In a short opinion, United States v. Boustani, the Second Circuit (Cabranes, Hall, and Stanceu) clarified the Bail Reform Act standard for when a defendant requests to be released on bail and agrees to pay for private armed security guards in order to guarantee his or her return to court and the safety of the community. In this case, Boustani proposed a set of conditions for his pretrial release that included a condition of home confinement, with an accompanying commitment to pay for private security. The Circuit affirmed the district court’s denial of Defendant’s bail application.
The Court’s Decision
Bail decisions are reviewed for clear error—a deferential standard that permits district courts to exercise judicial discretion in weighing a series of factors for and against release pending trial. On a bail application, if the district court determines that a defendant is a flight risk, the district court weighs a series of factors, including the circumstances of the charged offense; the weight of the evidence against the defendant; the defendant’s history and characteristics; and the potential danger posed by the defendant’s release. See 18 U.S.C. § 3142(g).
The Circuit previously recognized that a defendant may be released subject to a condition of home confinement where the defendant pays for private armed security guards.  However, the Circuit distinguished its previous precedent in Boustani, “highlight[ing] [its] concerns regarding granting bail to defendants because of their wealth,” and clarifying its earlier decisions by expressly stating that the Bail Reform Act “does not permit a two-tiered bail system” for wealthy and “lesser means” individuals. To the Circuit, interpreting the Bail Reform Act otherwise would violate fundamental principles of fairness.
The Circuit found no clear error in the district court’s denial of Boustani’s bail application, where Boustani posed a risk of flight based on several factors other than wealth. These factors included the seriousness of the charged offenses, Boustani’s lengthy possible sentence, that the evidence against Boustani appeared strong, Boustani’s alleged deceptive actions in the charged offenses, frequent international travel, and lack of connections in the United States compared to his extensive foreign ties. Although some of these factors may exist because of Boustani’s wealth, viewing the “totality of the circumstances,” the Circuit determined that the district court did not err in determining that Boustani posed a flight risk as it did not rely primarily on wealth, such that “a similarly situated defendant of lesser means” would not have been granted bail.
Under Boustani, private-security conditions may still be appropriate if defendant is deemed a flight risk primarily because of his wealth. That said, if a lesser means defendant would be detained under the same circumstances, the wealthy defendant should not receive bail because of their ability to pay for private security. This decision arises after a number of well-publicized instances in which notorious defendants—such as Bernard Madoff and Marc Dreier—were granted pretrial release on similar terms to those proposed by Boustani here. The public perception was that wealthy defendants could buy their way out of pretrial detention, often using funds that arguably should have been reserved for restitution to the victims of their crimes. In addition, the Bail Reform Act provides for a presumption in favor of detention in cases involving certain drug crimes, 18 U.S.C. § 3142(e)(3). Taken together, the public saw Madoff released on bail while someone who sold a small quantity of crack cocaine faced pretrial detention.
The Circuit was right to conclude that defendants whose only flight risk is created by their wealth should be allowed to use their wealth to mitigate that risk. At the same time, the Circuit was also right to be alert to the appearance of favoritism to wealthy defendants that could have been created by a contrary decision. A final note: As one of the authors of this post has predicted, the Boustani decision will likely lead to an affirmance of the decision made to detain Jeffrey Epstein on the basis of a host of different reasons and notwithstanding his offer to use his fortune to pay for private security guards in order to create detention in the “gilded cage” of his Upper East Side mansion.