United States v. Nezhinskiy

• Court: Court of Appeals for the Second Circuit
• Decided: April 1, 2025
• Docket: 25-346
• Status: Unpublished

Opinion

25-346 US v. Nezhinskiy

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 “SUMMARY 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 1st day of April, two thousand twenty-five.

PRESENT: BARRINGTON D. PARKER, BETH ROBINSON, MYRNA PÉREZ, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 25-346

DIMITRIY NEZHINSKIY,

Defendant-Appellant,

JUAN VILLAR,

Defendant. *

* The Clerk’s office is respectfully directed to amend the caption as reflected above. _________________________________________

FOR APPELLEE: KATHERINE P. ONYSHKO, Assistant United States Attorney (Saritha Komatireddy, Michael R. Maffei, Sean M. Sherman, Assistant United States Attorneys, on the brief), for John J. Durham, United States Attorney for the Eastern District of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT: JONATHAN I. EDELSTEIN, Edelstein & Grossman, New York, NY.

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

District of New York (Kuntz, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court entered on

February 7, 2025, is VACATED.

Defendant-Appellant Dimitriy Nezhinskiy appeals from the district court’s

order holding him without bail pending trial on charges of receipt of stolen

property, under 18 U.S.C. § 2315, and conspiracy to receive stolen property, under

18 U.S.C. § 371. We assume the parties’ familiarity with the underlying facts,

procedural history, and the issues on appeal, to which we refer only as necessary

to explain our decision.

2 A defendant must be released pretrial on personal recognizance or with an

unsecured appearance bond unless the court “determines that such release will

not reasonably assure the appearance of the person as required or will endanger

the safety of any other person or the community.” 18 U.S.C. § 3142(b). As to risk

of flight, the government bears the burden of proving by preponderance of the

evidence both the risk of flight, and that no condition or combination of conditions

would reasonably assure Nezhinskiy’s appearance. United States v. Sabhnani, 493

F.3d 63, 75 (2d Cir. 2007). As to the risk of danger to the community, the

government must show by clear and convincing evidence that “no condition or

combination of conditions will reasonably assure the safety of the community.”

United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). 1 “Under this statutory

scheme, it is only a limited group of offenders who should be denied bail pending

trial.” Sabhnani, 493 F.3d at 75.

“[I]n determining whether there are conditions of release that will

reasonably assure the appearance of the person as required and the safety of” the

community, the court takes into consideration the nature and circumstances of the

offense charged, the weight of the evidence, the history and characteristics of the

1In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted. 3 person, and the danger to any person or community posed by release. 18 U.S.C. §

3142(g).

We review a district court’s bail determination, including its findings of fact

regarding risk of flight, danger to the community, and the adequacy of any

proposed bail conditions, for clear error. See Ferranti, 66 F.3d at 542. We will not

reverse “unless on the entire evidence we are left with the definite and firm

conviction that a mistake has been committed.” Sabhnani, 493 F.3d at 75.

The district court here concluded that the government had shown a risk of

flight and a danger to the community. It reasoned that Nezhinskiy posed a serious

danger to the community because he is accused of running a major fencing ring

connected to at least five separate burglary crews around the country. The court

explained that, although the defendants were not charged with a crime typically

viewed as a “violent crime,” United States v. Nezhinskiy, No. 1:25-cr-40, Dkt. 23 at

5, Nezhinskiy’s alleged conduct presents a substantial risk of danger to the

community by creating a marketplace for items stolen in residential burglaries and

retail thefts that create a very real risk of danger. Evidence that the fencing ring

had been ongoing for years and had connections to criminal gangs that committed

nighttime robberies reinforced the court’s view. In addition, the court further

observed that the weight of the evidence and Nezhinskiy’s criminal history,

4 including a prior conviction for robbery in the second degree, also weighed in

favor of detention.

As to risk of flight, the court acknowledged Nezhinskiy’s close family ties

in the community but found that his connection to large syndicates with a

potential interest in helping him flee the jurisdiction posed a risk of flight. The

court saluted Nezhinskiy’s father’s willingness to risk his life savings to secure

Nezhinskiy’s appearance but found that Nezhinskiy “present[s] a clear and

present danger, an actual flight risk given the pernicious international criminal

connections presented to the grand jury, together with the multi-state activities

[Nezhinskiy] stand[s] accused of committing.” Nezhinskiy, No. 1:25-cr-40, Dkt. 23

at 8. We cannot conclude on this record that the district court’s findings as to

danger to the community and risk of flight are clearly mistaken. Sabhnani, 493 F.3d

at 75.

But the district court’s analysis was incomplete in that it failed to assess the

suggested conditions of release offered to assure Nezhinskiy’s appearance and

protect the community. At the initial appearance before Magistrate Judge

Eshkenazi, Nezhinskiy proposed a bail package including a $1 million bond

consisting of $150,000 in cash and two condominiums owned by his father. He

also agreed to abide by Pretrial Services’ recommended conditions, including: (i)

5 no violation of any federal, state, or local law; (ii) no obstruction of justice or

witness tampering; (iii) required to appear in court; (iv) report to Pretrial Services

as directed; (v) no passport of any kind; (vi) restricted to New York City and New

Jersey; (vii) home detention except for court appearances, court-ordered

obligations, attorney visits, religious services, medical appointments, and school

activities with prior approval of Pretrial Services; (viii) no firearms; and (ix) drug

testing as required by Pretrial Services. The district court did not address these

proposed conditions or explain why it concluded there were no conditions that

would be sufficient to ensure Nezhinskiy’s appearance and the safety of the

community. This failure to consider the adequacy of the proposed bail conditions

was clear error. See Ferranti, 66 F.3d at 542. 2

For these reasons, we VACATE the district court’s February 7, 2025 order

and REMAND for consideration of the adequacy of any proposed bail conditions.

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

2 After oral argument, the government filed a motion to supplement the record to include information that Nezhinskiy was found to have a contraband cell phone at MDC. We deny the motion to supplement, and leave it to the district court to assess this new information on remand. 6