21-3113 (L) United States v. Schulte

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of May, two thousand twenty-two.

PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 21-3113 (L)

JOSHUA ADAM SCHULTE,

Defendant-Appellant. _____________________________________ For Defendant-Appellant: Joshua Adam Schulte, pro se, Brooklyn, NY.

For Appellee: David W. Denton, Jr., Michael D. Lockard, Won S. Shin, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from an order of the United States District Court for the Southern

District of New York (Jesse M. Furman, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

Joshua Schulte, proceeding pro se, appeals from the district court’s

December 20, 2021 denial of his renewed application for bail. He has been

detained since December 2017, while awaiting trial and/or retrial on grand jury

charges for espionage, making false statements to FBI agents, obstruction of

justice, and contempt of court – all related to his alleged theft of classified

information from the Central Intelligence Agency (“CIA”) and unauthorized

disclosure of such information to WikiLeaks – as well as for possession of child

pornography and criminal copyright infringement.

The district court initially released Schulte on bail at his September 2017

2 arraignment, but then revoked bail and remanded him to the custody of the United

States Marshals Service on December 14, 2017, after the Commonwealth of

Virginia placed a detainer on him for charges involving a sexual assault of a minor

In January 2018, the district court denied Schulte’s application to reinstate bail,

citing both the pending Virginia sexual assault charges and Schulte’s violating the

terms of his initial bail by having his roommate access computers on his behalf. In

March 2018, a panel of this Court affirmed the district court’s denial of bail and

denied Schulte’s subsequent request, addressed directly to this Court, for bail.

Since October 2018, Schulte has been subject to restrictive confinement conditions

(e.g., solitary confinement and limitations on his non-legal communications)

because of his alleged disclosure of classified information while detained.

After the district court granted his request to sever the child pornography

and criminal copyright infringement counts, Schulte was tried on the remaining

counts (i.e., those relating to his handling of classified information) in February

2020 before Judge Paul A. Crotty. The jury returned guilty verdicts on the counts

for making false statements and contempt of court but was unable to reach a

unanimous verdict on the espionage and obstruction counts, as to which a mistrial

was declared at Schulte’s request. A retrial on those counts, which was delayed

3 by Schulte’s decision to proceed pro se and subsequent motion practice, is now

scheduled for June 2022.

In September 2021, Schulte renewed his bail application, arguing that

(1) “new” emails obtained in discovery showed that the FBI had engineered his

state prosecution for sexual assault to cause his bail to be revoked, and (2) the

length of his pretrial detention was unconstitutionally excessive. On December

20, 2021, the district court denied the renewed bail motion, concluding that: (1) the

emails were neither new nor material; (2) “overwhelming evidence” of

dangerousness justified Schulte’s pretrial detention; and (3) his “indisputably”

lengthy detention was not unconstitutionally excessive because the case was

complex, the government was not responsible for the length of the detention, the

charges were exceptionally serious, and the evidence of dangerousness was

overwhelming. Dist. Ct. Doc. No. 663 at 66–68 [hereinafter 12/20/2021 Transcript].

Schulte now appeals from the district court’s December 20, 2021 order. We assume

the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

While the government normally bears the burden of justifying pretrial

detention, see United States v. Sabhnani,

, 74–75 (2d Cir. 2007), there is a

4 rebuttable presumption in favor of detention in cases where, as here, there is

probable cause to believe that the defendant committed an enumerated offense

involving a minor victim,

(e)(3)(E). Once a defendant has been

ordered detained, reopening a bail hearing generally requires a finding “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 whether there are conditions of release

that will reasonably assure the appearance of such person as required and the

safety of any other person and the community.”

(f)(2)(B).

This Court applies “deferential review to a district court’s bail

determination and will not reverse except for clear error.” United States v. Mattis,

(2d Cir. 2020) (citation omitted and alteration incorporated).

“The clear error standard applies not only to the factual predicates underlying the

district court’s decision, but also to its overall assessment, based on those predicate

facts, as to the risk of flight or danger presented by defendant’s release.”

(internal quotation marks omitted). “We will find clear error only where, on

[reviewing] the entire[ty] [of the] evidence, we are left with the definite and firm

5 conviction that a mistake has been committed.”

(internal quotation marks

omitted and alteration incorporated). 1

We find no such error here. In denying Schulte’s renewed request for bail,

the district court concluded that there was “overwhelming evidence” of

dangerousness, “including, but not limited to, his commission of sexual assault,

his receipt and possession of child pornography, evidence of his involvement in

the sophisticated theft and dissemination of highly classified information, his

violations of protective orders, and his continued disclosures and attempted

disclosures of classified information, even from jail.” 12/20/2021 Transcript at 66.

By failing to argue in his opening brief that these factual findings were clearly

erroneous, Schulte has waived any such argument. See Norton v. Sam’s Club,

(2d Cir. 1998).

Schulte nevertheless argues that (1) pretrial detention for possession of child

pornography based on dangerousness is unconstitutional because such an offense

1 Here, we owe deference not only to the district court’s bail determinations, but also to this Court’s March 2018 decision affirming the district court’s earlier denial of bail. See United States v. Plugh,

(2d Cir. 2011) (“As a general matter, this Court will adhere to its own decision at an earlier stage of the litigation.” (internal quotation marks omitted)). The “law of the case doctrine is subject to limited exceptions made for compelling reasons,” such as “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”

at 123–24 (internal quotation marks omitted); see also United States v. Tenzer,

(2d Cir. 2000) (“We have stated that we will not depart from this sound policy absent cogent or compelling reasons.” (internal quotation marks omitted)).

6 “is not a crime involving a minor victim” but rather is “a victimless crime,” and

(2) pretrial detention after a hung jury is unconstitutional. Schulte Br. at 20, 31.

But these arguments are meritless and find no support in the law. To the contrary,

this Court has repeatedly noted the “absurdity” of suggestions that trafficking in

“child pornography [is] anything but a serious crime that threatens real, and

frequently violent, harm to vulnerable victims.” United States v. Reingold,

(2d Cir. 2013) (citation omitted). Likewise, we have flatly rejected any

notion of a per se right “to be released on bail pending retrial,” instead making

clear that there is “no constitutional impediment to [a defendant’s] continued

detention” after the district court has granted such defendant’s motion to declare

a mistrial. United States v. Millan,

(2d Cir. 1993). Even

where we ourselves have reversed a defendant’s jury conviction and remanded to

the district court for retrial, we have routinely denied the prevailing defendant-

appellant’s application for bail pending retrial. See, e.g., United States v. Davidoff,

No. CR 85-100,

, at *1 (E.D.N.Y. June 30, 1988) (noting that after “the

Second Circuit . . . reversed defendant’s conviction and remanded for a new trial,”

the “Second Circuit [then] denied defendant’s application for release on bail

pending the retrial”), on remand from

(2d Cir. 1988).

7 Schulte also contends that the length of his pretrial detention – which is now

approaching fifty-two months and will have reached nearly four-and-a-half years

by the time his retrial is scheduled to commence in June 2022 – violates due

process. While that is “indisputably a long time,” as the district court

acknowledged, 12/20/2021 Transcript at 67, we have held that “the length of

detention alone is not dispositive and will rarely by itself offend due process,”

United States v. El-Hage,

(2d Cir. 2000) (internal quotation marks

omitted). Rather, when considering “whether the length of pretrial detention has

become unconstitutionally excessive,” the district court is to weigh: “(1) its length,

(2) the extent of the prosecution’s responsibility for delay of the trial, (3) the gravity

of the charges, and (4) the strength of the evidence upon which detention was

based, i.e., the evidence of risk of flight and dangerousness.”

We then review

the district court’s “factual determinations for clear error” and its determinations

of the “constitutional significance of those findings, including the ultimate

determination of whether due process has been violated,” de novo.

Here, the second, third, and fourth El-Hage factors amply justify the length

of Schulte’s pretrial detention. As to the second factor, the record demonstrates

that the government bears little responsibility for the delay, which is largely

8 attributable to Schulte’s own conduct. Moreover, we have recognized that “the

importance and complexity of [a] case and the extensive evidence” entailed in a

case can “reasonably require a lengthy period for pretrial preparation.” United

States v. El-Gabrowny,

(2d Cir. 1994). Here, the district court aptly

observed that “the nature of the charges, the nature of the evidence, and the

circumstances surrounding Mr. Schulte and his detention” have combined to

make this case “among the most complex criminal proceedings” ever to come

before that court. 12/20/2021 Transcript at 67. Notwithstanding the inherent

complexities of this case, the government has consistently sought to schedule a

retrial at the earliest available date. Accordingly, we find no reason “to place the

responsibility for the delay on the prosecution.” El-Gabrowny,

. For

his part, Schulte has repeatedly sought adjournments of the retrial to

accommodate the “long list of things and tasks that he expects . . . to accomplish

before a retrial,” Dist. Ct. Doc. No. 427 at 9, such as his stated plan to file “at least

10 more pretrial motions” between August 2021 and the commencement of the

retrial, Dist. Ct. Doc. No. 490 at 15. Here, then, the second El-Hage factor tips

strongly against Schulte – not unlike the situation in United States v. Hill, where we

found sufficient “justification” for a five-year pretrial detention “in the inherent

9 complexities of [that] . . . case, which present[ed] . . . counsel with voluminous

discovery to absorb and the court with myriad motions to address.”

(2d Cir. 2012); see also

(noting that, as here, “the record reflect[ed] no

intentional, unwarranted delay by the prosecution, and most of the delay [was]

attributable to the continuances requested by [defendants]”).

As to the third El-Hage factor, the district court found that “the charges

[against Schulte] – both the espionage charges, which involve the alleged theft and

dissemination of some of our nation’s most closely guarded secrets[,] and the child

pornography charges – are exceptionally serious.” 12/20/2021 Transcript at 68. Far

from being clear error, that finding is firmly supported in the record and in

relevant law. As one of our sister circuits has noted, “[e]spionage is one of this

nation’s most serious offenses.” United States v. Whitworth,

(9th

Cir. 1988). And as the former Deputy Director of the CIA’s Directorate of Digital

Innovation testified here, the theft of information with which Schulte is charged

“was the equivalent of a digital Pearl Harbor,” and his alleged dissemination of

such information to WikiLeaks “immediately undermined the relationships [the

CIA] had with . . . vital foreign partners, who had often put themselves at risk to

assist the [A]gency,” and “put [CIA] officers and [CIA] facilities, both domestically

10 and overseas, at risk.” Dist. Ct. Doc. No. 373 at 1844. Likewise, our law leaves no

doubt that “[t]he prevention of sexual exploitation . . . of children constitutes a

government objective of surpassing importance.” New York v. Ferber,

(1982); see also Child Pornography Prevention Act of 1996, Pub. L. No. 104–208,

sec. 121,

, 3009-26, 3009-27 (codified as amended at

)

(finding that “child pornography permanently records the victim’s abuse, . . .

causes the child victims of sexual abuse continuing harm by haunting those

children in future years,” and “inflames the desires of . . . pedophiles . . . who prey

on children, thereby increasing . . . the sexual abuse and exploitation of actual

children who are victimized as a result of the existence and use of [child

pornography] materials”).

As to the fourth El-Hage factor, we have already discussed – and endorsed –

the district court’s thorough analysis of the “overwhelming evidence,” 12/20/2021

Transcript at 66, of Schulte’s dangerousness.

In sum, we could likely conclude that the second El-Hage factor alone was

sufficient to justify Schulte’s fifty-two- to fifty-four-month pretrial detention in the

circumstances of this case. But the exceptional gravity of the charges against him

and the overwhelming evidence of his dangerousness remove any doubt. See El-

11 Hage, 213 F.3d at 79. We therefore conclude that Schulte’s pretrial detention,

although lengthy, has not violated his due process rights.

We have considered all of Schulte’s other arguments on appeal and find

them to be without merit. Accordingly, we AFFIRM the district court’s order

denying his renewed bail application.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

12