United States District Court, E.D. North Carolina, Western Division
Terrence W. Boyle, Chief United States District Judge.
cause comes before the Court on defendant's appeal of a
magistrate judge order granting the government's motion
for a detention hearing pursuant to 18 U.S.C. §
3142(f)(2). The government has responded, and a hearing on
the matter was held before the undersigned on January 30,
2019, at Raleigh, North Carolina. For the reasons that
follow, the Court finds that the government has failed to
satisfy its burden to show that it is entitled to a detention
hearing pursuant to 18 U.S.C.§ 3142(f)(2) in this case.
was charged by way of criminal complaint with one count of
marriage fraud and aiding and abetting and one count of fraud
and misuse of visa, permits, and other documents. 8 U.S.C.
§ 1325(c); 18 U.S.C. §§ 2 and 1546(a). [DE 1].
Defendant was arrested on January 25, 2019. [DE 3]. On
January 28, 2019, defendant appeared before a United States
Magistrate Judge for an initial appearance pursuant to Fed R.
Crim. P. 5, during which the government made an oral motion
for detention. A preliminary and detention hearing were
scheduled for January 31, 2019, and defendant was ordered
temporarily detained. [DE 7], On January 29, 2019, defendant
filed J i the instant appeal of the
magistrate judge's order granting a detention hearing.
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).
The Bail Reform Act of 1984 provides provisions for pretrial
detention which "fall within that carefully limited
exception." Id. Pursuant to the provision of
the Bail Reform Act, a detention hearing may be held where
the circumstances described in § 3l42(f)(1)(A)-(E) are
present, or where the matter is one which involves a serious
risk that the defendant will flee or a serious risk that the
defendant will obstruct or attempt to obstruct justice or
threaten, intimidate, injure or attempt to threaten,
intimidate or injure a prospective witness or juror. 18
U.S.C. § 3l42(f)(2)(A)-(B). "A [detention] hearing
can be held only if one of the six circumstances listed in
(f)(1) and (2) is present. ..." United States v.
Byrd, 969 F.2d 106, 109 (5th Cir. 1992). It is the
government's burden to establish that it is entitled to a
detention hearing by a preponderance of the evidence.
United States v. Friedman, 837 F.2d 48, 49 (2d Cir.
1988). If the judicial officer finds that the
government has satisfied its threshold burden, a detention
hearing will be held to determine if the defendant should be
released or detained pending trial. 18 U.S.C. § 3142(g);
United States v. Powers, 318 F.Supp.2d 339, 341
(W.D. Va. 2004).
current posture, the Court considers de novo whether
in this case the government has satisfied its threshold
burden. See 28 U.S.C. § 636.
parties agree that the circumstances described in §
3142(f)(1) are not present. Therefore, in order to be
entitled to a detention hearing, the government must show
that there is a serious risk defendant will flee or a serious
risk that he will obstruct or attempt to obstruct justice or
threaten, injure, or intimidate or attempt to threaten,
injure, or intimidate a prospective witness or juror.
support of its request for a detention hearing, the
government offered the testimony of Special Agent Moultis
with the Department of Homeland Security.
Moultis testified generally about the marriage fraud scheme
alleged and defendant's role in the scheme. Regarding the
specific issues for the Court's consideration here, Agent
Moultis was unaware that defendant had made any specific
threats to any prospective witness or juror. There were no
recorded jail calls and no evidence gathered during law
enforcement's surveillance of defendant's activities
that would support that he had threatened or attempted to
threaten or intimidate anyone or otherwise obstruct justice.
Agent Moultis did testify that he witnessed defendant
"mean mugging," also described as "staring
down," other alleged co-conspirators while being held in
detention. Special Agent Moultis also described the reaction
of an alleged co-conspirator when he was informed that he
would be going back to his cell near where defendant was
being held; this individual dropped to his hands and knees
and begged not to go back. However, this alleged
co-conspirator did not tell Special Agent Moultis that he had
been threatened or intimidated by defendant, even when
pressed as to why he did not want to return. Finally, Special
Agent Moultis testified that another alleged co-conspirator
who is currently on release was recently assaulted and has a
black eye, but Special Agent Moultis further testified that
he has no evidence to support that the assault was a result
of any action by defendant. Without more, the government
simply has not established by a preponderance of the evidence
that there is a serious risk that the defendant will obstruct
or attempt to obstruct justice or threaten, intimidate,
injure or attempt to threaten, intimidate or injure a
prospective witness or juror.
government's showing as to whether there is a serious
risk that defendant will flee was slightly more compelling,
but again failed to satisfy the preponderance standard.
Defendant, a naturalized United States citizen, was born and
raised in Ghana and has returned to Ghana frequently in the
last few years. Special Agent Moultis also testified that
they had not located defendant's passport during a search
of his apartment. However, defendant remains on active duty
in the United States Army stationed at Ft. Bragg, and upon
his release will presumably return to his duty station and be
governed by the Army's rules of attendance and
compliance. Though Special Agent Moultis testified that
non-judicial action had been taken against defendant by the
Army for failure to comply with orders of his superior
officers, this alone is insufficient to demonstrate that the
defendant is a serious risk of flight, and notably
no judicial action has been taken by ...