Document 21-cr-00249

combination of conditions, that will reasonably assure Mr. Robertson's appearance and the safety of any person and the community. His pretrial release is therefore required by 18 U.S.C. § 3142(e). III. Mr. Robertson's Release is Necessary for the Preparation of His Trial Defense Under 18 U.S.C. § 3142(i). The Court additionally finds that Mr. Robertson's release is necessary for the preparation of his trial defense under 18 U.S.C. § 3142(i). That section allows a judicial officer who issued an order of detention to, by subsequent order, "permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason." § 3142(i).3 The defendant bears the burden of establishing their entitlement to temporary release under § 3142(i). United States v. Clark, 448 F. Supp. 3d 1152, 1155 (D. Kan. 2020) (citation omitted). Courts considering whether pretrial release is necessary for the preparation of the person's defense have considered: "(1) [the] time and opportunity the defendant has to prepare for the trial and to participate in his defense; (2) the complexity of the case and volume of information; and (3) expense and inconvenience associated with preparing while incarcerated." United States v. Boatwright, ---F. Supp. 3d---, No. 2:19-CR-00301-GMN-DJA, 2020 WL 1639855, at *4 (D. Nev. Apr. 2, 2020) (unreported) (citations omitted). Here, all of those factors weigh in favor of release. Because Mr. Robertson's trial will be reset for April 5, 2021, he and his defense team have only two months left to prepare. 3 While the Court recognizes that Magistrate Judge Briones is the judicial officer that issued Mr. Robertson's initial order of detention, this matter is before the Court on Mr. Robertson's request that the Court review that detention order under 18 U.S.C. § 3145(b). See Doc. 274 at 1. The Tenth Circuit has not yet ruled on whether a request for temporary release under 18 U.S.C. § 3142(i) can only be decided by the Magistrate Judge that issued the initial order of detention. See United States v. Alderete, 336 F.R.D. 240, 268 (D.N.M. 2020). But at least one other federal district court has recently considered and granted pretrial release under that section. See United States v. Stephens, 447 F. Supp. 3d 63, 66-68 (S.D.N.Y. 2020) (Nathan, J.); but see Alderete, 336 F.R.D. at 268. 11 DOJ-OGR-00020219 --- PAGE BREAK --- Complicating matters further is the fact that both of Mr. Robertson's initial defense attorneys have recently withdrawn from the case, and both of his current attorneys have been appointed within the past six months (one in the last three weeks). The defense team therefore has a considerable amount of catching up to do in a very short amount of time, and defense counsel need to immediately begin meeting with Mr. Robertson on a regular basis. The case is also complex and exceedingly serious. The government has named 24 witnesses on its most recent witness list [Doc. 104] and the Court has issued upwards of 30 written orders over the past three years of contentious pretrial litigation in this case. And if Mr. Robertson is convicted on all charges, he will be facing decades in prison: according to his Form 13 PSR, Mr. Robertson's effective guidelines range would be a staggering 412 to 485 months of imprisonment, or approximately 34 to 40 years. See Doc. 188 at 15. Finally, defense counsel explained at the recent pretrial conference that it will be impossible for them to effectively prepare the case for trial with Mr. Robertson in custody under the current lockdown conditions due to COVID-19. In normal times, defense counsel can meet with their clients face to face in meeting rooms at the jails, where they can review discovery and do other critical trial preparation. Now, however, if the jails are allowing in-person client meetings at all, it is with the defendants separated from their counsel by a screen, making it nearly impossible to effectively review documentary evidence. And while defense counsel represented that the Santa Fe County Detention Center is allowing video meetings by Zoom, it is hard to schedule Zoom time due to the limited number of computer facilities at the jail and the number of parties vying for them (including this Court). Defense counsel also represented that while the Zoom meetings have been helpful, the Detention Center has not allowed them to show Mr. Robertson documents by sharing their screen, requiring counsel to instead hold the documents up to their computer's camera in the --- PAGE BREAK --- hopes that Mr. Robertson can see them that way. This is no way to prepare for a trial. The defense team needs to be able to meet with Mr. Robertson in person, unobstructed by metal bars or a plexiglass barrier, to do the critical and time-consuming work of reviewing discovery, evidence, and exhibits; discussing trial strategy; and making the countless decisions which individually and collectively can make the difference between a verdict of guilty and not guilty. Mr. Robertson’s attorneys also need unobstructed access to him to build the trust and confidence they need to effectively defend him at trial. They need to meet with him for as long as they need to, as frequently as they need to, every day if necessary. They cannot be at the mercy of the jail and its fluctuating visitation policies due to COVID-19. As the past twelve months have taught us, our prisons and jails are at constant risk of severe outbreaks, which at times have required multi-week lockdowns to ensure the safety of the staff and inmates. The defense also cannot be at the mercy of the Court or the United States Marshals Service because our policies have been in constant flux as well. None of this will provide Mr. Robertson the opportunity at a fair trial that he deserves and to which he is constitutionally entitled. Nor can he be made to sit in jail indefinitely, awaiting trial as a legally innocent man, until it is safe and practically possible for his attorneys to meet with him there. The status quo is no longer acceptable, and Mr. Robertson’s release is necessary for the preparation of his defense. § 3142(i). IV. The Government Has Not Demonstrated Its Entitlement to Reconsideration or a Stay. Finally, the Court is not persuaded by the government’s request for reconsideration or a stay pending appeal. See Doc. 298. In asking the Court to reconsider its order granting Mr. Robertson pretrial release, the government represents that it has obtained two new pieces of information following the pretrial conference at which the Court informed the parties of its release --- PAGE BREAK --- decision. First, the government represents that, per the United States Marshal's Service, "the interview room at the courthouse can be made available for [Mr. Robertson] to meet with his attorneys to prepare for trial, for unlimited meetings and unlimited durations of meetings during business hours, excepting only times when the Aspen courtroom is in use." Doc. 298 at 2. There is a catch, however: "There is a screen in the interview room, which will allow for appropriate social distancing between [Mr. Robertson] and his lawyers." Id. Second, the government represents that "the Santa Fe jail is willing to provide an exception to the policy barring in-person attorney visits, and will work to accommodate in-person visits between Robertson and his attorneys." Id. While the Court appreciates the government's effort in gathering information on these alternatives, they do not change its decision on release. First, the Court notes that the government could have, and should have, presented this information earlier if it wanted the Court to rely on these alternatives to deny release. Mr. Robertson filed his motion for reconsideration on December 21, 2020. Doc. 274. The government had a month and a half to investigate alternatives and make its argument against release. It cannot wait until an unfavorable ruling to present additional evidence that it was capable of presenting in the first instance. A motion for reconsideration is for presenting new evidence that was "previously unavailable." Servants of Paraclete, 204 F.3d at 1012. Second, the proposed alternatives are inadequate to address the trial preparation concerns the Court has articulated. The proposal to use the interview room at the Santa Fe courthouse is inadequate because the room, by the government's own description, will still contain a "screen" between Mr. Robertson and his attorneys. For all of the reasons set forth above, the defense team cannot effectively prepare for trial if they cannot sit next to Mr. Robertson and go over documents