387 F. App'x 88

2d Cir.

2010

UNITED STATES of America, Appellee, v. Joseph S. BARONE, Defendant-Appellant, Anthony V. Piliero, Defendant.

No. 10-2494-cr.

United States Court of Appeals, Second Circuit.

July 23, 2010.

agency did not abuse its discretion in finding that Zheng‘s political activities in the U.S. did not constitute “changed circumstances arising in [his] country of nationality” sufficient to excuse the time and number limitations barring his motion. See 8 C.F.R. § 1003.2(c)(3)(ii). Zheng argues that his political activities in the U.S. were not “self-induced” because he joined the China Freedom and Democracy Party (“CFDP“) by invitation. That argument has no bearing on the BIA‘s reasonable determination that his activities did not “arise” in China. See id.

Although Zheng argues that the evidence he submitted with his motion demonstrated changed country conditions with respect to China‘s treatment of returnees who participated in pro-democracy activities overseas, the BIA did not err in according his evidence diminished weight, particularly in light of the adverse credibility finding the Immigration Judge (“IJ“) had made in the underlying proceedings. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007) (holding that the BIA reasonably rejected an unauthenticated document when the IJ had previously found the applicant not credible); Poradisova v. Gonzales, 420 F.3d 70, 81 n. 8 (2d Cir.2005) (noting that the agency has broad discretion in the weight it accords evidence); see also Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209, 214 & n. 5 (BIA 2010) (reasoning that authentication is more reasonably expected when a document allegedly authored by local officials concerning what will happen to an applicant is obtained for purposes of asylum proceedings).

Zheng‘s argument that the IJ‘s adverse credibility finding pertained only to his family planning claim, as opposed to his political activities, is likewise without merit. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007) (holding that the BIA may refuse to credit documentary evidence based on an IJ‘s finding that the applicant‘s testimony was not credible, relying on the maxim falsus in uno, falsus in omnibus) (citing Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007)).

Finally, because Zheng does not challenge the BIA‘s finding that his claim of ineffective assistance of counsel was insufficient to merit reopening, or its finding that his marriage and the birth of his child in the U.S. did not constitute changed circumstances excusing the untimely filing of his motion, we do not address those portions of the BIA‘s opinion.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot.

Jose A. Muniz, New York, NY, for Appellant.

John T. Zach, Assistant United States Attorney, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

PRESENT: REENA RAGGI, RICHARD C. WESLEY, PETER W. HALL, Circuit Judges.

SUMMARY ORDER

Defendant Joseph Barone appeals from an order denying him bail pending trial on one count of conspiracy to commit murder-for-hire, one count of murder-for-hire, see 18 U.S.C. § 1958, and one count of possession of firearms by a convicted felon, see id. § 922(g).¹ We review a district court‘s bail determination, including its findings of fact pertaining to risk of flight, danger to the community, and the adequacy of any proposed bail conditions, for clear error, see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.1995), and we will not reverse “unless on the entire evidence we are left with the definite and firm conviction that a mistake has been committed,” United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir.2007) (internal quotation marks omitted); see also United States v. LaFontaine, 210 F.3d 125, 130 (2d Cir.2000). Detecting no such error in this case, we affirm.

Title 18 U.S.C. § 3142(e) permits a district court to order pretrial detention if, after a hearing, it concludes that “no condition or combination of conditions will reasonably assure the appearance of the person and the safety of ... the community.” In seeking pretrial detention, the government bears the burden of establishing risk of flight by a preponderance of the evidence and dangerousness by clear and convincing evidence. See 18 U.S.C. § 3142(f); United States v. Sabhnani, 493 F.3d at 75. The government is not, however, bound by the rules of evidence, see 18 U.S.C. § 3142(f), and may proceed by proffer, see, e.g., United States v. Ferranti, 66 F.3d at 542 (citing United States v. Salerno, 481 U.S. 739, 743, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

Here, the record supports the district court‘s finding that Barone is both a danger to the community and a flight risk and that there is no combination of bail conditions that would reasonably assure his presence at trial or the safety of the community. Barone‘s dangerousness was clearly and convincingly evidenced by facts demonstrating both his readiness to commit the charged murder-for-hire and his past commission of crimes involving or threatening violence. At the time of his arrest, Barone was in possession of two firearms, ammunition, a bulletproof vest, a “how to” guide for conducting assassinations, and $50,000 in cash, all of which would have allowed the charged murder to be committed. In addition, in numerous conversations discussing the details of the planned murder with a confederate, Barone revealed his involvement in a number of past uncharged crimes, notably, his financing of a narcotics transaction, his authorization of arson, and his use of violence in furtherance of extortion.

While the district court acknowledged that Barone‘s prior cooperation and his initial release on bail might be viewed in his favor, it concluded that these factors were outweighed by (1) the nature of the crimes with which Barone was charged; (2) the strength of the government‘s case; and (3) Barone‘s other personal characteristics and history, including the numerous uncharged crimes evidenced by the recordings and the contraband in his possession at the time of his arrest. See 18 U.S.C. § 3142(g). We identify no error in this conclusion, let alone clear error. The fact that Barone committed and planned violent crimes even when purportedly cooperating with authorities signals a degree of dangerousness unlikely to be deterred by bail release conditions. Further, Barone‘s failure to abide by the conditions of his initial bail release, when considered together with the lengthy term of incarceration he faced if convicted and the strength of the government‘s evidence, supported the district court‘s conclusion that Barone‘s proposed bail conditions could not reasonably assure his appearance at trial. See Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (noting that on clear-error review court will not disturb factual findings that are “plausible in light of the record viewed in its entirety“). Although Barone urges a different view of the relevant evidence, the law is clear that “[w]here there are two permissible views of the evidence, the fact-finder‘s choice between them cannot be clearly erroneous.” United States v. Salim, 549 F.3d 67, 74 (2d Cir.2008) (internal quotation marks omitted). In any event, even if our review were de novo, we would reach the same conclusion as the district court on the issues of risk of flight and dangerousness.

To the extent Barone urges us to direct his release on the ground that his seventeen-month pretrial detention violates due process, we conclude—for substantially the reasons stated by the district court—that the argument is without merit. As the district court expressly found, Barone bears the brunt of the responsibility for any delay in the commencement of trial. Given the serious homicide charges at issue, the strong evidence inculpating Barone in those crimes, and the July 2010 trial date, we decline to order Barone‘s bail release based on the length of his pretrial detention.²

We have considered Barone‘s remaining arguments on appeal and conclude that they lack merit. For the foregoing reasons, the detention order is AFFIRMED.

Notes

In light of the district court‘s ruling suppressing the firearms that are the basis for the § 922(g) charge, the government advises that it will not pursue this charge at trial.

Because Barone has been released from the Special Housing Unit, we need not consider his argument that such detention supports bail release.