OPINION DENYING DEFENDANT’S MOTION FOR RELEASE ON BAIL AND IN SUPPORT OF DETENTION ORDER
This matter is before the Court on the request of defendant Agron Abdullahu (hereinafter “defendant”) for a detention hearing pursuant to 18 U.S.C. § 3142(f). On May 14, 2007, defendant filed his “Motion for Release on Bail.” [Doc. No. 10]. Pursuant to 18 U.S.C. § 3142(f) the Court held a detention hearing on May 17, 2007. For the reasons to be discussed, the Court denies defendant’s Motion and finds that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other person and the community. 1 Pursuant to the requirements of 18 U.S.C. § 3142(i) this Opinion will set forth the Court’s written findings of fact and a written statement of the reasons for the detention.
Background
On May 7, 2007, this Court signed a Complaint [Doc. No. 1] and Arrest Warrant [Doc. No. 2] naming defendant. The Complaint charges defendant with violating 18 U.S.C. § 922(g) and 2. Contemporaneously with the issuance of these documents the Court also signed five related Complaints and Arrest Warrants naming Eljvir Duka (07-2047(JS)), Mohamad Ibra-him Shnewer (07-2045(JS)), Dritan Duka (07-2046(JS)), Shain Duka (07-2048(JS)) and Serdar Tatar (07-2049(JS)). (These five (5) individuals will hereinafter be referred to as the “other charged individu
Findings of Fact 2
In order to understand and appreciate the nature, circumstances and background of the charges against defendant it is necessary to set forth a comprehensive summary of the relevant evidence. Defendant is charged with violating 18 U.S.C. § 922(g)(5) and 2. The essence of the charge is that defendant aided and abetted the receipt or transportation of firearms in interstate commerce by three (3) aliens. Section 2 of the charge treats as a principal a person who aids or abets an offense against the United States or willfully causes an act to be done that is an offense against the United States. Defendant is charged with providing firearms to Dritan Duka, Eljvir Duka and Shain Duka, all of whom are illegal aliens.
The charges against defendant arise in the context of the government’s claim that the five other charged individuals conspired to attack soldiers or other personnel at the United States Army Base in Fort Dix, Burlington County, New Jersey. The government’s investigation started after it learned that an individual brought to a local store a video to be duplicated onto a digital video disk (“DVD”). The video depicted conduct that was recorded as having occurred on January 3, 2006. The government describes the video as showing “men shooting assault weapons at a firing range in a militia-like style while calling for jihad and shouting in Arabic ‘Allah Akbar’CGod is Great’).” 3 The government identified defendant in the video. Thereafter, the FBI and Joint Terrorism Task Force undertook an investigation of the activities of defendant and the other charged individuals.
Defendant and the other charged individuals were under close surveillance from March 2006 until their arrest on May 7, 2007. During that time two cooperating witnesses (CW-1 and CW-2) earned the trust of defendant and the other charged individuals and ultimately learned about the plan to attack Fort Dix. During the surveillance the other charged individuals discussed their willingness and intent to participate in the attack. It is not alleged that defendant stated he would participate in the actual attack. Albeit, on August 13, 2006, Shnewer told an informant that defendant was a member of the attack group. See Complaint at ¶ 18.
Although the government did not proffer direct evidence that the defendant specifically knew the other charged indi
Even though defendant argues “there are no allegations in the complaint indicating that [he] ... knew of the Duka brothers’ status as illegal aliens” (see Brief at 6-7), contrary evidence exists. After he was arrested, defendant admitted he kept a 9 millimeter Beretta rifle and a shotgun given to him by the Duka brothers because he knew they were illegally in the United States and could not possess firearms. In addition, the Dukas also told CW-2 they kept their firearms with several individuals, including “Agron”, who law enforcement officers determined is defendant. CW-2 also recorded a meeting on January 19, 2007 where Dritan Duka explained that defendant brought weapons to the Duka brothers because the brothers had “green cards” and could not have firearms.
Shnewer, Dritan Duka, Eljvir Duka, Shain Duka and Tatar are charged with violating 18 U.S.C. §§ 1114 and 1117. The government alleges these individuals conspired to kill an officer or employee of the United States (including any member of the uniformed services) while the officer or employee was engaged in the performance of official duties. The charges carry a potential term of life imprisonment. According to the relevant Complaints, the alleged overt acts in support of the conspiracy include firearms training, surveillance at Fort Dix and other federal facilities, acquiring a map of Fort Dix, collecting weapons to be used in small arms training, reviewing terrorist videos, conducting tactical training, and ordering fully automatic machine guns as well as M-16 firearms and handguns. Defendants Driton Duka, Eljvir Duka and Shain Duka are also charged with violating 18 U.S.C. § 922(g) and 2. Dritan Duka and Shain Duka were arrested on May 7, 2007 after they purchased three AK-47 fully automatic machine guns and four M-16 rifles from undercover agents.
At the May 17, 2007 detention hearing the government submitted its evidence by proffer as is its right. See 18 U.S.C. § 3142(f);
United States v. Delker,
Discussion
The defendant’s right to bail is addressed in the Bail Reform Act of 1984 (18 U.S.C. §§ 3141, et seq.), which was effective October 12, 1984. Generally, a defendant must be released on bail on the least restrictive condition or combination of conditions that will reasonably assure the defendant’s appearance and the safety of the community. See 18 U.S.C. § 3142(c)(B). Pursuant to 18 U.S.C. § 3142(e), however, if after a detention hearing a court determines that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community” the court must Order the detention of the person before trial. If the government moves for detention on the basis of danger to the community, it must prove this by clear and convincing evidence. Id. at § 3142(f). A recent Third Circuit case cited with approval the definition of clear and convincing evidence summarized by the Supreme Court of New Jersey:
[Clear and convincing evidence] produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue.
See United States v. Askari,
If the government or court believes detention is appropriate because there is a risk of flight, this must be proved by a preponderance of the evidence.
United States v. Himler,
If the conditions in 18 U.S.C. § 3142(e) are met a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person in the community. If a rebuttable presumption applies the defendant carries the burden of production to come forward with evidence to rebut the presumption. The defendant’s obligation to come forward with evidence does not shift the burden of persuasion to defendant.
United States v. Perry,
The factors a court must consider in determining whether there are conditions of release that will reasonably assure the appearance of a defendant as required and the safety of any other person in the community are set forth in 18 U.S.C. § 3142(g). They include the nature and circumstances of the offense charged, including whether the offense is a crime of violence or a federal crime of terrorism, the weight of the evidence against the defendant, the history and characteristics of the defendant and the nature and seriousness of the danger to any person or the community that would be posed if the defendant is released.
6
A danger to the eom-
In order to decide whether to detain a defendant a fact intensive analysis must be done. The Third Circuit has noted, “[e]ach case ... is
sui generis,
and must be decided on the basis of the particular record deduced.”
United States v. Traitz,
(1) Nature and Circumstances of the Offense Charged
The first factor this Court must examine to determine if the defendant should be detained or if bail should be granted is the “nature and circumstances” of the offense charged. The Court deems it significant that its analysis is not limited to simply examining the “offense” charged. By directing a Court to examine the “nature and circumstances” of the charge rather than just the charge itself, Congress intended for courts to examine a defendant’s actions in the context of all relevant background evidence. For example, in
United States v. Benevolence International Foundation, Inc.,
Furthermore, it must be kept in mind that defendant did not simply supply guns to the Dukas on one occasion. The evidence plainly indicates that defendant participated in two shooting exercises in the Pocono Mountains and he knowingly brought firearms to and received firearms from the Dukas’ home. Defendant admitted in his posDarrest interview that he provided the 9 millimeter Beretta handgun and an SKS semi-automatic rifle to the Dukas that were used during the January 2006 and February 2007 firearms training trips in the Poconos. He also admitted that the night before the February 2007 trip, he and Shain Duka traveled to Philadelphia where Shain Duka took possession of a 9 millimeter Beretta rifle from an unknown male at a pizza shop. The defendant, Shain Duka and this unknown male then traveled to a storage facility near the pizza shop where the unknown male gave defendant the shotgun used in the February 2007 Pocono trip. 7
The circumstances surrounding the charges against defendant also demonstrate that defendant was an integral part of the plan to attack Fort Dix. Defendant supplied and stored the firearms the Du-kas used and he taught them how to use firearms. Defendant argues he did not know the other charged defendants were planning to attack Fort Dix. However, defendant had close connections to the other charged individuals going back as far as January 2006 and lasting at least through February 2007. It is not a stretch to infer that the attack plans were discussed when the defendants and the other charged individuals met at the Dukas’ home and in the Poconos, or on some other occasion. This is especially true in view of the fact that the other charged individuals willingly discussed their attack plans with the two confidential informants who they did not know as long or as well as defendant. 8
The Court deems it significant that in 18 U.S.C. § 3142(g), the statute specifically mentions that a Court should examine if the offense charged is a “federal crime of terrorism.” This indicates that Congress viewed this charge as an especially serious offense. A “federal crime of terrorism” is defined in 18 U.S.C. § 2332b(g)(5). Sec
Even if defendant did not specifically know an attack was planned on Fort Dix, the evidence demonstrates that defendant had to have known that some type of significant dangerous illegal activity was being planned. The defendant was present when videos were shown in the Poconos depicting attacks on U.S. soldiers. He was also present at two firearms training sessions in the Poconos. He was also present when the government alleges “Mu-jahideen and terrorist training videos” were shown. See Brief at 5. Although not inconceivable, in this Court’s view it defies logic not to infer that defendant knew the firearms and training he gave the other charged individuals was going to be used to further illegal activity with potentially dangerous consequences.
In view of the admissions defendant made in his post-arrest interview, and the corroborating admissions the Dukas made to the informants, defendant knew the Du-kas were illegal aliens. The ultimate determination on this issue awaits trial. Nevertheless, for the reasons already discussed, the Court believes the evidence indicates that defendant knew the Dukas’ immigration status and he willingly and knowingly participated in a plan to supply the Dukas with firearms with knowledge that they were engaged in illegal activity.
(2) Weight of the Evidence
The second factor this Court must examine in its detention analysis is the “weight of the evidence.” This Court is well aware that defendant is entitled to the presumption of innocence and he has not yet had an opportunity to rebut the government’s charges. Furthermore, this Court is, of course, not judging defendant’s guilt or innocence. Nevertheless, the Court believes the evidence to support the government’s charge is strong and the “weight of the evidence” factor weighs in favor of detention. To a large extent the charges against defendant are based on his own statements, video surveillance and tape recordings. To the extent the government’s case is based on what defendant calls “paid informants”, this does not significantly detract from the government’s case since no evidence exists to demonstrate that the informants are unreliable.
See United States v. Goba,
(3) History and Characteristics of the Defendant
The third factor this Court must examine in its detention analysis is the history and characteristics of the defendant. The evidence shows defendant is 24 years old and he co-owns a home with his mother in Williamstown, New Jersey. Defendant lives with his mother, father, sister and brothers. Defendant emigrated to this country in 1999 and although he is not a United States citizen he is a lawful permanent resident. Defendant has no criminal record. Defendant has worked in the bakery of a local supermarket chain since approximately 1999. By all accounts defendant is a hard working and conscien
This Court does not doubt the sincerity of defendant’s witnesses and the affection they feel for him. Nevertheless, the Court believes the defendant’s history and characteristics weigh in favor of detention. The Court rejects defendant’s argument that his risk of flight is “non-existent.”
See
Brief at 10. While it is true defendant lives in New Jersey and co-owns a home here, he also has ties overseas. It has been proffered to the Court that defendant’s father owns a home in Kosovo. Indeed, it appears that defendant’s father left the United States to visit Kosovo on May 4, 2007, but returned to the United States when he learned defendant was arrested. Defendant also has relatives who live overseas who could provide a place for him to reside. The fact that defendant can apparently sustain himself abroad weighs in favor of detention.
Goba,
The Court does not believe defendant’s ties to this area are strong enough to negate his incentive to flee. It is true defendant had recent steady employment but there is no guarantee that if released he will have a job. Furthermore, the Court does not believe the mere presence of defendant’s immediate family in New Jersey is sufficient to assure his presence at trial. It is clear to the Court that defendant has the motive and means to flee if he is released. This is especially true, as the government points out, because if defendant is convicted he faces deportation. 9 Albeit, it is not certain where he will be sent. The threat of a long prison term, coupled with an involuntary deportation, creates a substantial incentive for defendant to flee.
Although no two cases are identical, this Court believes the decision in
United States v. Ruiz-Corral,
Defendant argues his “community ties” weigh in favor of release. However, Congress has cautioned against relying too heavily on family and community ties.
See Caniglia
at
[The Committee] is aware of the growing evidence that the presence of [community ties] does not necessarily reflect a likelihood of appearance and has no correlation with the question of the safety of the community. While the Committee considered deleting the factor altogether, it has decided to retain it at this time. However, the Committee wishes to make it clear that it does not intend that a court conclude there is no risk of flight on the basis of community ties alone; instead a court is expected to weigh all the factors in the case before making its decision as to risk of flights and danger to the community.
Id.
(citing S.Rep. No. 225, 98th Cong., 1st Sess., 24-25);
United States v. Merlino,
No. 99-363,
This Court is also mindful that an indictment has not yet been issued and that the government’s investigation is continuing with regard to this defendant. At the moment the defendant faces a potential prison term of ten (10)years, which is significant. The government (5-7 years) and defendant (1-2 years) differ on the defendant’s potential sentence under the applicable Sentencing Guidelines. However, even if defendant faces a sentence of only a few years in prison this does not dispel his substantial motive to flee.
See Epstein, supra
(prison term of 2-4 years created incentive for defendant to flee to Brazil where he had ties). The fact that defendant may possibly be indicted for other offenses creates another incentive to flee. This was discussed in
United States v. Benevolence International Foundation, supra,
In these circumstances, and given the post 9/11 climate in this country, regardless of Defendant’s actual guilt or innocence of all this, the natural human tendency has to be for Defendant to apprehensively feel he’s in a difflcult and opprobrious situation, from which flows an incentive and risk for flight.
(4) Nature and Seriousness of the Danger to Any Person or the Community
The fourth factor this Court must examine in its detention analysis is the nature and seriousness of the danger to any person or the community if defendant is released. This factor also weighs in favor of detention. The evidence demonstrates that defendant is experienced in the use of firearms and knowingly assisted illegal aliens who he knew were involved in illegal activities with potentially deadly consequences. This indicates defendant is willing to be involved in significant criminal activity. The fact that the defendant has not been previously arrested does not dispel the danger that would result if he was released. It is also noteworthy that defendant admitted in his post-arrest interview that he was present when Shnewer showed “jihadist videos” which showed A1 Qaeda killing U.S. soldiers in Iraq. Defendant was also present in the rented Pocono home in February 2007 when those present viewed what has been described as terrorist training videos. In addition, defendant admitted he had a conversation with one of the Duka brothers where the brother discussed attacking a military base. The fact that defendant continued to associate with and assist the other charged individuals in view of this knowledge evidences that he is a danger to the community.
Defendant argues the community will not be endangered if he is released because he will be subject to home confinement and electronic monitoring. However, electronic monitoring and home confinement do not guarantee that defendant will not flee or endanger the community. Electronic monitoring impedes but does not prevent a defendant from fleeing.
See United States v. Orena,
Contrary to the picture defendant attempts to portray, the facts show that defendant poses a significant danger to the community. The fact that defendant supplied and stored firearms for the other charged individuals, he bought ammunition for them, and trained them on how to use firearms, is strong evidence of his danger. Furthermore, defendant is a licensed firearms user and even boasted to an informant about his ability to make explosives and his willingness to use them if necessary. Excerpts from defendant’s conversations include the following statements concerning his knowledge of explosives:
... If you get fat, heat it up, evaporate it. Cool it down. You will get a nice bullet. The most explosive and the most unstable explosive in the world. It’s very powerful but very unstable ... I tried. You have to have the f.g chemistry. You have to have the perfect temperature. You have nitroglycerin. You can make a bomb with the f.g ammonium. F.g Windshield viper ... Burns like f.g gasoline.
In a f.g bottle. You can use it in an assault....(In response to the cooperating witness’ question how Abdullahu knew so much about bombs) “I love that s. .t. I looked for it, I learnt about it ... I like to know everything in case very time comes. Because if the times. If any moment if somebody turns against me. If they turn against me, I would have a fighting chance. You don’t have to have that f.g military [stuff] to making bombs. You can break into f.g house and steal stuff to make a bomb. You can break into a gun store and steal the stuff and make the bomb ... I can break into the Home Depot and make a f.g bomb. Make a f.g bomb ... RPG [rocket propelled grenade] thing? It will not be as effective if you don’t have high explosion, like you can just gun powder it’s not going to be good bomb. But if you put nitroglycerin on it, stable it up, that’s it.”
See U.S. Brief at 6-7(emphasis supplied). Defendant also told an informant, “I said ‘knowledge is power’ and just in case somebody pushes me to the limits.” Id. at 7 n. 1. Furthermore, the post-arrest evidence found at the defendant’s home pursuant to a search warrant is significant. The government found:
• one 9 millimeter Beretta handgun bearing serial number BER341463 with one magazine containing 58 rounds of ammunition;
• one Mossberg 12 gauge shotgun, bearing serial number P380768;
• one Beretta 9 millimeter CX4 Storm rifle, bearing serial number CX02876; and
• one Model S9/66 Yugo rifle, bearing serial number 151946.
In addition, the following items were also found at defendant’s residence, among other things:
• 22 caliber pellet gun with a brown handle;
• two boxes of Wolf ammunition;
• one leather pouch with speed strip with 10 7.62 millimeter rounds of ammunition; and
• one bayonet.
It is telling that the four (4) guns found at defendant’s home were used in the Pocono training in January and February, 2007.
Summary
After reviewing the totality of the evidence, the Court has reached the inescapable conclusion that the government has proved by a preponderance of the evidence that no condition or combination of conditions exist that will reasonably assure the defendant’s appearance at trial. The defendant faces serious criminal charges that arise in the context of an alleged terrorist plot to attack Fort Dix. The defendant faces a potential ten-year prison sentence and involuntary deportation. The defendant does not have permanent and longstanding ties to this area, he has the means and incentive to flee and he has family ties and a place to live in an oversees country that will not extradite him to the United States.
It is just as clear that the government has proved by clear and convincing evidence that no condition or combination of conditions exist that will reasonably assure the safety of the community. Strong evidence exists to show that defendant supplied and stored firearms and bought ammunition for the other charged individuals, and he also trained them on how to use firearms. In addition, defendant knew the individuals he was assisting were involved in planning a dangerous scheme with potential deadly consequences. Furthermore, the defendant is an experienced firearms user with knowledge of how to make explosives. In addition, a transcript of defendant’s recorded conversation shows
Based on all the foregoing, the Court finds that detention is appropriate and has entered an appropriate detention order.
. All of the facts summarized herein were included in the government's proffer at the May 17, 2007 detention hearing which included the May 7, 2007 Complaint naming the defendant and the reports of Pretrial Services. The proffer also included a transcript of a secretly recorded conversation between defendant and a confidential informant on February 6, 2007, and an interview the defendant gave after he was arrested and after he waived his Miranda rights. Other sources for the Court's findings of fact include the testimonial evidence at the May 17, 2007 detention hearing and the defendant’s proffer. The rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at a detention hearing. See 18 U.S.C. § 3142(f).
Notes
. At the conclusion of the May 17, 2007 detention hearing this Court ruled from the Bench and read into the record the sum and substance of this Opinion. This written Opinion formalizes the Court’s ruling. A detention Order was entered on May 17, 2007. [Doc. No. 14],
. The government defines jihad as "a Muslim holy war or spiritual struggle against infidels.” See Complaint at ¶ 1 n. 1.
. Defendant asserted two evidentiary objections at the detention hearing that will be addressed. First, defendant objected to the government’s transcription of his February 6, 2007, secretly recorded conversation.
See
U.S. Brief at 6-7. Defendant argued the reference to "raid” should be "race.” This objection is irrelevant to the Court's decision since the referenced portion of the transcript was not relied upon. Second, defendant argued the government should not be permitted to rely upon the surveillance of defendant unless it produced the actual video recordings. The court overruled this objection for two reasons. First, defendant waived his objection since the first time it was asserted was in the middle of the May 17, 2007 detention hearing. Defendant was on notice of the government’s proffer at least as early as May 8, 2007, and if he wanted to view the actual surveillance tapes before the detention hearing the request should have been made earlier. Second, the defendant’s video surveillance was only part of the government’s proffer. Even if the surveillance was not relied upon by the government the Court’s decision would not have been different. In lieu of the video the Court could have just relied upon the fact that defendant admitted he went to the Poconos in January 2006 and February 2007 and that he supplied guns to the Dukas who he knew were illegal aliens. Further, this Court made an independent determination of the reliability of the government's proffer and determined that the proffer was sufficiently reliable that live testimony was not necessary.
See United States
v.
Accetturo,
. This provision, added by the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-428 (effective July 27, 2006), amended the Bail Reform Act to include cases involving firearms as among those for which the United States may move for pretrial detention.
. Specifically, the statute reads:
(g) Factors to be considered. — The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning—
(1)the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a Federal crime of terrorism, ...;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. Inconsidering the conditions of release described in subsection (c)(l)(B)(xi) or (c)(l)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.
18 U.S.C. § 3142(g).
. Although defendant characterized his trips to the Poconos as "vacations'', the other charged defendants viewed the trips as training exercises for their planned attack on Fort Dix. See Complaint at ¶¶ 10, 12, 26 and 55.
. In paragraph 5 of the Complaint it is averred that only two months after CW-1 infiltrated the group, Shnewer showed him jihadist recruiting videos. Based on the government's proffer the defendant spent time with Shnewer at least sixteen (16) months before defendant's arrest. It is not unreasonable to infer, therefore, that Shnewer also attempted to "recruit” defendant.
. Pursuant to 8 U.S.C. § 1227, a legal permanent resident can be deported from the United States if convicted of an aggravated felony. An aggravated felony includes, "an offense described in ... Section 922(g)(5) of Title 18 [relating to firearms offenses].” See 8 U.S.C. § 1101(a)(43)(E)(i).