United States v. Rubin

Opinion

26-1334 United States v. Rubin

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 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 21st day of August, two thousand twenty-six.

PRESENT: Guido Calabresi, Steven J. Menashi, Sarah A. L. Merriam,

Circuit Judges.

____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 26-1334

HOWARD RUBIN, AKA HOWIE, AKA H,

Defendant-Appellant,

JENNIFER POWERS, STEPHEN POWERS,

Defendants.

____________________________________________

For Defendant-Appellant: MICHAEL J. GILBERT, Sheppard, Mullin, Richter & Hampton LLP, New York, New York (Katherine Anne Boy Skipsey, Sheppard, Mullin, Richter & Hampton LLP, New York, New York; Marc Agnifilo, Agnifilo Intrater LLP, New York, New York, on the brief).

For Appellee: KAYLA CREWS BENSING, Assistant United States Attorney (Susan Corkery, Raffaela Belizaire, Nina C. Gupta, Assistant United States Attorneys, on the brief), for Joseph Nocella, Jr., United States Attorney for the Eastern District of New York, Brooklyn, New York.

Appeal from an order of the United States District Court for the Eastern District of New York (Cogan, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and DECREED that the order of the district court is AFFIRMED.

Defendant-Appellant Howard Rubin appeals from an order of the district court denying his application for pretrial release under the Bail Reform Act (“BRA”), 18 U.S.C. § 3142(e). Rubin has been charged in a sixteen-count superseding indictment with sex trafficking in violation of 18 U.S.C. § 1591, interstate transportation for purposes of prostitution in violation of 18 U.S.C. § 2421, and bank fraud in violation of 18 U.S.C. § 1344. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

The BRA provides that the district court “shall order the detention” of a defendant pending trial if the district court “finds that no condition or combination of conditions 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(e)(1). Section

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3142(g) identifies the factors that the district court must consider in making that determination. When, as in this case, there is probable cause to charge a defendant with violating § 1591, a rebuttable presumption arises “that no condition or combination of conditions will reasonably assure” either the appearance or community safety. 18 U.S.C. § 3142(e)(3). The government bears the ultimate burden of persuasion by providing clear and convincing evidence as to danger and a preponderance of the evidence as to risk of flight. See United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). We review questions of law de novo, and we review for clear error the “predicate factual findings” underlying a detention order as well as the district court’s “overall assessment, based on those predicate facts, as to risk of flight or danger presented by defendant’s release.” United States v. Abuhamra, 389 F.3d 309, 317 (2d Cir. 2004).

Rubin argues that the district court applied the wrong legal standard by requiring proposed release conditions that would “guarantee” his appearance rather than reasonably assure it. We disagree. Although the district court observed that “[t]here is no guaranteed security measures that would prevent flight,” Ex. 1 Tr. 44:1-6, it immediately recognized the correct standard by noting that “you don’t need guarantee. You just need reasonably likely,” id. at 44:6-8, to warrant bail under the BRA. The district court also acknowledged that “unsupported speculation” about hidden assets or third-party assistance would not, standing alone, satisfy the government’s burden. Id. at 44:9-15. Read in context, the district court did not apply an incorrect standard; it appropriately considered whether Rubin’s proposed conditions reasonably assured appearance and safety in light of the record as a whole.

Nor can we say that the district court clearly erred in finding by clear and convincing evidence that Rubin posed a danger to the community. The district court considered the nature and circumstances of the charged offenses, including the government’s proffer that Rubin engaged in a years-long scheme involving violence, coercion, and sexual abuse of multiple women. It also considered the record of the related civil proceedings, Rubin’s alleged efforts to obstruct justice,

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and evidence that he poses a danger of “violating the law” in other ways. Ex. 1 Tr. 43:16-47:1. Under the BRA, “danger to the community” may include obstruction, witness tampering, and other criminal conduct that threatens the community or the integrity of judicial proceedings. United States v. LaFontaine, 210 F.3d 125, 134-35 (2d Cir. 2000); United States v. Millan, 4 F.3d 1038, 1048 (2d Cir. 1993). On this record, the district court did not clearly err in finding by clear and convincing evidence that no condition or combination of conditions would reasonably assure community safety.

The district court also did not clearly err in finding by a preponderance of the evidence that Rubin posed a risk of flight. Rubin proposed a substantial bail package, but the district court concluded that the proposed conditions did not adequately address the risk that Rubin retained access to undisclosed funds or third-party assistance. The record included evidence suggesting shifting and incomplete financial disclosures, belated disclosures of trust and insurance policies, substantial disbursements and unexplained payments, cash and multiple phones found at arrest, and questions about the reliability of proposed suretors. See Ex. 1 Tr. 19:24-24:25, 43:16-47:8. The district court was not required to identify hidden assets with certainty. Under the preponderance standard, it could draw reasonable inferences from the circumstantial evidence that Rubin’s financial picture remained incomplete and that the proposed conditions therefore would not reasonably assure his appearance.

Finally, the district court did not err in declining to accept Rubin’s proposed private-security arrangement. The district court’s detention decision did not rest on Rubin’s wealth but on a broader record that included the nature of the charges, the strength of the government’s proffer, alleged obstruction, financial opacity, compromised suretors, and the district court’s assessment that Rubin could not be trusted to comply with release conditions. See United States v. Boustani, 932 F.3d 79, 82-83 (2d Cir. 2019).

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We have considered Rubin’s remaining arguments, which we conclude are without merit. For the foregoing reasons, we affirm the order of the district court and deny Rubin’s motion for pretrial release.

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