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Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 1 of 8
1 Brendan V. Sullivan, Jr. (pro hac vice)
bsullivan@wc.com
2 Barry S. Simon (pro hac vice)
bsimon@wc.com
3 Kevin M. Downey (pro hac vice)
kdowney@wc.com
4 WILLIAMS & CONNOLLY LLP
725 12th Street, N.W.
5 Washington, D.C. 20005
Telephone: (202) 434-5000
6 Facsimile: (202) 434-5029
7 James D. Riddet (State Bar No. 39826)
JRiddet@stokkeriddet.com
8 STOKKE & RIDDET
3 MacArthur Place #750
9 Santa Ana, CA 92707-5903
Tel: (714) 662-2400
10 Fax: (714) 662-2444
11 Attorneys for Dr. Henry T. Nicholas, III
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13 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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CASE NO. SA CR 08-00139;
16 SA CR 08-00140
17 United States of America,
EX PARTE APPLICATION TO MODIFY
18 Plaintiff, CONDITIONS OF RELEASE;
DECLARATION OF JAMES D.
19 v. RIDDET; [PROPOSED] ORDER
20 Dr. Henry T. Nicholas, III,
21 Defendant.
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EX PARTE APPLICATION TO MODIFY CONDITIONS OF
RELEASE
SA CR 08-00139; SA CR 08-00140
Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 2 of 8
1 COMES NOW Defendant Henry T. Nicholas, III (“Dr. Nicholas”), by and
2 through undersigned counsel, and applies to this Honorable Court for an order
3 modifying the conditions of pre-trial release to remove the current home detention
4 and electronic monitoring conditions, and to allow Dr. Nicholas to travel anywhere
5 within the continental United States upon giving reasonable notice to and receiving
6 permission from Pretrial Services.
7 The basis for this application is set forth in the accompanying Memorandum
8 of Points and Authorities, and the attached Declarations of James D. Riddet,
9 Marcella M. Leach, David B. Smith, Laura M. Smith, Emily B. Davis, Jimmy R.
10 Davis, Mark Forcinel, Lesa Davis, and Nicolaos Alexopoulos.
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12 Dated: February 26, 2009 Respectfully submitted,
13 WILLIAMS & CONNOLLY LLP
Brendan V. Sullivan, Jr.
14 Barry S. Simon
Kevin M. Downey
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STOKKE & RIDDET
16 James D. Riddet
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By: /s/
18 James D. Riddet
19 Attorneys for Dr. Henry T. Nicholas, III
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EX PARTE APPLICATION TO MODIFY CONDITIONS OF
RELEASE -1- CASE NO. SA CR 08-00139; SA CR 08-00140
Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 3 of 8
1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
2 BACKGROUND
3 On June 5, 2008, the Honorable Arthur Nakazato heard arguments regarding
4 the government’s motion for detention and Dr. Nicholas’ motion to set bond in this
5 case. The Court ordered Dr. Nicholas released on bond, imposing, inter alia, the
6 following conditions of release:
7 • Bail fixed at $3,300,000, with affidavits of surety from Dr.
8 Nicholas’ mother and six of his friends;
9 • Home detention;
10 • Consistent with the Court’s Order, Pretrial Services has granted Dr.
11 Nicholas advance approval for weekday activities related only to
12 employment; education; religious services; medical, substance
13 abuse, or mental health treatment; attorney visits; court-ordered
14 obligations; or other activities as pre-approved by Pretrial Services,
15 provided they are completed within a curfew;
16 • Active electronic monitoring;
17 • Surrendering of all passports;
18 • Travel restricted to the Central District of California;
19 • No contact with individuals identified by the government on its “no-
20 contact” list; and
21 • Random drug and alcohol testing.
22 See Dckt. 21, Minutes of Arrest on Indictment Hearing. Dr. Nicholas was released
23 on these and other conditions imposed by the Court and Pretrial Services more than
24 eight months ago.
25 The Court has noted that Dr. Nicholas has complied with all of these
26 conditions during the period of pre-trial release. See Tr. of Jan. 8, 2008 Hearing
27 before M.J. Nakazato, Case No. SA CV 08-995 (CJC)(ANx); see also Minutes of in
28 Chambers Order by M.J. Nakazato: Govt’s Ex Parte App. to File Govt’s Updated
EX PARTE APPLICATION TO MODIFY CONDITIONS OF
RELEASE -1- SA CR 08-00139; SA CR 08-00140
Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 4 of 8
1 No Contact List Under Seal, SA Cr-140 CJC. As Magistrate Judge Nakazato
2 observed, the record is:
3 devoid of any facts that show [Dr. Nicholas] has violated
4 a single one of the many conditions of release that were
5 imposed upon him since his pretrial release nearly four
6 months ago. Further, the Court has also not received any
7 notification from Pretrial Services that shows or suggests
8 [Dr. Nicholas] has been less than fully compliant with
9 the terms of his pretrial release.
10 See Minutes of in Chambers Order by M.J. Nakazato: Govt’s Ex Parte App. to File
11 Govt’s Updated No Contact List Under Seal, SA Cr-140 CJC, at 2. Magistrate
12 Judge Nakazato echoed these comments more recently: “[H]e’s been very
13 compliant with the conditions I’ve imposed.” See Tr. of Jan. 8, 2008 Hearing
14 before M.J. Nakazato, Case No. SA CV 08-995 (CJC)(ANx), at 27:22–27:23.
15 Indeed, Dr. Nicholas has abided by the restrictions of travel and home detention,
16 and has promptly and properly appeared at all scheduled proceedings before the
17 Court and at all appointments with Pretrial Services. See Declaration of James
18 Riddet (“Riddet Decl.”) ¶ 3. He has avoided all contact, directly or indirectly, with
19 any person on the government’s no contact list. He has been subject to more than
20 40 random drug tests over the course of the last six months, and has passed each
21 one. See id. ¶ 4. Even when Dr. Nicholas has requested and been granted
22 temporary modifications for conditions of release, he has abided by all imposed
23 limitations without disruption. Id. ¶ 5.
24 Dr. Nicholas now seeks modification of the home detention, electronic
25 monitoring, and travel conditions of his release. Dr. Nicholas requests the
26 following modifications: (1) removal of the home detention and electronic
27 monitoring conditions, and (2) the ability to travel within the continental United
28 States upon giving reasonable notice to and receiving permission from Pretrial
EX PARTE APPLICATION TO MODIFY CONDITIONS
OF RELEASE
-2- SA CR 08-00139; SA CR 08-00140
Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 5 of 8
1 Services. Dr. Nicholas will continue to be subject to routine Pretrial Services
2 supervision, and will continue to submit to random drug testing under the terms
3 determined by Pretrial Services. Counsel for Dr. Nicholas has consulted with
4 Cameron Pitcher, Dr. Nicholas’ assigned Pretrial Services officer, who
5 recommends the requested modifications of the release conditions. See Riddet
6 Decl. ¶ 6. After speaking with Mr. Pitcher, counsel for Dr. Nicholas also consulted
7 with the government, and advised it of the modifications that Mr. Pitcher
8 recommended. The government advised that it will take no position with respect to
9 the proposed modifications as follows:
10 1. Dr. Nicholas will be removed from home confinement
11 and electronic monitoring.
12 2. He will continue to be under routine Pretrial Services
13 supervision.
14 3. He will not travel without the prior approval of
15 Pretrial Services except to his homes in Las Vegas,
16 Beaver Creek, and to meet with his attorneys in
17 Washington.1
18 4. He will continue to submit to random drug testing per
19 the terms originally set by pre-trial services.
20 See Riddet Decl. ¶ 7, Ex. A (Feb. 2, 2009 E-mail from A. Stolper to J. Riddet) &
21 Ex. B (Feb. 3, 2009 E-mail from A. Stolper to J. Riddet). At this time, Dr. Nicholas
22 seeks the modifications to which Pretrial Services has recommended—removal of
23 the home confinement and electronic monitoring conditions, and travel throughout
24 the continental United States upon notice to and permission from Pretrial Services.
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The government’s statement regarding conditions for travel differs from what
27 Dr. Nicholas is seeking. Under Dr. Nicholas’ requested conditions, he would notify
and receive approval from Pretrial Services for any travel outside of the Central
28 District.
EX PARTE APPLICATION TO MODIFY CONDITIONS
OF RELEASE
-3- SA CR 08-00139; SA CR 08-00140
Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 6 of 8
1 Dr. Nicholas originally applied for the requested relief on February 13, 2009.
2 The Court, in its February 18, 2009 Order, advised that Dr. Nicholas “may re-apply
3 for the requested relief after making a showing that each of his sureties have
4 consented in writing to each of the proposed modifications.” Order, Feb. 18, 2009.
5 Included with this application, pursuant to the Court’s Order and Local Crim. Rule
6 46-2.1, are the declarations of eight sureties who have consented in writing to each
7 of the proposed modifications.2 See Declaration of Marcella M. Leach; Declaration
8 of David B. Smith; Declaration of Laura M. Smith; Declaration of Emily B. Davis;
9 Declaration of Jimmy R. Davis; Declaration of Mark Forcinel; Declaration of Lesa
10 Davis; Declaration of Nicolaos Alexopoulos.
11 ARGUMENT
12 I. Dr. Nicholas’ Current Conditions of Release Should Be Modified To
Remove Home Confinement and Electronic Monitoring Conditions.
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14 Dr. Nicholas should be subject to “the least restrictive . . . condition, or
15 combination of conditions” that the Court determines will reasonably assure his
16 appearance as required and the safety of any other person and the community. See
17 18 U.S.C. 1342(c)(1)(B). During the eight months since the indictments were
18 returned, Dr. Nicholas has proven that he poses no danger of flight, and no danger
19 to any person or the community. Therefore, he respectfully requests two
20 modifications of his conditions of release.
21 First, Dr. Nicholas requests removal from home confinement and electronic
22 monitoring. As discussed, supra p. 3, Pretrial Services recommends this proposed
23 modification, and the government takes no position. See Riddet Decl. ¶¶ 6, 7.
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25 The ninth surety, Mr. Robert Warnes Leach, died on March 30, 2008. His
Affidavit of Surety (Property) was signed on March 19, 2008, and filed with the
26 Court on June 11, 2008. Mr. Leach, along with his wife, Mrs. Marcella Martin
Leach, each pledged the $2.1 million in equity in their home to secure Dr. Nicholas’
27 bail. Mrs. Leach is now the sole owner of the home, and her declaration providing
written consent is included with this application. See Declaration of Marcella M.
28 Leach.
EX PARTE APPLICATION TO MODIFY CONDITIONS
OF RELEASE
-4- SA CR 08-00139; SA CR 08-00140
Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 7 of 8
1 Furthermore, Dr. Nicholas will continue to be subject to Pretrial Services
2 supervision, including random drug testing as determined by Pretrial Services, and
3 will continue to be under the no-contact and other conditions of release.
4 Second, Dr. Nicholas requests a modification of his travel restrictions. Dr.
5 Nicholas would like to be able to travel outside of the Central District of California,
6 within the United States, upon notice to and with permission from Pretrial Services,
7 amongst other reasons, to meet with his counsel. As discussed, supra p. 3, Pretrial
8 Services recommends this modification, and the government has advised that it
9 takes no position. See Riddet Decl. ¶¶ 6, 7.
10 Under these new conditions, if approved by the Court, Dr. Nicholas will
11 notify and receive approval from Pretrial Services to travel outside of the Central
12 District. During time spent outside of the Central District of California, Dr.
13 Nicholas will continue to be subject to Pretrial Services supervision, and to all other
14 restrictions that the Court has imposed.
15 CONCLUSION
16 For the foregoing reasons, Dr. Nicholas respectfully requests that this Court
17 remove the home detention and electronic monitoring restrictions on his release,
18 and allow Dr. Nicholas to travel within the continental United States upon giving
19 reasonable notice to and receiving permission from Pretrial Services.
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21 Dated: February 26, 2009 Respectfully submitted,
22 WILLIAMS & CONNOLLY LLP
Brendan V. Sullivan, Jr.
23 Barry S. Simon
Kevin M. Downey
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STOKKE & RIDDET
25 James D. Riddet
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By: /s/
27 James D. Riddet
28 Attorneys for Dr. Henry T. Nicholas, III
EX PARTE APPLICATION TO MODIFY CONDITIONS
OF RELEASE
-5- SA CR 08-00139; SA CR 08-00140
Case 8:08-cr-00140-CJC Document 124 Filed 02/26/2009 Page 8 of 8
CERTIFICATE OF SERVICE
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I hereby certify that on February 26, 2009, I caused the foregoing to be filed
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with the Clerk of the Court using the ECF system which sent notification of such
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filing to the following:
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5 Kenneth B. Julian
Andrew D. Stolper
6 United States Attorney’s Office
7 411 West Fourth Street, 8th Floor
Santa Ana, California 92701
8 Assistant United States Attorneys
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12 Negar Tekeei
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