Filed: Oct. 15, 2012
Latest Update: Feb. 12, 2020
Summary: Case: 12-10029 Date Filed: 10/15/2012 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10029 _ D.C. Docket No. 0:11-cr-60273-WPD-3 UNITED STATES OF AMERICA, lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee, versus DAVID CLUM, JR., llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (October 15, 2012) Before HULL and BLACK, Circuit Judges
Summary: Case: 12-10029 Date Filed: 10/15/2012 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10029 _ D.C. Docket No. 0:11-cr-60273-WPD-3 UNITED STATES OF AMERICA, lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee, versus DAVID CLUM, JR., llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (October 15, 2012) Before HULL and BLACK, Circuit Judges,..
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Case: 12-10029 Date Filed: 10/15/2012 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10029
________________________
D.C. Docket No. 0:11-cr-60273-WPD-3
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
DAVID CLUM, JR.,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 15, 2012)
Before HULL and BLACK, Circuit Judges, and GOLDBERG,* Judge.
PER CURIAM:
*
Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
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Defendant David Clum, Jr., appeals the district court’s pretrial detention
order after being indicted for various offenses related to tax fraud. After review of
the briefs on appeal and consideration of the record, we affirm.
I. BACKGROUND
A. The Indictment
Defendant Clum and several codefendants were indicted in the Southern
District of Florida on one count of conspiring to defraud the United States, in
violation of 18 U.S.C. § 286, and forty-one counts of making false claims, related
to a scheme to file fraudulent tax returns, in violation of 18 U.S.C. § 287.
Defendant Clum was a principal in PMDD Services. The indictment alleged that
Clum and his codefendants operated a scheme, primarily through PMDD Services,
to help taxpayers obtain fraudulent tax refunds. The scheme was premised upon
“redemption theory,” which espouses that individuals are not responsible for their
personal debts and may seek money from the IRS to repay those debts.
According to the indictment, PMDD Services prepared false IRS Forms
1099-OID (Original Issue Discount) on behalf of its clients. These tax forms
falsely reported that the clients’ creditors had withheld large amounts of the
clients’ income as taxes. The clients’ tax returns then requested a refund of the
money falsely claimed to have been withheld. Clum’s scheme involved at least
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180 clients from 30 different states, and resulted in the submission of fraudulent
tax claims exceeding $120 million.
B. First Detention Hearing
Clum was arrested at his home in Tennessee. A federal magistrate judge in
Tennessee held the initial pretrial detention hearing. During that hearing, the
government introduced testimony from several law enforcement agents who had
participated in Clum’s arrest and initial detention. According to their testimony,
when the agents came to Clum’s residence to arrest him, Clum physically resisted
being handcuffed and said obscenities. During the car ride from his home to the
U.S. Marshals’ office, Clum talked about the government doing the bidding of the
banks, and told the agents that they were slaves to the system.
At the U.S. Marshals’ office, Clum refused to provide any basic details
about himself, such as his name or date of birth, and physically resisted being
fingerprinted and having his photograph taken. During his initial appearance
before the magistrate judge in Tennessee, Clum refused to take a seat as instructed,
and had to be forcibly placed into the seat.
In light of the above testimony, the magistrate judge expressed concern
about releasing Clum. Addressing the court, Clum apologized profusely for his
behavior during and after arrest, asked for the court’s mercy, and explained that he
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was surprised and angry at being arrested and that he feared for his family. Clum
stated that his actions were “absolutely unconscionable” and out of character.
Furthermore, Clum’s wife took the stand and assured the magistrate judge that
Clum would not flee and that she would adequately oversee him as a third-party
custodian upon his release.
At the end of the hearing, the magistrate judge ordered Clum released on a
$25,000 unsecured bond. However, the government moved to stay his release
pending appeal, and the district court in Florida granted the government’s motion.
C. Government’s Appeal to the District Court
The government filed an appeal in the Florida district court from the
magistrate judge’s order of release. In its brief, the government argued, inter alia,
that Clum was a flight risk because he resisted arrest, refused to cooperate with
law enforcement, and had a history of defying the authority of the courts. The
government also argued that there was overwhelming evidence of Clum’s guilt
and that he faced over 20 years of incarceration if convicted. The government
pointed to evidence that Clum was a principal in PMDD Services, the corrupt tax
preparation firm that prepared numerous fraudulent tax returns on behalf of its
clients, and that Clum marketed the tax fraud scheme knowing that it was illegal.
To support its appeal, the government submitted a number of exhibits,
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which included (1) documents showing that Clum had been convicted in 2006 for
contempt of court due to his failure to appear in court, and was sentenced to 10
days in jail and fined $250; (2) a letter from Clum to the court in the contempt
proceeding, in which Clum gave a frivolous justification for his failure to respond
to the court’s show-cause order; (3) a transcript from one of Clum’s seminars
promoting the fraudulent tax scheme, wherein he told his audience how the
government used tanks, helicopters, and over 40 SWAT members to evict him
from his property in Virginia; (4) another seminar transcript wherein Clum (a)
advised his audience to not “go into a courtroom,” (b) stated that the last time he
was arrested, he refused to be fingerprinted or photographed, or to answer
questions willingly, and (c) advised that he would question the authority of the
judge if brought to court; (5) documents evidencing Clum’s involvement in the
tax-fraud scheme; and (6) a transcript of Clum’s first detention hearing, reflecting
the agents’ testimony described above.
The district court granted the government’s appeal and ordered Clum
detained.
D. Second Detention Hearing
Clum then moved for a de novo evidentiary hearing, which the district court
granted. At the second detention hearing, the government proffered its
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aforementioned appeal and corresponding exhibits as evidence in favor of
detention, and argued that Clum’s anti-government ideology showed him to be a
flight risk and that his wife would not be an appropriate third-party custodian.
Clum’s counsel, in turn, presented a number of factors in support of Clum’s
release, including the following: (1) Clum had lived in Tennessee with his wife
and two daughters continuously for six years, had rented their current residence
for the past two years, and had renewed the lease for another year; (2) Clum had
no contacts outside of the United States; (3) Clum was heavily involved in the
lives of his family members and had served honorably in Vietnam; (4) once Clum
learned that the scheme he was involved in was likely illegal, he stopped
participating in it; (5) Clum’s circumstances were similar to those of his
codefendants, who were released on only a signature bond; (6) the IRS asked
Clum to undergo an interview prior to his arrest, and Clum complied by speaking
with them for several hours, without trying to flee during or after the interview;
and (7) Clum had placed himself at the mercy of the magistrate judge in
Tennessee, and the magistrate judge believed Clum to be good candidate for
pretrial release.
Clum’s wife also addressed the court, stating that Clum was involved in his
children’s lives, that he would not flee and would obey court orders, and that she
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was willing to submit to the authority of Pretrial Services and monitor her husband
as required by law.
D. District Court’s Detention Order
Following the hearing, the district court ordered Clum detained without
bond. In its detention order, the district court found that there was no presumption
of flight risk or danger to the community, but also found that the weight of the
evidence against Clum was significant and that his prior anti-government
statements during promotional seminars indicated that he was a flight risk. The
court described Clum’s arrest and post-arrest behavior, including his physical
resistance to being handcuffed, his use of obscenities and tax-protestor rhetoric,
and his refusal to cooperate with law enforcement.
The court also found that, while Clum had only a minor criminal record, he
had a prior conviction for failure to appear and had presented a frivolous
justification for failing to appear. Moreover, Clum had no ties to the community
and previously had moved from Virginia to Tennessee due to government
harassment. The court further found that Clum’s promises of cooperation to the
magistrate judge in Tennessee were belied by his actions.
Based on these findings, the court concluded that Clum represented a
serious risk of flight and that no condition or combination of conditions would
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reasonably assure his appearance. Clum now appeals.
II. DISCUSSION
A. Standard of Review and the Bail Reform Act1
In reviewing a pretrial detention order under the Bail Reform Act, we
review the district court’s factual findings for clear error and the application of law
to those facts de novo. United States v. Hurtado, 779 F.2d 1467, 1471-72 (11th
Cir. 1985). Issues relating to a defendant’s individual characteristics and the
threat posed by his release are factual questions reviewed only for clear error.
Id.
at 1472. The district court has “substantial latitude in determining whether pretrial
detention is appropriate.” United States v. King,
849 F.2d 485, 487 (11th Cir.
1988).
The Bail Reform Act provides that a court “shall order the pretrial release
of the person” unless it determines “that such release will not reasonably assure
the appearance of the person as required or will endanger the safety of any other
person or the community.” 18 U.S.C. § 3142(b). If the district court “finds that no
condition or combination of conditions will reasonably assure [1] the appearance
of the person as required and [2] the safety of any other person and the
1
See Bail Reform Act of 1984, Pub. L. 98-473, § 202, 98 Stat. 1837, 1976 (1984)
(codified as amended at 18 U.S.C. §§ 3141-56).
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community,” then the person must be ordered detained before trial. Id. § 3142(e).
Either ground may support an order of detention.
King, 849 F.2d at 488-89. Here,
the district court based its decision only on the first ground, the risk of flight.
In determining whether the defendant poses a flight risk, a court must
consider several factors, including (1) the “nature and circumstances” of the
charged offense, (2) the weight of the evidence against the defendant, and (3) the
defendant’s history and characteristics, including his character, his family and
community ties, his past conduct, his criminal history, and his “record concerning
appearance at court proceedings.” 18 U.S.C. § 3142(g).
At detention hearings, “[t]he rules concerning admissibility of evidence in
criminal trials do not apply,” 18 U.S.C. § 3142(f), and the parties may proceed
solely by proffer, United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987).
The government need only demonstrate by a preponderance of the evidence that
the person poses a risk of flight.
King, 849 F.2d at 489 & n.3.2
B. Analysis
After review, we conclude that the district court did not err in ordering
Clum detained. The district court found that the significant evidence of Clum’s
2
Under the Bail Reform Act, certain criminal charges carry a presumption that no
condition or combination thereof would assure the defendant’s appearance, but none of the
charges in this case carry such a presumption. See 18 U.S.C. § 3142(e)(3).
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guilt, his prior conviction for failing to appear in court, his anti-government
statements at a seminar, his physical resistance to being arrested, his post-arrest
refusal to cooperate with authorities, and his lack of ties to the community all
demonstrated that Clum presented a serious risk of flight. We cannot say that
these findings were clearly erroneous.
Clum argues that, even if the district court did not err in finding a risk of
flight, the court impermissibly failed to consider or explain why no alternatives to
detention existed. We disagree. The district court specifically found that, based
on Clum’s conduct, it could conceive of no condition or combination of conditions
that would reasonably assure Clum’s appearance. The district court was not
required to list every possible condition of release and then explain why that
condition was inadequate.
We acknowledge that Clum proffered a number of factors suggesting that
release would be appropriate, such as his strong involvement with his family, his
expressions of remorse at the first detention hearing, his continuous six-year
residence in Tennessee, and his lack of any significant criminal history. However,
this evidence was not sufficient to outweigh the government’s evidence favoring
detention, especially evidence of Clum’s belief in resisting the authority of the
courts—a belief amply supported by Clum’s actions. As explained by our sister
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circuit, a preponderance of the evidence standard does not require a court to
“simply weigh, in a mechanical sense, the number of pieces of probative evidence
on the government’s side against that offered by a [defendant]. Rather, the court
makes a judgment about the persuasiveness of the evidence offered by each
party . . . .” Almerfedi v. Obama, 654 F.3d 1, 5 (D.C. Cir. 2011) (citation
omitted). Here, the district court did not clearly err in finding the government’s
evidence to be more persuasive. In light of the foregoing, we affirm the district
court’s order of detention.
AFFIRMED.
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