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U.S. v. KARNI

January 28, 2004.

UNITED STATES OF AMERICA
v.
ASHER KARNI



The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District

MEMORANDUM OPINION

I. INTRODUCTION

Pending before the Court is the Government's Motion for Revocation of Release Order and Memorandum in Support of Detention ("Gov. Mot."), filed January 14, 2004. After careful consideration of that motion, the oral argument heard in open court at the hearing held on January 20, 2004, and the entire record herein, the Court will deny the motion and will allow the ruling releasing Defendant to stand with modifications.

  II. BACKGROUND*fn1

  Defendant Asher Karni is charged in a criminal complaint issued from the District of Columbia alleging that he violated the Export Administration Act ("EAA") and the International Economic Emergency Powers Act ("IEEPA"), 50 U.S.C. App. § 2410(b)(1) and 50 U.S.C. § 1705(b), respectively. The complaint alleges that Defendant acquired products that are capable of triggering nuclear weapons and exported them to Pakistan, via South Africa, avoiding the requirement of obtaining an export license for the devices.

  Mr. Karni was arrested on January 1, 2004 by BICE agents while going through Customs Page 2 and Immigration at the Denver International Airport. Defendant had arrived in Colorado intending to stay at a ski resort at Keystone, Colorado with his wife and daughter until January 19, 2004. On January 2, 2004, Defendant had his initial appearance at the U.S. District Court for the District of Colorado in Denver. At that appearance, Mr. Karni requested an identity/detention hearing. That hearing took place on Wednesday, January 7, 2004, before Magistrate Judge Watanabe. On that day, Magistrate Judge Watanabe held that the government had established Mr. Karni's identity as the proper defendant and found that there was probable cause that Mr. Karni committed the alleged crime. The hearing was continued until January 12, 2004, to provide defense counsel an opportunity to submit evidence on the issue of detention. At the conclusion of that hearing, Judge Watanabe ordered that Karni be released on a bond of $75,000 offered by Bruce Rosenbaum and placed into the custody of Rabbi Yoseph Singer of Potomac, Maryland.

  On January 14, 2004, the government submitted a motion for revocation of Magistrate Judge Watanabe's ruling releasing Defendant. This Court issued an order staying the release pending this Court's resolution of the issue. A hearing was held by this Court on January 20, 2004, during which Mr. Karni and defense counsel participated by video conference from the District of Colorado courthouse.

  III. DISCUSSION

 A. Bail Reform Act Standards

  The Court notes at the outset that its review of the Magistrate's decision is de novo, and the Court is free to use in its analysis any evidence or a rationale different than what the Page 3 Magistrate relied upon. United States v. Hudspeth, 143 F. Supp.2d 32, 35-36 (D.D.C. 2001) (Kennedy, J.); United States v. Bess, 678 F. Supp. 929, 934 n.3 (D.D.C. 1988) (citing United States v. Forma, 769 F.2d 243 (5th Cir. 1985).

  Under the Bail Reform Act, 18 U.S.C. § 3141 et seq., a person awaiting trial on a federal offense may either be released on personal recognizance or bond, conditionally released, or detained. 18 U.S.C. § 3142(a): see United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999). In this case the Government seeks Defendant's pretrial detention pursuant to section 3142(f)(2)(A), which permits the Court to order pretrial detention "in a case that involves . . . a serious risk that such person will flee." 18 U.S.C. § 3142(f)(2)(A).

  In determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community, the Court must conduct a hearing at which it must consider the following factors:
(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including —
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; 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).

  A finding that no condition or combination of conditions will reasonably assure the appearance of the defendant must be supported by a preponderance of the evidence, and a finding Page 4 that no condition or combination of conditions will reasonably assure the safety of any other person and the community must be supported by clear and convincing evidence. See 18 U.S.C. § 3142(e); United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987) ("While the [Bail Reform] Act requires that detention be supported by `clear and convincing evidence' when the justification is the safety of the community . . . it is silent as to the level of proof required to establish risk of flight. This circuit, however, has ruled that such a finding need only be supported by a `preponderance of the evidence.") (quoting United States v. Vortis, 785 F.2d 327, 329 (D.C. Cir. 1986)): see also United States v. Xulam, 84 F.3d 441, ...


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