Opinion
Case No. CR 22-0445-FMO-01
2022-12-04
UNITED STATES of America, Plaintiff, v. Arthur Raffy ASLANIAN, Defendant.
Kevin B. Reidy, Kevin James Butler, Assistant U.S. Attorneys, AUSA - Office of U.S. Attorney General Crimes Section, Los Angeles, CA, for Plaintiff. Melanie Killedjian, Killedjian Law Corporation, Sherman Oaks, CA, Michael Gregory Freedman, Freedman Firm PC, Los Angeles, CA, for Defendant.
Kevin B. Reidy, Kevin James Butler, Assistant U.S. Attorneys, AUSA - Office of U.S. Attorney General Crimes Section, Los Angeles, CA, for Plaintiff. Melanie Killedjian, Killedjian Law Corporation, Sherman Oaks, CA, Michael Gregory Freedman, Freedman Firm PC, Los Angeles, CA, for Defendant.
ORDER RE: APPLICATION FOR REVIEW OF DETENTION ORDER
Fernando M. Olguin, United States District Judge
Having reviewed and considered all the briefing filed with respect to defendant's Application for Review/Reconsideration of Order Setting Conditions of Release/Detention [ ] (Dkt. 54, "Application"), and the oral argument presented to the court on December 1, 2022, the court concludes as follows.
BACKGROUND
On September 29, 2022, defendant Arthur Raffy Aslanian ("defendant") was charged in an indictment with one count of conspiracy to use an interstate commerce facility in the commission of murder-for-hire, and one count of use of interstate commerce facilities in the commission of murder-for-hire, both in violation of 18 U.S.C. § 1958(a). (Dkt. 25, Indictment at 1-5).
Defendant filed the instant Application, seeking review of the Magistrate Judge's denial of his request to be released on bail pending trial, (Dkt. 54, Application), as well as a memorandum in support of the Application on November 16, 2022. (Dkt. 53, Memorandum of Points and Authorities in Support of Arthur Raffy Aslanian's Application of Review of Detention Order and Request for Hearing ("Memo")). The government opposed defendant's request (Dkt. 56, Government's Memorandum in Opposition to Defendant Arthur Raffy Aslanian's Application for Review of Detention Order ("Opp.")), and the court heard oral argument on December 1, 2022.
LEGAL STANDARD
A magistrate judge's release order is subject to de novo review by the district court. See United States v. Koenig, 912 F.2d 1190, 1191-93 (9th Cir. 1990); 18 U.S.C. § 3145(a). The district court need not "start over," but the court must "make its own 'de novo' determination of facts, whether different from or an adoption of the findings of the magistrate [judge]." Koenig, 912 F.2d at 1193.
Under the Bail Reform Act of 1984, 18 U.S.C. §§ 3141, et seq., persons facing trial are to be released under the least restrictive condition or combination of conditions that will "reasonably assure" their appearance as required, and the safety of the community. See 18 U.S.C. § 3142(c)(1); United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). As the Supreme Court noted in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), "[i]n our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception." Id. at 755, 107 S.Ct. at 2105. In other words, "[f]ederal law has traditionally provided that a person arrested for a non-capital offense shall be admitted to bail" and that "[o]nly in rare cases should release be denied." United States v. Townsend, 897 F.2d 989, 993-94 (9th Cir. 1990) (citations omitted). Under the Bail Reform Act, bail is denied only when the court "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e).
In determining whether there are "conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community[,]" the court must consider: (1) the nature and circumstances of the charged offense; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community posed by the person's release. 18 U.S.C. § 3142(g). The weight of the evidence against a defendant is the "least important of the various factors." United States v. Hir, 517 F.3d 1081, 1090 (9th Cir. 2008). "On a motion for pretrial detention, the government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk, and by clear and convincing evidence that the defendant poses a danger to the community." Gebro, 948 F.2d at 1121. Any "doubts regarding the propriety of release should be resolved in favor of the defendant." United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985).
DISCUSSION
Based on the charge here, no presumption of detention applies, and the government's typical burden remains in place. See 18 U.S.C. § 3142(e); United States v. Hunter, 2022 WL 1240386, *3 (E.D. Mich. 2022) (holding "that [18 U.S.C.] § 1958 as charged here does not constitute a crime of violence"). To overcome the presumption of release, the government must show by clear and convincing evidence that no condition or combination of conditions can reasonably assure the safety of the community, see United States v. Chen, 820 F.Supp. 1205, 1208 (N.D. Cal. 1992), or by a preponderance of the evidence that no condition or combination of conditions can reasonably assure the defendant's appearance. See Motamedi, 767 F.2d at 1405-07.
A. Nature and Circumstances of the Offense and Weight of the Evidence.
The court will consider the nature and circumstances of the offense and the weight of the evidence together. As the government points out, the charged offenses are undoubtedly serious. (See Dkt. 56, Opp. at 12). As to the weight of the evidence, which is the "least important of the various factors[,]" Hir, 517 F.3d at 1090, the government cites to statements by codefendant Sesar Rivera ("Rivera") and recorded conversations between Rivera and a cooperating witness, and between Rivera and defendant. (See Dkt. 56, Opp. at 5-8, 14-15). The government also relies on the criminal complaint, but the usefulness of the complaint is minimal at best because such documents regularly rely on hearsay statements, calling into question the reliability of this type of evidence. See, e.g., United States v. Cerda-Ramirez, 730 F.Appx. 449, 452 (9th Cir. 2018) (holding that "the district court abused its discretion in admitting the criminal complaint and accompanying affidavit" because they contained "facts subject to reasonable dispute" and constituted adversarial, testimonial documents, and defendant was unable to cross-examine the person who prepared the documents).
While the government admitted during oral argument that probable cause "was a little weak" for its complaint in support of defendant's arrest, it noted that a video of defendant's reaction (e.g., his lack of surprise) to seeing a staged photo purporting to show the dead body of the intended victim illustrated his approval of the murder. (See Dkt. 57, Exh. C, Video of September 15, 2022, Meeting). Defendant, however, argues that the alleged plot was mostly driven by the cooperating witness trying to work off two felony arrests, the undercover officer, and Rivera, who began cooperating after the government arrested him for his involvement in the charged offense. (See Dkt. 53, Memo at 2 & 8-9). For example, in excerpts of the recorded conversations highlighted by defendant, the cooperating witness repeatedly urges Rivera to convince defendant to approve the killings, saying, among other things: "I want to get paid"; "it can be done"; "if you need to talk to him, talk to him tonight"; "get me the money, c[']mon foo[l] let's do it"; "I'll take care of it"; "the sooner you do it the better[.]" (Dkt. 53-5, Exh. E, Transcript of 8/19/22 Meeting between CW and Rivera at 1-2). Further, it appears that defendant tried to stop or at least delay the scheme, but the government and cooperating witness pressed on, ignoring his directions. (See Dkt. 53, Memo at 8-9); (Dkt. 1, Complaint at ¶¶ 62-64) (Rivera told the CW at an 8/24/22 meeting that "[Aslanian] wants to postpone it for two months"); (id. at ¶ 82) ("RIVERA said that because the UC was 'sketchy' they did not want to move forward with the murder at that time and instead were going to tell the CW that they wanted to wait 2 months to have the murder done."). Thus, while the charged offense is serious, defendant has pointed to evidence that undermines or, at a minimum, challenges the weight of the evidence. Considering the nature and circumstances of the offense and the weight of the evidence, which is the least important factor, the court is persuaded that these factors are neutral in determining whether to grant defendant's release.
B. Defendant's History and Characteristics.
Defendant is 53 years old and was born and raised in this District. (Dkt. 53, Memo at 14). He has no citizenship from any other country; he is married with four children between the ages of 13 and 21; he and his wife own a home, a business, and various investment properties in the community; "his whole family, including [his] brother, aunts, uncles, [and] cousins all live locally here in Los Angeles"; he is gainfully employed; he has a bachelor's degree; and he has no history of drug use or mental health conditions which could put him or others at risk. (See id. at 14-15). Also, he has no prior criminal history and no wants, warrants, or failures to appear. (Id. at 15). Finally, the outpouring of community support defendant has received since his arrest - including the appearance of at least 20 family members, friends, and supporters at the bail review hearing - underscores his very strong ties to the community. See, e.g., Motamedi, 767 F.2d at 1408-09 (holding that government "failed to establish by a preponderance of the evidence that [defendant] presents a serious risk of flight" where, among other things, defendant "had been living in the Los Angeles area" for about nine years and defendant's immediate family members also lived in the area).
With regard to flight risk, Pretrial Services concluded that "risk of nonappearance concerns can be sufficiently mitigated by the posting of bond." (Pretrial Services Report, dated October 13, 2022, at 4). While defendant faces a significant sentence if he is convicted, there are 14 individuals willing to sign surety affidavits in the amount of $100,000, and other sureties willing to post property and sign surety affidavits in different amounts. (See Dkt. 53, Memo at 16-17). The number of sureties and the significant amount of money and property they are willing to put forth not only demonstrate significant community support but also serve as a substantial incentive for defendant to appear at all court proceedings, and to comply with the conditions of his release.
Additionally, the court notes that codefendant Rivera - who stands accused of the same offenses and who, unlike defendant, has a criminal history - was released on a bond of just $20,000. (See Dkt. 16, Court's Order of September 19, 2022); (Dkt. 31, Bond and Conditions of Release as to Sesar Rivera); (Dkt. 53, Memo at 12-13). When the court inquired during the hearing as to why Rivera received such a low bail amount, given that, according to the complaint that initiated the action, Rivera was equally responsible for the alleged plot, (see Dkt. 1, Complaint at ¶ 17) ("The CW provided additional information about the people that RIVERA and 'Arthur' wanted killed."), the government's response was simply that he was cooperating. But the fact that Rivera, a known gang member with a criminal history, may be cooperating, does not mean that defendant should be denied bail altogether, especially where, as here, the complaint - which the government admits "was a little weak" on probable cause - focuses far more on Rivera's involvement in the underlying scheme than on defendant's. (See, e.g., Dkt. 1, Complaint at ¶ 10) ("the CW told police officers that [RIVERA] had recently approached the CW about murdering someone on behalf of [defendant]"); (id. at ¶ 11) ("RIVERA asked the CW if the CW would kill the targets in exchange for money . . . . The CW told RIVERA that he was interested in carrying out the murders"); (id. at ¶ 15) ("The CW understood RIVERA to mean that he wanted the Santa Clarita target killed but did not want the Beverly Hills target to be killed . . . . RIVERA continually reassured the CW that the CW would be paid in full as soon as the job was done"); (id. at ¶ 49) ("RIVERA said 'it's going to happen' but told the CW that he needed to speak with [defendant] first"); (id. at ¶ 65) ("The CW indicated to RIVERA that the money can be washed in South Central to which RIVERA replied, 'no.' RIVERA told the CW, 'I got this, I'm going to take care of this.' RIVERA stated that he knows somebody who owns a store."). In short, this factor weighs strongly in favor of release.
C. The Nature and Seriousness of the Danger Posed by Defendant's Release.
The government's " 'clear and convincing evidence' [burden] with respect to a defendant's danger to the community required by § 3142(f)(2)(B) means something more than 'preponderance of the evidence,' and something less than 'beyond a reasonable doubt.' " United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (citing Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 1812, 60 L.Ed.2d 323 (1979)). "To find danger to the community under this standard of proof requires that the evidence support such a conclusion with a high degree of certainty." Id.
Here, defendant has no criminal history and there is no evidence that defendant has ever behaved violently. Defendant's guns, which were not connected in any way to the charged offense, have all been surrendered. (Dkt. 53-8, Exh. H, Declaration of Melanie Killedjian and Firearms Surrender Receipts). Other than the two alleged intended victims of the offense, there is no evidence that defendant would pose a danger to anyone else in the community. While the court is sensitive to the concerns of the alleged victims, (see Dkt. 62, Victim Impact Statements), the court can fashion and impose conditions of release to mitigate the risk of danger. Finally, as defendant notes, the numerous sureties offering significant money and property bonds provide "powerful incentives to comply with the Court's conditions of release." (Dkt. 53, Memo at 19). In short, the government has failed to meet its clear and convincing burden with respect to this factor, which requires "that the evidence support such a conclusion with a high degree of certainty." Chimurenga, 760 F.2d at 405.
CONCLUSION
The government has not met its burden to prove by a preponderance of the evidence that defendant poses a serious risk of flight, or by clear and convincing evidence that, if released, defendant would be a danger to any person or to the community. As noted earlier, under the Bail Reform Act, bail is denied only when the court "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). Here, the court is persuaded that it can fashion a combination of conditions that will reasonably assure the appearance of the person as required and the safety of any other person and the community.
Based on the foregoing, IT IS ORDERED THAT:
1. Defendant's Application (Document No. 54) is granted.
2. The court sets a bond in the amount of $1,920,000: (a) an affidavit of surety in the amount of $500,000 with full deeding of the property located in Granada Hills by Aderineh Saralou; (b) 14 Affidavits of Surety (No Justification) in the amount of $100,000 each by Raffie Ruben Yeremian; Patrick Safarian; Hovik Abnoosi; Albert Poghosyan; Karinneh Aslanian; Michael Piranian; Sarkis Sam Demirjian; David Yeremian; Greg Karapetian; Aderineh Saralou; Steven Aslanian; Ara Babaian; Yvette Hartounian Aslanian; and Anita Aslanian; (c) and an Affidavit of Surety (No Justification) in the amount of $20,000 by Hagop Tujian.
3. Defendant shall be released to Pretrial Services upon execution and submission of the 15 affidavits of surety (no justification) referenced above. The full deeding of the property referenced above shall be completed no later than 21 days from the filing date of this Order.
4. Defendant shall surrender all passports and travel documents to Pretrial Services no later than December 7, 2022, sign a Declaration re Passport and Other Travel Documents, and not apply for a passport or other travel document during the pendency of this case.
5. Travel shall be restricted to the Central District of California unless prior permission is granted by Pretrial Services to travel to a specific other location. Court permission is required for international travel.
6. Defendant shall reside as approved by Pretrial Services and may not relocate without prior permission from Pretrial Services.
7. Defendant shall maintain or actively seek employment and provide proof to Pretrial Services.
8. Defendant shall avoid all contact, directly or indirectly (including by any electronic means), with any known victim or witness in the subject investigation or prosecution, including, but not limited to, M.Y. and S.E.
9. Defendant shall not possess any firearms, ammunition, destructive devices, or other dangerous weapons. In order to determine compliance, defendant agrees to submit to a search of his person and property by Pretrial Services, which may be in conjunction with law enforcement.
10. Defendant shall participate in the Location Monitoring Program (with a bracelet and Global Positioning System (GPS)) and abide by all of the requirements of the program and any indicated restrictions, under the direction of the Supervising Agency. Defendant shall pay all or part of the costs of the program based upon his ability to pay as determined by Pretrial Services. Defendant shall be financially responsible for any lost or damaged equipment. Defendant shall be restricted to his residence at all times except for: employment, education, religious services, medical appointments and procedures for himself, his wife and/or his children, attorney visits, court-ordered obligations, and all activities related to the care and education of his minor children. Dated this 4th day of December, 2022.
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