The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
The issue before the Court is whether the Defendant, Mr. Arnaout,
should be detained pending trial or whether he should be placed on bond,
with the type of conditions proposed by the Defense.
The Court takes judicial notice of the record in prior case number 02
CR 414, in which Mr. Arnaout was a defendant. The ruling of the Court at
the probable cause hearing in case number 02 CR 414 is attached hereto
for reference purposes.
As is pertinent here, and in abbreviated form, the indictment charges
as follows: Mr. Arnaout became associated with Osama Bin Laden in the
late 1980's. In about 1991, Arnaout worked with members of al Qaeda to
purchase large quantities of weapons and to distribute them to various
Mujahideen (fighter) camps, including al Qaeda camps.
The indictment continues: In 1993, Mr. Arnaout assumed formal
management of Benevolence International Foundation ("BIF") and Mr.
Arnaout remained in that position until, at least, his arrest this year.
BIF was a charitable organization whose ostensible purpose was to use
donated funds solely for humanitarian purposes, with a strong overseas
focus. The focus of BIF's appeal for donated funds was principally to
Muslim donors. However, Arnaout has always secretly used a portion of the
money raised by BIF to support Mujahideen, including al Queda, engaged in
armed confrontations and violence overseas, such as in Chechnya and
Bosnia-Herzegovina (a fact concealed from many donors to BIF).
The Government's principal argument herein is that the Defendant is a
risk of flight, which, under uniform case law, the Government must
establish by a preponderance of the evidence.
The Court has taken into account the available information and
arguments on both sides concerning the factors delineated at
18 U.S.C. § 3142 (g).
The Court finds, however, that there are several overriding factors in
this case. In considering the risks of flight herein, implicitly, the
Court must assess (A) the Defendant's mental state (including his
motivation to flee) and (B) whether the Defendant has the physical means
As to mental state: Mr. Arnaout is charged with racketeering
conspiracy, providing material support to organizations engaged in
violent activities, money laundering, mail fraud and wire fraud. Mr.
Arnaout faces a possible 90 year sentence if convicted of these charges.
The Government also states that upon conviction it will seek sentencing
enhancements that would result in Mr. Arnaout being sentenced to life in
prison. In these circumstances, and given the post 9/11 climate in this
country, regardless of Mr. Arnaout's actual guilt or innocence of all
this, the natural human tendency has to be for Mr. Arnaout to
apprehensively feel he's in a difficult and opprobrious situation, from
which flows an incentive and risk for flight. In addition, the evidence
offered by the Government was that even several months prior to Mr.
Arnaout's ever being formally charged in a criminal complaint, Mr.
Arnaout discussed with another individual whether he should leave for
Saudi Arabia (where Mr. Arnaout's Mother and siblings live) and not
return to the United States. Further government evidence was that a month
or two before being formally charged criminally, Mr. Arnaout advised the
Benevolence International Foundation representative in Pakistan to leave
and relocate to Afghanistan with all the money, to avoid the Pakistani
intelligence authorities who were looking for that Pakistan
As to physical means: The Defendant has an extensive international
network of contacts, which is not available to the average person.
Besides a sister organization in Canada and an office in New Jersey,
Benevolence International Foundation ("BIF")*fn1 had about twelve
offices overseas; namely, in Pakistan, Bosnia, Yemen, Sudan, Azerbaijan,
Tajikistan, Bangladesh, Turkey, Dagestan, Soviet Georgia, China and
Ingueshita (moved from Chechnya). BIF also had charitable projects in a
number of these countries plus Afghanistan. As stated, Defendant has
family in Saudi Arabia and he was born and raised in Syria. And Defendant
used to reside in Florida.
The Court thus perceives that Defendant has the requisite mental state
and the available physical means to create a risk of flight.
It also bears noting that electronic monitoring can't stop a person
from fleeing. It can be noted, too, that all the property previously
proposed to be posted as bond security is either owned by BIB or members
of the community. There thus would be no financial harm incurred by
Defendant's family if he flees, which therefore creates significantly
less incentive ...