Opinion
DETENTION ORDER Re: Dkt. No. 316
NATHANAEL M. COUSINS, Magistrate Judge.
In accordance with the Bail Reform Act, the Court held a detention hearing for defendant Kwok Cheung Chow to determine whether any condition or combination of conditions will "reasonably assure" the appearance of the defendant as required and the "safety of any other person and the community." 18 U.S.C. § 3142(f). This order sets forth the findings of fact and the reasons for detention. 18 U.S.C. § 3142(i).
I. Charge
Chow initially was charged and arrested upon a criminal complaint. Dkt. No. 1. He made his initial appearance in this Court on March 26, 2014. On April 3, 2014, a grand jury in the Northern District of California charged Chow by indictment. Dkt. No. 113. Chow is one of twenty-nine defendants charged in the indictment and there are ten felony counts alleged against him in counts 3, 4, 6, 7, 8, 26, 28, 29, 30, and 31. Specifically, Chow is charged with seven counts of money laundering (18 U.S.C. § 1956), two counts of conspiracy to receive and transport stolen property in interstate commerce (18 U.S.C. §§ 371, 2315), and one count of conspiracy to traffic and trafficking in contraband cigarettes (18 U.S.C. §§ 371, 2315, 2342(a), 2344).
Chow is presumed innocent and has entered a not guilty plea to all charges. Dkt. No. 184.
II. Detention Hearings
The government moved to detain Chow upon his first appearance. Dkt. No. 78 (transcript of 3/26/2014 appearance). The Court ordered Chow to be temporarily detained under 18 U.S.C. § 3142(d)(2), finding that he was not a U.S. citizen or lawfully admitted and that if released he may flee or pose a danger to any other person or the community. Id. at 55-59. The Court also specifically found that the government had established that release would create a risk of non-appearance and community danger. Id. at 58.
Chow, with new counsel, then filed a motion for pretrial release, Dkt. No. 316, which was opposed by the government. Dkt. No. 319.
A detention hearing was held publicly on June 11, 2014, before the undersigned magistrate judge. Dkt. No. 378. Defendant Chow was present, represented by his attorneys, J. Tony Serra, Curtis Briggs, and Greg Bentley, and assisted by a Cantonese-language interpreter. The United States was represented by Assistant U.S. Attorney William Frentzen. The parties and the Court received information from the Pretrial Services Office in a report prepared June 6, 2014.
As required by 18 U.S.C. § 3142(f), at the hearing Chow was advised of his right to testify, to present witnesses, to cross-examine witnesses, and to present information "by proffer or otherwise." The rules of evidence in criminal trials do not apply. 18 U.S.C. § 3142(f). Both parties also were advised of their right to appeal this detention order to the District Court.
Chow presented information by declarations, by proffer through his counsel, and by testimony through four witnesses. The government presented information by the criminal complaint affidavit, through cross-examination of the witnesses, and by way of proffer through its counsel at the hearing. The Court considered all the information presented.
In its opposition brief the government noted that additional grand jury charges are "expected." Dkt. No. 319 at 2. The Court did not rely on this statement and has no knowledge of the information presented to the grand jury and whether and how the grand jury might act upon additional evidence presented to it. In other words, the Court is assessing the present charges and not speculating about additional charges that could be filed in the future.
III. Legal Standard
In considering pretrial release or detention, the Court evaluates two basic questions. First, are there conditions of release that will "reasonably assure the appearance" of the defendant at future court dates? Second, are there conditions of release that will reasonably assure the "safety of any other person and the community"? 18 U.S.C. § 3142(g).
Detention is appropriate if one, or both, of these questions is answered in the negative. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). The government need not prove both.
A finding that a defendant is a danger to the community must be supported by "clear and convincing evidence." 18 U.S.C. § 3142(f). A finding of risk of non-appearance must be supported by a preponderance of the evidence. Motamedi, 767 F.2d at 1406.
As set forth by the bail statute, the Court must take into account the available information concerning: (1) the nature and circumstances of the charged offense; (2) the weight of the evidence; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. 18 U.S.C. § 3142(g).
IV. Applicable Presumptions
When a defendant is charged with an offense described in 18 U.S.C. § 3142(f)(1) and the defendant has been convicted of a prior offense described in 18 U.S.C. § 3142(f)(1) while on release pending trial for a federal, state or local offense, and a period of not more than five (5) years has elapsed since the date of conviction or the release of the person from imprisonment, whichever is later, this establishes a rebuttable presumption of detention. See 18 U.S.C. § 3142(e)(2).
In addition, if there is probable cause to believe that a defendant committed certain offenses identified in 18 U.S.C. § 3142(e)(3), a rebuttable presumption of detention is established. This list includes offenses such as (1) crimes against children; (2) use of a firearm during the commission of a felony; and (3) controlled substance offenses with a maximum term of imprisonment of ten years or more. 18 U.S.C. § 3142(e)(3).
In this case, the government concedes that there is no presumption of detention applicable to Chow. Dkt. No. 319 at 3. Accordingly, the Court weighs the evidence with no presumption in favor of detention.
V. Findings of Fact and Reasons for Detention
A. Defendant's History and Characteristics
The history and characteristics of Chow are in many ways undisputed, but in others, the parties present conflicting information. He is a 55-year old, born in Hong Kong, who has resided in the District (mostly San Francisco) since 1976. The defense asserts that Chow is a "unique fixture" in the San Francisco community and there is no question that he has been a community organizer and has the support of many friends, neighbors, and family. See Dkt. No. 316 at 22 and letters attached in support.
On the other hand, the government contends that Chow's community leadership has been a mirage carefully covering his illegal activities, pointing to the long-running undercover investigation set forth in the complaint affidavit. Chow has been unemployed since 2003 and has no verifiable source of income. He has used seventeen aliases/variations of his name, according to Pretrial Services.
Chow's criminal record includes felony convictions for robbery, burglary, assault with a deadly weapon (not firearm) with great bodily injury likely, and conspiracy to import firearms. In a 1992 case in this District, Chow was detained pretrial and eventually sentenced to 120 months in prison. He has no convictions since his 2003 release from prison.
Finally, Chow is subject to deportation and an immigration detainer has been lodged against him by the federal immigration authorities.
B. Nature and Circumstances of Charged Offense; Danger to Community
Chow is charged with being a leader of a criminal enterprise that laundered proceeds in narcotics and stolen goods and whose members carried out the illegal enterprise by possessing firearms and making threats of violence. The magnitude of this conspiracy and the danger to the community is grasped by reading the full criminal complaint. The illegal activities connected from New York, to San Francisco, to Hong Kong, to Sacramento.
C. Weight of the Evidence
As to the weight of the evidence, the government asserts that the weight of the evidence is "rock solid" and is supported by recordings, video, surveillance, and interviews. Dkt. No. 319 at 6. The defense, of course, does not need to prove Chow's innocence. Yet the detail and breadth of the evidence set forth in the complaint establishes the danger that would be created by Chow's pretrial release.
D. Conclusion
At bottom, the government has established by more than clear and convincing evidence that no combination of conditions would reasonably assure the safety of the community if Chow were released. There is evidence presented that Chow is a leader of an international crime organization.
As to the risk of non-appearance, the Court agrees with Pretrial Services that should the defendant's immigration status be resolved, there are a combination of conditions, including electronic monitoring, that would reasonably assure his appearances in court.
VI. Directions Regarding Detention
The defendant is committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate to the extent practicable from persons awaiting or serving sentences or being held in custody pending appeal. The defendant must be afforded a reasonable opportunity for private consultation with defense counsel. On order of a Court of the United States or on the request of an attorney for the government, the person in charge of the corrections facility must deliver the defendant to the United States Marshal for the purpose of an appearance in connection with a Court proceeding.
IT IS SO ORDERED.