United States v. Zaghmot

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 8 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1348
(D.C. No. 00-CR-326-S)
HASSAN ZAGHMOT, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, BRISCOE, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant Hassan Zaghmot appeals the district court’s denial of
release pending trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3145(c), and we affirm.
Zaghmot is charged with conspiring to unlawfully manufacture
methamphetamine by distributing pseudoephedrine, a precursor chemical in the
manufacture of methamphetamine, in violation of 21 U.S.C. § 841. After his
arrest, a United States magistrate judge set a cash or property bond in the amount
of $100,000, along with special conditions of release.
Before Zaghmot posted bond, the government filed a motion to stay the
release order pending district court review of the magistrate judge’s decision to
release Zaghmot on bond. See 18 U.S.C. § 3145(a)(1). The district court granted
the requested stay and scheduled an evidentiary hearing on the government’s
motion for review.
The elemental reason for detaining a defendant pending trial is that, after
a hearing, a “judicial officer finds that no condition or combination of conditions
will reasonably assure the appearance of the person as required and the safety of
any other person and the community.” See § 3142(e). Factors to be considered in
this determination involve the nature and circumstances of the offense, including
whether the offense is one of involving violence or narcotics; the weight of the
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evidence; the history and characteristics of the defendant; and the nature and
seriousness of the danger to any person or the community. See § 3142(g).
In its motion, the government invoked § 3142(e), which provides that
“upon a finding of probable cause that defendant has committed a federal drug
offense carrying a maximum prison term of ten years or more, a rebuttable
presumption arises that no conditions of release will assure defendant’s
appearance and the safety of the community.” United States v. Stricklin, 932 F.2d
1353, 1354 (10th Cir. 1991). An indictment constitutes a determination of
probable cause. See id. Under § 3142(e), once the rebuttable presumption is
invoked, the burden of production shifts to the defendant but the burden of
persuasion regarding risk of flight and danger to the community always remains
with the government. The defendant’s burden of production is not heavy, but
some evidence must be produced. Even if a defendant’s burden of production is
met, the presumption remains a factor for consideration by the district court in
determining whether to release or detain. See Stricklin, 932 F.2d at 1354-55.
At the evidentiary hearing on Zaghmot’s status pending trial, the
government presented evidence concerning the scope of the charged conspiracy
and Zaghmot’s alleged role in it (which, if proven, would result in at least twenty
years’ imprisonment); the amount of currency and bank account deposits found in
Zaghmot’s control; Zaghmot’s overseas financial transactions, resources, and
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connections; and Zaghmot’s travel plans to join his wife and children on a family
visit in Syria, a country which has no extradition treaty with the United States.
Much of this information had not been presented at the initial bail proceeding.
For his part, Zaghmot proffered a statement from his wife indicating her
intention to return from Syria in time for her children to begin the school year in
Colorado. He also submitted a letter attesting to his good character from the
Colorado attorney who assisted him with his successful asylum application (as a
Palestinian refugee from Syria). Zaghmot argued that the § 3142(e) presumption
was outweighed by his ties to the community, his inability to flee due to the
seizure of his passport and property, and the availability of electronic monitoring.
At the conclusion of the hearing, the court made findings of fact based
on the evidence, noted the statutory presumption, and determined that “the
government has, in fact, presented a substantial enough case for the Court to
conclude that there . . . is no condition or conditions which would assure against
the defendant’s risk of flight and assure his presence for subsequent proceedings.”
Appellant’s App., tab 4, at 108. Therefore, the court ordered Zaghmot detained
pending trial.
On appeal, Zaghmot attacks the district court’s findings concerning the
charged conspiracy on the grounds that the government’s evidence is largely
based on the claims of two unreliable informants. He also argues that the court
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failed to give adequate weight to his community ties, his lack of a previous
criminal record, or the fact that the government had seized his passport and
money. This court’s “review of detention or release orders is plenary as to mixed
questions of law and fact and independent, with due deference to the district
court’s purely factual findings.” Stricklin, 932 F.2d at 1355.
Here, the district court analyzed the § 3142(g) factors and correctly
determined that the government had carried its burden of persuasion on the risk of
flight issue. In light of the grand jury indictment, Zaghmot’s attack on the
evidence of his involvement in the conspiracy has little bearing on the bail
determination. Moreover, the inferences the district court drew from Zaghmot’s
personal circumstances are reasonable. Based on our review of the parties’ briefs
on appeal and appendices, we conclude that the factual findings underlying the
detention order are not clearly erroneous. The district court did not err in finding
that Zaghmot posed a serious risk of fleeing and that no condition or combination
of conditions would reasonably assure his appearance if he were released. The
judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
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