United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2030

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United States of America, *

*

Appellee, *

* Appeal from the United

v. * States District Court for the

* District of Minnesota.

Troy Kisling, * 

*

Appellant. *

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Submitted: June 6, 2003

Filed: July 1, 2003

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Before HANSEN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.

___________

RILEY, Circuit Judge.

Troy Kisling (Kisling) appeals his pretrial detention. Kisling is charged with

one count of conspiracy and multiple counts of mail fraud in violation of 18 U.S.C.

§§ 371 and 1341 (2000). After hearing evidence and finding Kisling posed a risk of
1

The Honorable J. Earl Cudd, United States Magistrate Judge for the District

of Minnesota.

2

The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota.

3

Perhaps counter-intuitively, the government’s evidentiary burden is lesser to

prove a flight risk than to prove risk of harm. The statute specifies the burden for risk

of harm, clear and convincing, but is silent with regard to flight risk, implying use of

the standard used in other pretrial proceedings, preponderance of the evidence. See

Orta, 760 F.2d at 891 n.20.

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flight, the magistrate judge1

 ordered Kisling’s pretrial detention. On appeal of the

pretrial detention order, the district court2

 affirmed. 

Kisling requests we independently assess the merits of his application for

release on bail pending trial. See United States v. Maull, 773 F.2d 1479, 1486-88

(8th Cir. 1985) (en banc). Kisling contends the magistrate judge and the district court

erroneously determined the factual situation warranted pretrial detention. 

Additionally, Kisling argues the magistrate judge’s and the district court’s

opinions were erroneously based upon the wrong burden of proof. Specifically,

Kisling argues the correct burden of proof for the government on the issue of

detention based on risk of flight is clear and convincing evidence. Kisling is wrong.

Only if the government shows by clear and convincing evidence that no

release condition or set of conditions will reasonably assure the safety

of the community and by a preponderance of the evidence that no

condition or set of conditions under subsection (c) will reasonably

assure the defendant’s appearance can a defendant be detained before

trial.

United States v. Orta, 760 F.2d 887, 891 & n.20 (8th Cir. 1985) (en banc) (internal

footnotes omitted); see also 18 U.S.C. § 3142(c), (e)-(f).3
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The magistrate judge determined Kisling was a risk of flight based on the

following facts. Kisling’s mother told federal agents that neither she nor any member

of the family wishes to have continuing association with Kisling. Kisling was

unemployed and had no substantial assets in the community. Kisling evaded service

of process by the Federal Trade Commission (FTC) after he observed the June 2000

FTC raid of his business from across the street. Kisling failed to appear for a

scheduled jury trial in a February 2001 domestic assault charge, for which a bench

warrant remained outstanding at the time of the detention hearing. In December

2002, when federal agents went to Kisling’s apartment to serve his arrest warrant he

failed to open the door, requiring agents to procure a key from the apartment

manager. 

Based on the above facts, the magistrate judge determined Kisling had

attenuated community ties and a history of fleeing his legal troubles. Kisling

attempted to supplement the evidence adduced at the detention hearing by attempting

to secure employment and family support from jail and by explaining the

circumstances surrounding events relied upon by the magistrate judge. However, the

magistrate judge’s opinion remained unchanged. The district court agreed with the

magistrate judge. After reviewing the district court’s order, we agree the government

met its burden to show by a preponderance of the evidence that no condition or set

of conditions would reasonably assure Kisling’s appearance for trial. Therefore, we

affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.