United States District Court, E.D. Tennessee, Knoxville
ORDER OF DETENTION PENDING TRIAL
pretrial motions in this case have been referred to the
undersigned pursuant to 28 U.S.C. § 636(b) for
disposition or report and recommendation regarding
disposition by the District Court as may be appropriate. This
case came before the Court on January 13, 2017, for a
detention hearing under the Bail Reform Act, 18 U.S.C. §
3142(f). Assistant United States Attorney Bart Slabbekorn
appeared on behalf of the Government. Attorney Gregory Isaacs
represented the Defendant, who was also present. Based upon
the evidence proffered at this hearing, the Pretrial Services
Report presented by the United States Probation Office, and
arguments of counsel, the Court concludes that the Defendant
must be detained pending trial.
I-Applicable Provisions of the Bail Reform Act
Government concedes that the Defendant has not been charged
with an offense which triggers a rebuttable presumption that
no condition or combination of conditions will reasonably
assure the appearance of the person as required and the
safety of the community. 18 U.S.C. § 3142(e)(3)(E). The
Government further concedes that it does not allege that the
Defendant poses a serious risk of danger to another person or
the community. The Government's position is that there is
a strong likelihood that the Defendant will flee if given the
opportunity. 18 U.S.C. § 3142(e). The Defendant opposes
detention and requests release, on conditions, pending trial.
The Government must show, by a preponderance of the evidence,
that the Defendant is a serious risk not to appear at trial.
The Court has considered all reasonable, less-restrictive
alternatives to detention. The Court, however, must conclude
that no conditions will reasonably assure the Defendant's
appearance at trial, as outlined below.
II-Statement of Reasons for the Detention
Court has considered the factors in 18 U.S.C. § 3142(g)
and finds as follows:
the nature and circumstances of the charged offense
“making a false statement in an application for a
passport” [Doc. 2], weighs in favor of release because
of the level of seriousness of the charge and the potential
penalties if convicted.
Sixth Circuit, the second factor is the weight of the
evidence of the Defendant's dangerousness. See United
States v. Stone, 608 F.3d 939, 947 n.6 (6th Cir. 2010).
In this case, the weight of the evidence of the
Defendant's dangerousness is low, because the Government
has so conceded. Accordingly, the Court finds that the weight
of the evidence of the Defendant's dangerousness weighs
in favor of release. 18 U.S.C. § 3142(g)(2).
Court, however, finds that the weight of the evidence that
the Defendant presents a flight risk weighs in favor of
detention. See 18 U.S.C. § 3142(g)(2). The
Defendant has no ties to the Eastern District of Tennessee.
The Defendant and his family have lived outside of the United
States for over twenty years. They currently live in Canada.
The Defendant has no business or financial concerns in the
United States. The Defendant's wife has entered into a
short term lease for an apartment in Knoxville. The
Defendant, however, is not a party to the lease. Moreover,
the lease states that “the Leased Premises shall be
occupied only by the persons named” in the rental
application [Doc. 7-2]. The Defendant concedes that his
business and family ties are outside of the United States.
The Court finds that the Defendant does have substantial and
well-established family, business, and residential ties to
Canada. He has a strong motive to flee.
addition, the Court finds that the Defendant has the means to
flee. The Government has established that the Defendant's
income in Canada has been at least $100, 000 a year. The
Defendant has traveled internationally, and his passport
reveals that he has been in several countries in the past.
The Defendant was apprehended at the Atlanta airport when his
flight from Cancun, Mexico to Canada made a stop in Atlanta.
Finally, the Defendant has confirmed his financial strength
by informing the Court that he posted a $350, 000 surety bond
in Tennessee state court on January 5, 2017, while at the
same time retaining counsel in Knoxville on both state and
federal felony charges.
Defendant has proposed that the risk of flight in this case
can be addressed, at least to a reasonable degree, by the
amount and conditions of the state court bond, by the
Defendant surrendering his passport, living under conditions
of house arrest in the Knoxville apartment, and wearing an
ankle monitor. The Defendant lives in Canada with his wife,
and is sixty-two (62) years old. In a case where someone is
considered to be a “general” flight risk, these
measures might be sufficient. In the present case, however,
the Court finds that the Defendant poses a heightened risk of
flight due to his financial means and his family and
residential ties to Canada. The Defendant's age provides
an additional motivation to flee, in light of the potential
prison term he faces in the case, as well as the potential
prison term he faces in the state court charge discussed in
more detail below.
the third factor, the Court views the following aspects of
the Defendant's history and characteristics to weigh
against him. The Defendant was indicated by a state grand
jury in 1994 and charged with rape of a child, a felony.
After his arrest on that charge in August, 1994, the
Defendant posted a $30, 000 bond and was released. The
Defendant did not appear for his arraignment on September 2,
1994, but instead fled the country and moved to
Iran. A fugitive warrant was issued for his
arrest. The Defendant was not arrested until his apprehension
at the Atlanta airport in May, 2016. Therefore, the Defendant
was on release from custody at the time he is alleged to have
committed the instant crime. See 18 U.S.C. §
3142(g)(3)(A)-(B). It also follows that he has a prior
failure to appear on a state felony charge, which charge is
still pending, and therefore, which would still constitute
substantial motive to flee again. Finally, the
Defendant's physical and mental states are neutral
factors that do not tip the balance in either direction.
However, other characteristics, such as the Defendant's
family and business ties to Canada, and his financial
resources, weigh in favor of detention as discussed above.
See 18 U.S.C. § 3142(g)(3)(B).
the Court examines the nature and seriousness of the danger
to any person or the community that would be posed by the
Defendant's release. 18 U.S.C. § 3142(g)(4). As
stated above, this is not an issue in the case of this
Court finds that an analysis of the factors listed in 18
U.S.C. § 3142(g) require the detention of the Defendant.
The Court also finds that no conditions of release, including
the conditions suggested by the Defendant, such as electronic
monitoring, would reasonably assure the appearance of the
Defendant as required. 18 U.S.C. § 3142(e). Finally, the
Court observes that the Defendant allegedly committed the
passport fraud offense in the present case in an effort to
deceive the United States Government and hide the existence
of the pending state court felony charge. The Court finds
that there is probable cause to conclude that the Defendant
is not credible and, moreover, that the Defendant can not be
trusted to abide by conditions of release, and particularly
the conditions that he appear for court. Accordingly, the
Court finds that the Defendant must be detained pending his