Opinion
Civil Action No. 09-cr-00424-WYD
12-12-2013
UNITED STATES OF AMERICA, Plaintiff, v. MOHAMMED IFTIKHAR MALIK, Defendant.
Magistrate Judge Boyd N. Boland
ORDER
This matter arises on the Motion By Defendant Malik for Pre-Trial Release Based Upon Due Process Violation [Doc. # 132, filed 11/5/2013] (the "Motion"). I held a hearing on the Motion this afternoon and made rulings on the record, which are incorporated here.
The criminal conduct underlying this prosecution concerns the defendant's forgery of a passport application for his daughter and his kidnaping of his juvenile daughter across international borders in violation of a state court custody order arising from a divorce proceeding brought in Colorado. Other custody proceedings are now pending in Pakistan; the custody issue remains highly volatile; and the defendant demonstrated high emotions about the custody issue. I find in view of the highly charged nature of the underlying domestic relations matter that the defendant is unpredictable and is likely to engage in irrational behavior. The risk of harm should the defendant succeed in reaching his former wife and daughter is simply too great to justify the defendant's release from custody.
The defendant relies heavily on the decision in United States v. Ali, 2013 WL 4747011 (D.D.C. Sept. 5, 2013), rev'd, 2013 WL 5610137 (D.C. Cir. Sept. 13, 2013), and urges that I undertake a "case-by-case analysis balancing (1) the length of pretrial detention, (2) the government's responsibility for the delay in proceeding to trial, and (3) the strength of the evidence justifying detention." Id. at * 5 (quoting United States v. Briggs, 697 F.3d 98, 101 (2d Cir. 2012)). Applying that standard, I find that the defendant has been in pretrial custody for approximately two years, but the delay in bringing the matter to trial is attributable to the defendant's motion practice and not to the government. In addition, I find that there is clear and convincing evidence that the defendant poses a danger to the community in that he is likely to attempt to travel illegally to Pakistan, where custody proceedings concerning his daughter are continuing, and he poses a substantial danger to the safety of his former wife and daughter, who are in Pakistan, should he be in proximity to them.
I find also by a preponderance of the evidence that the defendant poses a risk of flight in view of his substantial ties to Pakistan and other Middle Eastern countries, his interest in the custody proceedings pending in Pakistan, and his lack of ties to the United States.
IT IS ORDERED that the Motion [Doc. # 132] is DENIED.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge