judicial officer impose only the least restrictive means necessary to reasonably assure a defendant's appearance at trial the question presented to this court is whether the lower court committed clear error in imposing pretrial home confinement given the facts here mr downs are now in pretrial home confinement with an ankle monitor for five hundred and eighty two days is a well known environmental advocate with deep ties to the new york community or has lived for twenty six years with his wife and fourteen year old son he owns a home in new york and is a us citizen he has no prior criminal record and has never fled from lawful authority use aliases or fake passports when the charges were filed against him he was in canada at that time he faced the potential for years in prison but voluntarily returned home to new york to face the charges at the time of arraignment and on numerous occasions since then mr offered further moral suasion in the form of twenty seven dollars sophisticated signatories beyond the two he had already secured for the significant eight hundred thousand dollars bought including a c e o of a major nonprofit numerous law excuse me theory there was no limit to the punishments that could be imposed on these exams for just because there's no maximum sentence right that's that is correct and i think and i think that is to say one of is this not the st time that this court has been asked to review the bail conditions since the maximum penalty was capped at six months i believe that is correct honor yes you believe it's correct and i believe it's correct i would think that's a rather significant fact instead of talking about what a hero this guy is with nobel prize winners backing him up the thing that has changed which is the that's correct your honor he's been there and the question is is he likely to leave yet violating jumping bail and thus committing a felony subjecting him again to a five year maximum sentence and in the best lifetime exile from the united states in order does vary a six month prison firm is that not your argument that is precisely my argument thank you judgement i couldn't have said it better myself one when he returned from canada he was facing operative many years of penalties but he showed up and he's never missed a court date as you well know but when those charges were clarified the idea that he was going to throw away twenty five years of litigation that he's fought incredibly hard for in order to commit a felony to flee petty ones that has always been a logical your honor and by the way speaking of the six months under the federal sentencing guidelines you can be sentenced to home confinement for an offense where the guidelines recommend up to fourteen months of them doesn't is that right yes it is well you don't know if you are right under the sentencing guidelines you could get a sentence of funk confinement where home confinement would be substituted one day for one day for the if he still can be subject to a bench trial where in effect or would he still be subject to a bench trial if the maximum sentence he could get was six months in at a maximum of six months jail time i'm wondering at six months would actually be a reasonable sentence after someone has served almost two years of phone confinement while awaiting but the worst that can happen to him is six months when in fact it's going to be six months well something that the sentencing guidelines treat as roughly at least for petty offenses the equivalent of two years in birth that's correct the distinction between serious and petty must mean something and we take them at their word that this is a petty charge but your point that he would have to commit a serious crime or several to flee petty ones when he stuck around for nineteen months does not make any sense and given the non speculative time that we know the future time that we know given the trials in may i will be twenty two months of home confinement where if there is a even a slight delay that means two years of home confinement u s b cutler is the main case to sort of look at here or bruce cutler lewis was flouting you know court orders on the steps of the court and he was sentenced to ninety days of home confinement mr doniger now has served six times that by the time of trial so the idea that these restraints were necessary was never appropriate but particularly when the charges were dropped from serious to petty and it was at that moment that the lower court really needed to reapply their assessment of least restrictive means requirement and reduced the home home detention and the and the ankle bracelet and give mr dodger back the freedoms that that most united states they represent the united states and appeal in the district court below i want to take a couple of points ahead on the st is this one of the arguments that's being made is that mr dobbs has been fighting this case on every single prod why would he give up his work of twenty five years why would he end the fight for disbarment there are two key facts that that remove that element from the st is judge when she is aware mr dobbs of her has now lost his appeals last week working around an injunction you cannot profit off this case that you've been profiting off of for the last four years despite the injunction and getting over one million two hundred thousand dollars which you've largely paid for software so with respect to risk of flight and the six months of imprisonment what you're looking at here are your honour's is the fact that mr dobbs to go to the case that he has been working on for the last twenty four years it is now crystal clear that he cannot profit off of it and he cannot enforce it in the united states there's a nd key fact which is him opinion and it was five of the appellate division justices signing onto it so this idea why would mr dobbs agree or pleas for six months prison sentence mr dobbs or when he showed up and when he came into the united states from canada he did not have counsel said that he did not understand he wanted more time to assess the proceeding i don't think mr doniger appreciated what the seriousness of this was when he came back into the country he asked not to be able to the country to avoid that or was subject to home confinement even after posting eight hundred thousand dollars in personal retirement funds which at least on paper at least in the order it s be secured by eight hundred thousand dollars of actual value yes your honor is there anybody who who is facing a six month that he offense guard who was with that point of security that was found insufficient had against the background is that mr dobbs nigger in ecuador with coconspirators in ecuador who are defaulted civil defendants in the case before judge kaplan they were his coconspirators they had a secret bank account in ecuador to make  confinement let's be clear with this is this is not pretrial detention mr dobbs or has been out of his apartment over and over eight hundred outings he has walked his son to and from school every single day that he has wanted to he can leave his know or you don't know whether what i what i can tell you is i currently i have a client who is serving a sentence of home confinement and he is not allowed to leave for the activities that mr dobbs digger's being allowed to leave for he would not be allowed to walk his child to and from school every day he has been out to be able to go visit with his attorney but i do think it is critically important to address the issue of why this has gone on as long as that house there is no one who is responsible for this other than m on september quarter on the eve of the trial going forward after mr dobbs your was down to two lawyers after he refused to waive a potential conflict on two of his four lawyers that judge prasco move the trial to november because he had two lawyers one of whom was refusing to show up for trial and another who wasn't prepared to go forward with the trial in september not judge press given move the trial and what she had said previous to this was she wanted the crown to go forward because there was now a window as you all remember all of this imaging and devices as he was directed that way this essentially a discovery disputes right i mean i actually think it's more than a discovery dispute your honor and i would disagree with that what has happened is that mr doniger throughout the course of the post judgment proceedings which were the discovery was based on both identifying our assets to satisfy the eight hundred thousand dollars judgment as well as the paragraph by science discover what mr  was not produce documents not answer questions that he was supposed to answer during the course of this so assets could be identified and he was doing it based on st amendment grounds that had been rejected by judge kaplan over and over during this period misspoke to turn over his devices her to a forensic expert which he is still in violation of that order as we sit here today and that presumably is going to go back to judge kaplan at some point because the discovery it's still going on as here i mean i understand that's the definition of heavy offense but at the same time you know you can have both ways and you sort of on the one hand want to make this seem like it's very serious under us but on the other hand we're saying it's a ones i think six months is a long time in jail the it is i wouldn't want to spend six months in jail but you know what every time the government comes to fort with some guy who is the drug dealer and says he's facing five or ten years in prison they say that gives them a big incentive to flee because this is a serious crime in of the really bad if he got away with this and now we're talking about somebody who is charged with what is  that that will only at most get him six months in prison we don't think the fact that this is a relatively small penalty unfair to those others in assessing the likelihood of life your honor this clearly is not a mandatory minimum offense but i think six months in jail in my own experience is not an insubstantial amount of time it's certainly a petty offense but with respect to where we are in this case right now  dobbs at the end of the line particularly given the court's decision last week the panel judgment in the united states the records that he has refused to turn over and still refuses to turn over he's now going to have to turn over don't want to talk about that because i think that's unfortunate as well yes expensive connection if there is a new city for him and ecuador there always have that it goes to his frequent travel there he speaks spanish fluently he has relationships with community leaders and continuing relationships certainly with the person that participated with him and his crimes to get that project and judge about this is that this is a person that went to pretty extraordinary legal means to get a multibillion dollar judgment that would enrich him by the tune of hundreds of millions of dollars and he no longer can profit from it here and we do believe him to be a flight risk all your coins are very well taken and i understand that this is a very unique case i haven't seen anything like that and i certainly hope that i don't again but it is unusual and he is an unusual defend this is not just a human rights attorney with lots of support this is someone that committed serious crimes he has been fighting in the united states although at the same time violating court injunction repeatedly violating court orders he someone that hasn't demonstrated that he's worthy of trust that he will do what he says he's going to do and that is word meaningful and so the concern that judge prescott has had throughout and particularly back in may and in june when it was just three months after the nd circuit's decision the concerns he had is the trust worthy  particularly after the break the conditions of confinement i take all of your points about the length of time and i would encourage you to look at judge prasco she issued a recent decision i'm january cats tw spending jury trial she asked the parties to confer about the january th trial date and we had agreed to that trial that because mr don's agr finally was willing to get a new york lawyer to try the case that supposed to the through what defense counsel wanted to do and the witnesses that were coming into the may th judge prosecuted a lengthy decision on january th saying she was granting that reluctantly given the amount of time that he has been exactly understand but he is very clear that it is serious this is a man who's never missed a court date how do they think he's going to miss this one he suffered nineteen months of home confinement and just the last few months is when he's going to decide to run away he has suffered six times what bruce cutler got post conviction pre conviction it is insane to think that at this point a man who's fought it every single term is suddenly going to run for the hills go over eight time zones without his passport mind you and flee forever for the for the risk of a martha stewart type of of run in jail this is patently absurd and always has been when the case was dropped to pe believes in his cause he believes in these allegations and i also believe that judge lynch and judge parker know that he is a fighter he's not someone who runs away from these things he's listening to this case right now he's got hundreds of supporters right now who are listening in to make sure that justice is held here a terrible precedent could be set by this ruling that any defended with no criminal record whatsoever facing petty charges just because they have some international contacts could get detained  that is that is not what the bail reform act stands for and that is not what protecting personal liberties and the rights of defendants and courts mean and that it goes or mode stars of the us justice system so what what miss glavine is asking us to level of and judge lance you would also have to admit that getting forty eight hour korea approval from uncle sam for every single action that you take and ethanol noting where you go and what you do it with whom that is a very significant restraint especially for someone who has never shown themselves to be a flight risk ever every single fact that the lower court and miss clavin has has heard has been construed negatively and innuendos and conjecture added onto those i mean the idea that these victims of corporate pollution in ecuador are going to somehow harbor an international fugitive without any evidence there's no e mail there's no statement there's absolutely nothing that shows that any of those people would be willing to do that or did mr doniger is trying to we also know that his bank accounts are frozen how is he going to get there how in the world is he going to get there and the court and miss lavin both discounted these twenty seven dollars sophisticated signatories to the level of moral suasion which is really what we're trying to talk about he