Case: 1:10-cr-00387-SL Doc #: 898 Filed: 06/04/12 1 of 5. PageID #: 18606 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA, CASE NO. 1:10CR387 Plaintiff, JUDGE SARA LIOI v. GOVERNMENT S RESPONSE TO DEFENDANT GABOR S MOTION FOR RELEASE FROM DETENTION PENDING SENTENCING JAMES C. DIMORA, et al., Defendants. Now comes the United States of America, by and through its attorneys, Barbara L. McQuade, United States Attorney, and Assistant United States Attorneys Antoinette T. Bacon, Nancy L. Kelley, and Ann C. Rowland and hereby responds to Defendant Gabor s Motion for Release from Custody (Doc. 893. This Court previously found, pursuant to Title 18, Section 3143, United States Code, that Defendant Gabor failed to meet his burden by clear and convincing evidence that he is not likely to flee or pose a danger to the community. 18 U.S.C. 3143(a(1, provides: (a(1 Except as provided in paragraph (2, the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b or (c.
Case: 1:10-cr-00387-SL Doc #: 898 Filed: 06/04/12 2 of 5. PageID #: 18607 Defendant Gabor now asks this Court to conduct another hearing on this issue. In his motion, Defendant Gabor previews the arguments he would make at a hearing on this Motion: (1 that he has strong ties to the community; (2 that he continues to maintain his innocence, and (3 that he is not a danger to the community as evidenced by the fact that no acts of violence were alleged as part of the criminal conduct. At the time the Court made its prior determination, the Court was well aware of Defendant Gabor s ties to the community; that he maintained his innocence by asserting his right to a jury trial and that the indictment and trial testimony did not allege any acts of violence. Having that information in mind, the Court ordered pre-sentencing detention. Nothing in Defendant Gabor s Motion warrants a hearing. This Court should continue to order Gabor detained without further hearing. Gabor also cites to his prior compliance with pretrial services. While prior to trial he was presumed innocent, Gabor is now facing a considerable prison sentence. As this Court recognized in an order denying co-defendant Dimora s release on bond: It is not unusual for persons seeking pre-sentence release to point to their compliance with pre-trial release orders as evidence that they will appear for sentencing. United States v. Hanhardt, 173 F. Supp. 2d 801, 806 (N.D. Ill. 2001 (emphasis in original, rev'd in part on other grounds, 361 F.3d 382 (7th Cir. 2004. The argument is routinely rejected because prior to trial there is the possibility of no imprisonment, which evaporates upon a finding of guilt. Id. (citing United States v. Manso-Portes, 838 F.2d 889 (7th Cir. 1987. See also United States v. Jinwright, No. 3:09CR67-W, 2010 U.S. Dist. LEXIS 85677, at *18 (W.D.N.C. July 23, 2010 ( Something has changed since trial; Defendant is no longer presumed innocent but is guilty of the counts of conviction. His legal status has changed, increasing his incentive to flee.. (Doc. 867 at 7-8. 2
Case: 1:10-cr-00387-SL Doc #: 898 Filed: 06/04/12 3 of 5. PageID #: 18608 On or about May 10, 2012, the Government provided to the United States Probation Officer, with copies to defense counsel, the Government s estimation of the potential Guidelines range for Defendant Gabor. The Government wrote as follows: Similarly, Defendant Gabor s underlying convictions related to fraud, bribery and obstruction, which group under 3D1.2. In the government s view, the following is a correct application of the United States Sentencing Guidelines for Michael Gabor: Base Offense Level 14 2C1.1(a More than One Bribe 2 2C1.1(b(1 Offense Involved Elected Official 4 2C1.1(b(3 Amount of the bribe, value of the benefit conferred or to be conferred, loss or anticipated loss to the government (>$120,000 to >$400,000 1 10-14 2C1.1(b(2& 2B1.1(b(1 Obstruction of Justice 2 3C1.1 Total Offense Level 32-36 Approximately two weeks after learning that he faces the high sentence calculated above, Defendant Gabor filed the instant motion seeking release pending sentencing. Defendant Gabor 1 The Government will provide information to the Court at sentencing that details the loss amounts based on all three factors in U.S.S.G. 2C1.1(b(2, for the Court s determination of the appropriate loss figure in this case. The Government believes that the lowest amount attributable to Defendant Gabor would exceed $120,000 and the highest amount would exceed $400,000. If the Court found that Gabor should be responsible for the loss of the entire RICO conspiracy (see 2E1.1(a(2, the loss could be greater. 3
Case: 1:10-cr-00387-SL Doc #: 898 Filed: 06/04/12 4 of 5. PageID #: 18609 has not established by clear and convincing evidence that he does not pose a flight risk and is not a danger to the community. Nothing in Defendant s motion merits a hearing on the matter. Respectfully submitted, Eric H. Holder, Jr. Attorney General of the United States Barbara L. McQuade United States Attorney Eastern District of Michigan By: /s/ Antoinette T. Bacon Antoinette T. Bacon (DC: 474696 Nancy L. Kelley (OH: 0020071 Ann C. Rowland (OH: 0015156 Assistant U. S. Attorneys 801 West Superior Avenue, Suite 400 Cleveland, Ohio 44308 (216 622-3966 (216 522-2403 (facsimile E-mail: Nancy.Kelley@usdoj.gov E-mail: Antoinette.T.Bacon@usdoj.gov E-mail: Ann.Rowland@usdoj.gov 4
Case: 1:10-cr-00387-SL Doc #: 898 Filed: 06/04/12 5 of 5. PageID #: 18610 CERTIFICATE OF SERVICE I certify that on this date, a copy of the foregoing was filed electronically. Notice of this filing will be sent by operation of the Court s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court s system. /s/antoinette T. Bacon Antoinette T. Bacon Assistant U.S. Attorney 5