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