MTN For Reconsideration of Detention Order

Case 4:09-cr-00342 Document 172 Filed in TXSD on 12/21/09 Page 1 of 50
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA §

§
VS. § CR. NO. 4:09-342-01
§
ROBERT ALLEN STANFORD §
MOTION FOR RECONSIDERATION OF ORDER OF

DETENTION DUE TO CHANGED CIRCUMSTANCES
TO THE HONORABLE DAVID HITTNER, UNITED STATES DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION:
COMES NOW, Robert Allen Stanford, by and through his attorneys of record,
Kent A. Schaffer and George McCall Secrest, Jr., and respectively moves this
Honorable Court to reconsider its previously entered order of June 30, 2009
committing Mr. Stanford to the custody of the Attorney General or his designated
representative and detaining him pending trial. Due to changed circumstances1
discussed below, it is not only appropriate to consider the imposition of additional
conditions of release that will serve to reasonably assure his appearance at trial, in
addition, it is also essential that Mr. Stanford be released from custody subject to
1
18 U.S.C. § 3142(f)(2) provides, in pertinent part, that
[t]he hearing may be reopened, before or after a determination by the judicial officer,
at any time before trial if the judicial officer finds that information exists that was not
known to the movant at the time of the hearing and that has a material bearing on the
issue of whether there are conditions of release that will reasonably assure the
appearance of the person as required and the safety of any other person and the
community.
strict conditions of release in order that he be able to meaningfully participate in his
defense and receive effective assistance of counsel.
I.
PROCEDURAL HISTORY OF DETENTION PROCEEDINGS
On June 25, 2009, United States Magistrate Judge Frances Stacy conducted a
detention hearing at the government’s request and after hearing testimony and
considering exhibits proffered by both sides, determined that Mr. Stanford should be
released from custody pending trial subject to the posting of a $500,000 bond with
a $100,000 cash deposit.2 Other conditions of release were imposed in light of
Magistrate Judge Stacy’s finding that Mr. Stanford was a flight risk. (Transcript of
Detention Hearing at 207). The government moved for a stay of the release order,
which was subsequently granted, and sought from this Court an order revoking the
release order pending trial.
On June 29, 2009, this Court conducted a hearing on the government’s motion
to revoke the release order, and after considering evidence, which included the
transcript of the June 25, 2009 proceedings before Magistrate Judge Stacy and
2
Pretrial Services recommended to Magistrate Judge Stacy that a combination of conditions
would reasonably assure Mr. Stanford’s appearance at trial and that he be released from custody
subject to conditions of release.
2
arguments of counsel, entered an order on June 30, 2009, granting the government’s
motion.
Previous counsel for Mr. Stanford filed Allen “Stanford’s Motion To
Reconsider and/or Reopen the Court’s Detention Order on July 7, 2009,” which was
denied on July 9, 2009. Thereafter, Mr. Stanford appealed the District Court’s
Detention Order and denial of the Motion to Reconsider and/or Reopen the Court’s
Detention Order to the United States Court of Appeals for the Fifth Circuit which
affirmed this Court’s order on August 24, 2009.
II.
RISK OF FLIGHT
The undersigned counsel do not seek to re-litigate the findings by both
Magistrate Judge Stacy and this Court that Mr. Stanford poses a flight risk.3 While
3
It is important to note that at no time has the government contended or has Magistrate Judge
Stacy or this Court found that Mr. Stanford’s release from custody would “endanger the safety of any
other person or the community.” 18 U.S.C. § 3142(b), (c), and (e). See the government’s
Memorandum in Support of Detention, Dkt. No. 31, filed June 25, 2009; Motion for Stay Pending
District Court’s De Novo Review of Release Order, Dkt. No. 33, filed June 26, 2009; Motion for
Revocation of Release Order, Dkt. No. 45, filed June 29, 2009; and this Court’s Order (reversing
Magistrate Judge Stacy’s order releasing Mr. Stanford), Dkt. No. 52, filed June 30, 2009.
As the 5th Circuit reasoned, “[b]ecause neither party argues that the fourth § 3142(g) factor,
‘the nature and seriousness of the danger to any person or the community that would be posed by the
person’s release,’ is applicable to Stanford, the district court made no findings on this element.
Neither party argues that it should be taken into account. Accordingly, our inquiry need go no
further.” United States v. Stanford, 2009 WL 259136, at 4.
3
we vigorously disagree with the government’s position in this regard4 and earnestly
believe that Mr. Stanford, a fifth generation Texan, fully demonstrated by his actions
in the four months leading up to the return of the indictment that he has been and
remains fully committed to fighting the allegations in this case and would not leave
the Houston Division of the Southern District of Texas unless permitted to do so, the
fact that he is considered to be a flight risk does not mean or suggest that he,
therefore, must be incarcerated pending trial. Quite to the contrary, the Bail Reform
Act of 1984 requires that the prosecution prove at a detention hearing considerably
more before an order of detention would be appropriate.
The Bail Reform Act provides that an order of detention pending trial is
appropriate if “no conditions or combination of conditions will reasonably assure the
appearance of the person as required.” 18 U.S.C. § 3142(e). (Emphasis added). It
is crucial to note, however, a finding that a particular defendant may present a “flight
risk” does not end the matter with respect to whether detention should be ordered.
4
The government’s argument basically boils down to its belief, as expressed in its Motion
for Stay Pending District Court’s De Novo Review of Release Order, that “[t]his case presents a rare
combination of flight risk indicators.” (Id. at 10). (Emphasis added). The government also asserted
that a stay of Magistrate Stacy’s release order was appropriate because this Court was “likely to
detain Stanford or impose a substantially higher bond” (id.) (emphasis added), suggesting, at the
very least, that imposition of a substantially higher bond could reasonably assure his appearance at
trial.
4
In light of the fact that the Eighth Amendment to the United States Constitution
provides that “[e]xcessive bail shall not be required,”
§ 3142(b) requires a court to order the pre-trial release of a

defendant on a personal recognizance bond “unless the [court]
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.” If the court determines that a defendant’s release on
an unsecured bond presents a risk of flight, the concern at issue in this
case, the law still favors pre-trial release “subject to the least restrictive
further condition, or combination of conditions, that [the court]
determines will reasonably assure the appearance of the person as
required.” Id. § 3142(c)(1)(B). (Emphasis added.) Only if a detention
hearing shows “that no condition or combination of conditions will
reasonably assure the appearance of the person as required ... shall [the
court] order the detention of the person before trial.” Id. § 3142(e).
Under this statutory scheme, “it is only a ‘limited’ group of (alleged)
offenders who should be denied bail pending trial.” United States v.
Shakur, 817 F.2d 189, 195 (2d Cir. 1987) (quoting S. Rep. No. 98-225,
at 7(1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3189). Because
the law thus generally favors bail release, the government carries a
dual burden in seeking pre-trial detention. First it must establish by a
preponderance of the evidence that the defendant, if released, presents
an actual risk of flight. See United States v. Berrios-Berrios, 791 F.2d
246, 250 (2d Cir. 1986). Assuming it satisfies this burden, the
government must then demonstrate by a preponderance of the
evidence that no condition or combination of conditions could be
imposed on the defendant that would reasonably assure his presence
in court. See United States v. Shakur, 817 F.2d at 195 (“The burden of
proof is on the government to prove the absence of such conditions by
a preponderance of the evidence.”); United States v. Chimurenga, 760
F.2d 400, 405 (2d Cir. 1985).
United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). (Emphasis added). See
also, United States v. Madoff, 586 F.Supp.2d 240, 247-248 (S.D.N.Y. 2009) (“The
5
Government’s task is not insubstantial at this second stage. In most cases, release is
the presumptive state.5 See 18 U.S.C. §§ 3142(b) and (c). ‘The court should also
‘bear in mind that it is only a limited group of (alleged) offenders who should be
denied bail pending trial.’ ” (Citations omitted).)6 This traditional right to bail
permits the unhampered preparation of a defense and serves to prevent the infliction
of punishment prior to trial.
III.
CONFINEMENT AT THE FEDERAL DETENTION CENTER
Mr. Stanford has been incarcerated since June 18, 2009 and was moved to the
FDC on September 29, 2009.7 Immediately upon his arrival at the FDC, he
underwent general anesthesia surgery due to injuries that were inflicted upon him at
5
“The presumption of innocence guarantees that defendants pending trial are entitled to a
concomitant presumption in favor of bail in this country.” In the Matter of Extradition of Nacif-
Vorge, 829 F.Supp. 1210, 1214 (D.Nev. 1993). See also Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1,
96 L.Ed. 3 (1951) (“This traditional right to freedom before trial permits the unhampered preparation
of a defense and serves to prevent the infliction of punishment prior to conviction ... unless this right
to bail before trial is preserved, the presumption of innocence secured only after centuries of struggle
would lose its meaning.”)
6
Historically, “[t]he command of the Eighth Amendment that ‘Excessive bail should not be
required...’ at the very least obligates judges passing upon the right to bail to deny such relief only
for the strongest of reasons.” Sellers v. United States, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (1968). Doubts
regarding a propriety of release “should always be resolved in favor of the defendant.” Herzog v.
United States, 75 S.Ct. 349, 351, 99 L.Ed. 1299 (1955); and United States v. Motamedi, 767 F.2d
1403, 1405 (9th Cir. 1985).
7
Upon Mr. Stanford’s arrival in Houston in the custody of U.S. Marshals, he was incarcerated
at the Joe Corley Detention Facility in Montgomery County prior to being moved to the Federal
Detention Center in Houston. See discussion, infra.
6
the Joe Corley Detention Facility. He was then immediately taken from surgery and
placed in the Maximum Security Section — known as the “Special Housing Unit”
(SHU) — in a 7' x 6 1/2' solitary cell. He was kept there, 24 hours a day, unless
visited by his lawyers. No other visitors were permitted, nor was he permitted to
make or receive telephone calls. He had virtually no contact with other human
beings, except for guards or his lawyers.
When he was taken from his cell, even for legal visits, he was forced to put his
hands behind his back and place them through a small opening in the door. He then
was handcuffed, with his arms behind his back, and removed from his cell. After
being searched, he was escorted to the attorney visiting room down the hall from his
cell; he was placed in the room and then the guards locked the heavy steel door. He
was required, again, to back up to the door and place his shackled hands through the
opening, so that the handcuffs could be removed. At the conclusion of his legal
visits, he was handcuffed through the steel door, again, and then taken to a different
cell where he was once again required to back up to the cell door to have his
handcuffs removed and then forced to remove all of his clothing. Once he was nude,
the guards then conducted a complete, external and internal search of his body,
including his anus and genitalia. He was then shackled and returned to his cell. In
his cell there was neither a television nor a radio and only minimal reading material
7
was made available to him. He remained there in complete solitude and isolation
until the next time his lawyers returned for a visit.
In short, Mr. Stanford was confined under the same maximum security
conditions as a convicted death row prisoner, even though the allegations against him
are for white collar, non-violent offenses. He is certainly not viewed as someone
who poses a threat to other persons or the community, nevertheless, he has been
deprived of human contact, communication with family and friends, and was
incarcerated under conditions reserved for the most violent of convicted criminals.
Officials at the FDC informed counsel that this was for Mr. Stanford’s “own
protection” and to minimize their liability. Finally, on October 20, 2009, Mr.
Stanford was released from these onerous, draconian, wholly unnecessary and
unwarranted conditions and placed in general population.
IV.
MEDICAL CONDITION OF MR. STANFORD
A. PHYSICAL CONDITION
Prior to Mr. Stanford’s incarceration, he had never experienced any prolonged
illness and was otherwise in excellent health; all of that has now changed. On August
27, 2009, while incarcerated at the Joe Corley Detention Facility, Mr. Stanford
experienced a great deal of physical discomfort, could not catch his breath and
8
blacked out. He was taken to the medical area within the detention facility where he
was told his heart rate was over 200 beats per minute. As is addressed in Dr. Victor
R. Scarano’s report, appended hereto as Exhibit 1, Mr. Stanford was rushed to the
Conroe Regional Medical Center and underwent cardiac catheterization,
echocardiogram, X-rays, and other medical tests and procedures. He experienced
“severe epigastric pain, nausea and vomiting, chest pain.” (Exhibit 1; Scarano’s
report at 27). The diagnosis was atrial fibrillation with rapid ventricular response.
(Id. at 29). Dr. Scarano describes the rapid, irregular heart beat or cardiac
dysrhythmia that Mr. Stanford experienced as “potentially lethal.” (Scarano’s report
at 37). He was discharged on August 31, 2009 and returned to the Joe Corley
Detention facility. On September 2, 2009, he was readmitted to the Conroe Regional
Medical Center and, on this occasion, he underwent general anesthesia surgery for a
right common iliac artery aneurysm which had been detected at the time of the cardiac
catheterization on August 27, 2009. (Id.)
On September 24, 2009, while incarcerated at Corley, Mr. Stanford was
physically assaulted by an inmate, apparently over the use of the telephone. While
sitting in a chair, he was grabbed from behind and fell backwards hitting the back of
his head on the concrete floor resulting in a concussion and loss of consciousness.
While unconscious, he was repeatedly beaten about the head resulting in severe
9
injuries to his face, i.e., right orbital fractures, fractures of the nose, and severe trauma
to the right trigeminal nerve sensory branches requiring reconstructive general
anesthesia surgery. (Scarano’s report at 38).8 He has lost all feeling in the right
cheek, right orbital area, right side of the nose, and the right side of the upper lip.
(Id.) The vision in his right eye was 20/20 for reading before the assault but has now
deteriorated to the point he can only read with his left eye, and his right eye is not
symmetrical to his left eye.
Since his incarceration, he has been prescribed Amiodarone (for the treatment
of life-threatening recurrent heart rhythm disturbances); Metoprolol (a beta-blocker
used to slow the elevated heart rate); Lisinopril (for high blood pressure);
Omeprazole (for ulcers), and most recently, Zoloft (for depression). According to
Dr. Scarano’s review of the medical records, Mr. Stanford has lost 40 pounds in the
last 90 days. (Id. at 30). Particularly disturbing is the fact that Mr. Stanford is both
coughing up blood and passing blood in his stool.9 This is fully documented by
8
Appended to this motion are photographs of Mr. Stanford taken at Joe Corley Detention
Facility on September 24, 2009 which graphically demonstrate the severity of the trauma he suffered
as a result of the assault. The photographs also show that although Mr. Stanford just suffered very
serious injuries he was nonetheless handcuffed and shackled at the waist and feet by guards at the
facility. Mr. Stanford was also similarly handcuffed and shackled at all times during his two general
anesthesia surgeries and hospital stays. (Exhibit 2).
9
For over two months, Mr. Stanford has repeatedly informed medical personnel at the FDC
about his coughing up blood and passing blood in his stool. As recent as November 8, 10, 11, 21st,
(continued...)
10
comparing a “CBC” (complete blood count) performed on August 31, 2009 at the
Conroe Regional Medical Center with a “CBC” performed on October 1, 2009 at St.
Joseph’s Hospital in Houston. (Scarano’s report at 37). (“The above CBC reports are
an indication of continuing blood loss, as they are below the normal range for these
blood tests.”)
B. MENTAL/EMOTIONAL CONDITION
Shortly after being incarcerated at the FDC, it became readily apparent to
counsel and members of the defense team that Mr. Stanford was becoming
increasingly despondent. When a person presumed innocent is denied bail and
incarcerated, some mood swings and mild depression are normal, especially if that
person had no prior experience in being incarcerated. What counsel has seen and is
seeing with respect to Mr. Stanford greatly eclipses that. He is unable to focus on
the facts and issues of his case, often repeats himself, and is in considerable
discomfort. This is obviously very problematic in light of the sheer scope and
magnitude of discovery in this case, the complexity of the legal and factual issues
9
(...continued)
th
and 27 , Mr. Stanford informed three different individuals at the FDC who are medical professionals
of this potentially serious issue, even coughing up blood into a piece of paper in their presence. (The
undersigned counsel have personally witnessed our client spit up blood during an attorney/client
conference.) He was told that it had been duly noted and would be dealt with in due course. As of
the date of the filing of this motion, Mr. Stanford has heard nothing from anyone at the FDC about
what was being done to address this potentially serious health issue.
11
presented, and the enormity of pre-trial preparation that lies ahead, all which require
Mr. Stanford to be mentally and emotionally fit.
On October 19, 2009, Mr. Stanford was evaluated at the FDC by Dr. Victor
Scarano, who is both a psychiatrist and a lawyer, with substantial forensic experience.
Dr. Scarano spent seven hours with Mr. Stanford at that time. On October 30, 2009,
Dr. Scarano re-evaluated Mr. Stanford after he had been moved from solitary
confinement in the “SHU” to general population and spent three hours with him at
that session. According to Dr. Scarano,
[f]rom a psychiatric point of view, Mr. Stanford’s physical and mental

state is continuing to deteriorate and, in addition to his deteriorating
physical state, he is presently suffering with the signs and symptoms of
a major depression. If the present set of circumstances persist, Mr.
Stanford’s spiraling downhill course will continue to the point where he
will suffer further serious physical disorders and, more likely than not,
a complete nervous breakdown.
In my opinion to a reasonable degree of medical certainty,

antidepressant medication will not cure or ameliorate his depression,
because his depression is caused by the environment, which interferes
with his ability to fully engage in the work required for his defense, and
fosters continuing feelings of loss of control, helplessness, and
hopelessness.
* * *
Observations made during the two psychiatric interviews where Dr.
Scarano had the opportunity to watch Mr. Stanford’s interaction with
various attorneys indicates that he is fully committed to fighting the
charges against him, winning the civil suit, and eventually restoring his
financial businesses...
12
In my view to a reasonable degree of medical certainty, allowing Mr.

Stanford the opportunity, which necessitates a proper and conducive
environment, to work with his attorneys in creating a strong and
formidable defense, is the treatment that will do the most to enhance his
physical and mental recovery....
(Scarano’s report at 41).
Dr. Scarano recommends that Mr. Stanford be “fully reviewed and assessed by
a treating psychiatrist who would decide whether appropriate treatment would include
medication and therapy or therapy alone.” (Id. at 42). He also suggests that “Mr.
Stanford should establish a therapeutic relationship with a psychiatrist or psychologist
experienced in cognitive behavior therapy” and that “[r]egular therapeutic sessions
should start at two to three times per week.” (Id. at 43). In his professional opinion,
if Mr. Stanford were to be released on bail, he will appear in court to fight the
allegations brought against him by the government and would not attempt to flee. (Id.
at 41).
On December 3, 2009, Dr. Scarano saw Mr. Stanford for two and one-half
hours. As Dr. Scarano confirms in his letter to counsel dated December 4, 2009, and
attached hereto as Exhibit 3,
[a]side from the logistical difficulties associated with his present

incarceration, Mr. Stanford, as a result of his major depressive disorder,
is unable to bring to bear his full attention and concentration upon the
important work necessitated for his defense and his ability to work fully
and appropriately with his attorneys.
13
(Id. at 4).
On October 22, 2009, Mr. Stanford was evaluated at the FDC by Dr. Ronald
Duckers, a Clinical and Neuropsychologist. Dr. Duckers was formerly the resident
psychologist at the Joe Corley Detention Facility and had previously seen Mr.
Stanford on three separate occasions while he was incarcerated there. According to
Dr. Duckers,
[t]he man I observed here was very clearly not the man I had worked
with at the Joe Corley Detention Facility in Conroe, Texas. In my earlier
sessions with Mr. Stanford, I found him to display clear signs of ‘ego
strength.’ He appeared to be in a generally positive spirit with a strong
and abiding sense that his ‘problems’ would be reversed with the
passage of time.
In this session with Mr. Stanford, I found him to be very negative and
discouraged. He maintained that he was not guilty throughout each of
the four sessions I had with him. His story was consistent in each of
these sessions. In this session, however, I did find him to be no less than
moderately negative and discouraged.
(Exhibit 4; Duckers’ report at 1). In Dr. Duckers’ professional opinion, if Mr.
Stanford were to be released on bail, he would not attempt to flee and will appear in
court for trial. (Id. at 3).
On December 8, 2009, Mr. Stanford was evaluated by a psychiatrist and two
psychologists employed by the FDC. This session lasted for approximately one hour.
14
Mr. Stanford was diagnosed as suffering from depression and was prescribed the
antidepressant Zoloft which he began taking on December 9, 2009.
V.
VOLUMINOUS DISCOVERY
As has been previously disclosed to this Court, the government has provided
discovery to the defense by means of allowing access to the contents of the iCONECT
software program utilized by the government. The iCONECT system currently
contains approximately 7 million pages of images from approximately 5 million paper
and digital documents. The government contends that this amount of documents is
equal to approximately 300 gigabytes of information. In the last month alone, the
government has added an additional 200,000 documents in a single upload to the
iCONECT database. Standing alone, that single supplement of the existing database,
in itself, exceeds the scale of discovery in all but a very few of the most complex
white collar criminal cases. Counsel has learned, however, that there is approximately
60 terabytes (60,000 gigabytes) of information that is in the possession of the
receiver, Ralph Janvey, which defense counsel will soon be attempting to access and
review. This means that the documents in the government’s database make up but a
fractional percentage of the documents that will need to be reviewed in preparing a
defense.
15
Many, if not most, of these documents are financial records and records of Mr.
Stanford’s various businesses (well over 100), which include bank records, corporate
records, financial disclosures, certificates of deposit, audit reports, property records,
internal memoranda, emails, correspondence, telephone records, etc. Beyond being
incredibly voluminous, these documents are not self-explanatory and are difficult to
comprehend or to put into context, without explanation from someone who has
knowledge of the inner-workings of the worldwide Stanford related companies.
It is essential that Mr. Stanford be able to work closely with his entire legal
defense team in an unencumbered way as discovery documents are being reviewed
in order to help them understand the nature of the various business dealings and
transactions that will be the focus of the government’s case. He must be available to
assist them in their daily efforts to re-construct and unravel the various events and
circumstances which form the basis of the allegations in the indictment. What may
appear to defense counsel at first blush as not being particularly germane to any issue
in the case, could well prove otherwise upon being examined by Mr. Stanford. With
access to the discovery by means of the computer litigation support software that
organizes, classifies and searches it, Mr. Stanford can do more than review individual
documents. He can help counsel understand the relationship between large categories
of records that would otherwise go unnoticed. In light of the fact that his companies
16
are now under control of a receiver, Mr. Stanford’s ability to work closely with his
entire legal defense team in order to assist them in understanding the myriad business
dealings and financial issues that this case presents and the potential relevance and
significance of certain documents to the defense of the allegations, is constitutionally
indispensable.
VI.
MR. STANFORD IS UNABLE TO ASSIST IN HIS OWN DEFENSE
While Mr. Stanford has been incarcerated, it has been impossible to
productively engage in any preparation for trial with his assistance. His confinement
isolates him from all meaningful document review and analysis as well as any
collaboration with his attorneys in the review of the case discovery. Obviously, this
is not your run-of-the-mill alleged fraud prosecution.10 The sheer magnitude and
10
On September 25, 2009, the Court granted defense counsels’ request that Mr. Stanford be
moved to the FDC from the Joe Corley Detention Facility “pending trial to ensure an adequate
opportunity for Stanford to review the copious documents, consult his attorneys, and prepare his
defense.” (Order, Dkt. No. 133, at 3). As the Court acknowledged, “the extraordinary nature and
complexity of this case, the extent and gravity of the charges levied against Stanford, the hundreds
of thousands of records involved, and the enormous amount of time no doubt necessary to review
those documents and adequately prepare a defense,” justified the transfer. (Order, id. at 2-3).
(Emphasis added.)
Mr. Stanford and counsel sincerely appreciate the Court’s consideration in ordering Mr.
Stanford transferred from the Joe Corley Detention Facility in Montgomery County to the FDC in
downtown Houston; however, it has become increasingly apparent due to “the extraordinary nature
and complexity of this case” which deals with millions of pages of records and the undisputed
necessity to confer with a number of experts, investigators, attorneys and staff in order to get ready
for trial, that adequate consultation, preparation and assistance to Mr. Stanford cannot be
(continued...)
17
scope of the discovery (from the government, receiver and third parties), the
complexity of the legal and factual issues that will inevitably arise, the number of
witnesses that will need to be interviewed, the necessity of presenting expert witness
testimony and the concomitant need to consult with other expert witnesses11 cannot
be accomplished with Mr. Stanford incarcerated.
As previously stated, the discovery provided in this case is incredibly
voluminous; there are 2,134,078 documents currently included in the discovery.12 To
cope with the massive scale of the discovery its investigation produced, the
government contracted with Northrop Grumman to image both paper and digital
documents from computer hard drives and upload both the native documents and their
10
(...continued)
accomplished while he is incarcerated.
11
It is critical that a team of experts, forensic accountants, for example, and their agents,
regularly meet with Mr. Stanford and his counsel to develop defense strategy and review relevant
and material documents. It is unfathomable that merely because a defendant, who, after all, is still
presumptively innocent despite being incarcerated and physically incapacitated pending trial, see 18
U.S.C. § 3142(j) (“Nothing in this section shall be construed as modifying or limiting the
presumption of innocence”), can constitutionally be deprived of participating meaningfully in the
preparation of his defense, especially when he is confronted with the possibility of life imprisonment
if convicted of all the crimes alleged in the indictment. It is sheer sophistry to assume that Mr.
Stanford will be able to participate in a truly meaningful way in the rigorous preparation of his
defense if he is forced to do so while incarcerated at the FDC.
12
The receiver is in possession of an immense amount of documents which greatly eclipses
the approximately 7 million pages of material (and counting) presently in the possession of the
government. In addition, there will be documents from third party record custodians that will need
to be reviewed by Mr. Stanford and his legal team which very well may not be contained in the
universe of documents in the possession of either the government or the receiver.
18
images to an Internet based litigation support platform. The discovery database
chosen by the government is iCONECT and is accessible, with a password, which has
been given to all counsel. The essential necessity of access to the iCONECT online
database for clients and counsel alike is entirely understood by the government.
During the status conference of December 17, 2009, in support of his argument that
the discovery review was manageable using only iCONECT, Mr. Paul Pellitier
commented that defense counsel’s “clients can walk them through the documents”
using iCONECT. Whether it is possible for other defendants to “walk” through the
discovery documents with their attorneys using iCONECT is uncertain, but what is
certain is that Mr. Stanford can not.
At the Federal Detention Center, Mr. Stanford has no access to the Internet, and
therefore cannot use iCONECT nor any other Internet based litigation support
software. Undersigned counsel spoke with Eric Hammonds, a supervisory attorney
for the Federal Bureau of Prisons, Department of Justice, who stated that there is no
Internet access at the FDC — neither Wi-Fi, cable, nor dial up — and no inmate
incarcerated at the FDC is permitted Internet access. According to Mr. Hammonds,
discovery will have to be given to Mr. Stanford in printed or “hard” form.13 The cost
13
And yet, the prosecution has represented to this Court that due to the fact that the “bulk of
the evidence in this case was originally obtained by agents in electronic format,” as opposed to “hard
(continued...)
19
and the sheer waste involved in printing and storing, at a minimum, a few million
pages of documents would be prohibitive and the result utterly unproductive in aiding
the defense. It is conservatively estimated that the approximately 7 million pages of
documents would fill up 3,800 “banker” boxes each of which might contain a few
documents that would need to be compared to a few others in another box. It would
be impossible to leave even a minute fraction of that amount of discovery with Mr.
Stanford due to FDC policies and rules. While Mr. Stanford would likely not have
to personally review every single document in the government’s database, how would
his counsel arrive at the smaller number of essential documents except with his help?
If Mr. Stanford manually reviewed only 25% of the current discover, it would take
him an astounding 24 years to do so while working under the policies and rules
imposed by the FDC.14 It also cannot be assumed that the existing database of
government’s discovery documents currently contains anywhere near the final total
number of pages as it ultimately may contain, nor that it will ever contain all the
13
(...continued)
copies in boxes,” the “old-fashioned way”of reviewing hard copies is impractical and unworkable
in this case. (Memorandum Regarding Status Hearing, Dkt. No. 137, p. 3, n.2).
14
Working under FDC policies and rules, 365 days a year, at the maximum time allowed per
day in the attorney client visitation room, with a mere 2 minutes allocated per page of discovery,
would take 24 years to review only 25% of the approximately 7 million pages that are currently in
the government’s data base.
20
documents that defense counsel must review, evaluate and discuss with Mr. Stanford
to mount a defense.
The receiver is in possession of a substantially greater number of documents
than the government;15 moreover, there is an inestimable number of third party record
custodians that may well have documents relevant to the defense of this case. Simply
stated, there is no way for Mr. Stanford to view this enormous amount of discovery
before the scheduled trial date in January of 2011, without personally working in
tandem with a team of professionals dedicated solely to this arduous task utilizing a
computer database, with the ability to print, store, classify, search and retrieve over
the Internet the enormous number of documents that will be critical to the defense of
this case.16
15
According to counsel for the receiver,
[o]nly a fraction of the Stanford records–those absolutely necessary to fulfill the

Receiver’s Court-ordered duties–have been scanned, indexed, or analyzed. Vast
quantities of data and paper remain untouched.
(Receiver’s Response to Motion for Relief From Amended Order Appointing Receiver, Dkt. No.
865, at 10, 11/09/2009). (Emphasis added).
16
Piecemeal provisioning of the discovery to Mr. Stanford is not a practical alternative to full
access to the government’s online discovery database. At present, there are 300 Gigabytes of
discovery files in the iCONECT system. (This includes another 200,000 documents recently added
to iCONECT.) It is possible to download the 337 GB of tiff files currently on the iCONECT system
to seventy-two DVD’s, or eventually, to two hundred and fifty two DVD’s as the iCONECT
database grows in size, but the iCONECT images of documents are not text searchable. Mr.
Stanford would have no recourse but to look through every document in search of any particular
(continued...)
21
In addition to the challenges created by the sheer volume of discovery, there
are other, substantial problems and impediments created by our restrictive and limited
access to Mr. Stanford at the FDC. Since the allegations in this case span a
significant length of time (approximately a decade), see, for example, ¶ 34 of the
Indictment, at 12, and are highly complex in nature, counsel working on behalf of
Mr. Stanford have had to consult with him on a daily basis, including weekends. For
instance, from the time Mr. Stanford was moved to the FDC on September 29, 2009
through December 16st, a period of 79 days, the attorneys and other members of the
16
(...continued)
document. Counsel can provide, in time, particular subsets of imaged documents for Mr. Stanford’s
review, but he can only see the discovery through windows his lawyers can open. He cannot use his
independent knowledge of the facts of the case to conduct his own analysis of any type of documents
or compare different groups of documents on the government’s online database, as every other co-
defendant can readily do in aid of his or her own defense. Mr. Stanford would have no ability to
search for particular documents, particular transactions, particular names, or particular words or
phrases that he alone would recognize were significant in relation to other documents in discovery
or to what was provided him by his counsel. Without at least the ability to do computer searches,
he would be relegated to “looking for a needle in a haystack” where all the needles look just like hay.
Even if Mr. Stanford could isolate a mere percentile of the discovery as strategic to his defense, there
is no place to store and secure the enormous number of boxes of printed documents that are
attorney/client sensitive at the FDC.
In addition, the regulations of the FDC provide that “[i]n most circumstances, attorneys, or
their authorized legal assistants, should review legal materials such as videos, cd-roms and audio
tapes with inmates in the visiting room during established legal visiting times.” Legal Guide to the
Federal Detention Center Houston, Texas at 7. (Emphasis added). Such a requirement essentially
reduces Mr. Stanford’s already burdened counsel to mere custodians of their own DVD’s of
discovery documents, while other defendants’ attorneys are busy preparing their respective client’s
case for trial. Counsel are prohibited from bringing in to the FDC any electronic equipment such as
a laptop computer, Blackberry, printers, fax machine, cell phones, or even a calculator to work with.
In addition, to no Internet access, there is no email access, nor is a telephone available for use. The
only “work tools” counsel (or anyone) is permitted to bring into the FDC is a pen and legal pad.
22
defense team (both criminal and civil) have met with him a total of 155 times. These
meetings were for a total of 421 hours of which 121 hours or 29 % were spent going
through security, waiting for Mr. Stanford to be brought to the visitation room from
his cell, going through security in order to leave the facility, and travel to and from
the FDC.17
While the staff at the FDC is generally helpful, there are policies that restrict
counsel’s ability to gain access to Mr. Stanford. For instance, the visiting hours on
Friday to Sunday are from 8:00 am until 3:00 pm; however, unless counsel is in the
visiting room before 2:00 pm, they are not permitted to enter. Between 8:00 am and
2:00 pm, however, there is at least one “count” which results in counsel not being
permitted to enter for, sometimes, up to two hours. Typically, this count will occur
between 9:00 am and 11:00 am, which means that the practical hours of entry are
between 11:00 am and 2:00 pm. During business or “legal visit” days, specifically
Monday through Thursday, the visitation hours are from 8:00 am to 8:00 pm. As with
Friday through Sunday, “social visit” days, there is a 10:00 am count requiring no
entry or exit between 9:00 am and 10:30 am. However, on legal visit days, there is
17
In addition to the criminal case, Mr. Stanford is the defendant and/or has an interest in
approximately 75 civil lawsuits in the United States alone. If Mr. Stanford were allowed to be
released on bail subject to strict conditions, he would be able to meet daily with his entire legal
defense team and work in an unencumbered and enormously more productive environment; versus
the highly restrictive, stressful, and wholly unproductive conditions at the FDC.
23
another count that typically takes place between 3:15 pm and 4:30 pm, which lasts for
an hour, again, requiring no entry or exit during that period. Finally, on “legal visit”
days, if counsel is processed by 7:00 pm, access is denied since “legal visits” end at
8:00 pm, even if counsel only needs to drop off or pick up a single document.
There are additional factors that present unique problems to this case. Since
the allegations deal with financial fraud and securities, it will be necessary for
counsel to retain the assistance of a team of forensic accountants. The accountants,
in order to begin their examination of millions of pages of financial records, will need
a significant amount of information about the assets, investments, and financial
structure of the worldwide Stanford organization. Because of FDC policies,
members of the accounting team will not have open and unfettered access to Mr.
Stanford. Any questions that may arise will have to be communicated to counsel who
then will have to go to the FDC and meet with Mr. Stanford to obtain answers. The
same problems will exist as to private investigators, employed by counsel, who will
be charged with the responsibility of investigating hundreds of potential witnesses.
The inability of the investigators to have open access to Mr. Stanford will result in
a significant slowdown when questions they have for Mr. Stanford will have to be
given to counsel who then will have to go to the FDC to seek answers from their
24
client. There will be many other experts and consultants that will be utilized in Mr.
Stanford’s defense who will face the same obstacles.18
In summary, due to the extraordinarily unique circumstances of this case, the
daunting scope of pretrial discovery, the millions of pages of documents that must be
examined (which surely will increase as the process goes forward, and, will compel
the review of other documents beyond those already in the government’s database),
and the complexity of the allegations, factual issues and legal questions presented,
Mr. Stanford is unable to effectively or meaningfully assist and participate in his own
defense while incarcerated. If Mr. Stanford was admitted to bail subject to strict
conditions of release, including the restriction of his movement, these staggering
mental and physical challenges in preparing for his trial in the next twelve months
18
The use of the telephone and email for Mr. Stanford to meaningfully communicate with
the legal defense team is totally unworkable. Mr. Stanford has to request the use of an unmonitored
phone usually 3 days in advance. The FDC Legal Guide states that inmates may make unmonitored
telephone calls to their attorneys but “each call is ordinarily limited to 15 minutes in length.” Legal
Guide to the Federal Detention Center Houston, Texas at 9. The limitations imposed on
unmonitored telephone calls effectively forecloses any realistic opportunity for client and counsel
to participate in an in-depth conversation about document review and discovery issues. On at least
three occasions (October 8, 29, and 30), Mr. Stanford was not even permitted to have an
unmonitored telephone conversation with legal counsel even though a court hearing was “imminent,”
instead, Mr. Stanford was instructed to contact his counsel on one of the inmate government
monitored phones which have a one 15 minuted call per hour limit, is not available for use for 4
hours of the day and is located in the middle of his cell block he shares with over 100 other inmates
thus affording him no confidentiality or privacy. In addition, this phone has a limit of 300 minutes
per month which would easily be exhausted in a few days. All FDC inmate email communication,
both incoming and outgoing, is read by government officials; as a result, nothing confidential or
privileged can be sent or received. In any event, sometimes it takes up to 2 days for an email to be
received.
25
could make the transition from impossible to possible. There is a readily available
structure that can be put in place to assure his appearance at trial and reasonably
assure his ability to prepare for it. Mr. Stanford cannot be deprived of daily,
unencumbered access to the discovery, experts, investigators, consultants and a
meaningful collaboration with his attorneys, if he is to have any true capacity to assist
in his own defense.
VII.
THERE ARE CONDITIONS OR COMBINATIONS OF CONDITIONS
THAT WILL GUARANTEE MR. STANFORD’S PRESENCE AT TRIAL
In ordering the release of Mr. Stanford pending trial, Magistrate Judge Stacy
imposed a number of bail conditions, including ordering him to live with his fiancee,
Ms. Andrea Stoelker, who was designated by the Court as a third-party custodian, see
§ 3142(c)(1)(B)(i), restricting him to his residence “at all times except for
employment, education, religious services, medical substance abuse or mental health
treatment, attorney visits, court appearances, court-ordered obligations, or other
activities pre-approved by the Pretrial Service office or supervising officer,” and
requiring that he “must participate in a GPS location monitoring program” and abide
by all the program’s requirements. (Transcript at 210).
The prosecution offered no proposed or suggested condition (or conditions) of
release to Magistrate Judge Stacy in addition to those imposed; it merely remained
26
resolute in its opposition to the release of Mr. Stanford and sought a stay of the
Court’s order. (Transcript 218). When asked by this Court if it was the government’s
“position there’s no combination of conditions that would reasonably assure his
appearance,” the prosecutor responded, “That is the government’s position, your
Honor.” (Transcript at 44-45). Detention was the only possible remedy available,
according to the prosecution, due to the presence of “flight risk indicators” and,
therefore, utterly no consideration was given to whether there were (are) strict
conditions of release that could be imposed that would reasonably assure his
appearance at trial. (Transcript at 44). When this Court queried the prosecution by
stating “[b]ut if I decide that he may be released, what then are the terms as a
fallback position [that] you suggest?”, tellingly, the prosecution offered none.
(Transcript at 45). (Emphasis added.) But of course there are conditions of release
that go beyond the mere posting of money that can serve to reasonably assure the
appearance of the accused in court.
In this respect, it is submitted that the prosecution did not shoulder its burden
“to prove the absence of such conditions by a preponderance of the evidence.”
United States v. Chimurenga, 760 F.2d at 405. (Emphasis added). No consideration
was given to whether Mr. Stanford’s appearance at trial could be reasonably assured
by conditions of pretrial release that in addition to requiring home detention and GPS
27
location monitoring mandates, for example, the presence of around the clock armed
officers (off-duty and/or retired certified peace officers) at Mr. Stanford’s residence,
all paid for without any reliance on public funds.19
1. 24-HOURS-A-DAY ARMED SECURITY
While counsel could find no case in the Houston Division of the Southern
District of Texas, other courts around the country have used 24-hours-a-day armed
security to assure that the defendant complies with all conditions of release. Most
frequently this condition has been imposed in the Southern District of New York, and
primarily in white collar fraud cases. When this condition has been imposed, the
defendant is required to pay for the cost of 24-hours-a-day armed guards (who are
19
As the Court is aware, at the time of the detention hearing and this Court’s plenary review
of the Magistrate Judge’s order of release, Mr. Stanford had not been able to retain counsel due to
the fact that all of his assets and worldly possessions were seized by the court- appointed receiver.
He has been rendered effectively indigent. On September 16, 2009, this Court appointed the Federal
Public Defender to represent Mr. Stanford due to Mr. Stanford being financially unable to retain
counsel. (Dkt. No. 122). On the following day, September 17, 2009, the Court made the finding that
“this is an extremely difficult case” and appointed additional counsel, Kent A. Schaffer, a private
member of the bar of the United States District Court for the Southern District of Texas, to represent
Mr. Stanford. (Dkt. No. 126). Thereafter, on October 15, 2009, Assistant Federal Public Defender
Michael Sokolow was discharged from representing Mr. Stanford and Kent A. Schaffer was
discharged as appointed counsel and admitted as retained counsel (Dkt. Nos. 143 and 145) due to
Lloyd’s of London’s affirmation and assurance through its counsel that it would make funds
available for the criminal defense of the indicted defendants herein. On October 19, 2009, George
McCall Secrest, Jr. entered an appearance of counsel on behalf of Mr. Stanford in reliance on that
assurance. (Dkt. No. 147). As will be demonstrated infra, “information (now) exists that was not
known to the movant at the time of the (detention) hearing that has a material bearing on the issue
whether there are conditions of release that will reasonably assure the appearance of” Mr. Stanford
at trial.
28
either off-duty or retired law-enforcement officers); the defendant is confined
primarily to his residence with strict conditions imposed as to his movement and
access by the public.
Interestingly, and of the greatest significance, counsel can find no cases
where this condition has been less than 100% successful in assuring the presence
of the defendant in court. In each case the defendant showed up for trial, re-
arraignment, and sentencing, and the eventual sentences ranged from one year to as
much as 150 years in the custody of the Bureau of Prisons.
In the cases where 24-hours-a-day/7-days-a-week armed officers have been
utilized, the following combination of conditions have often been used:
• An armed guard must be present at the home, 24-hours-a-day/7-

days- a-week.
• The defendant may not leave his residence except for meetings
with counsel, court appearances, or medical appointments, etc.
Any time the defendant does leave his residence, it must be with
prior approval of the Court or Pretrial Services and the defendant
is accompanied by the armed officer.
• The defendant must wear an electronic monitor or GPS tracking

device.
• All visitors to the defendant’s residence must be approved, in

advance, by Pretrial Services and the number of visitors is
typically limited to no more than three at a time. In some cases,
the visitors must also be approved by the United States Attorney’s
Office. Visitation can occur only during certain, pre-determined
29
hours, and all visitors must have proper identification. No

persons with a record of felony convictions may visit and a log of
all visitors will be maintained by the guard on duty for ready
inspection by Pretrial Services, the Court or the United States
Attorney’s Office.
• All visitors to the home may be searched by the guard on duty.
• Internet access is not permitted or is either restricted.
• The defendant must give his express consent, in writing, to the

use of reasonable force by the officer to thwart any attempt to
flee.
• No cell phones are permitted in the residence and there can be

only one land line that will not have call forwarding or call
waiting.
• No weapons of any type may be in the residence and the armed

security guard is given specific instructions to search the
residence to assure full compliance with this condition.
• The defendant may not possess any travel documents.
• If the defendant’s residence has a balcony, an alarm must be

installed that will notify the guard if the balcony door is opened.
The defendant may not go onto the balcony unless the officer is
present.
• In some cases, the defendant is required to agree to consensual

searches of his residence by federal law enforcement agents at
their discretion and without need for further order of the Court.
• In some cases, video monitoring of the door/doors of the

defendant’s residence is required.
30
• Random unannounced visits and even searches by Pretrial

Services are permitted.
• No safes or other secured storage facilities are permitted in the

residence.
• No controlled substances may be present unless prescribed by a

medical doctor.
While not all of the cases involving the use of armed guards have imposed all
of the aforementioned conditions, most of the conditions are usually imposed. In
essence, a defendant who is released from confinement under these conditions is
confined in his residence; his whereabouts is continuously known and verified by the
around the clock presence of an armed law enforcement officer (or retired officer),
who is duly authorized to use all reasonable force to assure full compliance with the
Court’s conditions of release. The defendant, however, is free to work unencumbered
with his counsel and the defense team in the development of his defense.
In the recent case of the United States v. Marc Dreier, 596 F.Supp.2d 831 (S.D.
N.Y. 2009), Judge Jed Rakoff imposed most of the conditions set forth above on Mr.
Dreier, who was a lawyer in New York City, indicted for multiple counts of securities
fraud, wire fraud, and money laundering. Mr. Dreier devised a scheme wherein he
sold false promissory notes and stole approximately $400 million from his clients.
Much of his scheme took place in Canada; when he was arrested in Canada, he fled
31
the jurisdiction and returned to New York. He was later arrested by federal agents on
an indictment out of the Southern District of New York and according to Judge
Rakoff, was accused of “colossal criminality.” (Id. at 832).
On December 8, 2008 the government sought to detain Mr. Dreier; however,
on February 8, 2009, Judge Rakoff found that although Mr. Dreier posed a risk of
flight, conditions could be set that would reasonably assure his appearance in court:
Whatever facts may ultimately emerge, the Government has carried its
burden for the limited purposes of the bail hearing of showing that
Dreier is not only a master of deceit and a doyen of dishonesty but the
kind of person who, under stress, may resort to desperate measures.
Indeed, for the limited purposes of the bail hearing, the defense does
not challenge the allegations of the indictment that set forth in some
detail Dreier’s sophisticated frauds and his procurement of
impersonation by his confederates ... It appears, moreover, that Dreier
has not limited the assumption of false identity–a sine qua non to any
successful flight from justice–to his associates. With his allegedly
fraudulent schemes in disarray, Dreier himself, in an effort to obtain
badly needed funds, undertook to pose as a person he had met but
minutes earlier–an act of brazen impersonation that his own counsel
twice conceded was a ‘desperate act.’ Nor, it would seem, has Dreier
been wholly candid with his counsel or the Court....
Furthermore, Dreier’s motive to flee is palpable, for he faces

potentially large sentences if convicted, his money and assets are either
frozen or spent, his family ties appear strained, and he has become a
pariah to the profession that he once practiced, as well as to much of the
community at large. Without multiplying examples further (but after
careful consideration of all of the evidence presented to the Court), the
Court finds that the Government has more than satisfied it’s burden of
proving by a preponderance of the evidence that Dreier, if released
without conditions, would pose a genuine risk of flight.
32
(Id. at 832-833).
Nevertheless, after finding that Mr. Dreier posed a genuine risk of flight, the
Court determined there were conditions of release that could be imposed which would
minimize that risk. He ordered a fourteen point plan that required, inter alia, home
detention, “secured not only by electronic monitoring but by on-premises armed
security guards, supplied by a company acceptable to the Government but paid for
by the defendant’s relatives”; “that the defendant expressly consent in writing to the
use, by the armed security guards, of ‘temporary preventive detention and the use of
reasonable force’ to thwart any attempt to flee”; and “that no visitors be permitted to
visit the defendant without the express prior written permission of the Pre-Trial
Services officer, given only after consultation with the U.S. Attorney’s Office.” (Id.
at 834). As Judge Rakoff held,
[t]he court is confident that this considerable set of conditions will be

sufficient to reasonably assure the defendant’s appearance in court as
required. At the same time, it is a set of conditions that the defendant
may reasonably be expected to meet. Accordingly, it accords, not only
with the Bail Reform Act, but with the Constitution of the United States.
(Id. at 834-835). (Emphasis added). (Exhibit 5).
Mr. Dreier remained on bond from February 8, 2009 and later entered a plea
of guilty to the above charges. On July 13, 2009, he was sentenced to 20 years in the
custody of the Bureau of Prisons. (The government had requested a sentence of 145
33
years in prison.) Throughout the time that Mr. Dreier was under home confinement,
there were no reported violations of the conditions of release.
The case of United States v. Bernard Madoff, 586 F.Supp.2d 240 (S.D.N.Y.
2009), is unique in that it involved what the government alleged to have been the
prosecution of the largest fraud and Ponzi scheme in history that resulted in a loss of
over $50 billion to the investors. Not only does the actual loss in the Madoff case
dwarf the alleged loss at issue in the instant case, but in addition, Mr. Madoff
confessed both to having devised the scheme to defraud investors and actually
committing the various crimes for which he was charged. Mr. Madoff owned
property outside of the United States, had contacts and associates around the globe
and had ready access to private aircraft.
On December 11, 2008, Mr. Madoff was charged with securities fraud and was
immediately released on a $10 million personal recognizance bond that required four
financially responsible co-signors and secured by various real estate. He was
required to surrender his travel documents and travel was restricted to the Southern
and Eastern Districts of New York and the District of Connecticut. On December 19,
2008, after modifying various conditions of release, Madoff was allowed to remain
on bond pending trial subject to the following bail conditions germane to the instant
motion: home detention, 24 hours a day, with electronic monitoring, round-the-clock
34
monitoring at Madoff’s building by a security firm acceptable to the Government,
“including video monitoring of Madoff’s apartment doors, and communications
devices and services permitting it to send a direct signal from an observation post to
the Federal Bureau of Investigation in the event of the appearance of harm or flight.”
(Id. at 244).
On December 24, 2008, after Madoff sent “gifts” and “items of sentimental
value” to friends and family that the prosecution contended were worth over $1
million, the government filed a motion seeking detention. (Id. at 244-245). The
Court ultimately denied the motion although it entered other conditions of release
relevant to the disposal of property by Madoff pending trial. (Id. at 255). The Court
did address, however, the government’s contention that even with home detention,
electronic monitoring and the presence of security guards “that doesn’t make the
flight risk zero. There is still some flight risk....” (Id.) (Emphasis added). As the
Court held,
[i]n this regard the Government articulates an erroneous legal standard.

The Act does not require that the risk be zero, but the conditions
imposed “reasonably assure” appearance.20 The Government points to
the unprecedented nature of the charges in this case. However, the
conditions imposed for release are unique in their own right, and appear
20
See United States v. Chen, 820 F.Supp. 1205, 1208 (N.D. Cal. 1985) (“reasonable
assurance” of a defendant’s appearance at trial cannot be read to require guarantees against flight.);
and United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985).
35
reasonably calculated to assure Madoff’s appearance when required.

Aside from the bare assertion that there remains some risk of flight,
the Government has failed to articulate any flaw in the current
conditions of release. This omission is important because it does not
permit the Government to demonstrate, or the Court to assess, the
second part of the Government’s burden, that there are “no condition
or combination of conditions” which could address this identifiable
risk....
(Id. at 249). (Emphasis added). (Exhibit 6). On March 12, 2009, Mr. Madoff pled
guilty to an 11 count Criminal Information and on June 29, 2009 was sentenced by
United States District Court Judge Denny Chin to 150 years in prison. Despite the
fact that he had been facing such an incredibly lengthy sentence, the conditions of
release imposed by the Court which required home detention, electronic monitoring
and 24 hour per day security monitoring of his apartment reasonably assured his
appearance at re-arraignment.
In United States v. Clifford Harris (Cause No. 1:07-MJ-1197) (N.D. Ga. 2007),
the defendant, also known as “T.I.,” a well-known rap music recording artist, was
charged with the possession of unregistered machine guns and silencers, as well as
being a felon in possession of firearms. It was alleged that he possessed three
machine guns, two silencers and had recently purchased nine additional firearms.
Upon being arrested by federal agents on October 15, 2007, the government moved
for a detention order alleging both a danger to the community and risk of flight. On
36
October 15, 2007, the Court denied the request for detention and released Mr. Harris
on the following conditions of release:
• The defendant’s home and vehicle were to be searched by ATF

agents and Pretrial Services, prior to his arrival home;
• Electronic GPS monitoring was ordered to be paid for by the

defendant;
• A private monitoring service was to provide GPS monitoring

reports and visitor lists to Pretrial Services at least once a week
and any violation was to be reported immediately to Pretrial
Services;
• The search of the defendant’s home and/or vehicles was permitted

at any time by Pretrial Services;
• No safes or secured storage facilities were allowed in his home or

vehicles;
• Only the defendant’s girlfriend and children could be present in

his home between 8:00 pm and 7:00 am;
• No more than three visitors were allowed in the home at a time;
• All visitors had to be pre-approved in writing by Pretrial Services;

each was subject to a search of their person and vehicles and were
required to consent to a criminal background check before any
entry into the residence. No person with a felony record was
permitted to visit without prior permission being obtained from
Pretrial Services;
• An armed law enforcement officer was to be posted at the

residence 24 hours a day, seven days a week;
37
• No person on the premises could possess a firearm or ammunition

aside from private monitoring service and law enforcement
personnel;
• A visitor log was to be maintained by the armed guard (and

provided to Pretrial Services weekly);
• Random and periodic drug tests would be administered if ordered

by the court;
• A surety bond in the amount of $3 million was to be posted with

the court.
(Exhibit 7).
On March 28, 2008, Mr. Harris appeared in court as ordered and entered pleas
to charges in a Superseding Criminal Information and he was sentenced to three
consecutive sentences of one year and a day as to each charge, fined $100,000 and
ordered to perform 1500 hours of community service. (Id.) There were no reported
violations of the home detention order.
In United States v. Tomasz Holda (Cause No. 1:04-CR-368) (N.D. GA. 2004),
Mr. Holda was charged in a nine count indictment with the possession, transportation
and importation of firearms by a convicted felon, possession of a silencer, possession
with the intent to distribute various controlled substances (cocaine, MDMA, anabolic
steroids, Alprazolam and Diazepam), and with being in possession of a firearm during
a drug trafficking offense. (In addition to the penalties for the drug counts, he was
38
facing a mandatory minimum five years in prison on the gun counts, which would run
consecutive to the sentences on the drug counts; as well as an enhancement on the
drug counts for being a repeat offender.)
When he was arrested on June 15, 2004, the government sought to detain him
arguing that he posed both a flight risk and a danger to the community. He was
detained after the conducting of a detention hearing on June 21, 2004; although the
Court found he had close ties to Poland and Belize and substantial financial
resources, the Court also determined that he presented sufficient evidence to
overcome the statutory presumption that he was a flight risk. See § 3142(f)(1) which
is not applicable to the case sub judice.
On June 25, 2004, Mr. Holda filed a Motion for Reconsideration of Bond
asserting that he could post a $100,000 cash deposit with the Court, would pledge an
equity interest in his home to further secure the bond, and agreed to electronic
monitoring and home detention, with 24-hours-a-day monitoring by retired FBI
agents. After the conducting of a hearing on July 2, 2004, the Magistrate Judge
imposed conditions of release which included:
• Home detention with electronic monitoring;
• Limited visitation privileges;
39
• Consent to search of his person and premises at any time by

federal agents;
• Abstention from the use of drugs (non-prescription) and alcohol;
• Monitoring by retired FBI agents, 24-hours-a-day/seven-days-a-

week.
The government appealed the order of release entered by the Magistrate Judge
and on July 27, 2004, the District Court upheld the order adding additional
conditions, including a requirement that the guards who were monitoring Mr. Holda
submit a report to the Assistant United States Attorney and Pretrial Services at least
once a week. (Exhibit 8).
Mr. Holda dutifully appeared for re-arraignment on June 13, 2005 and entered
a plea to the indictment. He was subsequently sentenced to 54 months and
voluntarily surrendered to prison as ordered.
In addition to the aforementioned cases where home detention and 24-hours-a-
day security guards (along with other conditions) were ordered to assure appearance
at trial, there have been other recent prosecutions involving charges similar to those
in the present case where conditions of release have been set. For example, in the
very recent case of United States v. Raj Rajaratnam (Cause No. 1:09-MJ-02406)
(S.D.N.Y. 2009), a thirteen count Indictment alleging conspiracy, securities fraud and
wire fraud was returned against Mr. Rajaratnam, who is listed as the 559th richest
40
person in the world, according to Forbes Magazine. Reportedly, he is currently worth
$1.5 billion and is a citizen both of the United States and Sri Lanka. Although he is
extremely wealthy and has enormous assets unencumbered by the pending
prosecution (and, therefore, has the means to flee), he was admitted to bail with the
following conditions of release:
• $100 million personal recognizance bond (with a deposit of $20

million in cash or property);
• Four co-signors;
• Travel restricted to New York City until the deposit is posted

(after which his travel is restricted to an area within 110 miles of
Manhattan;
• Surrender of travel documents.
It is to be noted that Mr. Rajaratnam is accused of operating a massive insider
trading scheme from his investment firm, the Galleon Group, which is a multi-billion
dollar hedge fund with offices around the world. Apparently, on the day before his
arrest, he allegedly purchased an airplane ticket to London. Despite the existence of
incredible wealth, dual citizenship, ties to many countries around the globe, and a
similar motive to flee, in light of the reality of exposure to incarceration for a
significant period of time, he has been released without even the requirement of home
detention and armed security monitoring of his whereabouts. (Exhibit 9).
41
The undersigned counsel have consulted with Chad Norvell, Chief Deputy,
Fort Bend County Precinct 4 Constable’s Office to develop a protocol for round-the-
clock (24-hours-a-day/7-days-a-week) monitoring of Mr. Stanford’s apartment by
armed off-duty licensed law-enforcement officers. As is reflected in Chief Deputy
Norvell’s letter to counsel, dated December 1, 2009, and submitted to the Court under
seal, as Exhibit 10, the residence in question has been personally inspected by him
to ascertain the feasibility of the proposed protocol from a security professional’s
perspective.
The residence is located on the upper floors of an apartment tower and has two
(2) external doors, one of which leads to a hallway (front door) and the second
exterior door leads to a balcony. None of the exterior windows open. Although it is
highly doubtful that a person could successfully jump from the balcony to an adjacent
balcony, Chief Deputy Norvell confirms that an alarm would be installed on the
exterior balcony door which would be set off if the door is opened (unless de-
activated by the law-enforcement officer on duty by a key that would always remain
in the possession of the officer).
As is set forth in the “Protocol Details” section of Chief Deputy Norvell’s
letter, the residence will be swept and thoroughly searched prior to Mr. Stanford
entering the same upon his release from detention; visitors will be limited in number
42
to only those who have been approved by Pretrial Services and searched prior to
entry. While Mr. Stanford is in the residence, the officer will enter at least hourly
plus as many times as the officer believes is necessary throughout the day and night.
In addition, a supervisor will make at least one unscheduled visit per day to insure
that Mr. Stanford is in compliance with the condition of residential confinement. The
officers will be armed at all times while guarding Mr. Stanford. The officers will be
legally authorized (and required) to use all reasonable force to thwart any attempt by
Mr. Stanford to flee. (Mr. Stanford has executed a waiver of liability and an
acknowledgment that the officers are lawfully permitted and, indeed, required to use
all lawful force to prevent any attempt to escape.) (Exhibit 11). In addition, Mr.
Stanford will be required to wear GPS location monitoring at all times once released
until further order of the Court.
Members of Mr. Stanford’s family, as well as several of his friends, have made
it known to counsel that in light of Mr. Stanford’s declining mental and physical
health and his inability to adequately assist his legal defense team in the preparation
of his defense while incarcerated, they are willing to be responsible for the financial
expenses associated with employing armed law enforcement officers to guard Mr.
Stanford 24 hours a day/7 days a week. This fact was not known to Mr. Stanford or
counsel at the time of the earlier detention hearing and “has a material bearing on the
43
issue of whether there are conditions of release that will reasonably assure the
appearance of such person as required....” 18 U.S.C. § 3142(f)(2). Counsel represent
to the Court that funds will be deposited into their IOLTA trust account in order to
meet the first three months of expenses associated with the hiring of armed law
enforcement officers to guard Mr. Stanford.
2. WAIVER OF EXTRADITION
Although the previously described conditions of release make it highly
improbable that Mr. Stanford would attempt to flee and not appear for all
forthcoming judicial proceedings in this matter, an additional condition of release
could be imposed by this Court by requiring Mr. Stanford to execute a non-revocable
waiver of extradition.
VIII.
CHARACTER LETTERS ATTEST TO MR. STANFORD’S
COMMITMENT TO STAND AND FIGHT THESE ACCUSATIONS
Counsel are submitting character letters for the Court’s consideration which
address Mr. Stanford’s resolve to meet these charges “head on” in a court of law.
Attached hereto is Exhibit 12, the letters and a list which identifies for the Court the
relationship between the author and Mr. Stanford. For example, Bryan R. Stoelker
humbly requests of this Court “that you reconsider granting him bail so that he can
be of both sound mind and body, when his trial comes, and can have a solid defense.”
44
Elizabeth Robinson states that “[t]his man has not been proven guilty of anything and
it would seem to me that he should be able to defend himself to the highest degree
and with every resource available.” Sammie Stanford, Mr. Stanford’s mother, asks
the Court “with all my heart and soul to give him every opportunity to defend
himself.” Sandra L. Birdwell, Mr. Stanford’s sister, states, “I know he wants to stay
and face the charges brought against him ... [P]lease reconsider and allow his freedom
while he prepares for the fight of his life.”
These letters are from Mr. Stanford’s family and friends and are compelling;
people who no doubt are pulling for him and, quite frankly, are very committed to
him, and yet these are the very individuals who know him the best and can ably attest
to the fact that he will appear at trial, demand a trial by jury, enter a plea of not guilty,
and will take the prosecution on, requiring that it prove, if it even can, the allegations
in the indictment beyond a reasonable doubt. But unless he is permitted to truly and
meaningfully assist his counsel (and have his counsel effectively assist him) in the
preparation of the defense, unless he is allowed to have real access to the massive
discovery in this case, and in turn, allowed to assist his counsel in understanding the
significance of the same, and unless he is able to adequately consult with experts,
advisors, and investigators in the preparation of the defense, in light of the very
45
extraordinary nature and complexity of this case, he will not be able to otherwise
obtain in a court of law the due process to which he is constitutionally guaranteed.
These goals are not mutually exclusive. Mr. Stanford can be released from pre-
trial incarceration pursuant to strict conditions of release, as outlined above, that will
not only severely restrict his movement and freedom and reasonably assure his
appearance at trial, but at the same time, permit him to actually participate in his
defense. Due to the truly extraordinary nature of the instant prosecution and the
corresponding demands on defense counsel to present the most compelling and
effective defense that the facts and the law support, the goals of the Bail Reform Act
and the constitutional guarantees of effective assistance of counsel, right to a speedy
trial, and the right to put on a defense can all be realized.
IX.
MR. STANFORD REMAINS IN CUSTODY AWAITING TRIAL

WHILE HIS CRIMINAL DEFENSE IS AT A STANDSTILL DUE TO
CIRCUMSTANCES BEYOND HIS CONTROL
As the Court is well aware, on November 15, 2009, the undersigned counsel,
as well as counsel for other defendants in this case, were notified by counsel for
Lloyd’s of London that notwithstanding earlier representations to the contrary,
Lloyd’s of London was declining to pay for any attorney fees and other reasonable
expenses incurred by the criminal defendants in defending the criminal allegations.
46
While we await a final judicial determination of Lloyd’s legal obligation to honor its
contractual commitments under the three aforementioned insurance policies, Mr.
Stanford has begun his seventh month of incarceration in the custody of the United
States Marshall. He suffers from the proverbial “Catch 22”: because he is
incarcerated his case needs to proceed to trial as expeditiously as possible consistent
with his constitutional right to have adequate time to prepare his defense; however,
in light of Lloyd’s bad faith declination of coverage, he is denied access to reasonable
and necessary funds to pay his attorneys and to finance the expenses essential to
defending a case of this size and complexity. The clock is ticking but Mr. Stanford
is stuck in limbo, as is his defense.21
It is respectfully submitted that Mr. Stanford is being unfairly and
unnecessarily incarcerated pending trial; not only can he not meaningfully participate
in his own defense while incarcerated, his defense is at a veritable standstill due to
21
On November 19, 2009, the Court entered an order denying Stanford’s Motion for a
Protective Order “at this time” and directed counsel to “first seek relief from the broad provisions
of the AOAR in the United States District Court for the Northern District of Texas.” (Order, Dkt.
No. 159, at 2). While counsel respects the Court’s order, we observe that because of Lloyd’s
unilateral refusal, made in bad faith, to pay attorney fees and reasonable expenses necessary to
defend the criminal allegations, despite having made previous assurances to the contrary, which were
relied upon by counsel to their detriment in making the decision to undertake the instant
representation, not only are we hamstrung in mounting a defense to the pending criminal charges,
we will now be embroiled in civil litigation in order to compel Lloyd’s to honor its contractual
commitments and to prevent the Receiver from violating constitutional and statutory rights of Mr.
Stanford due to the overly broad order entered in the pending S.E.C. action in Dallas.
47
no fault of his own. He has suffered serious, life threatening injuries while
incarcerated and his physical and mental health have rapidly declined. As Dr.
Scarano’s evaluation of Mr. Stanford clearly states, “[i]f the present set of
circumstances persist, Mr. Stanford’s spiraling downhill course will continue to the
point where he will suffer further serious physical disorders and, more likely than
not, a complete nervous breakdown.” There are conditions of release not previously
addressed or considered by the Court which will reasonably assure his appearance at
trial and out of fairness ought to be ordered. Although the presumption of innocence,
at least in theory, is not “modifi(ed) or limit(ed)” by the entry of an order of detention,
it is truly difficult in Mr. Stanford’s case to be sure of the accuracy of that
proposition.
Respectfully submitted,
/s/ Kent A. Schaffer

KENT A SCHAFFER
Federal ID. No. 3603
TBA No. 17724300
BIRES & SCHAFFER
712 Main Street, 31st Floor
Houston, Texas 77002
(713) 228-8500
(713) 228-0034 (FAX)
48
/s/ George McCall Secrest, Jr.

GEORGE McCALL SECREST, JR.
Federal ID No. 541
TBA No. 17973900
BENNETT & SECREST, PLLC
808 Travis Street, 24th Floor
Houston, Texas 77002
(713) 757-0679
(713) 650-1602 (FAX)
Attorneys for Defendant/Appellant,

ROBERT ALLEN STANFORD
49
CERTIFICATE OF SERVICE
I hereby certify that on December 21, 2009, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send notification
of such filing to all registered parties. However, some of the exhibits contained are
filed under seal and will be conventionally served to AUSA Greg Costa and the Court
on December 22, 2009.
/s/ Kent A. Schaffer

KENT A SCHAFFER
50

MTN For Reconsideration of Detention Order

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

MTN For Reconsideration of Detention Order

Caricato da

Copyright:

Formati disponibili

Case 4:09-cr-00342 Document 172 Filed in TXSD on 12/21/09 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA §

MOTION FOR RECONSIDERATION OF ORDER OF

TO THE HONORABLE DAVID HITTNER, UNITED STATES DISTRICT JUDGE

representative and detaining him pending trial. Due to changed circumstances1

discussed below, it is not only appropriate to consider the imposition of additional

strict conditions of release in order that he be able to meaningfully participate in his

defense and receive effective assistance of counsel.

a $100,000 cash deposit.2 Other conditions of release were imposed in light of

release order pending trial.

Previous counsel for Mr. Stanford filed Allen “Stanford’s Motion To

affirmed this Court’s order on August 24, 2009.

The undersigned counsel do not seek to re-litigate the findings by both

more before an order of detention would be appropriate.

appropriate if “no conditions or combination of conditions will reasonably assure the

appearance of the person as required.” 18 U.S.C. § 3142(e). (Emphasis added). It

provides that “[e]xcessive bail shall not be required,”

§ 3142(b) requires a court to order the pre-trial release of a

of punishment prior to trial.

beings, except for guards or his lawyers.

until the next time his lawyers returned for a visit.

unwarranted conditions and placed in general population.

Prior to Mr. Stanford’s incarceration, he had never experienced any prolonged

Conroe Regional Medical Center and underwent cardiac catheterization,

echocardiogram, X-rays, and other medical tests and procedures. He experienced

dysrhythmia that Mr. Stanford experienced as “potentially lethal.” (Scarano’s report

Detention facility. On September 2, 2009, he was readmitted to the Conroe Regional

catheterization on August 27, 2009. (Id.)

On September 24, 2009, while incarcerated at Corley, Mr. Stanford was

to the right trigeminal nerve sensory branches requiring reconstructive general

symmetrical to his left eye.

of life-threatening recurrent heart rhythm disturbances); Metoprolol (a beta-blocker

Shortly after being incarcerated at the FDC, it became readily apparent to

increasingly despondent. When a person presumed innocent is denied bail and

Mr. Stanford to be mentally and emotionally fit.

that session. According to Dr. Scarano,

[f]rom a psychiatric point of view, Mr. Stanford’s physical and mental

In my opinion to a reasonable degree of medical certainty,

In my view to a reasonable degree of medical certainty, allowing Mr.

(Scarano’s report at 41).

Stanford should establish a therapeutic relationship with a psychiatrist or psychologist

experienced in cognitive behavior therapy” and that “[r]egular therapeutic sessions

attached hereto as Exhibit 3,

[a]side from the logistical difficulties associated with his present

Stanford on three separate occasions while he was incarcerated there. According to

(Exhibit 4; Duckers’ report at 1). In Dr. Duckers’ professional opinion, if Mr.

court for trial. (Id. at 3).

On December 8, 2009, Mr. Stanford was evaluated by a psychiatrist and two

antidepressant Zoloft which he began taking on December 9, 2009.

software program utilized by the government. The iCONECT system currently

contains approximately 7 million pages of images from approximately 5 million paper

government has added an additional 200,000 documents in a single upload to the

60 terabytes (60,000 gigabytes) of information that is in the possession of the

fractional percentage of the documents that will need to be reviewed in preparing a

records, financial disclosures, certificates of deposit, audit reports, property records,

internal memoranda, emails, correspondence, telephone records, etc. Beyond being

knowledge of the inner-workings of the worldwide Stanford related companies.

defense team in an unencumbered way as discovery documents are being reviewed

significance of certain documents to the defense of the allegations, is constitutionally

While Mr. Stanford has been incarcerated, it has been impossible to

be accomplished with Mr. Stanford incarcerated.

As previously stated, the discovery provided in this case is incredibly