United States v. Musaibli

1

UNITED STATES OF AMERICA, Plaintiff, v. IBRAHEEM IZZY MUSAIBLI, Defendant.

No. 18-20495

United States District Court, E.D. Michigan, Southern Division

May 26, 2022

ORDER DENYING DEFENDANT'S SECOND MOTION FOR RELEASE ON BOND

DAVID M. LAWSON UNITED STATES DISTRICT JUDGE

Defendant Ibraheem Izzy Musaibli has been held in pretrial detention for nearly four years - 46 months and counting. He is charged with serious terrorism-related crimes, and the Court previously determined that there is no condition or combination of conditions that can assure the safety of the community and Musaibli's appearance at trial. Based on that finding, the Court ordered continued detention, as it must, 18 U.S.C. § 3142(e)(1), when Musaibli asked to revoke the detention order in May 2021. ECF No. 143. Now, a year later, with no trial date on the horizon, Musaibli asks again to revoke the detention order. A court may reopen a detention hearing when new information comes to light that has a material bearing on the community safety and risk-of-flight determinations. 18 U.S.C. § 3142(f)(2)(B). Musaibli has offered some evidence on the availability of a third-party custodian, but beyond that, not much has changed since the earlier order was entered. However, another aspect of this prolonged detention must be considered: that pretrial detention violates the Fifth Amendment's Due Process Clause when it amounts to “punishment of the detainee.” United States v. Watson, 475 Fed.Appx. 598, 601 (6th Cir. 2012) (quoting Bellv. Wolfish, 441 U.S. 520, 535 (1979)).

Of the four factors courts must consider when determining if a lengthy pretrial detention abridges due process, two of them weigh heavily against the government, namely, its responsibility for the delay of the trial, and the length of the detention. The case has been delayed by numerous complications. Seventeen months of the cumulative 46-month delay was caused by global-pandemic-related courthouse closures, which is a circumstance beyond the influence of either party. However, nearly half of the 29-month remainder of the total delay was caused by the government's mishandling of the defendant's competency evaluation by disregarding this Court's order, and by a questionable interlocutory appeal that is premised on false representations that the government made to the court of appeals about the nature of the order appealed. However, the other factors, discussed in detail below, together provide a substantial counterweight that tips the balance against finding a due process violation compelling pretrial release. And the considerations outlined in the Bail Reform Act point to continued detention, as before. The defendant's second motion to revoke the detention order, therefore, will be denied.

I.

The lengthy history of the case in this Court began on July 19 2018, when the defendant was charged in a single-count indictment with providing and attempting to provide material support to a designated foreign terrorist organization contrary to 18 U.S.C. § 2339B. On April 9, 2019, the charges were expanded in a superseding indictment, which added charges for (1) conspiracy to provide material support to a foreign terrorist organization, 18 U.S.C. § 2339B (Count II), (2) possessing and discharging a machine gun in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A), (B)(ii) (Count III), and (3) receiving military-type training from a foreign terrorist organization 18 U.S.C. § 2339D(a) (Count IV). On July 29, 2019, the Court granted the government's unopposed motion to dismiss the charge for possession of a firearm in furtherance of a crime of violence (Count III). Counts I, II, and IV remain pending for trial.

The defendant's initial appearance in the case occurred on July 25, 2018, and he has been detained from then until now. On July 27, 2018, the defendant consented to pretrial detention. On July 30, 2018, the Court issued its first scheduling order setting the case for trial on September 18, 2018.

On August 8, 2018, the Court held a status conference with counsel for the parties, during which the parties reported that they expected the discovery in the case to be voluminous and to be produced in several substantial waves. They jointly requested an adjournment of the trial and final pretrial deadlines to allow them more time to prepare for trial. That joint request was granted, and the trial was adjourned to February 19, 2019.

On October 15, 2018, the defendant filed an unopposed motion to extend the pretrial motion filing deadline. In that motion he indicated that the government had produced several voluminous batches of material obtained by search warrants, and the discovery production was ongoing. The defendant asked the Court to extend the motion deadline to allow his attorneys to review all of the discovery adequately and to avoid the need for “piecemeal litigation” of pretrial issues. That motion was granted on October 22, 2018, and the defendant's motion filing deadline was extended to December 15, 2018.

On December 4, 2018, the Court held another status conference with the defendant and counsel for the parties. During the conference, the government reported that it had made substantial progress in producing most of the discovery materials, but the production of some information was delayed because it was in the custody of other federal agencies, and because some classified information had not been cleared for release. The defendant's lawyers indicated that the defendant intended to file several pretrial motions, but they had not yet done so because they were concerned that the issues to be presented in the motions might obstruct productive plea negotiations. The defendant's lawyers also indicated that they might need to travel abroad to locate and interview witnesses, and they needed more time to plan and arrange any such excursions. The defendant made an oral motion for a further adjournment, which the government did not oppose. That motion was granted, and the trial was adjourned to August 6, 2019.

On February 25, 2019, the defendant filed a motion to authorize issuance of subpoenas under Federal Rule of Criminal Procedure 17(c) through which he sought to obtain certain information from third parties that could be relevant to certain issues presented by his anticipated trial defenses. That motion was granted on the same date.

On March 18, 2019, the parties presented a stipulation to extend the deadline for the government to file a superseding indictment. Based on that joint request, the deadline to supersede was extended to April 11, 2019. The government filed the first superseding indictment on April 9, 2019.

On April 15, 2019, the defendant filed a motion for a competency evaluation. Defense counsel stated that Musaibli's cognitive functions had been deteriorating steadily, and he suspected that Musaibli was suffering from a neurocognitive disorder. He asked that Musaibli be sent to a Bureau of Prisons medical facility that could observe him and perform neuropsychological testing. ECF No. 50, PageID.113-14. That motion was granted on April 26, 2019. In its amended order granting the motion, the Court expressly directed the Bureau of Prisons to transport the defendant to a facility where “neuropsychological testing” could be conducted as part of the evaluation process. ECF. No. 56. On May 8, 2019, after the BOP informed the Court about its designation of the examination facility, the Court ordered the transportation of the defendant to the Federal Metropolitan Detention Center, in Los Angeles, California.

On May 1, 2019, the defendant filed two motions to dismiss Count III of the first superseding indictment, on the grounds that (1) the underlying charge of providing material support to a foreign terrorist organization did not qualify as a “crime of violence, ” and (2) the statute in question did not authorize jurisdiction over acts that allegedly occurred abroad, entirely in the territory of Iraq and Syria. The Court scheduled a hearing on those motions for June 26, 2019, which subsequently was adjourned to August 1, 2019 at the request of the parties. However, on July 18, 2019, the government filed its own unopposed motion for dismissal of Count III, which was granted on July 29, 2019.

The initial competency examination was completed and the report was sent to defense counsel on July 25, 2019. The report revealed obvious problems with the government's work: (1) information was included in the report that related to persons other than the defendant, and (2) the neuropsychological testing previously ordered by the Court had not been conducted. Defense counsel immediately filed a motion for a second competency evaluation. The Court granted the second motion and ordered the BOP to designate a new facility and examiner for a second, complete examination, according to the Court's express direction for neuropsychological testing. On August 13, 2019, after the BOP informed the Court about the new designation, the Court ordered the transportation of the defendant to the Federal Medical Center in Butner, North Carolina. Despite the fact that the transportation was authorized in mid-August, the Court later was informed that the BOP delayed the transfer to the assigned facility until November 13, 2019. No satisfactory explanation for that delay ever was presented to the Court.

On December 16, 2019, the defendant filed a pro se motion asking the Court to assign a new lawyer for his defense, in which he stated that he was unhappy with various aspects of his interactions with his appointed counsel. The Court scheduled a hearing on that motion for February 26, 2020, so as not to interfere with the competency evaluation.

On January 10, 2020, the Court entered an order...