United States District Court, D. New Jersey
Carpenito United States Attorney
Fais, Jihee G. Suh Assistant United States Attorney
Government respectfully submits this letter to set forth its
position that the defendant should not be restrained with leg
shackles at trial. The standard for ordering that a defendant
be shackled during trial is set forth below. Because the
defendant's criminal history is devoid of violent
conduct, the present case does not involve allegations of
violence, and there is no record of the defendant being
disruptive in custody, the Government submits that the
standard is not met here and he should not be shackled during
district courts nor the United States Marshal Service
(“USMS”) may adopt a routine policy of shackling
defendants or witnesses during trial. Deck v.
Missouri, 544 U.S. 622, 626 (2005); United States v.
Brantley, 342 F. App`x 762, 768-69 (3d Cir. 2009) (not
selected); United States v. Salehi, 187 F. App`x
157, 174 (3d Cir. 2006) (not selected). Rather, defendants
can be restrained only in cases where the court finds that
the ''perils of shackling are unavoidable."
Deck, 544 U.S. at 632; see also Sides v.
Cherry, 609 F.3d 576, 581 (3d Cir. 2010) (shackling
should be permitted only ''where justified by an
essential state interest specific to each trial").
a court must make particularized findings on the record
justifying the need to shackle or otherwise physically
restrain a defendant. See Deck, 544 U.S. at 633;
accord Salehi, 187 Fed.Appx. at 173-75; see also
Brantley, 342 Fed.Appx. at 768 (`'[T]he trial judge
must make a case specific and individualized assessment of
the defendant on trial, taking into account special security
needs or the escape risk of the
defendant."). A court may not simply defer to the USMS.
Id. at 768-69. Rather, a court must make its own
findings for the necessity of shackles, including specifics
regarding the compelling need for the additional security,
the fact that a less restrictive alternative to the security
measures does not exist, and that restraining the defendant
will not impair his ability to confer with counsel. See
Szuchon v. Lehman, 273 F.3d 299. 314 (3d Cir. 2001). The
factual record which must be created "could come from
any proper sou, rce, such as the government, the
Marshal's Service, the defendant's criminal record,
or the Court's observations.'' Salehi,
187 Fed.Appx. at 174; see, e.g.. United States v.
Fields. 483 F.3d 313. 357 (5th Cir. 2007) (citing with
approval testimony supplied by USMS regarding need for
pro se defendant's restraints).
that can be considered in determining whether shackles or
other restraints are necessary include:
• history of violent, inappropriate conduct during the
proceedings or in the past, Szuchon, 273 F.3d at
313-14; .see United States v. Mejia, 559 F.3d 1113.
1118(9thCir. 2009); United States v. Brooks, 125
F.3d 484, 502 (7th Cir. 1997);
• history of disruptive conduct in pre-trial detention
or prison. United States v. Tagliamonte, 340
Fed.Appx. 73, 80-81 (3d Cir. 2009) (not selected); United
States v. Van Sack, 458 F.3d 694, 699-700 (7th Cir.
• facts that make it likely a defendant will attempt to
escape or injure a witness or participant in the proceedings.
United States v. Mahasin, 442 F.3d 687, 691 (8th
Cir. 2006); United States v. Brazel, 102 F.3d 1120,
1156-57 (11th Cir. 1997).
defendant is charged with conspiracy to defraud the United
States and aiding and assisting in the preparation of false
tax returns-nonviolent offenses. His criminal history
includes a conviction in 2000 for possession of marijuana
with the intent to distribute and a 2008 conviction for
aiding and assisting in the preparation of false tax returns,
both nonviolent crimes. While the defendant did have his bail
revoked, it was because he persisted in preparing tax returns
in violation of his conditions of release, and not the threat
of physical danger to society. The USMS has advised the
Government that it has no record of the defendant being
disruptive in detention. Based on these facts, the Government
does not seek an order permitting that the defendant be
shackled during the trial proceedings.
MICHAEL SHIPP, U.S.D.J.