United States v. Toirov

Opinion

Appellate Case: 25-2109 Document: 14-1 Date Filed: 12/05/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 5, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 25-2109 (D.C. No. 2:25-CR-01801-SMD-1) KOMILJON TOIROV, (D. N.M.)

Defendant - Appellee, _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, Chief Judge, BACHARACH, and CARSON, Circuit Judges. _________________________________

Komiljon Toirov is charged with trespass onto a restricted military area in

violation of 18 U.S.C. § 1382 and 50 U.S.C. § 797. The district court ordered

Mr. Toirov’s release pending trial, and the government appeals. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we affirm.

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-2109 Document: 14-1 Date Filed: 12/05/2025 Page: 2

On April 15, 2025, the Department of the Interior transferred a narrow, 180-

mile strip of land to the Department of Defense, and the Army in turn designated the

land as a restricted military area per Army regulations.

On May 4, 2025, Border Patrol agents discovered Mr. Toirov hiding in the

brush in the restricted area on the border between New Mexico and Mexico.

Mr. Toirov admitted he is from Uzbekistan and had just crossed the border without

permission.

The government took Mr. Toirov into criminal custody and submitted a

criminal complaint in the United States District Court for the District of New

Mexico. The complaint charged him with illegal entry, see 8 U.S.C. § 1325(a)(1),

and trespassing under 50 U.S.C. § 797 and 18 U.S.C. § 1382. After a probable cause

hearing, a magistrate judge dismissed the trespass charges, concluding the statutes

require the government to prove Mr. Toirov knew he was entering a restricted

military area. And because the complaint did not contain sufficient information about

whether Mr. Toirov knew he had done so, the magistrate judge concluded there were

not enough facts to support probable cause for either charge.

The government then filed an information against Mr. Toirov alleging the same

three charges. He pleaded guilty to illegal entry and the district court sentenced him

to time served. Mr. Toirov moved for pretrial release on the remaining charges and

the magistrate judge granted that motion based on its earlier analysis that those

charges require a mens rea the government cannot prove.

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The government appealed the magistrate judge’s release order to the district

court, arguing the trespassing statutes do not require proof that Mr. Toirov knew he

was entering a restricted military area. The district court disagreed and affirmed the

magistrate judge’s release order.

The government then appealed. On July 29, 2025, we issued a limited remand

order directing the district court to enter an alternative order under the assumption

that the government’s interpretation of the trespassing statutes is correct. The district

court complied and issued an alternative order finding that if the government’s

position were correct, then the court would order Mr. Toirov’s detention. The district

court also noted Mr. Toirov had been transported by Immigration and Customs

Enforcement to New York and released pending travel arrangements to Uzbekistan.

After the district court issued its alternative findings, we vacated the court’s

original release order, concluding the district court erred in treating the statutory

interpretation question as dispositive. United States v. Toirov, No. 25-2074, 2025 WL

2406099, at 1 (10th Cir. Aug. 20, 2025). On remand, the district court issued an

amended order of release and again ordered that Mr. Toirov remain free on his own

recognizance pending trial. The government again has appealed.

We review the district court’s ultimate release decision de novo because it

presents mixed questions of law and fact; however, we review the underlying

findings of fact for clear error. See United States v. Cisneros, 328 F.3d 610, 613

(10th Cir. 2003). We examine four factors in determining whether there are

conditions of release that will reasonably assure the defendant’s appearance and the

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safety of the community: “(1) the nature and circumstances of the offense charged

. . . ; (2) the weight of the evidence against the person; (3) the history and

characteristics of the person . . . ; and (4) the nature and seriousness of the danger to

any person or the community that would be posed by the person’s release.”

18 U.S.C. § 3142(g). The government does not contend that Mr. Toirov poses any

danger. “The government must prove risk of flight by a preponderance of the

evidence.” Cisneros, 328 F.3d at 616.

As discussed above, the district court held the trespass statutes require proof

that Mr. Toirov knew he was entering onto a restricted military area. Because there

was no evidence of that, the district court concluded the weight-of-the-evidence

factor favors Mr. Toirov’s release. The government contends that the district court

erred because its assessment of the weight-of-the-evidence factor rests on a statutory

interpretation error. The government emphasizes that it seeks reversal on no other

ground.

We need not resolve the question presented by the government’s appeal

because the government has produced little to no evidence in support of the other

relevant factors. Accordingly, the government has failed to carry its burden of

showing Mr. Toirov is a flight risk. We therefore affirm the district court’s release

order. We grant the government’s motion for leave to file a reply brief.

Entered for the Court

Per Curiam