Detention order is defective—Banes

In attorney David G. Banes’ motion for review, he said that Kennedy’s detention order failed to apply the standard of review as it does not contain any specific fact-finding or explanatory reasoning.

“In fact, the detention order appears to be mostly a pre-printed two-page fill-in-the-blank template containing check-the-box findings of fact and a four sentence statement of rationale that fails to discuss why the conditions proposed by defendant would not meet the conditions to insure the safety of the community and that he will not be a flight risk,” the lawyer said.

Banes asked the U.S. District Court for the NMI to release his client, Xing Bo Fang, or hold a hearing for proper fact finding and issue a written statement of its reasoning, together with other relief the court deems just and proper.

In her Feb. 24 order, Kennedy said the evidence shows there is no condition that will assure Fang’s appearance in court. She said Fang’s offer of Carlos Torres as a third-party custodian is not enough.

Kennedy noted, among other things, that the weight of the evidence against Fang, including audio and video recordings of events, gave clear and convincing evidence that no condition of release will reasonably assure the community’s safety.

Fang was one of seven persons arrested last month for alleged distribution of “ice.”

In Fang’s motion for review, Banes said Kennedy’s conclusion why Fang should be kept detained fails to specify why the conditions Fang proposed did not meet the required standards.

He pointed out that a valid detention order must contain written findings of fact and a written statement of the reasons for detention.

“A magistrate court’s failure to properly explain its rationale either through a written decision or an oral statement on the record constitutes reversible error,” said Banes, citing precedent.

He said the U.S. government made various assertions but presented no evidence that the evidence is “strong” and the magistrate court reviewed none of the evidence and relied on the prosecutor’s arguments as an acceptable “fact” without doing any independent evaluation.

Banes said the U.S. government admits that Fang has no criminal history, yet the detention order fails to evaluate this information.

Banes said that Fang has lived on Saipan for about 15 years, his former wife is here, and he has no prior criminal history or history of drug or alcohol abuse.

Banes admits that the charged crime is serious, involving 100 grams of a controlled substance, but noted that Fang’s proposed conditions would mean he is no danger to the community or a flight risk.