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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 3, 2011

No. 11-3046

UNITED STATES OF AMERICA,

APPELLEE

v.

ONUOHA NWOKORO, ALSO KNOWN AS IGGY,

APPELLANT

On Appeal of a Pretrial Detention Order

(No. 1:11-cr-00104)

A. J. Kramer, Federal Public Defender, and Mary M.

Petras, Assistant Federal Public Defender, were on appellant’s

Memoranda of Law and Fact.

Frank P. Cihlar, Gregory Victor Davis, and Alexander P.

Robbins, Attorneys, U.S. Department of Justice, were on

appellee’s Memorandum of Law and Fact.

Before: GINSBURG, ROGERS, and BROWN, Circuit Judges.
2

PER CURIAM: Appellant Onuoha Nwokoro appeals the

decision of the district court to detain him prior to trial. He

seeks reversal so that he will be immediately released on his

personal recognizance. Consistent with the requirements of the

Bail Reform Act, 18 U.S.C. § 3142, we conclude that a limited

remand, not reversal, is necessary.

The Bail Reform Act requires that a pretrial detention order

“include written findings of fact and a written statement of the

reasons for the detention.” 18 U.S.C. § 3142(i)(1). There is no

such order here. In United States v. Peralta, 849 F.2d 625 (D.C.

Cir. 1988) (per curiam), however, the court held,

notwithstanding “the mandatory nature of section 3142(i) and

Rule 9 [of the Federal Rules of Appellate Procedure],” that “the

transcription of a detention hearing, if it evinces a clear and

legally sufficient basis for the court’s determination, will satisfy

the requirements of section 3142(i),” id. at 626.1

 The transcript

of the detention hearing does not meet this standard, see United

States v. Simpkins, 826 F.2d 94, 97 (D.C. Cir. 1987), for it fails

to demonstrate that the district court considered all of the

statutory factors and made a reasoned decision that appellant

constituted a “serious risk”of flight, 18 U.S.C. § 3142(f), and

that no “condition or combination of conditions” could

“reasonably assure” that he would appear for trial, id. 

At the pretrial detention hearing, the district court stated,

upon hearing testimony from an Internal Revenue Service agent

and the arguments of the parties’ counsel, that:

1

 Rule 9(a) was subsequently amended, in accord with our

decision in Peralta, to provide that the district court must “state in

writing, or orally on the record,” the reasons for releasing or detaining

a defendant in a criminal case. FED. R. APP. P. 9(a).
3

The Court has heard more than enough evidence . . . to

conclude [that appellant] has substantial assets in

Nigeria. The court has heard more than enough

evidence to be convinced that he could take necessary

steps at any time to get portions of those assets to help

him facilitate his leaving this country.

May 10, 2011 Tr. 37:3–8. The district court also stated that:

[Appellant] has moved to Africa. He has moved

hundreds - - well based on the representations I have

heard from the Government and the documents I have

seen here, I have wire transfers totaling over $280,000

and an Agent testified to . . . a million dollars in

receipts in a two-year period [referring to appellant’s

tax preparation services’ gross receipts in 2005

through 2007] .

Id. 37:15–20. The district court further noted that appellant at

the time of his arrest “was going back to Africa.” Id. 38:5. 

Finally, the district court stated:

The Court finds that the Defendant is indeed a

substantial flight risk. The Court finds . . . that there

is no combination of conditions that could possibly

protect this Court’s interest in having him appear here

before this Court. . . . The Court finds that he is a flight

risk and that he should be detained pending the

outcome of this case.

Id. 38:9–17.

The question presented by the transcript is whether the

recorded findings, even if not in the form required by the Bail

Reform Act, are sufficient to support the conclusion that
4

appellant’s pretrial detention is necessary in order to assure his

presence at trial. In Simpkins, 826 F.2d 94, the court addressed

the content of the “findings of fact” and “statement of the

reasons for detention,” 18 U.S.C. 3142(i)(1), that a judicial

officer must produce. There, the magistrate judge’s order

stated:

The likelihood of conviction is very high and given the

severe mandatory sentence [the defendant] faces, I

believe the potential to flee, rather than to stand trial,

is probable and therefore also conclude that the pretrial

detention of the defendant is required in order to

assure the safety of the community as well as to

preclude the risk of flight to avoid prosecution for

these charges.

826 F.2d at 97. The court concluded that these findings were

inadequate because they did not address a number of

counterbalancing factors enumerated in 18 U.S.C. § 3142(g),

see id., which both lists relevant factors and mandates that the

“judicial officer shall, . . . take into account the available

information concerning” those factors, 18 U.S.C. § 3142(g)

(emphasis added). 

Whether appellant is a “serious” flight risk, 18 U.S.C.

§ 3142(f)(2), is not readily apparent from the district court

record. Other than noting that appellant “has moved to Africa,” 

May 10, 2011 Tr. 37:14, and that appellant had transferred

substantial assets to Nigeria and he could possibly take steps to

retrieve those assets, id. 37:3-8, 14, the district court made no

factual findings. Neither did the district court demonstrate that

it considered many of the facts apparent from the record before

it. 
5

For example, the district court did not mention any of the

facts favoring appellant’s pretrial release. When given the

opportunity to flee the area, appellant has not. He does not

presently have assets under his control in the United States (his

bank account in the United States has been frozen), and he does

not have possession of his U.S. or Nigerian passports (which are

in government custody)2

 with which to leave this country, much

less to enter Nigeria. He has never failed to appear in court

when notified, and he has never failed to check in with the

Pretrial Services Agency as he was previously required to do on

a weekly basis. Indeed, after the magistrate judge dismissed the

initial criminal complaint against him, appellant made no

apparent attempt to flee prior to his arrest on a new indictment

five days later. Appellant was released on his own

recognizance two days later and again made no apparent

attempt to flee between then and the detention hearing four

weeks later. Appellant is not charged with a violent offense,

and he has no prior criminal record.

The district court similarly failed to explain what weight (if

any) it accorded facts favoring pretrial detention. It is apparent

from the district court record that appellant currently has

negligible ties to the District of Columbia area community: he

has no job other than his work at the homeless shelter and

occasional day labor jobs. Although appellant is a naturalized

U.S. citizen — he came to the United States in 1982, obtained

a college degree from a U.S. college, married, had four children,

and lived and worked in the Washington, D.C. area for more

2

 The government seized appellant’s Nigerian passport, which

was on his person at the time of his arrest. Appellant voluntarily sent

his U.S. passport to the U.S. State Department for renewal prior to his

arrest. The government has since confirmed that appellant’s U.S.

passport is in its custody and that a criminal hold has been placed on

reissuance of the passport.
6

than twenty years, establishing a tax preparation business at one

time, and his wife and children continue to live in the area — he

now has no home here other than the homeless shelter. Neither

does he apparently have any family or friends who have

indicated an interest in posting bond for him or allowing him to

live with them in this area. And there is evidence that appellant

has substantial connections to Nigeria, by virtue of birth and the

transfer of funds over the course of three years, ending in 2007. 

Neither did the district court mention the strength or weakness

of the government’s evidence that appellant allegedly aided and

assisted in the preparation of false tax returns. Nor did the

district court credit or reject the government’s argument that the

sophisticated nature of appellant’s alleged crimes made him less

likely to return for trial to face the charges against him. 

 At this point the district court’s reasoning is terse and

conclusory, and its factual findings regarding appellant’s

resources in Nigeria, his ability to retrieve those resources, and

his ability to leave the United States appear in part to be without 

foundation in the record. Moreover, unlike the non-U.S. citizen

defendant in United States v. Xulam, 84 F.3d 441, 444 (D.C.

Cir. 1996), whom this court ordered released pretrial, appellant

is not charged with forging a passport or otherwise shown to

have forgery skills, much less resources within the United

States, giving him the unique ability to leave the United States. 

Insofar as the government’s memorandum on appeal addresses

the strength of the government’s evidence against appellant, it

only states in a footnote that the charges against appellant

concern fictitious business losses that he allegedly “placed” on

certain of his clients’ tax returns. Appellee’s Mem. of Law and

Fact at 11 n.5.

Together these circumstances indicate that the district court

failed to make the required assessment with respect to release

or detention, and to adequately memorialize its determination in
7

the form of written or oral on-the-record “findings of fact and

a [] statement of the reasons for the detention,” 18 U.S.C.

§ 3142(i)(1); supra note 1. Its factual finding and reasoning are

insufficient to demonstrate that it considered all information

available concerning the statutory factors and made a reasoned

decision that appellant constituted a “serious risk” of flight, 18

U.S.C. § 3142(f), and that no “condition or combination of

conditions” could “reasonably assure” it that he would appear

for trial, id. Consequently, this court is not apprised of why the

district court concluded on the record before it that the

government had met its burden that appellant presented a

“serious” risk that he would flee prior to trial, id.

§ 3142(f)(2)(A), or its burden of proving that no condition or

combination of conditions could reasonably assure the

appearance of appellant at trial, id. § 3142(e)(1). 

Because the district court has failed to conform to the

requirements of the Bail Reform Act, 18 U.S.C. § 3142(g),

(i)(1), we must remand the case for the district court to consider

all the relevant facts and to prepare, in an expeditious manner,

findings of fact and a statement of reasons in support of

appellant’s pretrial detention pursuant to the Bail Reform Act,

or otherwise to order appellant’s pretrial release subject to

appropriate conditions.