United States District Court, S.D. California
ORDER GRANTING GOVERNMENT'S MOTION TO REVOKE RELEASE ORDER AND DETAIN DEFENDANT [ECF No. 88]
CYNTHIA BASHANT, District Judge.
Defendant Mazen Ahmad Alzoubi stands charged with mail fraud under 18 U.S.C. § 1341. The Government asserts that "[b]eginning in approximately 2012, Defendant devised a scheme to fraudulently obtain control of real property owned by others, in order to sell the property to unsuspecting third parties and collect the proceeds of that sale." (Gov't's Mot. 2:17-25.) "In at least ten instances, Defendant's scheme [allegedly] succeeded, and he arranged for unwitting third-party buyers or lenders to purchase or encumber the properties, diverting at least $2.2 million in proceeds away from the true owners to bank accounts he controlled." ( Id. at 2:26-3:8.)
On May 19, 2015, following several hearings, Defendant's bond packet was completed and accepted by the magistrate judge. Two days later, the magistrate judge denied the Government's oral motion for detention based on risk of flight, danger, and 18 U.S.C. § 3142(f)(2)(B). Pending before the Court is the United States of America's motion seeking de novo review of the order releasing Defendant and to detain Defendant as a risk of flight and danger to society. Defendant opposes.
The Court heard argument from the parties on June 1, 2015, and incorporates all findings made during the hearing in this order. For the following reasons, the Court GRANTS the Government's motion.
I. STANDARD OF REVIEW
"The Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., requires the release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required and the safety of the community." United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). "Only in rare circumstances should release be denied, and doubts regarding the propriety of release should be resolved in the defendant's favor." Id. "On a motion for pretrial detention, the government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk, and by clear and convincing evidence that the defendant poses a danger to the community." Id.
In determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community, the following factors warrant consideration: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the defendant; (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). The "history and characteristics" of the defendant include "the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings[.]" Id. "Of these factors, the weight of the evidence is the least important, and the statute neither requires nor permits a pretrial determination of guilt." Gebro, 948 F.2d at 1121.
A magistrate judge's detention rulings are subject to de novo review by the district court. See United States v. Koenig, 912 F.2d 1190, 1191 (9th Cir. 1990). The district court should review the evidence presented to the magistrate judge and make its own independent determination. See id. at 1193. The district court may also hold an evidentiary hearing. See id. "However, there is no requirement of live testimony by the government at a detention hearing." United States v. Cabrera-Ortigoza, 196 F.R.D. 571, 574 (S.D. Cal. 2000). At a detention hearing, the government and defendant may both proceed "by proffer or hearsay." United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986) (per curiam); see also Cabrera-Ortigoza, 196 F.R.D. at 573-74. "The use of proffers and hearsay evidence are a necessary ingredient to the effective working of the Bail Reform Act, and prevention of a mini trial, or an early discovery expedition[, ] further facilitates those goals." Cabrera-Ortigoza, 196 F.R.D. at 575-76. If there is a question as to the accuracy of a proffer, the court "is authorized to reconcile the demand for speed in these proceedings and the reliability of the evidence by selectively insisting on the production of evidentiary sources." United States v. Terrones, 712 F.Supp. 786, 791 (S.D. Cal. 1989). But "absent something credible to challenge the reliability or correctness of the government's proffer, the Court need not compel live witnesses to testify." Cabrera-Ortigoza, 196 F.R.D. at 575.
The Government argues that it satisfies its burden as to each § 3142(g) factor. Defendant responds by arguing that the Government fails to meet its burden. The parties focus heavily on Defendant's history and characteristics.
Upon reviewing all of the evidence proferred and arguments presented, the Court finds that Defendant presents a serious flight risk and no condition or combination of conditions will reasonably assure his appearance as required or the safety of the community. See 18 U.S.C. § 3142(b); United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008).
A. Risk of Flight
Much of the focus regarding whether Defendant poses a flight risk centers around Defendant's family and community ties.
Defendant presents evidence that he relocated to the United States in 1999 with his family, went to high school and college in the United States, and was employed as a loan processor until he founded his own real estate investment company. (Def.'s Opp'n 9:13-24.) Defendant does not explicitly assert that he has continuously lived in the United States since 1999, and the Government described that assertion as unclear at best during argument. Defendant also lists numerous family ties he has ...