US v. Shaker

• Decision Date: 16 July 1987
• Docket Number: Crim. No. HCR 87-65-02.
• Citation: 665 F. Supp. 698
• Parties: UNITED STATES of America v. Mohamed S. SHAKER.
• Court: U.S. District Court — Northern District of Indiana

665 F. Supp. 698

UNITED STATES of America v. Mohamed S. SHAKER.

Crim. No. HCR 87-65-02.

United States District Court, N.D. Indiana, Hammond Division.

July 16, 1987.

Gwenn R. Rinkenberger, Asst. U.S. Atty., Hammond, Ind., for plaintiff.

Nick J. Thiros, Merrillville, Ind., for defendant.

ORDER

MOODY, District Judge.

This matter is before the court on defendant Mohamed S. Shaker's "Motion to Reconsider Order of Detention and to Reopen for Further Evidence" filed June 15, 1987. The United States ("Government") filed a response in opposition on June 18, 1987. Defendant Shaker filed a supplemental motion on July 7, 1987.¹

I.

On May 22, 1987, defendant Shaker, along with two co-defendants, was named in a three-count conspiracy indictment for allegedly committing arson and mail fraud. The Government filed a motion for pretrial detention, pursuant to the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-3156 (1985 & Supp.1987), on May 26 and a hearing on the Government's motion was held before Magistrate Rodovich on May 29, 1987.

At the hearing, where Shaker and his co-defendants were all represented by counsel, the Government presented the testimony of a Federal Bureau of Investigation ("F.B.I.") agent who testified that Shaker and his co-defendants conspired to destroy his own house in order to recover insurance benefits. During the fire, according to the agent, one of the perpetrators was badly burned and ultimately died as a result of his burns. The agent further stated that an individual living in Shaker's neighborhood, who witnessed the burning of the house, was threatened by Shaker to keep quiet. The agent reported that Shaker told a confidential informant that if the Government investigated the burning of his house he would go to Israel to visit his family and never return. Finally, the agent testified that Shaker had withdrawn a substantial amount of money from a bank account shortly after the burning of the house.

Based on this evidence, the Magistrate concluded that no condition or combination of conditions would reasonably assure Shaker's appearance at trial and guarantee the safety of potential witnesses and others, thus, he ordered Shaker detained pending trial. Shaker filed his present motion petitioning this court to review the Magistrate's order and to hold a hearing to hear additional evidence. Specifically, Shaker maintains that at a second hearing he would offer the testimony of the individual neighbor who, according to the Government, Shaker had threatened. Shaker argues that this neighbor's testimony would refute the Government's allegation that Shaker poses a threat to potential witnesses or others. In addition, Shaker represents in his motion, that at a second hearing, he would show that other people he allegedly threatened actually have "more criminal experience" than he, thus, demonstrating that these other people cannot be said to be in fear of Shaker. Finally, Shaker argues that he would controvert the Magistrate's finding that he was likely to flee.

In response, the Government asserts that defendant Shaker is not entitled to a second hearing on pretrial detention. According to the Government, Shaker's present motion must be considered as a "Motion for Revocation or Amendment of the Order to Detain" pursuant to 18 U.S.C. § 3145(b). And, the Government continues, in considering a § 3145(b) motion, the court is limited in its review to the transcript of the prior detention hearing and the Magistrate's written order; that is, this court cannot hear, and the defendant is not permitted to present, additional evidence.

II.

Initially, the court agrees that Shaker's instant motion should be construed as a § 3145(b) motion;² that provision, which is entitled "Review of a detention order," states:

If a person is ordered detained by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.

18 U.S.C. § 3145(b). Thus, insofar as defendant's motion seeks reconsideration of the Magistrate's order, the court construes his motion as one brought pursuant to § 3145(b).

Shaker's motion, however, goes further, he requests an oral hearing to present new evidence. Before addressing the issues of a hearing and the presentation of additional evidence, the court will first determine whether the Magistrate's detention order was proper. If it is found that the Magistrate improperly ordered Shaker detained then there will be no need for an oral hearing to consider additional evidence.

III.

Section 3145(b) provides for district court review, upon motion by the Government or the defendant, of a Magistrate's release or detention order. In reviewing a Magistrate's determination, a district court should conduct a de novo review, United States v. Delker, 757 F.2d 1390, 1394-95 (3d Cir.1985), United States v. Fortna, 769 F.2d 243, 249 (5th Cir.1985), United States v. Maull, 773 F.2d 1479, 1482 (8th Cir.1985) (en banc), United States v. Hurtado, 779 F.2d 1467, 1480 (11th Cir.1985), United States v. Medina, 775 F.2d 1398, 1402 (11th Cir.1985), and need not defer to the Magistrate's findings or give specific reasons for rejecting them. United States v. Leon, 766 F.2d 77, 80 (2d Cir.1985); Delker, 757 F.2d at 1394-95; Medina, 775 F.2d at 1402.

At the detention hearing, the Magistrate relied on the statutorily-created rebuttable presumptions that no condition or combination of conditions would be sufficient to protect the community and guarantee Shaker's presence at trial. 18 U.S.C. § 3142(e). The court must first determine if the Magistrate's use of the presumptions was proper and, if so, whether he correctly applied the presumptions in his analysis.

Section 3142(e) provides for two rebuttable presumptions in favor of detention. The first of these two presumptions (the previous-violator presumption) is designed to ensure the safety of the community and others by presuming that no conditions of release will reasonably assure the safety of the community where the defendant is accused of one of numerous specified crimes, such as a crime of violence, and has previously (within the last five years) been convicted of or released from imprisonment for committing one of the specified crimes while free on bail. The second presumption (the drug-and-firearm-offender presumption) is designed to ensure both the safety of the community and the appearance of the defendant at trial by presuming no conditions of release will reasonably assure the defendant's appearance and the safety of the community where a judicial officer finds probable cause to believe that the defendant has committed a federal drug offense carrying a maximum prison term of ten years or more or has used a firearm to commit a felony. 18 U.S.C. § 3142(e). Thus, in order to properly trigger a presumption that a defendant poses a danger to the community, the defendant must either be a previous violator of one of the specified crimes or be accused of a drug or firearm related offense. The only time the presumption that a defendant is likely to flee is properly triggered is when the defendant is accused of a drug or firearm related offense.

After reviewing the tape recorded transcript of the hearing, the court finds that the evidence presented to the Magistrate demonstrated that Shaker had been charged with an offense for which the maximum sentence is life imprisonment,³ 18 U.S.C. § 3142(f)(1)(B), and a crime of violence,⁴ 18 U.S.C. §§ 3142(f)(1)(A) and 3156(a)(4)(A) & (B). The transcript of the hearing reveals that the Magistrate in fact made these two findings. Nevertheless, the Magistrate's written order, filed June 2, 1987, does not reflect these findings; instead, his order states that:

There is probable cause to believe that the defendant has committed an offense x for which a maximum term of imprisonment of ten years or more is prescribed in 18 U.S.C. § 844(i).

Based on this finding, the Magistrate held that the Government was entitled to the rebuttable presumptions that no condition or combination of conditions would reasonably assure Shaker's appearance at trial and the safety of the community.

The Magistrate's written order clearly does not comport with his oral findings at the hearing. In addition, his invocation and application of the presumptions of § 3142(e) were clearly inconsistent with the requirements of the statute. The indictment in this case shows that Shaker is charged with conspiracy, arson resulting in the death of another, and mail fraud. At the hearing it was revealed that Shaker had no previous criminal record. Therefore, because Shaker is neither a previous violator of one of the specified crimes nor presently accused of a drug or firearm related offense, the Government was not entitled to the presumptions of § 3142(e).

Despite the Magistrate's misapplication of the presumptions, it is possible that Shaker was properly detained based on the evidence presented at the hearing. The court now looks to all the evidence presented to determine if Shaker was properly detained.

IV.

Section 3142(g) sets forth for the court the factors to be considered in determining whether to release or detain the defendant. Those factors are: (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; 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).⁵

A. Danger to the Community

In order to detain Shaker on the grounds of dangerousness, the Government must prove by clear and convincing evidence that no condition or set of...