Free Memorandum in Opposition - District Court of California - California

Case 4:08-cr-00064-CW

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Filed 01/25/2008

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BARRY J. PORTMAN Federal Public Defender JEROME E. MATTHEWS Assistant Federal Public Defender 555 - 12th Street Suite 650 Oakland, CA 94607-3627 Telephone: (510) 637-3500 Counsel for Defendant CHAD HOLSTE

6 7 8 9 10 11 12 13 14 15 16 17 1. Preliminary Statement 18 The government claims that postings on Chad Holste's MySpace webpage are tantamount 19 to clear and convincing evidence that he is so dangerous that no conditions would assure the 20 safety of the community. Mr. Holste suggests that the government's evidence, wholly unrelated 21 to the charged federal offense, shows nothing of the sort and that the agreed conditions of Mr. 22 Holste's release satisfy the provisions of the Bail Reform Act. He therefore requests that the 23 Court release him from custody. 24 2. Argument 25 Mr. Holste does not contest that the postings cited by the government appear on his web 26
OPP TO STAY OF REL ORDER

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) ) vs. ) ) CHAD HOLSTE, ) ) Defendant. _____________________________________ )

No. CR-04 08 70022 WDB CHAD HOLSTE'S OPPOSITION TO EMERGENCY MOTION TO STAY RELEASE ORDER PENDING RECONSIDERATION Date: January 28, 2008 Time: 10:00 a.m. Courtoom: 4

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page. But what, if anything, do they signify? Some are provocative, some are mere observations of the human condition, and all appear to be stream-of-consciousness. Notably, Mr. Holste had been listening to a popular band called "Manowar" at the time of the latest posting, and specifically an album called "Warriors of the World." The album seems to focus on a universal and familiar theme: young adults rebelling against authority. That the album's sentiments may have inspired some non-specific, random musings by Mr. Holste scarcely rises to the level of clear and convincing evidence that he is a danger to the community such that the present conditions of his release are inadequate. A bail hearing obviously is not a criminal trial, and Mr. Holste does not suggest that a trial's limitations are applicable here. Nonetheless, the government is treading perilously close to First Amendment concerns when it states that thoughts Mr. Holste has chosen to share with his MySpace community betray danger to the community at large. To paraphrase Judge Kleinfeld's thoughtful dissent in United States v. Curtin, 489 F.3d 935 (9th Cir. 2007), in which defendant was convicted of traveling across state lines to have sex with a minor and reading material was introduced to prove his intent: Our freedom to read and think requires a high wall restricting official scrutiny. . . . [Defendant]'s stories are not a how-to manual. They are fantasy. Fantasy is not reality. . . . Barring exceptional circumstances, such as instructions on how to commit a crime otherwise hard to accomplish, used against one who accomplished it, what people read or fantasize about should not be used to prove what they intend to do. Curtin, 489 F.3d at 961 (Kleinfeld, Pregerson, Kozinski, Thomas and Berzon, JJ.,

20 dissenting). 21 Mr. Holste also notes that the proffered "evidence" is unrelated to the charged conduct. 22 At least one court has held that the government's allegation of danger must relate to the federal 23 case, not some abstract notion that the defendant is dangerous. See United States v. Ploof, 851 24 F.2d 7, 11 (1st Cir. 1988) ("[w]e do not think that the provisions of the Bail Reform Act were 25 meant to be invoked [for matters] unconnected to the federal proceeding that has given rise to 26
OPP TO STAY OF REL ORDER

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defendant's bail hearing."). The Court has imposed a number of stringent conditions upon a young college student who not only has no criminal history but also has parents who have pledged their home and promised to act as his custodian. These conditions include electronic monitoring of his movements, preventing his access to firearms, and mental health counseling. The Bail Reform Act requires no more than this. For these reasons, Mr. Holste respectfully requests that the Court release him under the conditions to which the parties previously agreed.

Dated: January 25, 2008 Respectfully submitted, BARRY J. PORTMAN Federal Public Defender /S/

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OPP TO STAY OF REL ORDER

JEROME E. MATTHEWS Assistant Federal Public Defender

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