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Case 2:16-cr-00082-TS-RTB Document 467 Filed 08/15/16 Page 1 of 13


Attorney for Defendant
43 East 400 South
Salt Lake City, Utah 84lll
Telephone: (801)220-0700
Facsimile: (801) 364-3232
Case No. 2:16-cr-82
Honorable Ted Stewart
Magistrate Judge Robert Braithwaite

The defendant, Preston Barlow, by and through his attorney, Scott C. Williams, pursuant
to 18 U.S.C. ' 3145, and DUCrimR 57-16, hereby appeals the order of Magistrate Judge Robert
Braithwaite on August 3, 2016 modifying the conditions of Mr. Barlow=s pretrial release.
Mr. Barlow was originally released on February 26, 2016 by stipulation of the
Government and on certain conditions. Doc. 50. The Order Setting Conditions of Release
included, at section (6)(d), a condition that Mr. Barlow Aavoid all contact with those named
persons, who are considered either alleged victims, potential witnesses and/or codefendants.@

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On April 13, 2016 Mr. Barlow filed a Stipulated Motion To Modify Conditions Of
Release. Doc. 174. Pursuant to the stipulated motion, and for good cause, Magistrate Judge
Braithwaite entered and Order Modifying Conditions of Release, (Doc. 175) which modified
release condition (6)(d) to allow Mr. Barlow to have communication with co-defendant=s in the
case, so long as he did not discuss the case with them.
Since his release Mr. Barlow has been compliant with all conditions of his release.
Notwithstanding such compliance, he was arrested on a warrant on August 2, 2016. The
warrant was issued in relation to a Petition and Order for Action on Conditions of Pretrial
release, alleging that Mr. Barlow had contact with other co-defendants. However, at a hearing
on August 3, 2016, U.S. Pretrial Services agent Cordel Wilson informed the court that the
Petition was erroneously issued, that Mr. Barlow had not violated any conditions of probation,
and asked that the Petition be withdrawn. The Government agreed that there was no evidence to
support any claim that Mr. Barlow violated any condition of his release. Mr. Barlow had been
arrested and held in jail for two days by mistake. Magistrate Braithwaite allowed the Petition to
be withdrawn and ordered Mr. Barlow released from custody.
However, without presentation of any factual basis, without the filing of any pleading,
without any violation or change of circumstance, and without any practical notice to the defense,
the Government asked Magistrate Braithwaite to modify Mr. Barlow=s conditions of release to
again disallow any contact of any kind with any co-defendant, and to add an additional condition
disallowing contact with Warren Jeffs, the prophet of Mr. Barlow=s religious affiliation. Mr.
Barlow objected on procedural and substantive grounds, noting that the Government had
provided no factual basis alleging any change in circumstance, nor in support of any claim that a

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modification of conditions was necessary to assure the safety of any member of the public, or to
assure the appearance of Mr. Barlow at future proceedings.
Magistrate Braithwait, over the objections of counsel, entered the modifications to release
that were requested by the government. Doc. 444.
Mr. Barlow respectfully appeals that decision to this Court for de novo review.
The conditions of release as originally ordered on February 26, 2014, and modified by
stipulation on April 14, 2016, represented then, and continue to represent, Athe least restrictive . .
. combination of conditions, that . . . will reasonably assure the appearance of the person as
required and the safety of any other person and the community, . . .@ 18 U.S.C. 3142(c)(B)
(emphasis added). There is no factual basis whatsoever to support reverting Mr. Barlow=s
condition under (6)(d) back to preclusion of any contact with codefendants. Mr. Barlow=s
legitimate need to have contact with certain codefendants at certain times about matters not
related to the charges against him remains unchanged from when the Government stipulated to
allowing such contact on April 14, 2016. Mr. Barlow performs a variety of services for the
Short Creek community which require meetings, communication and cooperation with other
individuals in the community who are codefendants in the case. For example, Mr. Barlow is the
sole contractor for Reliance Electric, a company managed by Nephi Allred. In his capacity of
owner and operator of Meadowayne Dairy, Mr. Barlow requires contact and communication with
Winford Barlow, who manages dairy cows and other dairy operations in connection to the store.
Additionally, there is no basis whatsoever to add a condition that disallows Mr. Barlow
from having contact with the prophet of his church, Warren Jeffs. The tenets of Mr. Barlow=s

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sincerely held religious beliefs require him to maintain a conduit of connection and
communication with his prophet. He does so by writing to Warren Jeffs approximately one time
per month. The writings do not generate a direct response from Warren Jeffs. The writings are
open and notorious, and are reviewed, copied, and provided to the government upon request.
Mr. Barlow has engaged in the practice since the imprisonment of Warren Jeffs, including during
the pendency of the present case, with no adverse impact on the terms of his release. The act of
such communication has no adverse impact whatsoever upon assuring the appearance of Mr.
Barlow on his court case, or safety to any person in the community. However, restricting the
communication would have a devastating impact on Mr. Barlow=s religious practice, and on his
ability to maintain such religious practice consistent with what he believes are the necessary
requirements for eternal salvation.
A recent published memorandum decision in United States v. Lee, 972 F.Supp.2d 403
(E.D.N.Y 2013) is instructive. In that case Lee was charged with child pornography crimes.
Id. at 403. He was released on bond and various conditions. Id. One of the conditions, which
was standard, was that Lee sign a waiver of confidentiality related to his assessment and
treatment. Id. at 405. Lee sought to limit the scope of the waiver due to his claim that such
limitation was necessary to preserve his rights under the Fifth and Sixth Amendments to the
United States Constitution. Id. In ruling in favor of Lee=s position, the court emphasized that the
Bail Reform Act requires the least restrictive means of meeting the objectives of assuring
appearance and safety to the community. Id. at 410. The court also emphasized that
Aconditions of release must be imposed on an individualized basis, and must not be broader than
necessary in light of the circumstances of the individual defendant.@ Id.

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Restricting Mr Barlow=s contact with Warren Jeffs also represents an unconstitutional

infringement on is rights under the First and Fourteenth Amendments to the Unites States
Constitution. Mr. Barlow abides by a sincerely held belief that communication to the prophet of
his church, Warren Jeffs, is necessary to meet religious tenets that require maintaining a conduit
of contact with the Prophet. Mr. Barlow sincerely believes that failure to abide by this tenet will
result in an inability to achieve eternal salvation. (Representative examples of related doctrinal
teachings are provided as Exhibit A attached hereto.)
The right to free exercise of religion under the First Amendment includes Athe right to
engage in conduct that is motivated by the religious beliefs@ of an individual asserting the claim.
Bible Believers v. Wayne County, Mich., 805 F.3d 228, 255-56 (6th Cir. 2015) (citing Prater v.
Burnside, 289 F.3d 417, 427 (6th Cir. 2002). Generally, A[t]he government cannot prohibit an
individual from engaging in religious conduct that is protected by the First Amendment.@

Id. at

256. The First Amendment also implicitly protects the corresponding freedom to expressive
association. Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643, 658 (10th Cir.
2006). Additionally, the freedom to engage in association for the advancement of beliefs and
ideas is an inseparable aspect of the concept of Aliberty@ guaranteed by the Due Process Clause.
See NAACP v. Alabama, 357 U.S. 449, 460 (1958).
There is no compelling governmental interest in precluding Mr. Barlow from engaging in
his fundamental religious practice of communicating his praise and support directly to his
prophet Warren Jeffs. Such communication is completely monitored. It has nothing to do with
the present case. And it in no way compromises the safety of any other person or the assurance
that Mr. Barlow will appear in court as required.

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Based upon the foregoing, Mr. Barlow respectfully requests that this Court enter an order
again modifying the Amended Order Setting Conditions Of Release entered by Magistrate Judge
Braithwaite on August 3, 2016. This Court should return the release conditions to those that
existed by stipulation prior to August 3: Mr. Barlow should be allowed contact with other
codefendants for legitimate business and management needs, so long as there is no
communication about the pending case, and he should be allowed to maintain his written
communication to Warren Jeffs.
Respectfully submitted this 15th day of August, 2016.

/s/ Scott C. Williams

Attorney for Defendant


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I hereby certify that on August 15, 2016, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system which sent notification of such filing to the following:
Robert Lund
Assistant United States Attorney
185 S. State Street, Suite 300
Salt Lake City, UT 84111
/s/ Adrianna Sandall

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Exhibit A

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