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United States v. Salkicevic

United States District Court, N.D. Illinois, Eastern Division

February 10, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
MEDIHA MEDY SALKICEVIC, Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, Magistrate Judge.

Ms. Salkicevic has been charged in two counts of a three-count indictment in the Eastern District of Missouri. See 15 CR 00049. (Eastern District of Missouri, St. Louis). Counts I and III charge plaintiff and four others with conspiracy to provide material support to terrorists in violation of 18 U.S.C. § 2339A. Each count carries a minimum mandatory sentence of 15 years.

On Saturday, February 7, 2015, following her arrest on Friday the 6th, a removal hearing was held. The government sought to have the defendant removed in custody to St. Louis. While not contesting identity, the defendant moved for an accelerated bond hearing.[1] Pursuant to that request, a bond hearing was held on February 9th at 10:00 a.m.[2] The parties have not filed a brief in support of their respective positions or called the court's attention to any cases.

A.

The Bail Reform Act's general preference for liberty - a preference that is consistent with and demanded by our entire heritage - underlies the axiom that pretrial detention will occur only when necessary. Hamilton v. Lyons, 74 F.3d 99, 105 (5th Cir. 1996). As the Supreme Court has stressed, "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755 (1987). Thus, the Bail Reform Act requires that a person charged with an offense shall be released on personal recognizance or upon execution of an unsecured appearance bond unless further conditions are necessary to reasonably assure attendance at trial and the safety of the community. 18 U.S.C. § 3142(a) and (b).

The Act recognizes that bond decisions are necessarily exercises in uncertain prophesy. Ward v. United States, 76 S.Ct. 1063 (1956)(opinion of Frankfurter, J.). But at the same time, the Act is premised on the theory that there is nothing inherently unattainable about a prediction of future criminal conduct or flight. The fact-intensive assessment of prescribed statutory factors and the various safeguards under the Act are specifically designed to further the accuracy of that determination. Salerno, 481 U.S. at 751.

Under the Act, there is a rebuttable presumption that in cases involving certain specified offenses that Congress has deemed especially serious, there is no set of conditions that will reasonably assure the appearance of the defendant at trial or the safety of the community. The crimes charged in this case fall within that classification. See 18 U.S.C. § 3142(e)(3)(C). Indeed, the Bail Reform Act specifically compels courts to take into account whether a Federal crime of terrorism has been charged when assessing detention issues. 18 U.S.C. § 3142(g)(1); United States v. Sheikh, 994 F.Supp.2d 736, 739 (E.D. N.C. 2014).

"Although most rebuttable presumptions found in the law disappear when any evidence is presented by the opponent of the presumption, the rebuttable presumption of § 3142(e) is not such a bursting bubble.'" United States v. Garcia, 801 F.Supp. 258, 261 (S.D.Iowa 1992) (citing United States v. Jessup, 757 F.2d 378, 383 (1st Cir.1985)). See also United States v. Stone, 608 F.3d 939, 945-946 (6th Cir.2010).

"[T]he presumption of dangerousness... represents Congressional findings that certain offenders... are likely to continue to engage in criminal conduct undeterred either by the pendency of charges against them or by the imposition of monetary bond or other release conditions.' To rebut the presumption, therefore, a defendant should present all the special features of his case' that take it outside the congressional paradigm [.]'" Stone, 608 F.3d at 946. To rebut the presumption either of dangerousness or of flight, the defendant must produce some evidence. Id. ; Sheikh, 994 F.2d at 739; United States v. Kandasamy, 2008 WL 2660610, 1-2 (E.D.N.Y. 2008). Arguments are not evidence in any context. Cf. United States v. Philpot, 733 F.3d 734, 747 (7th Cir.2013); In re: Payne, 431 F.3d 1055, 1066 (7th Cir. 2005)(Posner, J.)(unsupported statements in oral argument are not sufficient).

While the defendant bears a limited burden of production, the ultimate burden of persuasion remains with the government to show by clear and convincing evidence that the defendant presents a danger to the community, and by the lesser standard of a preponderance of the evidence that the defendant presents a risk of flight. Kandasamy, 2008 WL 2660610 at 1-2. Satisfying the burden of production does not eliminate the presumption favoring detention; it "remains a factor to be considered among those weighed by the district court." Stone, 608 F.3d at 945-946; United States v. Bonilla, 388 Fed.Appx. 78 (2nd Cir. 2010).

The statutory factors that inform bond decisions in this case are not different than in any other. They are: the circumstances of the offence charged, the weight of the evidence, the history and characteristics of the person, including whether at the time of the current offense the person was on other release pending trial under federal, state or local law, the person's family ties, length of residence in the community, appearance at court proceedings, and the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 1342(g)(1)-(4).[3]

B.

After conducting a detention hearing as required by § 3142(f), and upon consideration of the presentations by the government and the defendant and the report prepared by the United States Pretrial Services Office ("PTSO Report"), which recommends detention, I find that the statutory presumption that no set of conditions will reasonably assure the attendance of the defendant at all court proceedings and protect the community has not been rebutted. Further, I find that even if it had been, the government has shown by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant in Missouri. And, it has shown by clear and convincing evidence, that there is no ...


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