U.S. v. Awadallah, 01 CR 1026(SAS).

• Decision Date: 27 November 2001
• Docket Number: No. 01 CR 1026(SAS).,01 CR 1026(SAS).
• Citation: 173 F.Supp.2d 186
• Parties: UNITED STATES of America v. Osama AWADALLAH, Defendant.
• Court: U.S. District Court — Southern District of New York

173 F.Supp.2d 186

UNITED STATES of America v. Osama AWADALLAH, Defendant.

No. 01 CR 1026(SAS).

United States District Court, S.D. New York.

November 27, 2001.

Robin Baker, Assistant United States Attorney, United States Attorney's Office, Southern District of New York, New York City, for the Government.

Jesse Berman, New York City, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Osama Awadallah was arrested in San Diego on September 21, 2001, and was held as a material witness in the investigation of the September 11th terrorist attacks on the World Trade Center and the Pentagon (the "September 11th Attacks"). The government subsequently transported Awadallah to New York to meet with prosecutors. Afterwards, Awadallah testified on two occasions — October 10 and October 15, 2001 — before a federal grand jury. On October 18, 2001, the government issued a Complaint charging Awadallah with two counts of making false declarations before a federal grand jury in violation of 18 U.S.C. § 1623. See Complaint ¶¶ 1-2. Awadallah was re-arrested on October 21, 2001 on the Complaint and has been held in custody continuously since September 21, 2001. He was indicted on October 31, 2001. Awadallah now seeks bail pending trial.

I. BACKGROUND

A. The Government's Allegations

The government alleges the following: Khalid Al-Mihdhar and Nawaf Al-Hazmi were two of the terrorists involved in the September 11th Attacks.¹ See Indictment ¶ 3(b). Awadallah knew Al-Hazmi casually for some unspecified period of time because they worked at the same gas station and worshiped at the same mosque. See id. ¶ 11 (Count One). In the company of Al-Hazmi, Awadallah met Al-Mihdhar on several occasions. The government claims that Awadallah lied to a federal grand jury when he testified that he knew Al-Hazmi by name but not Al-Mihdhar. See id. The government also alleges that Awadallah lied to the grand jury when he denied that he wrote the name "Khalid" and certain other words in an exam booklet for his English language course. See id. ¶¶ 12-13 (Count Two).

B. Prior Bail Requests

Bail was denied by Magistrate Judge Ruben Brooks in California on September 25, 2001, and again by Magistrate Judge Gabriel Gorenstein in New York on October 19, 2001.² On both occasions, the judges concluded that there was no condition or combination of conditions that could be set that would reasonably assure defendant's return to court.³

C. The Bail Hearing

At defendant's request, this Court held a bail hearing on November 21, 2001. See generally November 21, 2001 Transcript of Bail Hearing ("Bail Tr."). The only witness at that hearing was defendant's half-brother, Jamal Awadallah. In addition, the Court received a letter from defendant's teacher, Mimi Pollack, stating in substance that she has known defendant for one year, believes him to be a nonviolent person, and supports his application for pre-trial release.

The testimony was followed by a lengthy argument. Defense counsel argued that his client is not a flight risk because he is a permanent resident who has resided and gone to school in this country since April, 1999. See Bail Tr. at 32-33, 43-44. Counsel further argued that defendant has significant family ties in this country, including his oldest half-brother Jamal,⁴ who is a United States citizen and has resided in this country with his wife and children for twelve years. See id. at 13; 10/19/01 Tr. at 14. Jamal is self-employed, supporting his family by owning and operating an ice-cream truck. See Bail Tr. at 24. Awadallah's father is also a United States citizen and several of his half-brothers reside and work in this country as permanent residents. See id. at 17, 36; 10/19/01 Tr. at 14. Finally, defense counsel argued that the case against his client is not particularly strong, see Bail Tr. at 47, 53, he believes his client will be exonerated and that even if convicted the prison term he faces is not as long as the government projects. See id. at 53, 56.

The Pretrial Services Report ("PSR") confirms that defendant has no prior arrests or convictions. See PSR at 2. It also reports that defendant has held several jobs in this country, including gas station attendant, security guard, and janitor. He has studied English at Grossmont College in California. Id.

The government, in turn, argued that defendant poses a risk of flight because he has was raised in Jordan⁵ (having left when he was 18), has a Jordanian passport, much of his family remains in Jordan⁶ (including several sisters), and his birth-mother lives in Egypt.⁷ See Bail Tr. at 16, 38. In addition, the government also argued that defendant's savings of approximately $3,000 provide him with the means to flee. See id. at 72. Finally, the government argued that if defendant is convicted, he will serve a significant prison term and then face deportation.⁸ See id. at 44, 69. In view of that possibility, which the government believes is strong, the government argued that there is no condition or combination of conditions that can assure defendant's return to court.⁹ See id. at 59-60.

On November, 20, 2001, the government submitted a detailed letter in opposition to the bail application. The letter attached the transcript of the bail argument before Judge Gorenstein, the Complaint, the Indictment and a photocopy of the exam booklet which is the focus of the charges. The letter also cited United States v. Suleiman, 208 F.3d 32 (2d Cir.2000), to support the government's view of the defendant's potential sentence.¹⁰

At the hearing, defense counsel asked the Court to review defendant's entire grand jury testimony. The prosecutor submitted the testimony to the Court on November 23, 2001 and I have reviewed it.¹¹ Finally, the government submitted a letter dated November 26, 2001 ("Nov. 26 Ltr."), in further opposition to the bail application. In this letter, the government conceded that if defendant failed to appear that might have a negative impact on the pending visa applications of family members in Jordan, but that it would have no impact on family members who are already U.S. citizens. See Nov. 26 Ltr. at 2.

II. LEGAL STANDARD

The United States Constitution requires that "[e]xcessive bail shall not be required." U.S. CONST. amend. VIII. The release or detention of a defendant pending trial is governed by 18 U.S.C. § 3142. This federal statute requires that the court order the pretrial release of a defendant on a bond, "unless the [court] determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b). If the court determines that release on an appearance bond is not sufficient, the court shall order pretrial release "subject to the least restrictive further condition, or combination of conditions, that [the court] determines 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(c)(1)(B). Finally, "[i]f after a [detention] hearing ... 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, [the court] shall order the detention of the person before trial." 18 U.S.C. § 3142(e).

In deciding whether there are conditions of release that will reasonably assure the appearance of the person and the safety of the community, the court should consider the following factors:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including —

(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release ....

18 U.S.C. § 3142(g). Although in certain cases a "rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community," 18 U.S.C. § 3142(e),¹² false testimony before a grand jury is not such a case. Accordingly, no presumption in favor of detention exists here. Finally, the last section of the bail statute states: "Nothing in this section shall be construed as modifying or limiting the presumption of innocence." 18 U.S.C. § 3142(j).

When considering an application for pretrial detention, the court must first determine whether the government has established "by a preponderance of the evidence ... that the defendant ... presents a risk of flight." United States v. Friedman, 837 F.2d 48, 49 (2d Cir.1988). If the government satisfies this burden, the court must then decide "whether there are conditions or a combination of conditions which reasonably will assure the presence of the defendant at trial if he is released." United States v. Shakur, 817 F.2d 189, 195 (2d Cir.1987).¹³ A court should always "bear in mind that it is only a `limited group of offenders' who should be denied bail pending trial." Id. at 195 (quoting S.Rep. No. 98-225 at 7, reprinted in 1984 U.S.C.C.A.N. 3182, 3189); see also United States v. Mercedes, 254 F.3d 433, 436 (2d Cir.2001) (even in a presumption case the government bears the ultimate burden of proving risk of flight by a preponderance of the evidence).

III. DISCUSSION

I turn now to...