389 F.3d 309 (2nd Cir. 2004), 04-2678-CR, United States v. Abuhamra

Docket Nº:04-2678-CR.
Citation:389 F.3d 309
Party Name:UNITED STATES of America, Appellee, v. Mohammed ABUHAMRA, Defendant-Appellant.
Case Date:November 15, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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389 F.3d 309 (2nd Cir. 2004)

UNITED STATES of America, Appellee,


Mohammed ABUHAMRA, Defendant-Appellant.

No. 04-2678-CR.

United States Court of Appeals, Second Circuit

November 15, 2004

Argued: Sept. 10, 2004.

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David Gerald Jay, Buffalo, New York, for Defendant-Appellant.

Anthony M. Bruce, Assistant United States Attorney, (Allison P. Gioia, Assistant United States Attorney, on the brief), for Michael A. Battle, United States Attorney, Western District of New York, Buffalo, New York, for Appellee.

Before: CALABRESI, SACK, and RAGGI, Circuit Judges.

RAGGI, Circuit Judge.

Mohammed Abuhamra, who is awaiting sentencing in the Western District of New York (Richard J. Arcara, Judge) on criminal charges of money laundering and dealing in contraband cigarettes, appeals from an April 22, 2004 order of that court denying his application for release on bail pursuant to 18 U.S.C.§ 3143(a). The appeal presents a single question: whether a district court may rely on evidence submitted by the government ex parte and in camera to deny bail. We conclude that such submissions should generally not be entertained because they compromise a defendant's due process right to a fair hearing on his bail application as well as the public's interest in open criminal proceedings. We further conclude that an exception to this rule may be made only in rare cases where (1) the government satisfies the standard for closed criminal proceedings established in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); (2) the government discloses to defendant the substance of the government's sealed submission; and (3) the district court engages in heightened scrutiny of the reliability of any ex parte, in camera submissions. We remand this case to the district court for reconsideration of Abuhamra's bail application in light of this decision.


I. The Crime of Conviction

Mohammed Abuhamra is a native of Yemen who has been a resident of the United States since 1975 and a citizen of this country since 1981. Until his remand on the order that is the subject of this appeal, Abuhamra had resided with his wife, mother, and nine children in Lackawanna, New York. On October 4, 1999, Abuhamra was arrested and charged with participating, together with various co-defendants, in a highly lucrative interstate scheme to traffic in contraband cigarettes. On March 3, 2004, after a jury trial in the Western District of New York, Abuhamra was found guilty on three counts of unlawfully dealing in contraband cigarettes in violation of 18 U.S.C. §§ 2342(a), 2344(a), and 2; and one count of conspiring to launder the proceeds of the aforementioned unlawful activity in violation of 18 U.S.C. § 1956(h). See United States v. Abuhamra, 99 CR 131 (W.D.N.Y.1999). Four co-defendants were simultaneously found guilty on the same or related charges.

II. Abuhamra's Original Release on Bail

In the four-and-a-half year period between his arrest and trial, Abuhamra remained at liberty pursuant to a modest $20,000 secured bond. Within a month of his arrest, the Pretrial Services Department for the Western District of New York concluded that Abuhamra did not require active supervision while on release. Although Abuhamra's bond prohibited him from leaving the Western District of New

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York, the district court, on two occasions, granted extraordinary requests for international travel: in 2000, Abuhamra was permitted to make a pilgrimage to Mecca; in October 2003, he was permitted to travel to Yemen for more than three months to visit his dying father. In opposing the latter request, the government advised the district court that the facility where Abuhamra's father was reportedly hospitalized was non-existent, but defense counsel was apparently able to demonstrate that the government was mistaken.

III. Abuhamra's Post-Verdict Remand

After verdict, the government promptly moved to remand Abuhamra and two of his four co-defendants pursuant to 18 U.S.C. § 3143(a) (1), which states in pertinent part:

[T]he judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline ... does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3242(b) or (c). 1

In urging Abuhamra's remand, the government relied on the presumptions of flight and danger created by this statute and on the defendant's recent contact in Yemen with a fugitive co-defendant, Ali Abuhamra, Jr. This contact was inferred from photographs purportedly depicting Ali Abuhamra, Jr. that were found by Customs officials in defendant's possession at the time of his January 2004 return to the United States from Yemen [hereafter "Yemen photographs"].

Opposing remand, Abuhamra's counsel asserted that, once again, the government was mistaken as to the facts: the person depicted in the Yemen photographs was Ali Alshuibi, not Ali Abuhamra, Jr. Emphasizing defendant's roots in the United States and his compliance with pre-trial conditions for international travel, counsel urged the court to continue his client's release on bail. Rejecting the argument, the district court orally ordered Abuhamra's remand but invited a written motion for reconsideration. 2

IV. The Motion for Reconsideration of Remand

The following day, March 4, 2004, Abuhamra filed a written motion for release on bail supported by the sworn affidavit of his 32-year old son, Ahmed Abuhamra, who, inter alia, identified the person depicted in

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the Yemen photographs as Ali Alshuibi. Ahmed Abuhamra noted that he had an uncle named Ali Abuhamra living in Buffalo, New York, but that this uncle had no son named Ali Abuhamra, Jr. Ahmed Abuhamra suggested that the government might be erroneously applying the name "Ali Abuhamra, Jr." to another relative, also named "Mohammed Abuhamra," who, having been arrested on October 4, 1999, but thereafter released, was now in Yemen.

In its opposition memorandum, the government submitted that it was unnecessary for the court to resolve the parties' tangled identification dispute about the person depicted in the Yemen photographs. It conclusorily argued that Abuhamra's submission was simply insufficient to defeat the presumptions of danger and flight established by 18 U.S.C. § 3143(a) (1).

On March 11, 2004, the district court heard oral argument on Abuhamra's bail motion. Defense counsel argued that the identification issue did need to be resolved because, without the inference originally drawn by the government from the photographs--that Abuhamra had consorted with a fugitive while in Yemen--there was no reason to distinguish Abuhamra from the co-defendants who had been allowed to remain free on bail pending sentencing. Counsel reiterated that the person depicted in the Yemen photographs was Ali Alshuibi, and he reported having provided the prosecution with Alshuibi's alien control number so that his identity could be confirmed. Further, counsel indicated that Alshuibi's uncle, Koled Alshuibi, was in court and prepared to testify that his nephew was the person in the Yemen photographs.

The district court did not attempt to resolve the identity dispute. Neither did it rule as to whether it would otherwise find that Abuhamra had carried his burden for § 3143(a) (1) release. Instead, it inquired whether the government had any other reason for opposing Abuhamra's bail application. The government proposed to submit ex parte and in camera an agent affidavit demonstrating Abuhamra's "dangerousness." 3 Tr. Mar. 11, 2004, 15. Asked by the court to articulate reasons for proceeding in this manner--"Is it to protect the identification of witnesses, is it a threat to a witness with serious bodily harm or death, does it involve national security"--the prosecutor replied, "[a]ll of the above." Id. Asked whether the government could, at least, provide "a summary of the material that would give the defendant the gist" of the intended proffer "without compromising the identification of witnesses or national security," the prosecutor replied, "I don't feel that I can." Id. at 16. Conducting a preliminarily ex parte review of the proffered affidavit, the court ordered Abuhamra remanded subject to further ex parte examination of the agent affiant.

That further examination took place on March 23, 2004, and the government has supplied this court (but not Abuhamra) with copies of the sealed twenty-five page transcript of this proceeding and the district court's six-page sealed final order stating its reasons for denying Abuhamra's motion for release on bail. The public order, which Abuhamra did receive, states simply: "For the reasons stated in the [sealed] Decision and Order, the Court

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finds by clear and convincing evidence that the defendant will pose a danger to [the] community and a risk of flight, if he is released." United States v. Abuhamra, 99 CR 131A (W.D.N.Y. Apr. 22, 2004). 4

At the time this order was entered, Abuhamra's sentencing was scheduled for June 2004. Because the parties disagree as to the proper calculation of the Sentencing Guidelines, the court has adjourned sentence several times apparently awaiting the Supreme Court's decision in pending cases challenging the federal guidelines in light of Blakely v. Washington, --- U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See ...

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