## Facts

- Paul Spivak, a 62-year-old chief executive officer of a manufacturing company, was arrested in June 2021 on a federal charge of conspiracy to commit securities fraud.
- The United States initially sought pretrial detention, but the parties later agreed to a $600,000 bond and release conditions that included location monitoring and surrender of Spivak’s passport.
- Spivak remained in custody while pretrial services inspected his home and while he worked to satisfy the financial/security requirements tied to the bond.
- After the inspection, pretrial services reported that Spivak’s home was not suitable for home detention because slow internet and poor phone service would make electronic monitoring difficult.
- Inspectors also found weapons in Spivak’s home during the inspection.
- Spivak moved for release, asserting he had satisfied the bond conditions and that the government and one of Spivak’s associates had custody of his weapons.
- At a detention hearing, the government argued Spivak posed a serious risk of flight because he allegedly had access to assets he could liquidate to fund flight, had lied to investigators about owning firearms, had a spouse from Russia, and had expressed willingness to live in Russia, which the government characterized as a country from which extradition would not occur.
- The government also argued Spivak posed a risk of obstruction and witness pressure, relying on allegations that a witness described Spivak as volatile and threatening and later found a bag of dead rodents on the witness’s doorstep; the government further asserted Spivak asked two associates to pressure the witness to state that Spivak was not responsible.
- Spivak denied involvement in the dead-rodents incident and disputed that he attempted to intimidate or pressure any witness.
- The magistrate judge ordered Spivak detained pending trial, finding no condition or combination of conditions would reasonably assure Spivak’s appearance and the safety of others and the community.
- Spivak appealed the detention order to the district court, which reviewed the matter de novo under the Bail Reform Act.

## Issues

1. Did the government show that no condition or combination of conditions could reasonably assure Spivak’s appearance as required, such that pretrial detention was warranted?
2. Did the government show that no condition or combination of conditions could reasonably assure the safety of others and the community, including by addressing alleged witness pressure and firearms concerns?

## Decision

- The district court reversed the magistrate judge’s detention order.
- The court ordered Spivak released on the previously contemplated secured bond and strict conditions, including passport surrender and location monitoring (with residence/monitoring logistics to be addressed through appropriate arrangements).
- The court concluded that the government had not carried its burden to justify detention because workable conditions could be imposed to manage both appearance and safety concerns.
- The court treated the monitoring and residence-suitability problems (slow internet and poor phone service) as issues to be solved through conditions and placement, rather than as grounds for automatic detention.
- The court found that the government’s obstruction theory relied heavily on circumstantial allegations and that no-contact restrictions and supervision could address any remaining risk.
- The court found firearms concerns could be managed through conditions barring possession and requiring that weapons be removed from Spivak’s control.

## Legal Principles

- Pretrial detention under the Bail Reform Act is authorized only when the court finds that no condition or combination of conditions will reasonably assure (1) the defendant’s appearance and (2) the safety of any other person and the community.
- The district court reviews a magistrate judge’s detention decision de novo and makes an independent determination based on the record.
- The government bears the burden to justify detention: risk of flight is generally assessed under a preponderance-of-the-evidence standard, and danger to the community is generally assessed under a clear-and-convincing-evidence standard.
- In deciding detention or release, courts consider the statutory factors in 18 U.S.C. § 3142(g), including the nature and circumstances of the offense, the weight of the evidence, the defendant’s history and characteristics (including ties and resources), and the nature and seriousness of any danger posed by release.
- When identifiable risks can be addressed through strict conditions—such as secured bond, travel limits, electronic/location monitoring, surrender of travel documents, firearms prohibitions, and no-contact orders—detention is not permitted solely because the government raises generalized concerns.

## Conclusion

United States v. Spivak holds that, on de novo review of a detention order, pretrial detention is improper where the government fails to show that strict, enforceable conditions of release cannot reasonably manage the defendant’s risk of flight and any risk to community safety, including concerns tied to firearms, foreign ties, and alleged witness pressure.


United States v. Spivak, 555 F. Supp. 3d 541 (2021)