United States v. Choudhry

• Decision Date: 26 April 2013
• Docket Number: No. 13–cr–0150(WFK)(JMA).,13–cr–0150(WFK)(JMA).
• Citation: 941 F.Supp.2d 347
• Parties: UNITED STATES of America, v. Mohammad Ajmal CHOUDHRY, Defendant.
• Court: U.S. District Court — Eastern District of New York

941 F.Supp.2d 347

UNITED STATES of America,

v.Mohammad Ajmal CHOUDHRY, Defendant.

No. 13–cr–0150(WFK)(JMA).

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

April 26, 2013.

Margaret Gandy, United States Attorney's Office, Brooklyn, NY, for United States of America.

Joshua L. Dratel, Law Offices of Joshua L. Dratel, P.C., New York, NY, for Defendant.

MEMORANDUM AND ORDER

WILLIAM F. KUNTZ II, District Judge.

On February 26, 2013, Magistrate Judge Azrack held a bail hearing for Defendant Mohammad Ajmal Choudhry (“Defendant” or “Mr. Choudhry”). At the hearing, Magistrate Judge Azrack found that Defendant posed a danger to the community and a risk of flight and accordingly ordered him detained on an order of Detention Pending Trial dated and filed on February 26, 2013. Dkt. Nos. 3, 17. Defendant remains in custody. On April 3, 2013, Joshua L. Dratel, Esq., counsel for Defendant, submitted a letter to this Court seeking a hearing in connection with a renewed bail application. Dkt. No. 10. The letter consisted of a twenty-one (21) page letter submission and attached exhibits numbered one (1) through twenty-three (23). Assistant United States Attorney Amanda Hector, on behalf of the United States of America, submitted a letter to this Court dated April 8, 2013, setting forth the bases for the Government's opposition to this request, arguing that Defendant should remain in custody pending trial. Dkt. No. 11. By letters dated April 19, 2013, Mr. Dratel replied to the letter of Ms. Hector, presenting additional facts and arguments for the consideration of this Court. Dkt. Nos. 18–19. And, on April 22, 2013, pursuant to a stipulation between counsel, Mr. Dratel provided this Court with transcripts of the recorded telephone calls that underlie one of the Government's charges against Defendant. This Court conducted its Bail Hearing on April 22, 2013, after which both the Government and Defense counsel provided additional submissions. Dkt. Nos. 20–22. This Court has carefully considered all of these submissions, their attachments, the transcript of the February 26, 2013 hearing held before Magistrate Judge Azrack and her Order of Detention, the Bail Reports of the United States Pre–Trial Services Agency, the Complaint filed on February 26, 2013, and the arguments from the April 22nd Bail Hearing. Upon review of the entirety of the record, this Court now rules as follows: The Bail Application made by the Defendant in this case is denied in all respects.

DISCUSSION

I. Applicable Law

The Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., authorizes this Court to detain a criminal defendant upon finding 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). The Second Circuit requires that a district court reviewing a magistrate judge's bail determination “should not simply defer to the judgment of the magistrate, but reach its own independent conclusion.” United States v. Zahrey, No. 96 CR 910, 1996 WL 650980, at *1 (E.D.N.Y. Nov. 7, 1996) (Gershon, J.) (quoting United States v. Leon, 766 F.2d 77, 80 (2d Cir.1985)). “To aid in reaching an independent conclusion, the district court may schedule a de novo hearing.” United States v. Gallo, 653 F.Supp. 320, 328 (E.D.N.Y.1986) (Weinstein, J.).

In making its bail determination, the Court is required to consider information regarding: (1) the nature and circumstances of the offenses charged, (2) the weight of the evidence, (3) the history and characteristics of the defendant, 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). In addition, the Court may consider uncharged conduct in assessing the degree of danger posed by a defendant's release. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.1991) (reversing release and ordering detention while rejecting “requirement that the violent conduct ... be connected to the activity charged in the indictment”); United States v. Barone, 387 Fed.Appx. 88, 90 (2d Cir.2010) (affirming detention order based, in part, on uncharged crimes).

The Government must support a finding of dangerousness by clear and convincing evidence, see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.1995), and must support a finding of risk of flight by a preponderance of the evidence, see United States v. Jackson, 823 F.2d 4, 5 (2d Cir.1987). However, in a detention hearing, evidence may be supplied through proffers and hearsay information, and the Federal Rules of Evidence do not apply. Ferranti, 66 F.3d at 542;Fed.R.Evid. 1101(d)(3). “A defendant thus may be incarcerated [pending trial] without the many constitutional and evidentiary protections normally guaranteed to those who are to be punished pursuant to judicial proceedings.” Gallo, 653 F.Supp. at 334. Indeed, because detention pending trial is considered “regulatory rather than punitive,” the decision to detain a defendant pending trial “does not require proof of a threat beyond a reasonable doubt, is not subject to Sixth Amendment jury guarantees, and does not provide for the defendant's right to confront and cross-examine witnesses.” Id.

Nonetheless, mindful of the due process considerations attendant to any form of detention, “[t]he power to incarcerate before trial ‘must be exercised with circumspection. It may be invoked only when and to the extent justified by danger which the defendant's conduct presents.’ ” Id. at 332 (quoting Bitter v. United States, 389 U.S. 15, 16, 88 S.Ct. 6, 19 L.Ed.2d 15 (1967)).

II. The Nature and Circumstances of the Offenses Charged

The Court must first consider the nature and circumstances of the offenses charged, “including whether the offense is a crime of violence.” 18 U.S.C. § 3142(g)(1). The Bail Reform Act broadly defines a “crime of violence” as:

(A) an offense that has an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; [or]

(B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 3156(a)(4). The Second Circuit has noted that this definition “extends substantially beyond the conventional meaning of ‘crime of violence,’ ” and that “[c]lause (B) is clearly intended to cast a wider net ... [to include] offenses that give rise to a possibility, rather than a certainty, that force may be used.” United States v. Dillard, 214 F.3d 88, 91–92 (2d Cir.2000) (discussing 18 U.S.C. § 3156(a)(4)(B)). The Dillard Court identified five elements to the definition provided in clause (B):

(i) [t]he offense must be a felony;

(ii) the offense must involve a “risk that physical force may be used against the person or property of another;”

(iii) that risk must result from the nature of the offense;

(iv) the risk must be that the use of force would occur ‘in the course of’ the offense; and (v) the risk must be “substantial.”

Id. at 92–93. After considering the first four elements in relation to the felon-in-possession charge at issue in that case, the Dillard Court noted that whether or not the risk of violence is “substantial” is a less straightforward determination, which required consultation of the legislative histories of both the Bail Reform Act and the relevant felon-in-possession provision. Id. at 94–95. The Court concluded in part that “substantial” should be leniently construed to comport with the Bail Reform Act's purpose of providing a “broad base of support for giving judges the authority to weigh risks to community safety in pretrial release decisions.” Id. at 95.

The indictment herein charges Defendant with one count of making a false statement in a Petition for an Alien Relative, in violation of 18 U.S.C. § 1546(a) (“visa fraud”), and one count of communicating a threat in interstate commerce, in violation of 18 U.S.C. § 875(c) (“transmitting threats”). With respect to the second charge, the indictment specifically provides Defendant did knowingly and intentionally transmit in interstate commerce “communications threatening the lives of John Doe and his family, individuals whose identities are known to the Grand Jury.” Indictment, Dkt. No. 5, at 2. Violation of 18 U.S.C. § 875(c) constitutes a felony; it not only involves a “risk that physical force may be used against the person ... of another,” but is defined according to that risk; and the risk arises “in the course of” the communication of the threat. 18 U.S.C. § 3156(a)(4). Because the statute requires that the communicated threat be a “true threat” for prosecution to succeed, see United States v. Sovie, 122 F.3d 122, 125 (2d Cir.1997), there is little room for argument that the risk of violence is not “substantial.” Therefore, communicating a threat in violation of 18 U.S.C. § 875(c) constitutes a “crime of violence,” warranting detention under the Bail Reform Act. See Dillard, 214 F.3d at 97;see also United States v. Ciccone, 312 F.3d 535, 542 (2d Cir.2002) (holding that commission of crime by means of extortion and intimidation amounts to a “crime of violence”); United States v. Gotti, No. 02 CR 606, 2002 WL 31946775, at *5–6 (E.D.N.Y. June 10, 2002) (Pollak, M.J.) (same).

Defendant does not dispute this characterization. Moreover, as described in detail infra, the Government has proffered substantial evidence that Defendant committed the offense of transmitting threats.

III. The Weight of the Evidence Against Defendant

In its opposition motion, the Government argues that the evidence proffered in support of the two charges against Defendant is “overwhelming.” Dkt. No. 11, at 8. In support of the visa fraud charge, the Government points to multiple statements—both pre- and post-arrest—wherein the Defendant admits to filing the relevant...