United States v. Mohammad

• Decision Date: 31 May 2017
• Docket Number: Case No. 3:15-cr-3S8
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. YAHYA FAROOQ MOHAMMAD, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

UNITED STATES OF AMERICA, Plaintiff, v. YAHYA FAROOQ MOHAMMAD, et al., Defendants.

Case No. 3:15-cr-3S8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION

May 31, 2017

CHIEF JUDGE EDMUND A. SARGUS, JR.

OPINION AND ORDER

Defendant Ibrahim Zubair Mohammad ("Ibrahim") has filed a Renewed Motion for Release from Custody [ECF No. 215]. For the following reasons, that Motion is DENIED.

I.

Ibrahim was indicted on September 30, 2015, along with his co-Defendants Yahya Farooq Mohammad, Asif Ahmed Salim, and Sultane Roome Salim, and charged with (Count 1) conspiracy to provide and conceal material support to terrorists, in violation of 18 U.S.C. § 2339A; (Count 2) providing material support to terrorists, in violation of 18 U.S.C. § 2339A; (Count 3) conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (brought against Farooq and Ibrahim only); and (Count 4) conspiracy to obstruct justice, in violation of 18 U.S.C. 1512(k). (Indictment at 12-72 [ECF No. 1].)

Following his arrest on November 5, 2015, Ibrahim was arraigned before Magistrate Judge James Knepp. The Government moved for detention; Ibrahim, in turn, waived his right to a detention hearing but reserved the right to request a hearing at a later date. (Dec. 1, 2015 Order of Detention at 1 [ECF No. 20].) On February 15, 2016, Ibrahim moved for pretrial release from custody. (Mot. for Release at 1 [ECF No. 46].) The Court held a hearing on March 1, 2016, and, two days later, issued an Order of Detention denying Ibrahim's request for pretrial release. (Mar. 3, 2016 Order of Detention at 2, 6 [ECF No. 59].)

Currently before the Court is Ibrahim's March 13, 2017 Renewed Motion for Release from Custody. Ibrahim brings his Renewed Motion because the circumstances surrounding his detention have purportedly changed since his prior detention hearing. (Renewed Mot. for Release at 3 [ECF No. 215].) Ibrahim proposes four conditions for his requested pretrial release, which allegedly assure his appearance at all proceedings and the safety of the public:

1. Mr. Mohammad will reside with his wife, their four children ages 3-9, and his father-in-law, at an address within the Northern District of Ohio, Western Division. Mr. Mohammad's wife and father-in-law will serve as custodians.

2. Mr. Mohammad will seek employment.

3. Mr. Mohammad will be subject to home confinement, electronic location monitoring, curfew, and other standard restrictions required by 18 U.S.C. § 3142(c), including surrendering his passport and the passports of his wife, children, and father-in-law.

4. Mr. Mohammad will execute a $250,020.00 appearance bond, secured by $150,020.00 cash deposit with the Clerk of Court and real estate located at 13830 Abbey, Sugarland, Texas 77498.

(Id. at 1-2.) These proposed conditions differ from Ibrahim's previous proposed conditions in that he offers to post a higher bond (an increase of roughly $20,000) and that the bond is secured by cash and property in Texas (rather than cash and, if required, property in the Toledo area). (See Mot. for Release at 1-2.) In further support of his request for pretrial release, Ibrahim argues that his continued detention violates his Fifth Amendment right to due process. (Renewed Mot. for Release at 3, 9-10, 15-16.)

II.

A. Reopening Ibrahim's Detention Hearing

A detention hearing may be reopened if (1) information exists that was unknown to thedefendant at the time of the hearing and (2) the new information has a material bearing on the issue of whether there are conditions of release that will reasonably assure the defendant's appearance at trial and the safety of any other person in the community. 18 U.S.C. § 3142(f); see United States v. Watson, 475 F. App'x 598, 600 (6th Cir. 2012). For purposes of reopening a detention hearing, "[n]ew and material information . . . consists of something other than a defendant's own evaluation of his character or the strength of the case against him." United States v. Jerdine, No. 1:08 CR 00481, 2009 WL 4906564, at *3 (N.D. Ohio Dec. 18, 2009). New and material information consists of "truly changed circumstances, something unexpected, or a significant event." Id.

Here, Ibrahim argues that he has acquired new and material information that justifies reopening his detention hearing; (i) "the Government's underwhelming proof" against him, as purportedly revealed through discovery; (ii) the extended duration of his detention, which allegedly violates his due process rights; and (iii) the "specious reasoning and implicit bias in favor of the Government" found in the prior Order of Detention [ECF No. 59]. (Renewed Mot. for Release at 15-16 [ECF No. 215].)

None of this, however, constitutes new and material information as contemplated under 18 U.S.C. § 3142(f). A defendant's own evaluation of the strength of the case against him, as noted above, is typically insufficient to justify reopening the defendant's detention hearing. See Jerdine, 2009 WL 4906564, at *3. The extended duration of Ibrahim's detention does not violate his due process rights (as explained below). And the alleged deficiency in the prior Order of Detention, even if accepted as true, is not new information that has a material bearing on whether Ibrahim will appear for trial or whether Ibrahim poses a threat to the community. See Watson, 475 F. App'x at 600. The Court, accordingly, declines to reopen Ibrahim's detention hearing.

B. Ibrahim's Due Process Rights

"Pretrial detention violates the Fifth Amendment when it amounts to 'punishment of the detainee.'" Watson, 475 F. App'x at 601 (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). "'Liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.'" Id. (quoting United States v. Salerno, 481 U.S. 739, 755 (1987)). Courts determine on a case-by-case basis whether pretrial detention is unconstitutionally excessive. Id. This consideration involves four factors: "(1) the length of the detention; (2) the extent of the prosecution's responsibility for the delay of the trial; (3) the gravity of the charges; and (4) the strength of the evidence upon which the detention was based." Id.

Applied here, these factors indicate that Ibrahim's pretrial detention does not violate his due process rights.

1. Length of Detention

Ibrahim has been detained for approximately 18 months, and he will have been detained for nearly 22 months by the time he goes to trial on August 21, 2017. (See Renewed Mot. for Release at 10 [ECF No. 215].) This lengthy period of pretrial detainment weighs in favor of finding a due process violation.

As the Sixth Circuit has explained, however, "[t]he length of pretrial detention is not dispositive, and will, by itself, rarely offend due process." Watson, 475 F. App'x at 601. This is a complex case involving filings under the Classified Information Procedures Act ("CIPA") and evidence derived from Foreign Intelligence Surveillance Act ("FISA") surveillance. The case, moreover, involves not just traditional FISA surveillance, but also surveillance under Section 702 of the FISA-Amendments Act ("FAA")—a provision that has been litigated in a limited number of other criminal cases. In other complex cases, courts have found no due processviolation where the pretrial detention extended considerably longer than 22 months. See, e.g., United States v. El-Hage, 213 F.3d 74, 79-81 (2d Cir. 2000) (finding that 30 to 33 months of pretrial detention did not violate due process); United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994) (finding that 27 months of pretrial detention did not violate due process); United States v. Millan, 4 F.3d 1038, 1049 (2d Cir. 1993) (finding that a 30 to 31 month period of pretrial detention did not violate due process); United States v. Gonzalez, 995 F. Supp. 1299, 1304 (D.N.M. 1998) (finding that 35 to 37 months of pretrial detention did not violate due process). The Court must therefore look to the other factors to determine whether Ibrahim's due process rights have been violated.

2. Prosecution's Responsibility for the Delay

Ibrahim contends that the Government is responsible for much of the delay in the case proceeding to trial because the Government purportedly changed its mind on whether classified evidence would be involved in the case. (See Renewed Mot. for Release at 11 [ECF No. 215].) The Court disagrees with this assessment. The Government has consistently represented that it does not intend to introduce classified evidence at trial. And contrary to Ibrahim's insistence, the Government's notice of intent to use evidence acquired through FISA surveillance is not a reversal of this position. The evidence acquired through FISA surveillance that the Government proposes to use at trial is not classified. And the delay relating to the Government's use of evidence acquired through FISA surveillance is primarily a function of Defendants (Ibrahim included) moving to suppress the evidence.

In making this point, the Court does not criticize Ibrahim for challenging the admission of evidence acquired through FISA surveillance. The Court makes this point to clarify that the Government is not solely responsible, or even primarily responsible, for the delay in this case.The case involves four defendants, extensive evidence dating back more than a decade, and complex legal issues. The case, moreover, suffered a considerable delay when Ibrahim's co-Defendant, Yahya Farooq Mohammad ("Farooq"), was indicted for his alleged scheme to murder the former presiding district judge in this matter. (See Order of Recusal at 1 [ECF No. 107].) Farooq's indictment led to Judge Zouhary recusing himself from the case and to the appointment of the undersigned to this matter. (See id.)

Given the limited connection between the Government's actions and the delay in this case, this second factor weighs against the Court finding a due process violation.

3. Gravity of the Charges

As Ibrahim acknowledges, the charges brought...