United States v. Fattah

351 F.Supp.3d 1133

UNITED STATES of America, Plaintiff,

v.Wesam Abdel FATTAH, Defendant.

No. 18 CR 835-13

United States District Court, N.D. Illinois, Eastern Division.

Signed January 17, 2019

Rajnath P. Laud, Assistant U.S. Attorney, AUSA, Assistant U.S. Attorney, Charles William Mulaney, III, United States Attorney's Office, Chicago, IL, for Plaintiff.

AMENDED MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Ms. Fattah, a Jordanian citizen, (Defendant's Motion for Release on Conditions, ¶ 1, et seq. , Dkt. # 127), who is in this country illegally, and is or will be facing deportation proceedings, is one of 14 defendants charged in a three-count indictment pending before Judge Chang. Count I, which names all the defendants, including Ms. Fattah, charges that the defendants conspired with each other and with others known and unknown to the Grand Jury to knowingly and intentionally possess with intent to distribute 500 grams or more of a mixture and substance containing a detectible amount of cocaine, a Schedule 2 controlled substance, in violation of 21 U.S.C. § 841(a)(h) in violation of 21 U.S.C. § 846. Certain of the other defendants are also Jordanian and are in the United States illegally.

I have previously granted bond to six other defendants in this case. [Dkt. ##69, 72, 73, 78, 107, 150].

The government seeks to detain Ms. Fattah under the Bail Reform Act of 1984, while the defendant insists that under the Act she should be released to the custody of her family, where she has promised to remain on house arrest, with electronic monitoring. The Motion assures us Ms. Fattah "has no intention fleeing [sic] and thus be relegated to forever looking over her shoulder waiting for the United States Government to grab her." [Dkt. # 127, ¶ 16]. Apart from the fact that Ms. Fattah has done precisely this before, "saying so doesn't make it so...." United States v. 5443 Suffield Terrace, Skokie, Ill. , 607 F.3d 504, 510 (7th Cir.2010). "Nothing is simpler than to make an unsubstantiated allegation." Parko v. Shell Oil , 739 F.3d 1083, 1086 (7th Cir. 2014). Unfortunately, the evidence adduced thus far in this case fails to support Ms. Fattah's lawyer's predictions and points to very different conclusions. While judges are not seers, United States v. Porter , 41 F.3d 68, 70 (2d Cir. 1994), bond decisions necessarily involve prophetic judgments. Ward v. United States , 76 S.Ct. 1063, 1066, 1 L.Ed.2d 25 (1956) (Frankfurter, J.). In this case, at least, it is fair to conclude that "past is prologue," Shelby Cty., Ala. v. Holder , 570 U.S. 529, 576, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) ; Pan Am. World Airways, Inc. v. United States , 371 U.S. 296, 310, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963), and I do not find persuasive the defendant's assurances that she will attend all future court proceedings if only she is released on bond and allowed to live in her father's house subject to electronic monitoring.

For the reasons discussed below, I have concluded that the government has shown by a preponderance of the evidence that no condition or set of conditions will reasonably assure the appearance of the defendant at trial. See 18 U.S.C. § 3142. In light of this disposition, I do not reach the government's additional contention that bond should be denied because it has shown by clear and convincing proof that no condition or set of conditions will reasonably assure the safety of society.¹

ANALYSIS

A.

The Bail Reform Act's preference for liberty – a preference that is consistent with and demanded by our entire heritage – ensures that pretrial detention will occur only in unusual circumstances. Hamilton v. Lyons , 74 F.3d 99, 105 (5th Cir. 1996). As the Supreme Court has stressed, "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno , 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Thus, 18 U.S.C. § 3142(a) and (b) provide that a person charged with an offense shall be released on personal recognizance or upon execution of an unsecured appearance bond, unless further conditions are necessary to reasonably assure attendance at trial and the safety of the community. The preference for release accounts for § 3142(e)'s "require[ment that] the judge...consider the possibility of less restrictive alternatives to detention." United States v. Infelise , 934 F.2d 103, 105 (7th Cir. 1991) (Posner, J.). See also United States v. Orta , 760 F.2d 887, 891 (8th Cir. 1985). Doubts regarding the propriety of release should be resolved in the defendant's favor. United States v. Barnett , 986 F.Supp. 385, 392 (W.D. La. 1997) (collecting cases).

Still, it is essential to recall that bond decisions are inherently judgmental and depend not on tendentious generalities or assurances, but on a weighing of the comprehensive list of non-exclusive factors in § 3142(g). Thus, the statute requires a judge considering an application of bail to consider: "the nature and circumstances of the offense charged," "the weight of the evidence against the person," and "the history and characteristics of the person, including ," 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 several other factors. (Emphasis supplied).

By its plain, spacious terms the Act requires a complete examination of all facets of a defendant's history and character. Thus, all of the information that was presented to the court regarding the defendant's history of deception, illegal entry and continued residence in the United States and her calculated lies to authorities are appropriate matters for consideration in determining whether release on the conditions that have been proposed will reasonably assure the defendant's attendance at trial.

The instant case also involves a presumption that conditions of release will not suffice to reasonably assure the appearance of the defendant at trial or the safety of the community. The presumption can be rebutted by the defendant, and it does not take a particularly great quantum of evidence for the presumption to be rebutted. But even where it is, the presumption does not disappear from the case. Rather, it continues to weigh in the balance against bail. In other words, even after a defendant meets his burden of producing some evidence to rebut the presumption, the presumption does not entirely vanish from the case. See, e.g., United States v. Rodriguez , 950 F.2d 85, 88 (2d Cir. 1991) ; United States v. Barker , 876 F.2d 475, 476 (5th Cir. 1989) ; United States v. Diaz , 777 F.2d 1236, 1237–38 (7th Cir. 1985). As the court put it in United States v. Rangel , 318 F.Supp.3d 1212, 1216 (E.D. Wash. 2018), "[t]he presumption is not erased when a defendant proffers evidence to rebut it; rather the presumption ‘remains in the case as an evidentiary finding militating against release, to be weighed along with other evidence relevant to the factors listed in § 3142(g).’ " Accord United States v. Holguin , 791 F.Supp.2d 1082, 1089 (D.N.M. 2011) ("while Holguin has met her burden of production, the presumption ‘remains a factor for consideration by the district court in determining whether to release or detain.’ ").

In light of intimations in the defendant's motion for bond it should be stressed that merely because Ms. Fattah is charged with a serious crime involving drugs does not mean that, as a matter of law, she cannot be granted bond. Cf. Salerno , 481 U.S. at 750, 107 S.Ct. 2095. Indeed, there are any number of cases involving crimes of violence or drug trafficking where bond either has been granted or where the court made clear that bond was at least a theoretical possibility. See Infelise , 934 F.2d at 105 ; United States v. Leonti , 326 F.3d 1111, 1114 (9th Cir. 2003) ; United States v. O'Dell , 204 F.3d 829 (8th Cir. 2000) ; United States v. Gigante , 39 F.3d 42, 48 (2nd Cir. 1994) ; United States v. Mancuso , 726 F.Supp. 1210, 1214 (D.Nev. 1989). In United States v. Ploof , 851 F.2d 7, 11-12 (1st Cir. 1988), the First Circuit stressed that even where there was serious risk of obstruction, intimidation, threat, or death to prospective witnesses, detention under the Bail Reform Act still requires showing that no set of conditions will "reasonably assure" safety. (Emphasis in original). Thus, the decision on bond in this case is a function of the analysis of all those factors enumerated in § 3142. We do not understand the government's argument against bond to take a different position or to argue that bond in this case is solely a function of the crime charged. Quite the contrary.

B.

As we noted earlier, supra at 1137, the Bail Reform Act requires that there be a examination by the court of the non-exclusive list of factors set forth in the Act. A careful consideration of these factors, which includes evidence related to the character and history of the defendant, leads to the conclusion that release under the conditions proposed by the defendant is not appropriate.

Ms. Fattah is a citizen of Jordan, who it is conceded entered the United States illegally in Los Angeles in about January 2014. She was denied permission to enter the country and was placed on what is figuratively referred to as "port parole." She was allowed to leave the custody of immigration authorities after solemnly promising to return immediately to Jordan. She did not, but stayed in the country illegally over the next five years.

Five months later, on about May 1, 2014, she was picked up by the local police in Los Angeles for possession of a controlled substance and turned over to ICE. She again solemnly promised to leave and was again released. She did not leave, but rather went into hiding in the United States and is now charged by the grand jury with a serious drug...