United States v. Liebowitz , 669 F. App'x 603 ( 2016 )


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  • 16-3249-cr
    United States v. Liebowitz
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
    BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
    WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
    MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
    NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
    COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 31st day of October, two thousand sixteen.
    PRESENT: ROBERT D. SACK,
    REENA RAGGI,
    DENNY CHIN,
    Circuit Judges.
    ----------------------------------------------------------------------
    UNITED STATES OF AMERICA,
    Appellee,
    v.                                           No. 16-3249-cr
    SHIMEN LIEBOWITZ,
    Defendant-Appellant.
    ----------------------------------------------------------------------
    APPEARING FOR APPELLANT:                          SUSAN R. NECHELES, Hafetz & Necheles
    LLP, New York, New York.
    APPEARING FOR APPELLEE:                          SCOTT A. HARTMAN, Assistant United
    States Attorney, for Preet Bharara, United
    States Attorney for the Southern District of
    New York, New York, New York.
    Appeal from an order of the United States District Court for the Southern District
    of New York (Sidney H. Stein, Judge).
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    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the pretrial detention order entered on September 20, 2016, is
    AFFIRMED.
    Defendant Shimen Liebowitz—who stands indicted for kidnapping and
    murder-for-hire conspiracies, see 18 U.S.C. §§ 1201(c), 1958—appeals from the denial of
    bail pending trial pursuant to 18 U.S.C. § 3142(e). See § 3145(c) (authorizing appellate
    review of pretrial detention orders under 28 U.S.C. § 1291). We review the district
    court’s factual findings—including its ultimate findings as to risk of flight and danger to
    any person or the community—for clear error, see United States v. English, 
    629 F.3d 311
    , 319 (2d Cir. 2011); and we will not reverse “unless on the entire evidence we are
    left with the definite and firm conviction that a mistake has been committed,” United
    States v. Sabhnani, 
    493 F.3d 63
    , 75 (2d Cir. 2007) (internal quotation marks omitted).
    We review the district court’s conclusions of law de novo. United States v. Abuhamra,
    
    389 F.3d 309
    , 317 (2d Cir. 2004). In so doing, we assume the parties’ familiarity with
    the facts and record of prior proceedings, which we reference only as necessary to
    explain our decision to affirm denial of bail pending trial.
    Liebowitz argues that the district court clearly erred in finding that he poses a
    future threat of harm because he had never previously been charged with a violent crime
    and was apprehensive about using violence in the crimes charged. In any event, he
    argues that evidence of past conduct is insufficient to establish an ongoing or future
    threat. Further, Liebowitz challenges the district court’s finding that he poses a risk of
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    flight, arguing that he has a well-established life in Kiryas Joel, where he lives with his
    wife and daughter, and that his ties to Israel and Australia are entitled to little weight
    because both countries have extradition treaties with the United States, which would
    make his flight to either locale futile.
    Upon review of the record, we conclude that the evidence is sufficient to support
    the district court’s factual findings that no condition or combination of conditions of
    release will reasonably assure Liebowitz’s appearance at trial or the safety of persons in
    the community. See 18 U.S.C. § 3142(e). That record contains compelling evidence
    of Liebowitz’s participation in the charged crimes and his knowledge and acquiescence in
    the use of violence to commit them. See, e.g., Appellant’s Br., Ex. D, at 9 (quoting
    defendant’s recorded inquiry as to whether “DNA is enough” to establish to rabbinical
    authorities that intended victim was deceased so as to render get unnecessary). Such
    evidence admits a clear and compelling finding that he posed a threat of future harm.
    See United States v. Mercedes, 
    254 F.3d 433
    , 437 (2d Cir. 2001) (concluding that
    defendant posed threat of future dangerousness when nature of charged offense presented
    high risk of violence, and evidence implicating defendant was significant).
    The lengthy jail sentence that could be imposed for the charged crimes provides an
    incentive to flee. See United States v. 
    Sabhnani, 493 F.3d at 77
    (recognizing that
    defendant facing significant term of incarceration might prefer to lose financial assets
    rather than freedom). The likelihood of flight is reinforced in this case by the fact that
    Liebowitz holds Australian as well as United States citizenship and has family members
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    in Australia. See United States v. Shelikhov, 468 F. App’x 54, 56 (2d Cir. 2012)
    (finding risk of flight based on defendant’s “extensive personal and business ties” to
    Ukraine and his mother, fiancée’s parents and brother residing there); accord United
    States v. 
    Sabhnani, 493 F.3d at 76
    –77 (finding risk of flight by defendants with strong
    family and professional ties to their native countries).     Further, despite Liebowitz’s
    professed modest assets, the record shows his access to substantial resources to finance
    flight. See United States v. 
    Sabhnani, 493 F.3d at 76
    (observing that case for detention
    is strengthened by defendants’ access to assets to finance own flight and that of family).
    Liebowitz’s willingness to submit to electronic monitoring and home confinement
    did not compel the district court to find those conditions sufficient to order bail release
    particularly where, as here, Liebowitz sought frequent exceptions to home confinement.
    See generally United States v. Orena, 
    986 F.2d 628
    , 632 (2d Cir. 1993) (recognizing ease
    with which “electronic surveillance systems can be circumvented” and “monitoring
    equipment . . . rendered inoperative” (internal quotation marks omitted)); accord United
    States v. 
    Mercedes, 254 F.3d at 437
    (concluding that electronic monitoring and home
    detention were insufficient in case of defendant who presented substantial flight risk).
    In sum, we identify no clear error in the district court’s factual findings, which
    were sufficient to support the conclusion that Liebowitz presented a flight risk and danger
    to the community that could not be reasonably mitigated by any condition or combination
    of conditions of release.
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    Accordingly, the district court’s detention order is AFFIRMED.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, Clerk of Court
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