MOTION FOR CONDITIONAL BOND

Transcription

1 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 1 of 9 Pg ID 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, -vs- Plaintiff, File No HUSSAIN AL KHAWAHIR, Defendant. MOTION FOR CONDITIONAL BOND Defendant Hussain Al Khawahir, by his attorney JAMES C. HOWARTH, requests that this Court set a conditional bond in this cause and in support thereof says as follows: 1. He is charged in this Court with the offenses of making a false statement to a government agent, contrary to 18 U.S.C and possession of an altered passport, contrary to 18 U.S.C He is currently incarcerated at the Wayne County Jail after having been remanded without bond upon his own consent. 3. He consented to the above detention, in significant part because he was aware that the United States Customs and Border Protection had placed a detainer hold against him.

2 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 2 of 9 Pg ID He believes and therefore proffers here that but for the above hold he would be eligible for bond consideration in this Court. country. community. 5. He has no prior criminal history, either in this country or in any foreign 6. He is not charged with crimes of violence or narcotics. 7. He has a good and meritorious defense to the charges against him. 8. He represents neither a risk of flight nor a danger to a person or the WHEREFORE, Defendant Hussain Al Khawahir, requests that this Court set a reasonable bond, conditioned on a release of the aforementioned hold placed by United States Customs and Border Protection. Dated: May 20, 2013 Respectfully submitted, /s/james C. Howarth JAMES C. HOWARTH (P15179) Attorney for Defendant 615 Griswold, Suite 820 Detroit, Michigan Phone: (313) Fax: (313) james-howarth@att.net

3 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 3 of 9 Pg ID 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, File No HUSSAIN AL KHAWAHIR, Defendant. MEMORANDUM IN SUPPORT OF MOTION FOR CONDITIONAL BOND BACKGROUND Mr. Hussain Al Khawahir is a 33 year old married man with three young children and is a citizen of the Kingdom of Saudi Arabia. Prior to May 11, 2013, he had one entry into the United States, in April 2012, to visit a nephew who was to graduate from the University of Toledo (in Toledo, Ohio). On May 11, 2013, Mr. Al Khawahir disembarked an international flight from Riyadh, Saudi Arabia to Detroit Metropolitan Airport, by way of Amsterdam, Netherlands. At that time Al Khawahir was in possession of two passports and one pressure cooker among his belongings. The above facts and the allegation that he provided conflicting information about the pressure cooker to Customs Border -vs- -1-

4 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 4 of 9 Pg ID 13 Protection agents resulted in charges of altering a passport and giving materially false information to a federal agent. Upon arrest and subsequent arraignment in the District Court for the Eastern District of Michigan, a detention hearing was scheduled for May 14, At that hearing, before the Honorable Mark A. Randon, Magistrate Judge, Al Khawahir waived the hearing and temporarily consented to detention. The reason for his decision, as stated on the record, was that since the CBP hold would ostensibly trump any district court grant of bond, the posting of a bond, if set, would be counterproductive. 1 Defendant, on further reflection, now believes that the grant of a bond, secured or unsecured, if conditioned on a possible release of the CBP hold, would best protect his asserted right to release from custody, without the damaging, unintended consequences. GENERAL LEGAL PRINCIPLES REGARDING PRETRIAL RELEASE The Bail Reform Act of 1984, 18 U.S.C et seq. presents the reviewing court with four (4) options: 1 Should a court grant a bond (and it be posted) while a hold is still active against a defendant, the effect will be that such defendant will not gain actual release, but nevertheless be considered to be at liberty, thus losing the time served status on the underlying offense. -2-

5 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 5 of 9 Pg ID 14 (1) Release the defendant on personal recognizance or unsecured bond. (2) Release the defendant on conditions. (3) Temporarily detain defendant to permit revocation of conditional release, deportation or exclusion. (4) Detain defendant. (emphasis added). The Act, above, sets numerous criteria which [t]he judicial officer shall 2 consider in determining appropriate bond. Defendant believes that most of the factors make the granting of bond reasonable, to wit: (1) The offenses are not crimes of violence, terrorism, minor victims, controlled substances or firearms. (2) The weight of the evidence can fairly be categorized as slight. (3) He is a person of good character. (4) He has been gainfully employed in the same job for fourteen (14) years. (5) He has no past criminal record. (6) He has no history of substance abuse. (7) He has never been known to fail to appear when required in any court. (8) He was not on probation or parole at the time of arrest. (9) He poses no known danger to any individual person or to the community. (10) Although not a citizen of the United States, he made immediate contact with the consulate of his own country, Saudi Arabia, which government has pledged its support of Mr. Al Khawahir. The Bail Reform Act, by its language, mandates pretrial release ( shall order pretrial release ) on personal recognizance or an unsecured appearance bond unless 2 18 U.S.C. 3142(g) -3-

6 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 6 of 9 Pg ID 15 the court determines that such release will not reasonably assure the person s appearance or will endanger the safety of any other person or the community. 3 The factors cited above seem to reasonably indicate that Hussain Al Khawahir, regardless of his citizenship, is a good candidate for pretrial release. For one thing, even if this Court grants defendant s petition, he will still be held,unless or until the CBP, or an administrative law judge, determines that he does not present a danger and has apparently violated no laws with respect to his entry into the United States. Therefore there is a condition or combination of conditions [which] will reasonably assure [his] appearance... and the safety of any other person and the community. th Cf. United States v. Stone, 608 F.3d 939, 945 (6 Cir.), cert denied, 131 S. Ct. 439 (2010); 18 U.S.C. 3142(e)(1). Factors which might further be considered herein were recently reiterated in th United States v. Watson, 475 Fed. Appx. 598 (6 Cir. 2012) where the Court relied nd upon United States v. El-Hage, 213 F.3d 74, 79 (2 Cir. 2000). Those factors were: (1) the length of the detention; (2) the extent of the prosecution s responsibility for delay; (3) the gravity of the charges and; (4) the strength of the evidence upon which the detention is based U.S.C. 3142(B) -4-

7 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 7 of 9 Pg ID 16 Here, detention will certainly be exacerbated by the fact that there are dual holds on defendant. Therefore, as to factor (1) we can speed the process by removing one hold now, rather than waiting for the CBP and then having to come back to this Court to relitigate the obvious. As to (2), the prosecution may not be personally responsible for the delay, but then defendant is in no way responsible. As to factor (3), the charges here do not even appear to be grave, and on second thought may be even less so. Mr. Al Khawahir actually was in possession of two passports, one valid, 4 one expired. The passport that was purportedly altered was the expired document. The false statement concerned whether the troublesome kitchen implement was brought here because his nephew couldn t seem to find such a device in Toledo or because the nephew s previous pot was cheap and broken; possibly a distinction without much difference. The fourth factor, on strength of evidence, here seems to be subsumed into the argument on the third factor. In conclusion, defendant Al Khawahir asks this Court to consider the above facts and grant him conditional pretrial release, upon condition of the removal of all federal holds. 4 Defendant carried the expired passport because secured to it was a valid travel visa. To present immigration authorities with the visa, possession of the otherwise expired passport was a physical requirement and in no way an intent to deceive. -5-

8 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 8 of 9 Pg ID 17 WHEREFORE, Defendant Hussain Al Khawahir, requests that this Court set a reasonable bond, conditioned on a release of the aforementioned hold placed by United States Customs and Border Protection. Dated: May 20, 2013 Respectfully submitted, /s/james C. Howarth JAMES C. HOWARTH (P15179) Attorney for Defendant 615 Griswold, Suite 820 Detroit, Michigan Phone: (313) Fax: (313) james-howarth@att.net -6-

9 2:13-mj DUTY Doc # 8 Filed 05/20/13 Pg 9 of 9 Pg ID 18 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, -vs- Plaintiff, File No HUSSAIN AL KHAWAHIR, Defendant. CERTIFICATE OF SERVICE th I, JAMES C. HOWARTH, hereby certify that on the 20 day of May 2013, I electronically filed Motion for Conditional Bond and Memorandum in Support with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Magistrate Judge Mark A. Randon, AUSA Cathleen Corken. Dated: May 20, 2013 Respectfully submitted, /s/james C. Howarth JAMES C. HOWARTH (P15179) Attorney for Defendant 615 Griswold, Suite 820 Detroit, Michigan Phone: (313) Fax: (313) james-howarth@att.net