United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY COLE, Magistrate Judge.
The Bail Reform Act's preference for liberty - a preference that is consistent with and demanded by our entire heritage - ensures that pretrial detention will occur only in the rarest of circumstances. 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, 18 U.S.C. § 3142(a) and (b) require 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.
The preference for release accounts for the requirement that the judge consider the possibility of less restrictive alternatives to detention. United States v. Infelise, 934 F.2d 103, 105 (7th Cir. 1991)(Posner, J.). Doubts regarding the propriety of release should be resolved in the defendant's favor. United States v. Wilbon, 54 F.3d 788 (10th Cir. 1995); United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991); United States v. Barnett, 986 F.Supp. 385, 392 (W.D. La. 1997)(collecting cases).
Thus, merely because Mr. Kahn is charged with an offense involving threats does not mean that, as a matter of law, bond cannot be granted. Indeed, there are cases involving crimes of violence or drug trafficking where bond either has been granted or where the court made clear that bond was available. See Infelise, 934 F.2d at 105; United States v. Leonti, 326 F.3d 1111, 1114 (9th Cir. 2003); United States v. O'Dell, 204 F.3d 829 (8th Cir. 2000); United States v. Gigantei, 39 F.3d 42, 48 (2nd Cir. 1994). United States v. Ploof, 851 F.2d 7, 11-12 (1st Cir. 1988) stressed that even where there was serious risk of obstruction, intimidation, threat, or death to prospective witness, detention still requires showing that no set of conditions will " reasonably assure" safety. (Emphasis in original).
Since decisions under the Bail Reform Act are discretionary, there must be a consideration of the factors relevant to that exercise, cf., United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The factors that inform bond decisions are: the nature of 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).
The Bail Reform Act does not require the government to show with certainty that a particular defendant poses a risk of flight or danger to the community. It recognizes that to some extent bond decisions are exercises in uncertain prophesy. But at the same time the Act is properly premised on the theory that there is nothing inherently unattainable about a prediction of future criminal conduct, and the fact-intensive assessment of all relevant factors and the various safeguards under the Act are specifically designed to further the accuracy of that determination. Salerno, 481 U.S. at 751. It is significant that even the defendant in Salerno who had contended that the Bail Reform Act impermissibly allowing detention based on predictions of future dangerousness, conceded that an arrestee may be incarcerated until trial if he presents a danger to witnesses (or a risk of flight). 481 U.S. at 749. Thus, Mr. Khan's lawyer's statement that a judge can't say that Mr. Khan will in all probability act in a particular way in the future if flatly wrong. While the prediction, like any prediction, may be uncertain, it is a task that the Bail Reform Act mandates a judge to make.
After reviewing each of the statutory factors prescribed by the Act, the government's oral motion for detention is granted. As explained in detail at the hearing, the government has shown by clear and convincing evidence that there is no condition or set of conditions that will reasonably assure the safety of the community, and it has shown by a preponderance of the evidence that there is no condition or set of conditions that will reasonably assure the defendant's appearance at trial.
The evidence at the detention hearing consisted in part of the defendant's own postings on his publicly available Facebook page, which were replete with unspecified death threats, which were set forth in the Complaint, issued on May 15, 2015. In brief, the defendant's Facebook postings expressed the defendant's increasing, only partly focused hostility towards American and Pakistani political figures, including Mayor Emmanuel. Since the beginning of May 2015, the posts had become increasingly threatening. For example, the defendant announced that he was going to hunt aggressively for a "high net worth individual" to shoot over the course of the next month before he left America for Pakistan. He noted that he was not leaving America without getting "revenge" even if it cost him his life. The evidence was that the defendant had in fact purchased an airline ticket from Chicago to Pakistan departing on June 8 and returning July 20.
Other posts announced that the defendant, a naturalized American citizen born in Pakistan, had guns and other weapons, which he displayed on his Facebook page. He announced that it was time to stop moralizing and to "start fighting;" to pick up arms and raise hell. For him, fighting back was what counted. In one posting, he announced that "tonight might be a bloody night", "a murderous night." In a later posting also on May 7, he announced that he was "goin [sic] hunting tonight baby!" He said that if he saw "high-value target, " he was going to "exploit it." He wanted this, he announced, "to be a real human tragedy. Much mourned." He said that he was going to "hunt aggressively tonight. Keep an eye out for ideal victims."
According to his post on May 8, 2015 the defendant boasted that he had had a good trial run that evening and that he had seen "a couple of excellent targets" that apparently fit his profile for killing. He said that "Inshallah [God willing] the deed will be done well before the deadline I have set." He stressed that when he said something, "it means I will do it. The rest is opportune timing." A week later, the defendant announced that "the gun is cocked and ready to go." He was he said going "to get my revenge, and that involves putting bullets in somebody's body...." He again said that he was "not leaving America without getting my revenge even if it costs me my life. And that's that."
What made these rather pointed and escalating threats even more disturbing was the fact that the defendant actually had guns and other weapons, which he proudly displayed on his Facebook page. Disturbingly, none of these weapons was known to his father even though the defendant was living under his father's roof.
As the June 8, 2015 departure date approached, law enforcement established surveillance outside the defense defendant's residence and followed him for several hours, noting that he picked up several "passengers" whom he drove to various locations. On May 14, 2015, the defendant was stopped by DuPage Sheriffs deputies. He acknowledged having a gun in the car - which was perfectly consistent with his assurance that he was going hunting to kill someone. The police seized it and found it to be loaded. He was taken into custody. Thereafter, according to the criminal complaint in ...