Judges: Sykes
Filed: Oct. 12, 2021
Latest Update: Oct. 13, 2021
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2559
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LASHAWN L. WILKS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 19-CR-40085-JPG-18 — J. Phil Gilbert, Judge.
____________________
SUBMITTED SEPTEMBER 17, 2021 — DECIDED OCTOBER 12, 2021
____________________
Before SYKES, Chief Judge, and ROVNER and BRENNAN,
Circuit Judges.
SYKES, Chief Judge. This is an appeal from an order revok-
ing pretrial release based on the defendant’s violation of his
release conditions. We have not yet had occasion to address
the legal standards for revocation or the standard of review
on appeal. We do so here.
2 No. 21-2559
In June 2020 Lashawn Wilks was indicted in the Southern
District of Illinois for possessing a firearm as a prohibited per-
son. He was released on bond with strict conditions, includ-
ing home confinement (with limited exceptions for
employment and the like) and additional restrictions on his
activities and associations. Several months later the grand
jury issued a superseding indictment in an earlier-filed drug-
trafficking case adding Wilks as a defendant and charging
him with conspiracy to distribute methamphetamine and re-
lated drug charges. The new indictment also included the
original firearm charge; his bond and release conditions were
carried over to the new case.
Wilks obtained the district court’s permission to leave his
home near Indianapolis to stay overnight in Centralia, Illinois,
from July 2–6, 2021, for the purpose of attending two medical
appointments, a family wedding, and religious services. But
while there he did not confine himself to those activities. In
the early morning hours of July 4, Wilks was at a bar in Mount
Vernon, Illinois, where a fatal shooting occurred. Though he
is not a suspect in the homicide, surveillance video shows that
shortly before the shooting, he was talking with one of his
codefendants who was also there. Wilks remained at the scene
afterward, encountering law-enforcement officers when they
arrived.
The government moved to revoke Wilks’s release as a
sanction for violating his release conditions, which prohibited
any contact with codefendants and also required him to
promptly report any contact with law enforcement to his pre-
trial-services officer. The district judge held a hearing, viewed
the video, and revoked Wilks’s release, though on grounds
other than those argued by the government. Wilks appealed.
No. 21-2559 3
Revocation of pretrial release is governed by 18 U.S.C.
§ 3148. As we will explain, the judge did not hew to the statu-
tory framework in making the revocation decision. We there-
fore reverse and remand for further proceedings.
I. Background
Wilks is awaiting trial in the Southern District of Illinois
on charges of conspiracy to distribute methamphetamine and
related offenses. He was initially indicted in June 2020 on a
single count of possessing a firearm after being convicted of a
misdemeanor crime of domestic violence. 18 U.S.C.
§ 922(g)(9). The government moved to detain him pending
trial on that charge, asserting that he was a flight risk and a
danger to the community based on his criminal history, which
includes a murder charge (of which he was acquitted) and
misdemeanor convictions for domestic violence, fleeing, ob-
struction of justice, and crack possession. The government
also proffered evidence that Wilks had threatened police of-
ficers in Centralia. A magistrate judge denied the motion and
ordered Wilks released on a $5,000 appearance bond and sub-
ject to multiple conditions of release, including home deten-
tion at his residence near Indianapolis.
In September 2020 the grand jury issued a superseding in-
dictment adding Wilks as a defendant in a pending multiple-
defendant drug case. The new indictment charged him with
six crimes: conspiracy to distribute methamphetamine,
21 U.S.C. §§ 841(a)(1), 846; four counts of using a telephone to
facilitate a drug transaction, id. § 843(b); and the original
§ 922(g)(9) count. Wilks’s bond and conditions of release were
transferred to the drug-conspiracy case; the stand-alone fire-
arm case was closed.
4 No. 21-2559
Three of Wilks’s conditions of release are relevant to this
appeal: (1) the home-confinement condition, which restricts
him to his home except for employment, religious services,
attorney visits, court appearances, medical treatment, and
other activities preapproved by the court or pretrial services;
(2) a requirement that he avoid all contact, direct or indirect,
with victims, witnesses, and codefendants; and (3) a require-
ment that he promptly report any contact with law-enforce-
ment personnel to his pretrial-services officer.
Wilks frequently sought temporary amendments to his
home-confinement condition to permit him to attend family
events and medical appointments. The district judge denied
some motions and granted others. The request at issue here
concerns a trip to southern Illinois over the weekend of July 4,
2021, to attend medical appointments on July 2 and 6 and a
family wedding on July 3. The judge’s order granting the re-
quest authorized Wilks to stay overnight in Centralia from
July 2–6 to attend medical appointments in Mount Vernon on
July 2 and Centralia on July 6, the wedding on July 3, and
church services with his family on July 4.
Wilks’s weekend trip to southern Illinois was more event-
ful than the judge anticipated. At about 2 a.m. on July 4, a man
was shot and killed on the patio of a bar in Mount Vernon.
The bar’s surveillance camera recorded the event, and the
video shows that Wilks was present when it happened; in-
deed, he was standing not far from the shooter. More specifi-
cally, the video shows that shortly before the shooting, Wilks
was on the patio talking with a group of bar patrons and
drinking from a plastic cup. About a minute before the shoot-
ing, Keith Peoples, Jr., one of Wilks’s codefendants, joined the
group and spoke to Wilks. The video also shows that after the
No. 21-2559 5
shooting, Wilks remained at the scene and encountered the
police when they arrived to investigate. He did not report this
law-enforcement contact to his pretrial-services officer.
After the surveillance video came to light, the government
moved to revoke Wilks’s bond as a sanction for violating the
conditions of his release. The motion identified two viola-
tions: Wilks’s contact with codefendant Peoples and his fail-
ure to report his contact with law enforcement to his pretrial-
services officer. The government also cited evidence from the
Drug Enforcement Administration (“DEA”) suggesting that
Wilks had talked with another of his codefendants and possi-
bly even continued his drug trafficking while on pretrial re-
lease. Wilks’s pretrial-services officer submitted a report
explaining that the contact with Peoples violated the release
condition forbidding any contact with codefendants. She also
noted Wilks’s contact with law enforcement but did not iden-
tify his failure to report it as a violation of his bond.
At a hearing on the revocation motion, the government
presented the surveillance video and the parties debated what
it showed. They also disagreed about whether the DEA’s evi-
dence was reliable. The judge sidestepped these disputes and
instead focused on a point that he said the parties had
“glossed over or missed.” Reading from his order authorizing
the weekend trip to Centralia, the judge emphasized its limi-
tations: he had given Wilks permission to attend only a family
wedding, two medical appointments, and church services; he
had not given him permission to go to a bar. The judge there-
fore found that Wilks had violated his home-confinement
condition as amended by the order setting the terms of his
weekend visit to Centralia. On that basis—not the grounds
urged by the government and the pretrial-services officer—
6 No. 21-2559
the judge revoked the release order and ordered Wilks de-
tained pending trial.
The judge memorialized his ruling in a brief written order.
After reciting the terms of the home-detention condition and
the order authorizing the trip to Centralia over the July 4
weekend, the order states:
[V]ideo footage confirmed that on July 4, Wilks
congregated outside a bar at approximately
2 a.m. This was a violation of both his condi-
tions of release and this [c]ourt’s order allowing
him to travel—notwithstanding the fact the bar
was also the scene of a murder and that Wilks
may have also had contact with the shooter and
a codefendant. Immediate detention pending
disposition of this case is therefore necessary
and appropriate to achieve reasonable assur-
ance that Wilks will appear before the [c]ourt as
required and to safeguard public welfare. See
18 U.S.C. § 3142(f).
Wilks appealed. See 18 U.S.C. § 3145(c); FED. R. APP. P. 9(a).
He asks us to reverse the judge’s order and remand with in-
structions to release him “on such conditions as this [c]ourt
deems just and proper.”
II. Discussion
Wilks challenges the judge’s revocation order on both pro-
cedural and substantive grounds. He contends that the judge
wrongly focused on an argument not urged by the govern-
ment—i.e., that his mere presence at the bar violated the terms
of the order authorizing the trip to Centralia. He also suggests
that his presence at the bar at 2 a.m. on July 4 did not actually
No. 21-2559 7
violate the order authorizing the trip because there was no
curfew attached to his attendance at the wedding on July 3.
Finally, he argues that even if he did violate a condition of his
release, the judge failed to explain why detention was neces-
sary.
Wilks’s first point is meritless, the second is feeble, but the
third is well taken. The judge did not address why detention
is necessary as required by the revocation statute. Nor did he
otherwise situate his ruling within the statutory framework.
We begin with the legal standards that govern pretrial de-
tention decisions. As a general matter, detention pending trial
is appropriate if a judge “finds that no condition or combina-
tion of conditions will reasonably assure the appearance of
the person as required and the safety of any other person and
the community.” 18 U.S.C. § 3142(e)(1). To make that deter-
mination, the judge must consider the factors listed in
18 U.S.C. § 3142(g), which include (among other things) the
nature of the charged offense, the defendant’s history and
characteristics, and the risk to the public.
A defendant charged with a serious drug crime, like
Wilks, is subject to a rebuttable presumption that there are no
conditions that will assure his appearance and the safety of
the community. Id. § 3142(e)(3)(A). This places a light burden
of production on the defendant, but the burden of persuasion
always rests with the government and an unrebutted pre-
sumption is not, by itself, an adequate reason to order deten-
tion. United States v. Dominguez, 783 F.2d 702, 706–07 (7th Cir.
1986). Rather, the presumption is considered together with
the factors listed in § 3142(g). If the government does not carry
its burden to justify detention, the judge must order the de-
fendant’s release pending trial subject to the least restrictive
8 No. 21-2559
combination of conditions that will reasonably assure his ap-
pearance and the safety of the community. 18 U.S.C.
§ 3142(c)(1)(B).
If a defendant on pretrial release is alleged to have vio-
lated a condition of his release, the calculus shifts slightly. The
government may move to revoke release under 18 U.S.C.
§ 3148 as a sanction for the violation. On such a motion, the
judge shall revoke release and order the person detained if,
after a hearing, he
(1) finds that there is—
(A) probable cause to believe that the per-
son has committed a Federal, State, or local
crime while on release; or
(B) clear and convincing evidence that
the person has violated any other condition
of release; and
(2) finds that—
(A) based on the factors set forth in sec-
tion 3142(g) of this title, there is no condition
or combination of conditions of release that
will assure that the person will not flee or
pose a danger to the safety of any other per-
son or the community; or
(B) the person is unlikely to abide by any
condition or combination of conditions of re-
lease.
§ 3148(b) (emphases added).
We have not yet had occasion to address this statute in a
published decision. Nor have we decided the standard of
No. 21-2559 9
review for a revocation decision. For appeals of an initial de-
cision to detain or release a defendant, we have adopted a
standard that calls for an “independent review” of the deci-
sion below, though with deference to the judge’s findings of
historical fact and his greater familiarity with the defendant
and the case. United States v. Portes, 786 F.2d 758, 763 (7th Cir.
1985). Wilks and the government rely on this standard with-
out exploring whether it also applies in the revocation con-
text.
We conclude that the same standard of review governs an
appeal from an initial detention decision and a decision to re-
voke pretrial release. The statutory authority for appellate re-
view, § 3145(c), is identical in both contexts—as is the
defendant’s interest in his personal liberty and the govern-
ment’s interest in ensuring the safety of the community and
securing the defendant’s appearance in court. Our review of
a revocation decision should therefore be no more—and no
less—searching than our review of an initial release or deten-
tion decision.
The circuits have long been split on just how searching
that review is, but our standard of review conforms to the ma-
jority rule. Portes, 786 F.2d at 762 (collecting cases). And our
sister circuits appear to agree that the standard is the same for
an initial release or detention decision and a decision to re-
voke release. See, e.g., United States v. Moreno, 857 F.3d 723,
725–26 (5th Cir. 2017); United States v. Howard,
793 F.3d 1113,
1113 (9th Cir. 2015); United States v. Cisneros,
328 F.3d 610, 613
(10th Cir. 2003); United States v. LaFontaine,
210 F.3d 125, 130
(2d Cir. 2000); United States v. Welsand,
993 F.2d 1366, 1367 (8th
Cir. 1993).
10 No. 21-2559
Applying independent review, and with due deference to
the judge’s factual findings and his greater familiarity with
Wilks and this case, we conclude that the current record is in-
adequate to support the revocation decision. First, the judge
did not find by clear and convincing evidence that Wilks vio-
lated a condition of release. See § 3148(b)(1)(B). 1 We take the
judge’s point—now echoed by the government—that Wilks
was not authorized to go anywhere he wanted to while he was
in southern Illinois for the family wedding over the July 4
weekend. But the government’s motion and the arguments at
the hearing focused on other alleged bond violations—
namely, Wilks’s contact with a codefendant and his failure to
report his contact with law enforcement. Though it was not
improper for the judge to reframe the inquiry, the fact re-
mains that Wilks’s counsel did not have an opportunity to ad-
dress the specific issue that the judge was concerned about.
Second, the judge did not explain why detention was nec-
essary according to the criteria of § 3148(b)(2)(A) or (B). His
order states only that detention is “necessary and appropriate
to achieve reasonable assurance that Wilks will appear before
the [c]ourt as required and to safeguard public welfare,” cit-
ing § 3142(f). That provision is similar to § 3148(b)(2)(A), but
both statutes require the judge to weigh the factors listed in
§ 3142(g), and nothing in the record reflects that he did so. The
summary statement in his order falls short under either pro-
vision. A recitation of the statutory language “devoid of any
discussion, analysis, or explanation as to why the district court
1 The government has not suggested that the DEA’s evidence establishes
probable cause to believe Wilks committed a crime while on pretrial re-
lease. See 18 U.S.C. § 3148(b)(1)(A).
No. 21-2559 11
concluded that the criteria for release had not been met” can-
not justify detention even after conviction, when the presump-
tion of innocence has been extinguished. United States v.
Swanquist, 125 F.3d 573, 575–76 (7th Cir. 1997). It does no bet-
ter pretrial. A finding that the defendant violated a release
condition does not alone permit revocation; the judge must
make findings under both § 3148(b)(1) and (b)(2) before he
may revoke release.
The government attempts to fill the gap in the judge’s ex-
planation by pointing to the evidence it presented to the mag-
istrate judge at the initial detention hearing and suggests that
Wilks’s conditions were intended to be strictly enforced be-
cause Wilks is so dangerous. But we will not weigh the
§ 3142(g) factors here. Instead, we leave it to the district judge
to do so in the first instance.
Accordingly, we REVERSE the judge’s order and REMAND
for further proceedings consistent with this opinion. We do
not order Wilks’s immediate release and express no opinion
on the merits of the questions to be addressed on remand. The
parties and district court should promptly address these mat-
ters. See 18 U.S.C. § 3142(d).
