United States v. Brennerman
705 F. App'x 13
2d Cir.2017Background
- Defendant Raheem J. Brennerman, a non‑U.S. citizen with significant foreign ties, faced two pending criminal matters: criminal contempt and a multi‑count indictment for bank fraud, wire fraud, conspiracy, and visa fraud arising from alleged misappropriation of over $300 million.
- At initial appearance on the contempt charge, Chief Judge McMahon found Brennerman a flight risk based on foreign citizenship, frequent travel, lack of U.S. property/ties, revoked U.S. visa, use of multiple names/identifiers, prior misrepresentations, and disregard of court orders; she nonetheless set bail with home detention, electronic monitoring, and a $500,000 bond secured in part by family sureties and cash.
- After the fraud indictment, Judges Kaplan and Sullivan reconsidered release and concluded that the more serious charges and longer potential sentences materially increased the risk of flight, making release conditions insufficient to assure appearance.
- The district courts emphasized changed circumstances: elevated penalties, foreign ties (including connections to Nigeria), revoked visa, history of false statements and multiple identifiers, and ease of evasion despite monitoring or sureties.
- Brennerman challenged the sufficiency and accuracy of some government proffers and highlighted U.S. ties (Nevada ID, rental, relatives) and compliance with prior bail conditions; he argued these facts weighed in favor of release.
- The Second Circuit reviewed legal conclusions de novo and factual findings for clear error, and affirmed the detention orders, finding no definite and firm conviction that the district courts erred in holding that no conditions would reasonably assure appearance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government met its burden to show no conditions of release could assure appearance under 18 U.S.C. § 3142 | Government: Changed circumstances (serious fraud charges, higher sentencing exposure) plus Brennerman’s foreign ties, ID misrepresentations, revoked visa, and disregard of court orders make flight likely | Brennerman: Prior release conditions were effective; U.S. ties (Nevada residence/ID, relatives, no criminal record) and willingness to electronic monitor/home detention mitigate flight risk | Affirmed: Government met preponderance burden; district courts’ findings not clearly erroneous; no conditions would reasonably assure appearance |
| Whether the contempt‑stage findings of flight risk were erroneous or insufficient to deny bail after the fraud indictment | Government: Contempt findings accurately established baseline flight risk and supported reconsideration after new, more serious charges | Brennerman: Contempt findings overstated; he did not flee when first alerted and typically contempt defendants are bailed | Affirmed: Contempt findings were supported and, combined with new charges, justified detention |
| Whether alleged inaccuracies in the government’s proffers (communications with alleged victim while on bail) vitiate detention decision | Government: Central claim—that Brennerman continued engagement with alleged victim while on bail—remained supported despite corrections | Brennerman: Government made fraudulent or incorrect representations; these undermine the detention rationale | Rejected: Corrections did not alter core showing; district courts’ reliance on broader evidence remains sound |
| Whether monitoring, home detention, and family sureties suffice to mitigate substantial flight risk | Government: Monitoring and sureties are insufficient given means and motive to flee; electronic monitoring can be circumvented | Brennerman: Willingness to submit to monitoring and sureties demonstrates conditions can assure appearance | Affirmed: Circuit and district precedents support that such conditions may be inadequate where motive and means to flee exist |
Key Cases Cited
- United States v. Sabhnani, 493 F.3d 63 (2d Cir.) (district court’s preponderance finding reviewed for clear error)
- United States v. Abuhamra, 389 F.3d 309 (2d Cir.) (legal conclusions reviewed de novo)
- United States v. English, 629 F.3d 311 (2d Cir.) (factual findings reviewed for clear error)
- United States v. Berrios‑Berrios, 791 F.2d 246 (2d Cir.) (flight‑risk determinations are primarily factual)
- United States v. Briggs, 697 F.3d 98 (2d Cir.) (strength of government’s evidence relevant to flight risk)
- United States v. Oehne, 698 F.3d 119 (2d Cir.) (district court’s fact weighing afforded deference)
- United States v. Yannai, 791 F.3d 226 (2d Cir.) (definition of preponderance of the evidence)
- United States v. Mercedes, 254 F.3d 433 (2d Cir.) (electronic monitoring and sureties can be insufficient to prevent flight)
- United States v. Orena, 986 F.2d 628 (2d Cir.) (ease of circumventing electronic monitoring acknowledged)
- Anderson v. Bessemer City, 470 U.S. 564 (U.S.) (where two permissible views exist, choice between them is not clearly erroneous)