U.S. v. Hir
| Decision Date | 15 February 2008 |
| Docket Number | No. 07-10500.,07-10500. |
| Citation | 517 F.3d 1081 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rahmat Abd HIR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barry J. Portman, Esq., Nicholas P. Humy, Esq., Cynthia C. Lie, Esq., and Mara K. Goodman, Esq. Federal Public Defender, San Jose, CA, for Defendant-Appellant.
Scott N. Schools, Esq., John T. Gibbs, Esq., Joanna Baltes, Esq., and Jonathan D. Schmidt, Esq. United States Department of Justice, Washington D.C., for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CR-07-00501-JF.
Before: ALFRED T. GOODWIN, STEPHEN REINHARDT, and W. FLETCHER, Circuit Judges.
Defendant, Rahmat Abd Hir, is charged with two counts of conspiring to provide and providing material support to terrorists, in violation of 18 U.S.C. § 2339A; thirteen counts of contributing goods and services to a specially designated global terrorist, in violation of 50 U.S.C. § 1705(b); and one count of making a material false statement, in violation of 18 U.S.C. § 1001. He appeals the district court's pretrial detention order denying bail. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291, and we affirm.
Abd Hir is a forty-three-year-old American citizen. Born in Malaysia, where many of his immediate family members continue to reside, Abd Hir moved to the United States approximately twenty years ago and has lived in the San Francisco Bay Area for the past ten years. Abd Hir and his wife, also a United States citizen, have four young children, all of whom were born in this country. Aside from the current charges, Abd Hir has no criminal record and no history of substance abuse.
The charges in this case arise out of Abd Hir's contacts with his brother, Zulkifli Abd Hir ("Zulkifli"). Zulkifli is an acknowledged member of the Moro Islamic Liberation Front ("MILF"), a secessionist force operating in the southern Philippines, and an alleged high-ranking member of Jemaah Islamiyah, an al-Qaeda affiliated foreign terrorist organization that operates in Indonesia, the Philippines, and Malaysia. Jemaah Islamiyah is suspected of carrying out numerous deadly attacks in Southeast Asia, among them, the 2002 bombing of a nightclub in Bali that killed over 200 people and the 2004 bombing of the Australian embassy in Jakarta that killed three people and left more than 100 wounded. On September 5, 2003, the United States Office of Foreign Assets Control designated Zulkifli a "Specially Designated Global Terrorist," thereby making it illegal to contribute funds, goods, or services to his benefit. See Alphabetical List of Blocked Persons, Specially Designated Nationals, Specially Designated Terrorists, Specially Designated Global Terrorists, Foreign Terrorist Organizations, and Specially Designated Narcotics Traffickers, 69 Fed.Reg. 30,362, 30,466 (May 27, 2004).
Between June 2006 and August 2007, Abd Hir and his brother were in regular email contact. Their communications clearly show that Abd Hir knew that Zulkifli was wanted by the United States government for terrorist activities. On two occasions, Abd Hir sent emails to his brother with links to newspaper articles alleging that Zulkifli was a high-ranking member of Jemaah Islamiyah, including one that offered a five-million dollar reward for information leading to his capture. Their correspondence also makes plain that Abd Hir knew of Zulkifli's violent activities in the Philippines. During their email exchange, Zulkifli informed Abd Hir of attacks that he and his allies planned to carry out, sometimes advising Abd Hir to "check out" the next day's papers for news of the operation.
Despite this knowledge, Abd Hir consistently responded to Zulkifli's requests for money and supplies. During this time, Abd Hir sent over $10,000 to his brother using various bank accounts in the Philippines. He also sent packages, often using false names and return addresses, which included supplies ranging from candy and underwear to accessories for guns, backpacks, knives, and publications about firearms. On several occasions, Abd Hir sent his brother hand-held two-way radios. The government alleges that some of these radios were then used to make Improvised Explosive Devices ("IEDs") which were detonated in a bombing in the Philippines that left five dead and twenty-nine injured.
On August 1, 2007, the grand jury returned its sixteen-count indictment. The following day, Abd Hir was arrested and search warrants were executed at his home, office, and at a commercial storage facility that he rented. The items recovered during these searches included multiple firearms, ammunition, and military manuals on sniper training, guerilla warfare, and improvised munitions. The searches also turned up jihadist literature as well as old photographs of Abd Hir in a face mask and sunglasses posing with several assault rifles while seated on a couch with a small child.
Abd Hir's first two detention hearings were held before a magistrate judge. See 18 U.S.C. § 3142(e) (2006) (). With respect to flight risk, the magistrate judge concluded that any risk that Abd Hir might flee could be addressed through the imposition of conditions of release, including the posting of $600,000 real property as a surety against flight. With respect to dangerousness, the magistrate judge found that Abd Hir did not pose a danger to any person or the community within the Northern District of California. Accordingly, the magistrate judge ordered Abd Hir released pending trial. The government moved for a stay pending its appeal of the release order to the district judge.
The district judge heard argument shortly afterwards. He adopted, in part, the magistrate judge's flight risk determination and rejected his dangerousness determination. With respect to flight risk, the district judge agreed that any such risk could be addressed through conditions of release but concluded that the amount of the bond set by the magistrate judge was not sufficiently high. With respect to dangerousness, the district judge found that 18 U.S.C. § 3142(e) does not require a showing that the defendant poses a danger to a person or a community within the court's jurisdiction; he then concluded that Abd Hir posed a danger to a community outside of the United States. Although he did not identify the community, it was quite obviously the Philippines.
The district judge requested supplemental briefing on the question of whether any condition or combination of conditions of release would reasonably assure the safety of others and of the community at issue here. After an additional oral argument and a review of the supplemental briefing, including a list of proposed release conditions, he concluded that no conditions of release would reasonably assure the safety of the community. Abd Hir was ordered detained pending trial.
Abd Hir appeals the district judge's pretrial detention order on three grounds. First, he argues that the district court erred as a matter of law in interpreting the Bail Reform Act to permit pretrial detention of an individual who poses a danger only to a community outside of the United States. Second, Abd Hir contends that even if the Bail Reform Act's definition of community encompasses foreign countries, the district court erred in finding that he poses such a danger. Third, he disputes the district court's determination that no condition or combination of conditions would reasonably assure the safety of the community.1
The Bail Reform Act governs the detention of a defendant pending trial. 18 U.S.C. § 3142 (2006). The Act mandates the release of a person pending trial unless 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." 18 U.S.C. § 3142(e). Where, as here, there is probable cause to believe that the defendant has committed an offense identified as a "[f]ederal crime of terrorism" under 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of imprisonment of ten years or more is prescribed, there is a rebuttable presumption that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e).2 Although the presumption shifts a burden of production to the defendant, the burden of persuasion remains with the government. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.1991). A finding that a defendant is a danger to any other person or the community must be supported by "clear and convincing evidence." 18 U.S.C. § 3142(f)(2)(B).
If a defendant proffers evidence to rebut the presumption of dangerousness, the court considers four factors in determining whether the pretrial detention standard is met: (1) the nature and circumstances of the offense charged, including whether the offense is a federal crime of terrorism; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including the person's character, physical and mental condition, family and community ties, employment, financial resources, past criminal conduct, and history relating to drug or alcohol abuse; 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). See United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986); United States v. Motamedi, 767 F.2d...
To continue reading
Request your trial
-
In re Corpus
...the danger an arrestee's release may pose to the community as a factual question to be reviewed deferentially. (See U.S. v. Hir (9th Cir. 2008) 517 F.3d 1081, 1086 ["The district court's factual findings concerning the danger that [the defendant] poses to the community are reviewed under a ......
-
U.S. v. Ressam
...pose a grave danger to the public has also been recognized in the context of pre-trial detention. See, e.g., United States v. Hir, 517 F.3d 1081, 1094 (9th Cir.2008) (affirming order requiring that Hir be detained pre-trial because he was accused of providing support to terrorists and holdi......
-
U.S. v. Ressam
...pose a grave danger to the public has also been recognized in the context of pre-trial detention. See, e.g., United States v. Hir, 517 F.3d 1081, 1094 (9th Cir.2008) (affirming order requiring that Hir be detained pre-trial because he was accused of providing support to terrorists and holdi......
-
United States v. Epstein
...in the case as an evidentiary finding militating against release, to be weighted along with other evidence." United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) ; see also Martir, 782 F.2d at 1144 ("The concern underlying the presumption applies to the general class of defendants char......
-
Pretrial release or detention
...should consider the danger that would be posed to that community if the defendant were released pending trial.” United States v. Hir , 517 F.3d 1081, 1089 (9th Cir. 2008) (pretrial detention of first-time offender with no prior criminal history upheld because defendant was charged, in the U......