United States v. Zhang

• Decision Date: 06 December 2022
• Docket Number: 22-1761,August Term, 2022
• Citation: 55 F.4th 141
• Parties: UNITED STATES of America, Appellee, v. Zhe ZHANG, AKA Zack, Defendant-Appellant, Qing Ming Yu, AKA Allen Yu, Antony Abreu, AKA Anthony, You You, AKA Eddie Defendants.
• Court: U.S. Court of Appeals — Second Circuit

55 F.4th 141

UNITED STATES of America, Appellee,

v. Zhe ZHANG, AKA Zack, Defendant-Appellant,Qing Ming Yu, AKA Allen Yu, Antony Abreu, AKA Anthony, You You, AKA Eddie Defendants.

No. 22-1761

August Term, 2022

United States Court of Appeals, Second Circuit.

Argued: September 21, 2022

Decided: December 6, 2022

Gabriel Park, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Jason I. Ser (Henry E. Mazurek, on the brief), Meister Seelig & Fein LLP, New York, NY, for Defendant-Appellant

Before: Raggi, Wesley, and Nardini, Circuit Judges.

William J. Nardini, Circuit Judge:

Defendant-Appellant Zhe Zhang was indicted for participating in a successful murder-for-hire scheme, see 18 U.S.C. § 1958(a), and the government sought his detention. After a hearing, the district court determined that Zhang should be detained because he posed a danger to the community as well as a risk of flight, and no set of release conditions would offset those risks. In reaching that conclusion, the court considered a variety of factors, including the government's proffer of strong evidence that Zhang committed the charged capital offense. It assumed, however, that the government would not seek the death penalty. About a month later, the government formally confirmed that it would not do so, and Zhang moved unsuccessfully to reopen his detention hearing.

On appeal, Zhang raises two challenges to the district court's August 3, 2022, denial of his motion to reopen, but neither is persuasive.

First, he contends that the court was obliged to reopen his detention hearing under 18 U.S.C. § 3142(f) because the government's formal decision not to seek the death penalty was information that was both new and material to the question of whether he should be released or detained. But the district court made clear that the availability of the death penalty had not factored into its original detention decision. Thus, the government's confirmation of the court's assumption would not have materially altered the court's determination that detention was necessary, and so the district court did not abuse its discretion under § 3142(f) in denying the motion to reopen.

Second, Zhang argues that the district court relied too much on the strength of the evidence that he committed the charged offense in deciding not to exercise its inherent powers to reopen the detention hearing, and that its reliance contravened the presumption of innocence. But a district court has broad discretion to determine how much weight to assign the factors listed in § 3142(g) based on the circumstances of a particular case. The presumption of innocence is a trial right, and a district court does not violate that presumption by considering the strength or weakness of the evidence to determine whether pretrial detention is appropriate.

We therefore AFFIRM the district court's decision not to reopen Zhang's detention hearing and DENY Zhang's motion for bail.

I. Background

On May 4, 2022, a federal grand jury sitting in the Eastern District of New York returned an indictment charging Zhang and three co-defendants with murder-for-hire and conspiracy to commit murder-for-hire for the 2019 killing of Xin Gu in Flushing, Queens. The government alleges that Gu's former employer, Qing Ming Yu, hired his nephew, You You, to kill Gu when he started a rival real estate company in late 2018. You then allegedly hired Zhe Zhang and Anthony Abreu to help him carry out the murder.

The government alleges that in the early hours of February 12, 2019, You, Zhang, and Abreu lay in wait outside a bar in Flushing, where Gu was hosting a Lunar New Year celebration. When Gu left the bar at 2:30 a.m., Abreu shot Gu multiple times and then fled the scene in a car driven by Zhang. Several months later, Yu's company wired $30,000 to a company registered to Zhang.

On May 10, 2022, Zhang was arrested in the Central District of California. On May 12, 2022, he sought pretrial release at a hearing before a magistrate judge in that district (Jacqueline Chooljian, M.J. ). Zhang proposed a bond of $1.55 million and emphasized his U.S.-based family, his job, and his willingness to accept electronic monitoring. Seeking pretrial detention, the government pointed to, among other things, the seriousness of the charges (carrying a mandatory minimum sentence of life imprisonment upon conviction), Zhang's frequent trips overseas, and the disclosed existence of a cooperating witness. The magistrate judge granted pretrial release subject to home detention and the proposed bond but, recognizing that the U.S. Attorney's Office for the Eastern District of New York was planning to appeal and that Zhang would not be able to finalize the bond paperwork for several days, she stayed the release order until May 18, 2022.

On May 13, 2022, the government appealed the California pretrial release order to the U.S. District Court for the Eastern District of New York (Carol Bagley Amon, J. ).

On May 19, 2022, the district court heard the government's appeal. The government and Zhang presented largely the same arguments as they had before the magistrate judge, although the government described its evidence against Zhang in more detail. This evidence included cell site location records, telephone toll records, a text message sent from Zhang to a codefendant 20 minutes after the murder, the testimony of multiple witnesses, and financial records showing the payment from Yu to Zhang. In addition, the government claimed to have significant evidence that Zhang was heavily involved in the illegal sale of marijuana, that he had extensive ties to China, and that certain of the suretors put forward by Zhang for his bond were not, in fact, close social, familial, or professional relations.

The hearing also included a brief discussion of the possibility of capital punishment. The government could not say for certain whether it would seek the death penalty, because the matter was still pending with U.S. Department of Justice in Washington, D.C. But the court noted its understanding that, as matter of policy, "this Justice Department was not pursuing the death penalty in any case," and stated its belief that appointing the additional counsel required for a death penalty case would therefore be "wasting the court's time and taxpayers’ money."

Reviewing the magistrate judge's decision de novo , the district court ordered Zhang detained because no combination of conditions would reasonably ensure Zhang's appearance in the case and the safety of the community. The court noted that the charged crime was "extremely serious" and the evidence against Zhang was strong. Additionally, Zhang had substantial ties to China and Taiwan, had previously threatened a witness, and had access to weapons. The court further concluded that the suretors did not alleviate the risk of flight because they provided little "moral suasion" over Zhang given their attenuated connections to him.

Approximately one month after the district court ordered Zhang detained, on June 29, 2022, the government informed the court that the Attorney General had directed the U.S. Attorney's Office for the Eastern District of New York not to seek the death penalty against any of the defendants named in the indictment.

On July 22, 2022, Zhang filed a motion to reopen his detention hearing under 18 U.S.C. § 3142(f). He argued that the government's decision not to seek capital punishment constituted a material change in circumstances that justified reopening the detention decision. That fact, coupled with a newly proposed $5 million bond (secured by properties and co-signors with whom he claimed to have closer relationships), now made pretrial release appropriate.

On July 28, 2022, the district court held a hearing on Zhang's motion to reopen. There, the district court reiterated that its "original ruling did not consider the death penalty" because it had been "of the view that there would be no death penalty authorized in this case." Appellant Br., Ex. G, July 28, 2022, Bail Reopening Hearing Tr. at 4; see id. at 7 ("[T]he Court did not take [the potential death penalty] into account at all."). Thus, the district court indicated that it would not reopen the hearing because the fact that the government would not seek the death penalty was not material information unknown at the time of the initial bail hearing. The district court informed the parties that it would issue a written order memorializing its ruling.

On August 3, 2022, the district court issued that written ruling, denying Zhang's motion to reopen his detention hearing and for pretrial release. The district court found that the government's decision not to seek the death penalty was not material information that justified revisiting the court's initial determination, because its "original decision denying bail did not rely in any way on the potential for a capital sentence." United States v. Zhang , 22-cr-208-4, Dkt. No. 53, 2, 2022 WL 17420740 (E.D.N.Y. Aug. 3, 2022 ).

The court also declined to revisit its prior decision under its inherent powers. Id. at 2–3. It observed that a review of the factors outlined in 18 U.S.C. § 3142(g) —the severity of the alleged offense, the strong weight of the evidence against Zhang, Zhang's personal characteristics (including his ties to other countries and past criminal conduct), and the danger posed by Zhang's release—indicated that Zhang was both a flight risk and a danger to the community. Id. at 3–8. The court noted that it would have reached this conclusion even if it had given less weight to the evidence against Zhang. Id. at 5. The court went on to find that the bond package and release terms proposed by Zhang could not mitigate his risk of flight and danger to the community, particularly in light of the modest incomes of those acting as sureties, the uncertain ownership of the...