United States v. Sheikh

994 F. Supp. 2d 736, 2014 WL 116535, 2014 U.S. Dist. LEXIS 3090
CourtDistrict Court, E.D. North Carolina
DecidedJanuary 10, 2014
DocketNo. 5:13-CR-305-BO
StatusPublished
Cited by2 cases

This text of 994 F. Supp. 2d 736 (United States v. Sheikh) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sheikh, 994 F. Supp. 2d 736, 2014 WL 116535, 2014 U.S. Dist. LEXIS 3090 (E.D.N.C. 2014).

Opinion

ORDER

TERRENCE W. BOYLE, District Judge.

This matter is before the Court on defendant’s motion to revoke detention order and request for hearing [DE 28]. The government opposes the motion. For the reasons stated herein defendant’s motion is DENIED.

BACKGROUND

Defendant is charged with attempting to provide material support to a designated terrorist organization, in violation of 18 U.S.C. § 2339B. At defendant’s initial appearance on November 4, 2013, the government moved for detention pending trial. [DE 5]. After the subsequent detention hearing, which took place on November 8, 2013, Magistrate Judge William A. Webb granted the government’s motion for detention and remanded defendant to the custody of-the U.S. Marshall pending trial. [DE 17]. On December 5, 2013, the defendant filed a motion to this Court seeking a review of the detention decision. [DE 28]. Although defendant previously represented himself pro se, he is now represented by counsel.

DISCUSSION

I. LEGAL STANDARDS.

When acting on a motion to revoke a magistrate’s detention order brought pursuant to 18 U.S.C. § 3145(b), a district court reviews the order of detention de novo and makes an independent determination whether release on conditions is appropriate. United States v. Williams, 753 F.2d 329, 333 (4th Cir.1985).

The Bail Reform Act, 18 U.S.C. § 3141 et seq., states that a defendant may be detained pending trial where the United States shows “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person of the community.” 18 U.S.C. § 3142(e) and (f). Detention can be based on a showing by [739]*739the United States of either of the following: (1) that, beyond a preponderance of the evidence, the defendant poses a risk of flight, United States v. Xulam, 84 F.3d 441, 443 (D.C.Cir.1996); or (2) that, by clear and convincing evidence, the defendant poses a risk to the safety of any person or the community. 18 U.S.C. § 3142(f). The Bail Reform Act codifies a number of factors that courts should consider when assessing whether detention is appropriate. See .18 U.S.C. § 3142(g). Congress has also created a rebuttable presumption that detention is appropriate in cases where, such as here, defendant has been charged with certain offenses. 18 U.S.C. § 3142(e)(3).

II. THE PRESUMPTION.

Defendant has been charged by the grand jury with attempting to provide material support to a designated terrorist organization in violation of 18 U.S.C. § 2339B. Under the Bail Reform Act, once probable cause has been established that certain crimes were committed, a rebuttable presumption is established that “no condition or combination of conditions will reasonable assure the appearance of the person as -required and the safety of the community....” 18 U.S.C. § 3142(e)(3). It has long been settled by the Supreme Court that a grand jury indictment conclusively determines the existence of probable cause. Durham v. Horner, 690 F.3d 183, 189 (4th Cir.2012) (citing Gerstein v. Pugh, 420 U.S. 103, 117 n. 19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). The statute lists as “presumption” crimes any offense listed in 18 U.S.C. § 2332b(g)(5)(B) that is punishable by a maximum term of imprisonment of ten years or more. 18 U.S.C. § 3142(e)(3)(c). Section 2339B is listed in section 2332b(g)(5)(B) and is punishable by a maximum term of imprisonment of fifteen years. 18 U.S.C. § 2339B. Thus defendant has been charged with a crime that carries a presumption of detention. • ■

“The § 3142(e) presumption imposes on the defendant only the burden of production of proof.” United States v. Tyson, 2011 WL 4443253, *1, 2011 U.S. Dist. LEXIS 109100, *3 (E.D.N.C. Sept. 23, 2011). “Although most rebuttable presumptions found in the law disappear when any evidence is presented by the opponent of the presumption, the rebuttable presumption of § 3142(e) is not such a ‘bursting bubble.’ ” United States v. Garcia, 801 F.Supp. 258, 261 (S.D.Iowa 1992) (citing United States v. Jessup, 757 F.2d 378, 383 (1st Cir.1985)). Thus, to rebut the presumption, the defendant must produce some evidence while the judge remembers the fact that Congress found certain offenders to pose special risks of flight. Id. at 261-62. Indeed, the Bail Reform Act specifically compels courts to take into account whether a “Federal crime of terrorism” has been charged when assessing detention issues. 18 U.S.C. § 3142(g)(1).

Here, the evidence defendant submitted at the detention hearing was not sufficient to rebut the presumption of detention. At the detention hearing, defendant proffered the testimony of his father as a third-party custodian and the testimony of his mother and sister as character witnesses. As a whole, the testimony established that defendant lived with these family members for the entirety of the relevant timeframe excepting a few weeks of overseas travel. Defendant was living under the roof of his proposed third-party custodian when he committed the charged offense. Further, his family members admitted .they were unaware of the conversations and conduct performed by defendant online which constitutes a large portion of the activity making up the crime alleged against him. [DE 36 at 11-18]. Defendant’s mother’s testi[740]*740mony focused on his depression issues and served to try to mitigate the misconduct of her son rather than to rebut the presumption of detention. [DE 36 at 83-84].

III. SECTION 3142(g) FACTORS.

Even assuming that enough evidence was put forward to rebut the presumption of detention, the factors enumerated in § 3142(g) compel detention.

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Cite This Page — Counsel Stack

Bluebook (online)
994 F. Supp. 2d 736, 2014 WL 116535, 2014 U.S. Dist. LEXIS 3090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sheikh-nced-2014.