Opinion
Criminal Action No. 4:15-CR-00263-01
2021-11-02
UNITED STATES of America v. Asher Abid KHAN, Defendant.
US Marshal, US Pretrial SVCS, US Probation, Financial Litigation, Alamdar Shabbir Hamdani, Carolyn Ferko, U.S. Attorney's Office, Houston, TX, for United States of America. Thomas S. Berg, Attorney at Law, Houston, TX, for Defendant.
US Marshal, US Pretrial SVCS, US Probation, Financial Litigation, Alamdar Shabbir Hamdani, Carolyn Ferko, U.S. Attorney's Office, Houston, TX, for United States of America.
Thomas S. Berg, Attorney at Law, Houston, TX, for Defendant.
OPINION AND ORDER GRANTING MOTION TO DETAIN DEFENDANT Charles Eskridge, United States District Judge
The motion by the United States to detain Defendant Asher Abid Khan pending resentencing is granted. Dkt 210.
1. Background
Defendant Asher Abid Khan pleaded guilty on December 4, 2017 to providing material support to a designated foreign terrorist organization, in violation of 18 USC § 2339B(a)(1). Dkt 102. In doing so, and as part of his plea agreement, Khan admitted that he recruited another person named Sixto Ramiro Garcia to join the Islamic State of Iraq and Syria with him "as a fighter"; that during the pertinent timeframe he knew that ISIS "engages in, and has engaged in terrorist activity and terrorism, and that [ISIS] is a designated foreign terrorist organization"; that he traveled to Turkey for the purpose of joining and fighting with ISIS in Syria; and that he had given Garcia money and other assistance knowing that Garcia intended to join and fight with ISIS. Id. at 8–9. Khan ultimately didn't travel all the way to Syria. But Garcia did and is believed to have died there. Id. at 9.
The Fifth Circuit recently remanded this action to again consider the appropriate sentence pertinent to that guilty plea. Dkt 206; see also Dkt 163. Upon remand, this matter was reassigned from Judge Lynn Hughes to this Court. Dkt 207.
An overview of the rulings that have at times subjected Khan to periods of incarceration, and at other times have allowed him to remain at liberty, is important to present considerations.
The United States originally moved to detain Khan upon his arrest in May 2015. Dkt 25 at 54–55. Magistrate Judge Nancy Johnson denied that request and set conditions of release, including execution of an unsecured bond in the amount of $150,000. Dkt 32. The United States moved for stay and revocation of that order. Dkt 15. Judge Hughes denied the motion and approved the order. Dkt 22; see also Dkt 28 at 32–34; Dkt 32. The Fifth Circuit denied appeal by the United States seeking to overturn that order. Dkt 34. The pretrial release order has since been modified a number of times. For example, see Dkts 43, 48, 61, & 66.
As noted above, Khan ultimately pleaded guilty in December 2017. Dkt 102. The United States at that time sought an order of detention pending sentencing, which Judge Hughes denied. Dkt 152 at 15 (transcript of 12/04/2017 rearraignment). He then sentenced Khan to eighteen months in prison in June 2018, while also allowing Khan to continue free on bond pending self-surrender. Dkt 126; see also Dkt 130 at 42–43 (transcript of 06/25/2018 sentencing). Khan then surrendered in September 2018. Dkt 148.
While Khan was serving that sentence, the Fifth Circuit in September 2019 vacated the June 2018 judgment and remanded the case for resentencing. United States v. Khan , 938 F.3d 713, 719 (5th Cir. 2019). On November 6, 2019, Judge Hughes set resentencing for December 13, 2019. Dkt 175. Coincident to this, Khan completed his eighteen-month sentence on November 26, 2019. Seventeen days later, Judge Hughes again sentenced Khan to eighteen months of confinement, thus requiring no additional imprisonment. Dkt 188. The Fifth Circuit also reversed that judgment and remanded for the further proceedings now under advisement. United States v. Khan , 997 F.3d 242, 250 (5th Cir. 2021).
Khan at present continues under pretrial conditions of release imposed prior to his initial sentencing. See Dkt 187 at 3–5 (transcript of 11/20/2019 hearing); see also Dkts 129 & 179 (conditions of release). But the United States has again moved to detain Khan pending resentencing. Dkt 210. Khan requested to be heard if the motion wasn't denied on the papers. Dkt 214 at 8. That hearing occurred on October 29, 2021. The motion was there granted, and Khan was remanded to custody.
This opinion follows to specify and expand on the reasons stated on the record.
2. Analysis
The United States asserts that Khan "is back to the procedural position he was immediately following his December 4, 2017 rearraignment; a convicted terrorist awaiting sentencing." Dkt 210 at 7. As such, it argues that the express terms of 18 USC § 3143(a)(2) require his presentence incarceration now. That provision states:
(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless —
(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or (ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.
18 USC § 3143(a)(2) (emphasis added).
Khan doesn't dispute that his crime of conviction meets the statutory reference to § 3142(f). And he conceded at the October 29th hearing that he can't satisfy either § 3143(a)(2)(A)(i) or (ii). Such concession makes detention mandatory under the statute—were that the only consideration.
Khan instead relies upon the "exceptional reasons" provision of 18 USC § 3145(c). It states in relevant part:
A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.
This section provides a district court with discretion to release a defendant pending sentence even when § 3143(a)(2) applies. See United States v. Carr , 947 F.2d 1239, 1240–41 (5th Cir. 1991, per curiam ). The Fifth Circuit hasn't provided a definition or guidance as to what those exceptional reasons might be. For example, see United States v. Posada , 109 F.Supp.3d 911, 913 (W.D. Tex. 2015). Others have.
The Second Circuit has described them by reference to aphorisms such as a "unique combination of circumstances giving rise to situations that are out of the ordinary," "a most unusual factual and legal situation," an "unusual legal or factual question," "the presence of one or more remarkable and uncommon factors," and the like. United States v. DiSomma , 951 F.2d 494, 497 (2d Cir. 1991). Likewise, the Eighth Circuit has explained that " ‘exceptional’ means ‘clearly out of the ordinary, uncommon, or rare.’ " United States v. Little , 485 F.3d 1210, 1211 (8th Cir. 2007). And one district court—observing the mandatory nature of § 3143(a)(2) —has explained that, "to avoid emasculating the mandatory detention statute[,] ‘exceptional reasons review is limited to determining whether remanding the defendant to custody until sentencing would be tantamount to subjecting individuals to unjust detention.’ " United States v. Thomas , 2010 WL 3323805, *2 (D.N.J. 2010), quoting United States v. Christman , 712 F. Supp. 2d 651, 655 (E.D. Ky. 2010).
The sequence of events outlined above is no doubt unusual. And Khan's counsel ably argued that both his time in detention and since serving the prior imposition of eighteen months have been peaceful and in compliance with the law. For example, see Dkt 214-1 at 2–7. Khan also established that he has in the interim obtained a Bachelor of Science in Mechanical Engineering from the University of Houston and is now gainfully employed. See id. at 9, 11. And he further established that he's volunteered his time at the University of Houston and certain area high schools to educate others on the dangers of radical extremism and the threat of online propaganda from extremist groups. Id. at 13, 15–25.
While such conduct is worthy of commendation, it isn't exceptional in any sense applicable to § 3143(a)(2). Simply put, being a productive and responsible member of society after the commission of an offense opprobrious enough to be subject to the bright-line detention rule of § 3143(a)(2) is no reason to erase that bright line. Beyond this, to the extent such conduct genuinely shows acceptance of responsibility and a desire to make amends, it is something that can be considered upon the sentencing decision itself. But it doesn't make immediate detention at this time unjust.
Likewise, simple reaffirmation of the finding required by §§ 3143(a)(1) and (2)(B) isn't sufficient. Section 3145(c) explicitly requires both a finding that the defendant is "not likely to flee or pose a danger to any person or the community" under § 3143(a)(1) and a finding of exceptional reasons. See Posada , 109 F.Supp.3d at 913. A finding that satisfies § 3143(a)(1) thus cannot alone serve as an exceptional reason under § 3145(c) without rendering that latter clause superfluous. And Khan hasn't provided evidence apart from information pertinent to §§ 3143(a)(1) and (2)(B). See United States v. Larue , 478 F.3d 924, 925 (8th Cir. 2007, per curiam ) (compliance with conditions of pretrial release doesn't constitute "exceptional reasons").
Khan also relies on the mandate rule , "which is a corollary or specific application of the law of the case doctrine." United States v. Pineiro , 470 F.3d 200, 205 (5th Cir. 2006) ; Dkt 214 at 4–8. The Fifth Circuit holds that this rule "prohibits a district court on remand from reexamining an issue of law or fact previously decided on appeal and not resubmitted to the trial court on remand." Pineiro , 470 F.3d at 205. It "covers issues decided both expressly and by necessary implication." Ibid. But that rule doesn't pertain to this unique procedural posture. The United States didn't appeal the ruling that left Khan free during the interim between his rearraignment and first sentencing hearing. And while this matter has been on appeal twice to the Fifth Circuit, on neither occasion did that court pass on whether Khan should or should not be detained while he awaits resentencing. Instead, the above timeline shows that, at both points when the United States filed its prior appeals, Khan was either in custody (except for a seventeen-day period between his release and resentencing) or had already served his sentence—meaning that the United States couldn't appeal his continued release.
Khan also asserts res judicata. Dkt 214 at 6. But among other requirements, preclusion under the doctrine follows only from a final judgment on the merits. Allen v. McCurry , 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). That isn't the situation at hand, as this matter has remained far from final during all of its lengthy procedural history. Indeed, Khan's briefing argues only that the "spirit" of res judicata suggests that the United States here moves too late. Dkt 214 at 6. Such loosening of the finality requirement isn't well-taken in the context of a criminal statute that instructs in mandatory terms.
Khan last argues the equitable doctrine of laches. Id. at 6–8. He acknowledges that the doctrine "is not usually applied to the government in a criminal case." Id. at 7. The rule actually is stricter than that. "In the Fifth Circuit, laches cannot be asserted against the United States in its sovereign capacity to enforce a public right or to protect the public interest." United States v. Renda , 821 F.Supp.2d 853, 858 (E.D. Tex. 2011), citing United States v. Arrow Transportation Co , 658 F.2d 392 (5th Cir. 1981). And even if the doctrine could be enforced against the United States in this criminal context, nothing suggests that it here failed to timely seek Khan's detention on this remand. Indeed, the record is to the contrary. It's true that the Fifth Circuit issued its opinion on May 6th of this year. Dkt 201. But it didn't issue its mandate and remand the matter to this Court until September 21st. Dkts 205 & 206. The present motion followed on October 4th. Dkt 210. That is sufficient diligence.
3. Conclusion
The motion by the United States to detain Defendant Asher Abid Khan pending resentencing is GRANTED. Dkt 210.
Khan was remanded to the custody of the United States Marshals at the conclusion of the hearing on this motion. He will remain in custody until resentencing, presently scheduled for December 22, 2021.
SO ORDERED .