trial may be more damaging than denial of counsel

during the trial itself.” Maine v. Moulton, 474 U.S. 159, 170 (1985). See Johnson-El v.

Schoemehl, 878 F.2d 1043, 1051 (8th Cir. 1989)(“Pretrial detainees have a substantial due

process interest in effective communication with their counsel. . . When this interest is

inadequately respected during pretrial confinement the ultimate fairness of their eventual trial

can be compromised”); Wolfish v. Levi, 573 F.2d 118, 133 (2d Cir. 1978)(“[O]ne of the most

serious deprivations suffered by a pretrial detainee is the curtailment of his ability to assist in his

own defense”), rev’d on other grounds, Bell v. Wolfish, 441 U.S. 520 (1979); see also Basciano

v. Martinez, 2007 WL 2119908 (E.D.N.Y. 2007)(recommending that district court grant relief

based on infringement of Sixth Amendment right caused by institution’s requirement that

meetings with counsel be non-contact ones, where detainee’s counsel “vividly described the

22 The Joe Corley facility, where Mr. Stanford was confined for the first 3.5 months of his detention, was approximately 50 miles away from his attorneys’ offices in downtown Houston and sometimes took counsel as much as 2 hours to reach by car. See Declaration of Mr. Dick DeGuerin, previously submitted to this Court and incorporated herewith as Exhibit “K”, pg.1.


23

volume of documents they must review with their client during a typical meeting and the lengthy

and burdensome process entailed by the requirement that this review be conducted through a

screen with two sets of documents, rather than side by side,” and “repeatedly emphasized that the

time lost through this cumbersome procedure was impairing their ability to prepare for trial”).23

2. The accused has a right to personally assist counsel in the preparation of his defense.

The Sixth Amendment right to the assistance of counsel, moreover, includes not only the

right to have counsel but also the critical right to personally assist counsel in the preparation of

the accused’s defense. “[A]ny consultation with counsel is rendered meaningless unless the

defendants and their attorneys have an opportunity to review the evidence.” United States v.

Medina, 628 F.Supp.2d 52, 54 (D.D.C. 2009)(emphasis added). In Medina, the court ordered the

institution to follow specified procedures “to ensure that the pretrial detainees in this case are

receiving access to counsel and discovery” because the evidence in the case consisted of

hundreds of recorded conversations and hundreds of pages of Spanish-language documents, and

the court found that “defendants were not being afforded adequate opportunities to review

discovery and meet with their lawyers.”24 See Gonzales Claudio, 806 F.2d at 342 (“some interval

of time is required for the defendants and their counsel to review [wiretap transcripts] both for

trial preparation and for making challenges to the admissibility of such materials”(emphasis

added)).

23 Mr. Stanford’s attorney visits were subject to similar restrictions during his incarceration at the Joe Corley detention facility. See Exhibit “K”, DeGuerin Declaration. 24 Between the time of the Report and Recommendation and the district court’s ruling, improvements had been made in detainee’s ability to consult with counsel, and the district court denied his petition for relief. Basciano v. Lindsay, 530 F.Supp.2d 435 (E.D.N.Y. 2008), aff’d 316 Fed. Appx 50 (2d Cir. 2009).


24

It is now only eight months until trial, and the task faced by Mr. Stanford and his counsel

in being prepared for trial by its scheduled date is of astronomical proportion.25 Indeed, in

ordering Mr. Stanford’s transfer to the FDC, the Court recognized “the extraordinary nature and

complexity of this case, the extent and gravity of the charges against Stanford, the hundreds of

thousands of records involved, and the enormous amount of time no doubt necessary to review

those documents and adequately prepare a defense.” Order, Doc. 133, at 2-3. This case involves

not hundreds of thousands of pages of material which has been or in the future will be provided

in discovery, but millions – currently more than 8 million. Unless Mr. Stanford can personally

review the necessary portions of the discovery materials and have unimpeded access to his legal

defense team to help guide them in the discovery materials, his rights to a fair trial and to the

effective assistance of counsel will be essentially nonexistent. That review and the attendant

consultation with counsel regarding the reviewed discovery cannot be accomplished while Mr.

Stanford remains incarcerated, even with the somewhat ameliorated procedures to which, after

discussions with Mr. Stanford’s counsel, the FDC agreed on April 21, 2010. See page 28, infra.

Only the release of Mr. Stanford on the stringent conditions proposed can turn the impossible

into the possible.

The enormous task of preparing for trial has been further impeded by the deterioration in

Mr. Stanford’s mental health caused by his confinement which has dramatically reduced his

ability to work with counsel in reviewing documents and preparing his defense. In his

Declaration, Dr. Nguyen, who is both an attorney and a M.D., with a Master’s of Science in

Finance, describes Mr. Stanford’s condition when they first met on February 12, 2010:

25 The extraordinary difficulties faced by Mr. Stanford in preparing for trial in the criminal case is substantially exacerbated by the fact that, at the same time he is preparing for the criminal trial, he must also prepare for trial of the civil cases before Judge Atlas, scheduled to begin in September, 2010. See Exhibit “A”, Scarano Declaration, attachment “B”, Letter to Mr. Bennett and Mr. Essmyer dated April 25, 2010, pg. 4.


25

physically and mentally exhausted, malnourished and underweight, slow in his gait, broad motor

movements, speech, and thoughts, with observed difficulty in reading and near vision in his right

eye, which was observed to have caused him to have to pause frequently while reading or writing

because of severe headaches over his right forehead, effects presumably attributable to the brutal

beating inflicted on him at the Joe Corley Detention Center and major surgery on his right orbital

structure.26

Debilitated as he was then, Mr. Stanford’s cognitive functioning and mental health have

markedly deteriorated since February 2010; his short, intermediate, and long-term memory has

worsened and his mental anxiety and depression have increased.27 Mr. Stanford experiences

“mental black holes” which occur when he is awake and aware but cannot remember anything

and is disoriented mentally and physically. Dr. Nguyen has witnessed a number of such episodes,

which have been occurring with greater frequency and greater duration as time goes on.28 Other

legal personnel, such as, attorney Ms. Ashley Tse and legal assistant Ms. Evelyn Saravia, have

witnessed similar episodes.29 Prison medical personnel have placed Mr. Stanford on seven

different types of physical and psychotropic medications, which have significantly affected Mr.

Stanford’s mental acuity and responsiveness while doing little to alleviate his major depressive

26 See Exhibit “B”, Nguyen Declaration at 1. 27 See Exhibit “A”, Scarano Declaration, attachment “C”, Dr. Ducker’s report; Exhibit “B”, Nguyen Declaration at 2; Exhibit “D”, Tse Declaration at 2; Exhibit “E”, Saravia Declaration at 3-6; Exhibit “F”, Hefele Declaration at 2; Exhibit “J”, Parish Declaration at 2. 28 See Exhibit “B”, Nguyen Declaration at 2. 29 See Exhibit “D”, Tse Declaration at 2; Exhibit “E”, Saravia Declaration at 3 stating:

“Although he is able to retain some information, he repeats himself constantly. He forgets too many things that are trivial; he simply forgets too much for a man who used to have a total recall of events and places. Although he almost always remembers my name and who I am, he has missed recalling some of my colleagues’ names, whom he meets with often. He could be in the middle of a sentence, making perfect sense, and all-of-a-sudden would pause, starring at the wall with a lost look on his face, and unable to continue with his statement because he had forgotten what he was trying to say. He would also forget setting up meetings with people even if set from one day to the next.”


26

disorder and anxiety.30 Mr. Stanford’s ability to assist counsel in the preparation of his defense is

further exacerbated by his inability to sleep and the mirtazapine and clonazepam prescribed to

help him sleep: if he does not take the medications, his lack of sleep will render him effectively

nonfunctional and if he does take the medication, as he has chosen to do, he can sleep, but the

medications “hinder mental function acuity causing problems with memory, concentration and

mental sharpness.”31 In other words, whichever choice Mr. Stanford makes – medication or no

medication – will result in his sharply diminished ability to review the discovery documents and

otherwise assist counsel in the preparation of his defense. In Dr. Scarano’s opinion:

Mr. Stanford’s physical and mental health is continuing in a downhill course which will end in his complete collapse physically and mentally the longer he is kept incarcerated at the FDC. Thus, in my opinion to a reasonable degree of medical certainty, in his present mental and physical state, Mr. Stanford is not capable of properly preparing for trial either in September 2010 before Judge Atlas nor in January 2011 before Judge Hittner. 32

It is essential to the preparation of Mr. Stanford’s defense that he be able to review these

millions of applicable discovery documents personally and that he have the mental acuity and

cognitive clarity essential to that review. Many of the reasons why this is so have been

addressed at pages 17-26 of Mr. Stanford’s Changed Circumstances Reconsideration Motion,

and that discussion is incorporated by reference herein. At the heart of this case are a myriad

complex financial transactions, and Mr. Stanford’s personal review of the documents is crucial to

counsel’s understanding of the voluminous financial and business records provided in discovery.

As Dr. Nguyen states:

The complexities of the case involve a multinational conglomeration of multiple numbers of business entities worldwide with thousands of employees, tens of thousands of

30 See Exhibit “B”, Nguyen Declaration at 2. 31 See Exhibit “A”, Scarano Declaration, attachment “B”, Letter to Mr. Bennett and Mr. Essmyer dated April 25, 2010 at 2. 32 See Exhibit “A”, Scarano Declaration at 6-7; Exhibit “A”, Scarano Declaration, attachment “B”, Letter to Mr. Bennett and Mr. Essmyer dated April 25, 2010 at 5.


27

domestic and international clients, clients’ accounts aggregated into over billions of dollars in assets, and hundreds of thousands of financial transactions conducted routinely. Mr. Stanford has intimate knowledge of the inner workings, interrelationships, and complexity of the multinational corporations he helped found and build over a thirty year career. Mr. Stanford’s contribution and unfettered access to his criminal defense team in the discovery process and trial preparation strategy are an absolute necessity for his counsel to adequately prepare for trial. Mr. Stanford’s acute, stable and coherent mental and emotional well-being are critical to the understanding of Mr. Stanford’s businesses that is currently the subject of his indictment.33

The discovery documents are not self-explanatory and are difficult or even impossible to

understand without the guidance of Mr. Stanford, with his detailed knowledge of the workings of

the worldwide Stanford-related companies. Mr. Stanford can, for example, call counsel’s

attention to documents which are of significance to the defense which counsel might otherwise

have deemed of no moment. He can explain to counsel the context of the various documents and

what they mean in that context, as well as the relationships between various transactions and

businesses, which counsel may be unable to discern without Mr. Stanford’s direct guidance and

assistance. This is far from a comprehensive list of all the many areas in which counsel require

assistance which Mr. Stanford cannot provide them while he is incarcerated.

3. Release is essential to the preservation of Mr. Stanford’s Brady rights.

Critically, if Mr. Stanford were released, his review of the documents will enable him to

identify for counsel exculpatory evidence the significance of which they could not have

recognized without his assistance. Such assistance is particularly crucial in this case, where the

government appears to be relying on an “open file” discovery process to meet its Brady

obligations. This case is dispositively different from United States v. Skilling, 554 F.3d 529 (5th

33 See Exhibit “B”, Nguyen Declaration at 3.


28

Cir. 2009), cert. granted, 130 S.Ct. 393 (2009),34 in which the Fifth Circuit ruled that the

government had satisfied its Brady obligations through open-file discovery because:

the government did much more than drop several hundred million pages on Skilling's doorstep. The open file was electronic and searchable. The government produced a set of “hot documents” that it thought were important to its case or were potentially relevant to Skilling's defense. The government created indices to these and other documents. The government also provided Skilling with access to various databases concerning prior Enron litigation. Id. at 577.

Most importantly, Skilling was released pretrial and was accordingly able to personally use the

searchable databases provided by the government to assist his legal defense team. Here, in sharp

contrast, Mr. Stanford is incarcerated under highly restrictive conditions and has been repeatedly

denied Internet access,35 the only means through which he could efficiently and effectively

search and review the massive quantity of documents involved on an Internet-only searchable

database. There is no possibility that Mr. Stanford can review the huge volume of documents

involved for exculpatory evidence while he remains incarcerated. In short, the “open file/search

for yourself” method of complying with Brady which narrowly satisfied the appellate court in

Skilling is inapplicable here when the key to the defense team – the defendant himself – is denied

the very search tools that were essential to the constitutionality of the government’s Skilling

methodology, as well as being denied the ability, crucial to the preparation of his defense, to

meet daily with his entire legal defense team and to make all the myriad telephone calls essential

to communication with persons critical to the preparation of his defense.

4. Recent institutional ameliorations in Mr. Stanford’s ability to assist his counsel in preparing his defense do not suffice to cure the ongoing Sixth Amendment violation.

34 The issues before the Supreme Court are wholly unrelated to the Brady issue.

35 See Mr. Stanford’s cop-out requests for Internet access and Warden Driver’s denial on three occasions and Order from Judge Hittner denying Internet access, submitted herewith as Exhibit “L”.


29

On April 21, 2010, after discussions of the problems with Mr. Stanford’s counsel, the

FDC finally agreed to compromise on some of its restrictions on Mr. Stanford to permit him to

have, inter alia, access to a computer, a larger quantity of documents in his cell, attorney visits

outside of normal visiting hours, and greater law library access. While such changes will no

doubt be helpful, they do not suffice to ensure that Mr. Stanford can adequately review the

discovery and assist his counsel in the preparation of his defense, including the identification of

exculpatory evidence, in the very short time remaining before trial. Even under the newly

negotiated conditions, Mr. Stanford is limited to carrying no more than a ream of paper to and

from his cell and to approximately three cubic feet of non-secure storage space in his cell; and he

cannot have paper clips, alligator clips, or any means of document organization other than red

rope accordion files. His documents remain subject to inspection by prison officers, who take it

upon themselves to determine what is and is not protected by the attorney-client privilege.36 Mr.

Stanford is forced to sit in the same glassed enclosed room in the same chair in the same position

of the room for each and every attorney or staff visit, unable to change positions or rooms despite

their availability and despite instances that would prohibit productive trial preparation.37 Most

critically, the FDC still continues to deny Mr. Stanford the one tool he most needs: Internet

access. Mr. Stanford has effectively exhausted his administrative remedies and still remains

without critically-needed access to the government’s Internet-only searchable database. Given

the monumental complexity of the case and the extraordinary voluminosity of the discovery,

there is no condition of confinement which will allow Mr. Stanford to provide the critical

assistance needed by his defense team in preparing for trial.

36 See Exhibit “B”, Nguyen Declaration at 5; Exhibit “D”, Tse Declaration at 3; Exhibit “E”, Saravia Declaration at 3-6; Exhibit “F”, Hefele Declaration at 2-3; Exhibit “L”, Cop-out and Court denial of Internet. 37 See Exhibit “E”, Saravia Declaration at 5-7; Exhibit “F”, Hefele Declaration at 2-3; Exhibit “J”, Parish Declaration at 1.


30

With only eight months remaining until trial and with the demands of document review

being inextricably intertwined with the ability to search through mountains of material using the

instruments of modern technology, Mr. Stanford, now, for the first time, has limited access to a

computer with restrictive conditions enforced by the FDC. These restrictions require the

computer to be brought in and removed after each meeting with Mr. Stanford’s legal defense

team. Computer access will not, however, permit him to search through the millions of pages

involved because of his continued confinement without Internet access and because the method

selected by the government for providing pretrial discovery requires Internet access.38 By itself,

this denial deeply and adversely impacts the defense’s ability to prepare and Mr. Stanford’s

ability to review the very evidence that the government will rely on in its prosecution of him.39 If

he is to have any chance of preparing for trial, Mr. Stanford must immediately be allowed the

ability to meet with his entire legal defense team in a nonrestrictive and productive environment,

which cannot and will not occur so long as he remains incarcerated.

C. Speedy Trial Considerations Are Also Relevant to the Due Process Inquiry.

The Speedy Trial Act requires that the trial of detained defendants be commenced within

90 days, 18 U.S.C. §3164(b); once that 90-day period has expired, the defendant may no longer

be held in custody. 18 U.S.C. §3164(c). Indeed, in the debate on the preventive detention

provisions of the Bail Reform Act, the Senate was assured that 90 days was the “worst case

limit,” 130 Cong. Rec. S941 (statement of Senator Thurmond) and the “upper bound” of pretrial

detention, 130 Cong. Rec. S943 (statement of Senator Laxalt), and that because of the 90-day

limit “no defendant will be detained indefinitely while the processes of justice grind to a

38 See Exhibit “B”, Nguyen Declaration at 4; Exhibit “I”, Coons Declaration at 2; Exhibit “L”, Cop-out and Court denial of Internet. 39 Internet access at the FDC alone will not suffice to remedy the problems that Mr. Stanford face with trying to review discovery.


31

halt.”130 Cong. Rec. S945 (statement of Senator Grassley). Notably, one of the factors on which

the Salerno Court relied in upholding the constitutionality of the detention provisions of the Bail

Reform Act was that “the maximum length of pretrial detention is limited by the stringent time

limitations of the Speedy Trial Act.” Salerno, 481 U.S. at 747. See S. Rep. No. 98-225, 98th

Cong., 1st Sess. 1983, reprinted in 1984 U.S.C.C.A.N. 3182, 22 n.73 (§3164 “specifically

requires that priority be given to a case in which a defendant is detained, and also requires that

his trial must, in any event, occur within 90 days, subject to certain periods of excludable delay,

such as for mental competency tests. These current limitations are sufficient to assure that a

person is not detained pending trial for an extended period of time”); United States v. Orena,

986 F.2d 628, 630 (2d Cir. 1993) (“Congress rejected any specific time limit under the Bail

Reform Act for detention pending trial, relying instead upon the Speedy Trial Act”).

While §3164(b) also provides that exclusions under §3161(h) are applicable to the

computation of elapsed time, it is likely that Congress “did not fully appreciate just how long

pretrial detention might last under the exclusions of the Speedy Trial Act.” United States v.

Melendez-Carrion, 790 F.2d 984, 996 (2d Cir. 1986). As we have come to know in the 23 years

since Salerno was decided, because of its many exclusions and the availability of “ends of

justice” continuances, the Speedy Trial Act, as its facial wording has been read and as it has been

construed by the courts, in many cases provides almost no protection from extended periods of

detention beyond the 90-day limit before the defendant is even afforded a trial, even though it

appears to have been Congress’ intent and belief that it actually would provide meaningful

protection from prolonged periods of pretrial detention. There is also no indication that

Congress, in enacting the Bail Reform Act, considered the possibility that non-dangerous white-


32

collar defendants would be incarcerated pretrial in huge, complex cases, such as this case,

involving millions of pages of discovery that can only be searched with Internet access, and the

attendant Sixth Amendment deprivations.40

Mr. Stanford has now been in custody for 335 days as of May 18, 2010, a number

obviously well beyond 90 days. None of the stoppages of the speedy trial clock has been related

to the merits of the government’s case or even to evidentiary issues. No substantive pretrial

motions such as motions to suppress or dismiss have yet been filed. The motions which have

been filed to date largely concern matters separate from the merits of the case, such as motions

relative to bail, counsel, conditions of detention, and legal fees. While Mr. Stanford appealed the

Court’s detention decisions to the Court of Appeals, those appeals were ancillary to the criminal

proceedings and did not delay the course of the criminal proceedings in any way, unlike

interlocutory appeals filed by the government to challenge the granting of motions to suppress or

the exclusion of evidence. While Mr. Stanford signed a waiver of his right to be tried within the

time limits set forth in the 1980 Plan for the United States District Court for the Southern District

of Texas for Prompt Disposition of Criminal Cases, which establishes the same 70 and 90-day

limits as does the Speedy Trial Act and §3164, it has been firmly established that a defendant

cannot prospectively waive his right to a speedy trial under the Speedy Trial Act, as not only are

40 Notably Bernie Madoff, who ultimately pled guilty to his allegations, was allowed to remain free on conditions for many months at the outset of his case despite facing serious charges that ultimately resulted in the equivalent of a life sentence. Other examples include Richard Scrushy, CEO of HealthSouth, who was charged in the Northern District of Alabama with fraud in excess of $1 billion and other offenses and was released on conditions. United States v. Scrushy, No. 03-cr-530 (N.D. Ala). Also released on conditions were Kenneth Lay and Jeffrey Skilling, President and CEO of Enron, who were charged in 2004 in the Southern District of Texas with fraud involving tens of billions of dollars, as well as other offenses. United States v. Skilling and Lay, No. 04-CR-25 (S.D. Tex). Bernard Ebbers, CEO of WorldCom, who was charged in 2003 in the Southern District of New York with fraud involving approximately $11 billion was also released on conditions, United States v. Ebbers, No. 02-cr-1144 (S.D.N.Y.), as was John Rigas, founder of Adelphia Communications, who was charged in 2002 in the Southern District of New York with fraud involving $2.3 billion and other offenses. United States v. Rigas, No. 02-cr-1236 (S.D.N.Y.).


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the defendant’s interests at stake but also the public’s interest in prompt trials of criminal

defendants. Zedner v. United States, 547 U.S. 489, 500-03 (2006).

Continued pretrial detention of a presumed-innocent defendant creates an

unconstitutional tension, which forces a detainee to choose between the effective assistance of

counsel guaranteed by one clause of the Sixth Amendment (which prior counsel estimated would

require until the summer of 2011 to achieve)41 and the speedy trial right guaranteed by another

clause of the Sixth Amendment. See Barker v. Wingo, 407 U.S. 514 (1972). The tension is a

constitutionally intolerable one, see, e.g., Simmons v. United States, 390 U.S. 377, 393-94

(1968)(defendant cannot be forced to choose between asserting Fourth Amendment rights

through motion to suppress and his Fifth Amendment right against self-incrimination); United

States v. Scott, 909 F.2d 488 (11th Cir. 1990)(trial court improperly compelled defendant to

choose between his right to counsel and his right to testify), thus compounding the punishment

aspects of Mr. Stanford’s pretrial confinement.42

It is even more intolerable that, under the circumstances of this case, Mr. Stanford cannot

demand his constitutional Sixth Amendment right to a speedy trial for the overriding reason that

his lawyers, through no fault of his or theirs, are far from ready to try this case due to a

combination of circumstances, including the positions taken by the insurance company, which is

obligated to pay for Mr. Stanford’s defense, and the SEC receiver, who has seized and is

41 See Tr. 12/17/09 at 22, submitted herewith as Exhibit “M”. 42 There is also an intolerable tension between the Bail Reform Act and the Speedy Trial Act. The Bail Reform Act plainly contemplated that detained defendants would be afforded speedy trials, yet under the strict letter of the Speedy Trial Act, motions, hearings, and appeals relating to detention or release would arguably be excluded from the 90-day §3164 clock and the 70-day §3161 clock, with the anomalous result that defendants seeking to maintain or re-obtain their freedom would, if their efforts were unsuccessful, be subjected to a longer period of pretrial detention. In other words, a defendant asserting his fundamental right to freedom would be deprived of that right for longer than he would have been had he acquiesced to his loss of liberty. Such a result is manifestly inconsistent with the spirit of the Bail Reform Act and Congress’ expectation that its passage would not result in extended detention beyond the 90-day limit.


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liquidating all of Mr. Stanford’s personal and corporate assets. A devastating consequence of Mr.

Stanford’s having been detained pretrial is that he, without waiving any of his speedy trial rights,

has been and continues to be forced to suffer the truly draconian rigors of the conditions of his

pretrial incarceration while being unable to seek to alleviate his suffering, both personal and with

respect to the preparation of his defense, by asking the Court for a speedy trial.

D. The Eighth Amendment Prohibition of Excessive Bail Also Plays an Important Role in the Inquiry.

The Eighth Amendment guarantees criminal defendants that “[e]xcessive bail shall not be

required.” “The test for whether bail is excessive under the Eighth Amendment is whether ‘the

Government's proposed conditions of release or detention [are] “excessive” in light of the

perceived evil.’” Broussard v. Parish of Orleans, 318 F.3d 644, 651 (5th Cir. 2003), quoting

Salerno, 481 U.S. at 754. To determine whether the government’s response is excessive,

we must compare that response against the interest the government seeks to protect by means of that response. Thus, when the government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more.

Salerno, 481 U.S. at 754-55, citing Stack v. Boyle, 342 U.S. 1 (1951). Here, the only “evil”

perceived by the government is a risk of flight. As addressed in the previous sections of this

motion, there are conditions which will amply assure Mr. Stanford’s appearance as required.

Accordingly, pretrial detention of Mr. Stanford is excessive within the meaning of the Eighth

Amendment.

II. THE COURT CAN AVOID THE CONSTITUTIONAL ISSUES BY RELEASING MR. STANFORD UNDER THE STRINGENT CONDITIONS PROPOSED.

The Court need not grapple with the grave constitutional issues presented by years of

preventive confinement imposed on a presumptively innocent man at the very time he must


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prepare his defense. The constitutional issue must only be reached if there exists an actual

conflict between Mr. Stanford’s constitutional rights and the government's interest in securing

his presence for trial, i.e., when §3142 can be applied in a manner that avoids constitutional

violation of Mr. Stanford’s rights, it must be so applied. There is, however, no such conflict in

this case, as Mr. Stanford’s appearance at trial can be assured by this Court’s imposition under

§3142 of the conditions which he has proposed, which would both assure his appearance as

required and also make it possible for him to meaningfully assist in the preparation of his

defense. See United States v. Infelise, 934 F.2d 103, 105 (7th Cir. 1991)(finding no due process

violation under standard materially different from that of the Fifth Circuit but remanding to

district court to consider under §3142 defendant’s electronic monitoring proposal to determine

whether, as the statute requires, there was in fact a less restrictive condition than detention, a

statutory mandate that “must be satisfied regardless of constitutional requirements”).

CONCLUSION

Detention is a rarity in cases alleging white collar fraud, and defendants who are facing

just as serious charges as Mr. Stanford and who, unlike Mr. Stanford, have both the resources

and the incentive to flee, and the contacts to enable them to do so are, nonetheless, generally

released on conditions which will reasonably ensure their appearance. Many high-profile white

collar defendants, with vast resources and international businesses and contacts have been

allowed to remain free on conditions for many months at the outset of their cases despite the fact

that they faced serious charges, which could have resulted in the equivalent of a life sentence.

Given the proposed conditions which would both assure Mr. Stanford’s presence as

required and permit Mr. Stanford to truly assist in the preparation of his defense by closely


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working with his entire legal defense team to prepare for trial, this case should not be one of the

rare exceptions. In contrast to the Government’s argument for detention, supra at pg 9, Mr.

Stanford has neither the means to flee (as the court declared him an indigent on September 15,

2009); nor the motive to flee as he is determined to fully contest the charges against him; and,

under the proposed conditions, he will certainly not have the opportunity to flee. For all the

reasons previously addressed, Mr. Stanford should be released on the proposed conditions or the

indictment should be dismissed because of the inevitability of the extraordinarily severe

violations of Mr. Stanford’s due process, effective assistance of counsel, and speedy trial rights

guaranteed by the Fifth and Sixth Amendments to the United States Constitution.

Respectfully submitted,

___/s/_Robert S. Bennett___ ROBERT S. BENNETT Federal ID. No. 465 TBA No. 02150500 BENNETT NGUYEN JOINT VENTURE 515 Louisiana St. Suite 200 Houston, TX 77009 713.225.6000 713.225.6001 (FAX) Attorney for Defendant, ROBERT ALLEN STANFORD ALAN M. DERSHOWITZ ON BRIEF-AS CONSULTANT ON LEGAL ISSUES ONLY 26 Reservoir St. Cambridge, MA 02138 MARTIN G. WEINBERG ON BRIEF-AS CONSULTANT ON LEGAL ISSUES ONLY 20 Park Plaza, Suite 1000 Boston, MA 02116


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CERTIFICATE OF SERVICE

I hereby certify that on May 18, 2010, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system, which will send notification of such filing to all

registered parties. However, some of the exhibits contained are filed under seal and will be

conventionally served to AUSA Greg Costa and the Court May 19, 2010.

__/s/ Robert S. Bennett____ ROBERT S. BENNETT


051810 Stanford Motion to Dismiss

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Transcript of 051810 Stanford Motion to Dismiss