United States v. Brennerman ( 2017 )

17-2035-cr, 17-2053-cr
United States v. Brennerman
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 23rd day of August, two thousand seventeen.
PRESENT: PIERRE N. LEVAL,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. Nos. 17-2035-cr
17-2053-cr
RAHEEM J. BRENNERMAN,
Defendant-Appellant,
THE BLACKSANDS PACIFIC GROUP, INC.,
Defendant.
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APPEARING FOR APPELLANT: MARANDA FRITZ, Thompson Hine LLP,
New York, New York.
APPEARING FOR APPELLEE: ROBERT B. SOBELMAN, Assistant United
States Attorney (Nicholas Landsman-Roos,
Assistant United States Attorney, on the brief),
for Joon H. Kim, Acting United States Attorney
for the Southern District of New York, New
York, New York.
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Appeal from orders of the United States District Court for the Southern District of
New York (Lewis A. Kaplan, Judge; Richard J. Sullivan, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the pretrial detention orders entered on June 26, 2017, and on June
29, 2017, are AFFIRMED.
Defendant Raheem J. Brennerman awaits trial in two cases, one charging him with
criminal contempt, see 18 U.S.C. § 401(3), the other charging him with conspiratorial and
substantive bank and wire fraud, as well as visa fraud, see 18 U.S.C. §§ 1343, 1344,
1349, 1546. He now appeals from orders denying him bail pending trial in each case.
See 18 U.S.C. § 3142(e); see also id. § 3145(c) (authorizing appellate review of pretrial
detention orders under 28 U.S.C. § 1291). The government bore the burden of putting
forth sufficient evidence to support a preponderance showing that no conditions of
release could assure Brennerman’s presence at his trials. See 18 U.S.C. § 3142(f);
United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). Insofar as Judges Kaplan
and Sullivan each concluded that the government carried this burden, we review their
conclusions of law de novo, see United States v. Abuhamra, 389 F.3d 309, 317 (2d Cir.
2004), and the factual findings underlying those conclusions for clear error, see United
States v. English, 629 F.3d 311, 319 (2d Cir. 2011). The determination that a defendant
poses a risk of flight not susceptible to release conditions is “essentially factual and
require[s] little, if any, legal interpretation.” United States v. Berrios-Berrios, 791 F.2d
246, 250 (2d Cir. 1986). Thus, we will not reverse such a determination “unless on the
entire evidence we are left with the definite and firm conviction that a mistake has been
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committed.” United States v. Sabhnani, 493 F.3d at 75 (internal quotation marks
omitted); see United States v. Berrios-Berrios, 791 F.2d at 250–51. That is not our view
in these cases. In conducting our review, we assume the parties’ familiarity with the
facts and the record of prior proceedings, which we reference only as necessary to
explain our decision to affirm.
Brennerman was first identified as a risk of flight at his initial appearance on the
criminal contempt charge before Chief Judge Colleen McMahon. That factual
determination was amply supported by the court’s particular findings that Brennerman
lacked strong ties to the United States and had a history of deceit, both generally and
particularly in his dealings with the court. Specifically, Brennerman (1) is not a United
States citizen, (2) travels abroad frequently, (3) owns no property in the United States,
(4) lacks ties to the Southern District of New York, (5) lacks strong family ties in the
United States, (6) has used at least three different names, (7) has repeatedly
misrepresented his birthplace and citizenship, (8) has had his United States visa revoked,
(9) has previously disregarded court orders, and (10) made both demonstrably and
arguably false representations to the court. Such challenges as Brennerman raises to
these findings essentially duplicate arguments made to the district court and fail to
manifest any clear error.
Despite finding that “risk of flight is a very real possibility,” Chief Judge
McMahon determined that release conditions could be imposed to assure Brennerman’s
trial appearance because he had not attempted to flee when first alerted to the contempt
proceedings, and “contempt of court . . . is precisely the sort of charge where one would
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normally admit a defendant to bail.” Brennerman Ex. 4, at 51. Those conditions
provided for home detention and electronic monitoring; a $500,000 bond, signed by three
of Brennerman’s U.S. relatives and secured by $100,000 in cash posted by him; and
restricted travel within the Southern District of New York and the District of New Jersey.
After Brennerman was indicted on the pending fraud charges, which accuse him of
misappropriating over $300 million obtained from financial institutions, Judges Kaplan
and Sullivan, to whom the contempt and fraud cases were respectively assigned, revisited
the question of whether release conditions could reasonably assure defendant’s presence
at trial. Both judges concluded that they could not. Adopting Chief Judge McMahon’s
findings that Brennerman posed a risk of flight generally, Judge Kaplan orally concluded
that he was “much more” of a flight risk after the fraud indictment. Brennerman Ex. 9,
at 8. Judge Sullivan was of the same view, which he detailed in a written order: “Mr.
Brennerman is now charged with a much more serious crime or crimes that carry longer
penalties and higher guidelines [than contempt] and make the incentive to flee, much,
much greater.” Brennerman Ex. 12, at 2 (internal quotation marks omitted). Judge
Sullivan explained that the fraud charges exposed Brennerman to a Guidelines range of
57 to 71 months’ imprisonment, which was “9 to 12 times the term he would face for the
contempt charge alone.” Id. at 3.
Thus, the heightened severity of these charges, coupled with Defendant’s
substantial ties abroad—including the fact that Defendant is a foreign
citizen; his ties to Nigeria, a country from which extradition is difficult if
not impossible; his frequent foreign travel; the revocation of his United
States visa; his limited United States ties and assets; his use of multiple
names and social security numbers; and his history of false statements
under oath . . . support the Court’s finding that Mr. Brennerman does pose a
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risk of flight and that there are no conditions in isolation or in combination
that could secure his appearance given the changed circumstances.
Id. (internal quotation marks omitted). This record does not leave us with a “definite
and firm conviction” that two judges were mistaken in concluding that no release
conditions could reasonably assure Brennerman’s appearance at trial. United States v.
Sabhnani, 493 F.3d at 75.
In urging otherwise, Brennerman faults the government’s proffer of allegedly
fraudulent representations that he made to an alleged fraud victim while on bail. The
government was obliged to correct some of its initial representations but, as Judge
Sullivan observed, its central representation—that Brennerman “continued to engage with
the alleged victim in an attempt to further this supposedly fraudulent arrangement while
he was on bail—remain[ed] unaltered.” Brennerman Ex. 12, at 2. Even without this
concern, however, we would identify no clear error in the district courts’ findings that the
advent of serious fraud charges with potentially severe sentencing consequences is a
changed circumstance that, together with evidence of Brennerman’s foreign nationality
and contacts, misrepresentation of his identity, and disregard of court orders, supports a
preponderance finding that no conditions of release were reasonably likely to secure
Brennerman’s presence at trial.
Brennerman attempts to show that the government’s evidence of fraud is
insufficiently strong to support the courts’ conclusions as to heightened risk of flight.
See United States v. Briggs, 697 F.3d 98, 102 (2d Cir. 2012) (citing strength of
government’s evidence in finding that defendant presented substantial risk of flight).
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Specifically, he argues that the bank referenced in the indictment to illustrate his fraud
scheme is not federally insured as required to prove bank fraud, and his dealings with that
financial institution took place outside the United States. Even if correct, such
circumstances have no relevance to Brennerman’s alleged fraudulent dealings with other
banks, which include conduct in the United States, much less to the wire and visa fraud
charges that have no federal-insurance element.
In challenging the district court’s denial of bail, Brennerman also highlights his
lack of any prior criminal record, his rental of a Las Vegas apartment since 2013, his
possession of a Nevada identification card, his relatives in this country, and his
satisfaction of the bail conditions imposed by Chief Judge McMahon. The argument
essentially challenges the district courts’ failure to accord these factors more weight than
those supporting a heightened risk of flight after the fraud indictment. We accord
considerable discretion to district judges in weighing competing evidence, see United
States v. Oehne, 698 F.3d 119, 121 (2d Cir. 2012) (“‘[W]here there are two permissible
views of the evidence, the [district court’s] choice between them cannot be clearly
erroneous.’” (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985))), and cannot
identify clear error here in their preponderance finding that the record as a whole made it
more likely than not that no conditions of bail would reasonably secure Brennerman’s
attendance at trial, see, e.g., United States v. Yannai, 791 F.3d 226, 242 (2d Cir. 2015)
(defining “preponderance of the evidence” as “which circumstance was more likely than
not”).
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Nor is any different conclusion compelled by Brennerman’s willingness to submit
to electronic monitoring and home detention or by the fact that certain relatives are
willing to act as sureties. See, e.g., United States v. Mercedes, 254 F.3d 433, 437 (2d
Cir. 2001) (concluding that electronic monitoring and home detention were insufficient in
case of defendant who posed substantial risk of flight, and reversing grant of pretrial
release even though defendant’s fiancée and siblings would act as sureties); United States
v. Orena, 986 F.2d 628, 632 (2d Cir. 1993) (recognizing ease with which electronic
monitoring can be circumvented).
In sum, we identify no clear error in the district courts’ factual findings, which
were sufficient to deny him bail under 18 U.S.C. § 3142(e). We have considered
Brennerman’s other arguments and conclude that they are without merit. Accordingly,
the district courts’ detention orders are AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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