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discussing the defendant's lack of family ties to the jurisdiction as weighing in favor of detention
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No. 01-CR-80778
October 16, 2001
OPINION AND ORDER CONTINUING DETENTION OF DEFENDANTS
I. INTRODUCTION
Defendants Karim Koubriti and Ahmed Hannan were originally arrested and charged on September 18, 2001 on Criminal Complaints for possession of false identification documents and false federal documents. Upon their arrest, the Government moved to have Defendants detained in custody. On September 21, 2001, Magistrate Judge Komives held a detention hearing at which the Government proceeded by way of proffer to present its arguments concerning the risk of flight of the Defendants. At the close of the hearing, the Magistrate Judge wanted the Government's motion and subsequently entered separate Orders of Detention detaining both Defendants Koubriti and Hannan.
A third individual, Farouk Ali-Haimoud, was also charged in a Criminal Complaint on September 18 and ordered detained by Magistrate Judge Komives on September 21 along with Defendants Koubriti and Hannan. However, on October 10, 2001, the Government dismissed the charges against Ali-Haimoud without prejudice.
Then, on September 27, 2001, the Grand Jury returned a two-count Indictment charging both Koubriti and Hannan with "Fraud and Misuse of Visas, Permits and Other Documents" in violation of 18 U.S.C. § 1546(a) and 2, and "Fraud and Related Activities in Connection with Identification Documents and Information" in violation of 18 U.S.C. § 1028(a)(6) and 2. After Koubriti and Hannan entered their pleas of "not guilty" on the Indictment, their attorneys appeared in chambers and orally requested a review of the Magistrate Judge's detention order. (No written motion for bond or for review of detention order has ever been filed.) The Court, accordingly, scheduled this matter for hearing on October 11, 2001.
A third individual, Youssef Hmimssa a/k/a Patrick J. Vuillaume, a/k/a Michael Saisa a/k/a Jalali was also charged in the September 27 Indictment. Mr. Hmimssa was subsequently arrested in Cedar Rapids, Iowa and has voluntarily submitted to extradition to Michigan.
The following facts were presented to the Court by way of proffer. The detention statute does not expressly authorize the Government to proceed by proffer at detention hearings, although such authority is expressly wanted to defendants. See 18 U.S.C. § 3142(f) ("The person [i.e., the defendant] shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.") Nonetheless, a number of circuits — including the Sixth Circuit — have held that evidence proffers by the government are adequate. See, United States v. Webb, 238 F.3d 426, 2000 WL 1721060 at *2 (6th Cir. 2000) (unpublished decision; text available on WESTLAW); United States v. Acevedo-Ramos, 755 F.2d 203, 208 (1st Cir. 1985); United States v. Ferranti, 66 F.3d 540, 542 (2nd Cir. 1995); United States v. Delker, 757 F.2d 1390, 1397 (3rd Cir. 1985); United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985); United States v. Portes, 786 F.2d 758, 767 (7th Cir. 1985); United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986); United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987); United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996). This is particularly true where, as here, the Government's request for detention is based upon risk of flight. United States v. Martir, 782 F.2d 1141, 1144-45. (2nd Cir. 1986).
The charges against Koubriti and Hannan arise out of the FBI's search for Nabil Al-Marabh, a suspect/potential witness concerning the September 11, 2001 attacks on the World Trade Center. The FBI/Joint Terrorism Task Force learned that Al-Marabh had a residence at 2653 Norman Street in Detroit. On September 17, 2001, Task Force agents went to the Norman Street residence where they observed Al-Marabh's name on the mailbox for one of the apartments. [ See Affidavit of FBI Special Agent Robert Petruso, ¶ 3.] They, therefore, knocked on the apartment door and announced their presence. Defendant Karim Koubriti answered the door and invited the agents inside. Id.
Upon entering the premises, the agents conducted a protective sweep and located two other persons, Defendant Ahmed Hannan and Farouk Ali-Haimoud. All three men were asked whether they were acquainted with and knew the whereabouts of Al-Marabh; all three denied knowing him. Id. When asked about the name on the mailbox, Koubriti replied that they had only lived there for two weeks and that Al-Marabh may have previously lived there. Id.
According to Special Agent Petruso, during the sweep agents observed in plain sight two SkyChef of Metropolitan Detroit Airport identification badges, one with Koubriti's name on it and one with Hannan's name. Id. ¶ 4. When Koubriti and Hannan were questioned concerning their employment, both men responded that they worked for Technicolor in Livonia, Michigan. Id. ¶ 5. When asked about the SkyChef ID badges, they said that they were previously employed by SkyChef Id.
Koubriti told the agents that the apartment was his. They, therefore, asked for his consent to search the premises. Id. ¶ 6. Koubriti then provided a written consent. Id. Agents then began the search in one of the bedrooms. Koubriti immediately told the agents that there were false documents in the room being searched. Id. He then directed agents to these documents which were contained in a desk drawer, beneath some video tapes. Id. The subject documents were the following:
a. "World Service Authority" passport in the name of Michael Saisa, date of birth, October 20, 1976.
b. United States Social Security Card in the name of Michael Saisa, number 034-54-6538.
c. United States Immigration form I-94, admission number 5303185 7 07.
d. United States visa, issued to Michael Saisa.
e. United States Immigration Service Alien Identification Card, number A91199150.Id.
An INS agent and a State Department Diplomatic Security Service agent assigned to the Joint Terrorism Task Force confirmed that items c, d, and e are fraudulent. Id. ¶ 7. Koubriti told the agents that all of these documents were fraudulent and belonged to "Jalali" a/k/a Michael Saisa a/k/a Youssef Hmimssa, who previously resided with Koubriti and Hannan. Koubriti said he did not know Jalali's current whereabouts, but was asked to hold the documents for him. Id. ¶ 8.
Apparently a and b have also subsequently been confirmed as being fraudulent as these two documents are specifically alleged in the Indictment.
During the search, agents also found a day planner which contained notations in Arabic. Some of these notations referred to the "American base in Turkey;" the "American foreign minister;" and "Alia Airport," in Jordan. Id. ¶ 9. The day planner also contained sketches of what appeared to be a diagram of an airport flight line, to include aircraft and runways. Id.
In addition to the above documents, agents also found at the Norman Street residence, unfilled blank documents and partially filled in documents from Morocco and a bag full of approximately 30 passport-size photographs of several people. [ See 9/21/01 Detention Hearing Transcript, p. 9.] Koubriti told the agent that all of these documents and photos belonged to Jalali, who had lived with Hannan and Koubriti at another apartment in Dearborn, Michigan ("the Riverside apartment"). Id.
Defendant Hannan told the agents that he brought the falsified documents to the Norman Street apartment when he and Koubriti moved there in case Jalali returned to get them. Id. at p. 12. However, although he brought the fraudulent documents which allegedly belonged to Jalali with him when he moved to the Norman Street residence, Hannan left his own passport and resident alien identification ("green card") behind at the Riverside apartment. Defendant Koubriti also left his passport at the Riverside apartment.
At the time of their arrest on September 18th, no one was living at the Riverside apartment. According to defense counsel, Koubriti and Hannan were evicted from the Riverside apartment, and it was after they were evicted that they moved to the Norman Street residence. Defendants claim that they left their passports and green card in a "safe place" in the Riverside apartment so they would not get lost or stolen. It is unclear, however, whether the Defendants still had access to the Riverside apartment after they were evicted.
At the October 11, 2001 hearing, the Government argued against releasing Defendants Koubriti and Hannan on bond because they are flight risks. In support of its flight risk arguments, the Government relied principally upon the following facts.
With respect to Defendant Koubriti, Mr. Koubriti is not a U.S. Citizen (he is a resident alien) and has no family ties in this country. He has changed addresses a number of times since arriving in the United States on October 28, 2000. He entered the U.S. through New York, then lived for a short period of time in Falls Church, Virginia. After a brief stay there, he moved to New York City, and after a brief stay there, he moved to Canton, Ohio. He moved at least two times within Canton, and then moved to Michigan. He lived in the Norman Street apartment for two weeks. Prior to that time, he lived at 1335 Riverside, Apartment B, in Dearborn with his co-defendants.
Defendant Hannan. followed an almost identical track of residences as Defendant Koubriti. Hannan entered the U.S. through New York on November 7, 2000, i.e., within two weeks of Defendant Koubriti's arrival here. (Like Defendant Koubriti, Defendant Hannan is not a citizen; he has been granted permanent resident alien status. Also like Koubriti, Hannan has no family ties in the United States.) When he first arrived in the United States, Hannan lived for a brief time in Astoria, New York. He then moved to Alexandria, Virginia for a while. Shortly thereafter, Hannan moved to Canton, Ohio where he had a series of addresses. Hannan shared at least two Canton residences with Defendant Koubriti. During the three months Hannan and Koubriti lived in Canton, the two men frequently traveled together to Detroit.
After approximately three months in Canton, Hannan then moved with Koubriti to Dearborn, Michigan where they shared the apartment on Riverside with Defendant Hmimssa a/k/a "Jalali". After being evicted from the Riverside apartment, Hannan and Koubriti moved into the Norman Street apartment.
Neither Defendant had any family or relationships with any other individuals at any of their various residences. Further, according to the Government, neither man was able to identify any of their other roommates at these various residences.
Koubriti and Hannan also share a common and equally spotty employment history since coming into the country in the fall of 2000. Both men worked for "under the table" wages at a poultry farm in Canton, Ohio. Then, after moving to the Detroit area, they worked together for approximately two weeks at a Big Boy restaurant at Dix and Southfield Road, in the Detroit downriver area. The two men then went to work as dishwashers for Sky Chef at Metro Airport for six weeks. Both Defendants left Sky Chef as a result of a non-work-related traffic accident which both men claimed left them unable to work. Thereafter, both Koubriti and Hannan worked for only two weeks as part-time temporary help at Technicolor in Livonia.
When the Norman Street apartment was searched on the night that Koubriti and Hannan were arrested, the agents observed that there was nothing to demonstrate any intent of the Defendants to remain there permanently. Their clothing was kept in duffel bags, suitcases and garbage bags, there was essentially no furniture to speak of, nor any beds in the apartment.
The Government argues that Defendants' transient life evidences that they are flight risks. Further, both Koubriti and Hannan are citizens of Morocco and, according to the Government, the United States has no extradition treaty with Morocco for the offenses for which the Defendants are charged.
According to their passports and green cards, both Defendant Koubriti and Defendant Hannan are citizens of Morocco. However, the Government stated at the October 11 hearing that it has not been able to confirm with Moroccan authorities if indeed Defendants are citizens of Morocco. Although it appears that both men came into the United States by way of a lottery system, the Moroccan authorities indicated that fraud with the lottery is not uncommon and the Government is attempting to verify with Moroccan officials whether Defendants are who they say they are, i.e., whether they are the true beneficiaries of the lottery.
Defendants countered saying that Defendants' transient lifestyle is merely representative of the immigrant experience. They claim they have gone from job to job because they are uneducated and, therefore, go where they can find work. They stated that the jobs they have had since entering the United States were obtained through referrals from social services agencies. And, since they only work for minimum wage, they lived with other people and have no furniture because that is the only way they can afford rent.
Defendants further claimed that the Government has ignored evidence which shows that they are not flight risks. Defendant Hannan argued that he has treated with a physician for the back injury he suffered in the car accident which caused him to lose his job at Sky Chef and that treating with a physician should be viewed as indicative that he has no intention of leaving the area. Hannan further pointed to the fact that ACCESS, a social service agency serving the Arab community in the Detroit area, arranged for him to attend truck driving school and that he successfully completed the four-week curriculum and has now obtained his truck driver's license. He further stated that while in truck driving school, he worked nights delivering pizza and that ACCESS would assist him in finding another job and a place to live if he were to be released on bond. Hannan also argued that since he has limited funds, he has no ability to flee.
Defendant Koubriti also denied being a flight risk. In support, he pointed to the fact that he obtained an Ohio driver's license while living in Ohio, and when he moved to Michigan, he obtained a Michigan license. He further stated that when he moved from Riverside to Norman Street, he changed his address with the Secretary of State's office and argued that this reporting of his residence to the State shows that he is not a flight risk.
III. DISCUSSION
A. GENERAL STANDARDS 18 U.S.C. § 3142 governs the release or detention of a defendant pending trial. Pursuant to subsection (e) of § 3142, if, after a hearing, a judicial officer determines that attend truck driving school and that he successfully completed the four-week curriculum and has now obtained his truck driver's license. He further stated that while in truck driving school, he worked nights delivering pizza and that ACCESS would assist him in finding another job and a place to live if he were to be released on bond. Hannan also argued that since he has limited funds, he has no ability to flee.
The hearing requirement is set forth in 18 U.S.C. § 3142(f)(2), which provides in pertinent part:
The judicial officer shall hold a hearing to determine whether any condition or combination of conditions [of release] . . . will reasonably assure the appearance of [the defendant] as required and the safety of any other person and the community . . .
Defendant Koubriti also denied being a flight risk. In support, he pointed to the fact that he obtained an Ohio driver's license while living in Ohio, and when he moved to Michigan, he obtained a Michigan license. He further stated that when he moved from Riverside to Norman Street, he obtained a change of address form to change his address with the Secretary of State's office and argued that this reporting of his residence to the State shows that he is not a flight risk.
The Court finds it interesting that Mr. Koubriti had at the same time two different driver's licenses showing two different addresses from two different states.
III. DISCUSSION
A. GENERAL STANDARDS 18 U.S.C. § 3142 governs the release or detention of a defendant pending trial. Pursuant to subsection (e) of § 3142, if, after a hearing, a judicial officer determines that no conditions will reasonably assure the appearance of the defendant, the judicial officer shall order the detention of the defendant pending trial. Pursuant to 18 U.S.C. § 3145,
The hearing requirement is set forth in 18 U.S.C. § 3142(f)(2), which provides in pertinent part:
The judicial officer shall hold a hearing to determine whether any condition or combination of conditions [of release] . . . will reasonably assure the appearance of [the defendant] as required and the safety of any other person and the community . . .
(2) Upon motion of the attorney for the Government, or upon the judicial officer's own motion, in a case that involves
(A) a serious risk that [the defendant] will flee; or
(B) a serious risk that [the defendant] will obstruct or attempt to obstruct justice, or threaten, injure or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror.
If a person is ordered detained by a magistrate . . . the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. . . .
As indicated above, Defendants have not filed any formal motion for review of Magistrate Judge's Orders of Detention; defense counsel merely presented themselves in chambers and requested a "bond hearing." However, in light of the fact that their clients were ordered detained by the magistrate judge, the Court will proceed with this matter as if it were acting on a motion for review of the magistrate judge's detention order.
B. STANDARD OF REVIEW
The Sixth Circuit has not squarely addressed the issue of proper standard of review of a Magistrate Judge's detention order, however, the appellate court did peripherally speak to this issue in United States v. Hazime, 762 F.2d 34 (6th Cir. 1985). In Hazime, the district court judge "not[ed] that a clearly erroneous standard of review of the magistrate's decision was probably correct, . . . [but] held a de novo hearing on the detention order." Id. at 36. The Court of Appeals did not disturb this procedure but also did not mandate a particular standard of review on the district court level. Id. at 36-37.
District courts within the Sixth Circuit appear to adhere to a requirement of de novo review. See, e.g., United States v. Yamini, 91 F. Supp.2d 1125, 1130 (S.D. Ohio 2000); United States v. Williams, 948 F. Supp. 692, 693 (E.D. Mich. 1996); United States v. Alexander, 742 F. Supp. 421, 423 (N.D. Ohio 1990). Cf., United States v. Leshman, 1988 U.S. Dist. LEXIS 18198 (E.D. Mich. 1988) (clear error review pursuant to a de novo hearing). Among the circuits, de novo review of detention orders issued by magistrate judges also appears to be the majority view. See, e.g., United States v. Gonzalez, 149 F.3d 1192, 1998 WL 321218 (10th Cir. 1998); United States v. Clark, 865 F.2d 1433, 1436 (4th Cir. 1989); United States v. Hurtado, 779 F.2d 1467, 1481 (11th Cir. 1985); United States v. Leon, 766 F.2d 77, 80 (2nd Cir. 1985) (on a motion for revocation or amendment of a detention order, district court should not simply defer to the judgment of the magistrate, but should reach its own independent conclusion); United States v. Delker, 757 F.2d 1390, 1394 (3rd Cir. 1985) (district court should make an "independent determination" of the defendant's eligibility for release).
Based upon the foregoing authorities, the Court will apply a de novo standard of review in reviewing Magistrate Judge's detention orders in this case.
C. THE GOVERNMENT HAS ESTABLISHED THAT DEFENDANTS PRESENT A RISK OF FLIGHT
The Government has the burden of establishing that a defendant is a flight risk by a "preponderance of the evidence." United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985); United States v. Namer, 238 F.3d 425, 2000 WL 1872012 (6th Cir. 2000); United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).
By contrast, establishing that the defendant is a danger to another person or the community requires "clear and convincing evidence." See 18 U.S.C. § 3142(f); Hazime, supra; Motamedi supra.
In determining whether the defendant presents a flight risk, the Court is to consider the following factors:
(1) The nature and circumstances of the offense charged;
(2) The weight of evidence against the defendant;
(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 or 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).
1. The Offenses Charged
Defendants are charged with violating 18 U.S.C. § 1546(a) and 18 U.S.C. § 1028. Section 1546(a) (fraud and misuse of visas, permits and other documents) carries with it a statutory maximum of 25 years (if the offense was committed to facilitate an act of international terrorism) or 10 years if it was a first offense, not committed to facilitate an act of international terrorism. A violation of Section 1028 (fraud and related activity in connection with identification documents and information) carries a statutory maximum of 15 years imprisonment. However, assuming Defendants have no prior criminal history and no evidence is subsequently developed to establish a link with terrorism, according to the Guidelines, it would appear that they face sentences of only 0-6 months on each count. See U.S.S.G. §§ 2F1.1, 2L2.1, 2L2.2. Nonetheless, the crimes charged being felonies and Defendants being resident aliens, it is likely that Defendants will also face deportation.
2. Weight of Evidence Against Defendants
As the magistrate judge observed, it appears that the Government has substantial evidence to establish Defendants' guilt. Defendants were actively or constructively in possession of documents which were confirmed to be fraudulent/counterfeit, and which they knew to be fraudulent. This is all that need be proven to convict Defendants of either charge.
3. History and Characteristics
As discussed above, neither Koubriti nor Hannan has any family ties here in the U.S. and neither of them has established any degree of permanency with respect to either a residence or employment. In less than a year, Defendants have had at least eight different residences in four different states and five or six jobs that lasted for only brief periods of time. Moreover, when the Norman Street apartment was searched on the night that Koubriti and Hannan were arrested, the agents observed that there was nothing to demonstrate any intent of the Defendants to remain anywhere for any length of time. Their clothing was kept in garbage bags, there was hardly any furniture and no beds at all in the apartment. Given the obvious transient nature of their lives and the non-ability for anyone to exercise control or custody over them in the sense of ensuring that they meet any reporting requirements should tip the scales in favor of detention.
Further, both Koubriti and Hannan are citizens of Morocco and according to the Government, the United States has no extradition treaty with Morocco for the offenses for which the Defendants are charged. Even though Defendants have turned over their passports to the Government, given that they are charged with possession of fraudulent documents, it is obvious that there is at least a possibility that they have at their disposal false travel documentation (or know how to obtain such false documentation) that would allow them not only to leave the area but to leave the country and escape to a place from which they could not be extradited.
Finally, with regard to the fourth factor set forth in § 3142(g), "the nature and seriousness of danger to any person or to the community," the Government is not arguing for detention on the basis of safety to any person or the community. Therefore, the Court need not address this factor.
Taken cumulatively, the Court finds that the Government has met its burden of showing by a preponderance of the evidence that if they were to be released, Defendants would present a substantial risk of flight, and there appear to be no conditions of release that will reasonably assure their appearance at subsequent proceedings. Elements 1 and 2 weigh in favor of the Government. Defendants were either actively or constructively in possession of fraudulent documents. Most compelling in terms of detention, however, is that neither Defendant has any established degree of permanency within the jurisdictional territory of this Court.
Defendants have been in this country for less than a year and in that short time, they have lived in four different states at seven or eight different addresses and have each had four or five jobs, each of which they held for very short periods of time. Further, their last living arrangement shows no degree of permanency whatsoever. They had no furniture in their apartment and kept their clothing and personal belongings in suitcases and garbage bags. It may be true, as defense counsel has argued, that Defendants' transient lifestyle reflects the immigrant experience. However, the conclusion does not logically follow that Defendants, therefore, do not pose a risk of flight, and it certainly does not allay the Court's concerns about flight risk, particularly in view of all of the other evidence proffered by the Government.
Although any one of the above-enumerated factors standing by itself may not amount to sufficient evidence of risk of flight to warrant detention, when taken cumulatively and in conjunction with the offenses charged and the weight of the evidence against the Defendants, this Court finds that these indicia of transient living raise serious risk-of flight concerns.
IV. CONCLUSION
For all of the foregoing reasons
IT IS HEREBY ORDERED that Defendants Koubriti and Hannan continue to be detained. This Order is without prejudice to Defendants renewing their request for bond if, as the case develops through discovery, Defendants believe that they have developed a case to overcome the Government's preponderance of the evidence of risk of flight.
SO ORDERED.