Why Dr. Dhafir Should Be Granted Bail

THE GOVERNMENT HAS FAILED TO ESTABLISH BY A PREPONDERANCE OF EVIDENCE THAT THE DEFENDANT PRESENTS A RISK OF FLIGHT

The United States Constitution requires that excessive bail shall not be required. See U.S. Const. amend. VIII. The release or detention of a defendant pending trial is governed by 18 U.S.C. § 3142. This federal statute requires the court to order the pretrial release of a defendant on personal recognizance or upon an unsecured appearance bond, "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community."

Finally, 18 U.S.C. § 3142(e) states: "If after a detention hearing...the judicial officer finds 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, such judicial officer shall order the detention of the person before trial."

In the instant case a detention hearing was held on February 28, 2003. At the conclusion of the hearing the Court, ordered that Dr. Dhafir be detained. The Court reasoned that there is no condition or combination of conditions which can reasonably assure Dr. Dhafir's appearance, as required, to face the pending charges. (See exhibit J for Detention Order).

In U.S. v. Osama Awadallah, 173 F. Supp. 2d 186 (2001), the defendant was arrested and held as a material witness in connection with terrorist attacks on the United States. Bail was denied. After testifying before a grand jury, defendant was re-arrested and charged with making false declarations to a grand jury. Bail was again denied. Defendant requested a third bail hearing. The Second Circuit held that defendant was entitled to release on bail despite some risk of flight, given recantation of his false testimony, no showing of involvement in terrorist attacks, and significant family ties to the United States.

Like Awadallah, there is no showing by the government that Dr. Dhafir was involved in terrorist acts or posed a threat to the community. The Court found that "the government is unable at present to demonstrate with any degree of certainty the existence of danger on the part of this defendant, and indeed it may be ultimately shown that the government's suspicions in this regard are unfounded. On this basis, not surprisingly, I find the government has not proven by clear and convincing evidence that if released, Dr. Dhafir would constitute a danger to the community."

Although the government failed to show that Dr. Dhafir posed a danger to the community, the Court found that Dr. Dhafir has a powerful incentive to flee, and the resources- both financial and otherwise-to do so if desired. The Court further reasoned that the government's strong case against Dr. Dhafir coupled with a potential lengthy prison sentence is a strong incentive for him to flee.

Just as the government is hopeful it will prove its case, Dr. Dhafir is confident that he will be acquitted of most, if not all, of the charges against him. And even if Dr. Dhafir is found guilty, there is a possibility, based upon relevant case law, that he could serve substantially less time than the government calculates. The belief that Dr. Dhafir will prevail against the government's claims, coupled with the possibility of serving a much lighter sentence than the government calculates, Dr. Dhafir has every reason and intention to remain in the Northern District of New York. In U.S. v. Khashoggi, 717 F. Supp. 1048 (1989), the Court reasoned that "defendant having been arraigned, he could be tried in absentia if he were to flee. Few would dispute that a defendant who is present at trial stands a greater chance of acquittal than a defendant conspicuously absent to his trier of fact."

Dr. Dhafir's significant family ties to the United States makes it very unlikely that he would flee before trial. In Awadallah, the defendant was 21 years old and single, with significant ties to the San Diego community. He had a verified employment record. He was a student at Grossmont College, he entered the country legally. He was a permanent resident for three years, and he had no criminal record and no record of drug or alcohol abuse. The defendant in Alwadallah, intended to become a U.S. citizen.

Dr. Dhafir presents even stronger community ties than the defendant in Alwadallah. Dr. Dhafir is 54 years old , and he has been married for 30 years. He has significant ties to the Syracuse community. Dr. Dhafir's owns a home in the Syracuse area. Although he no longer has his medical practice, he is a licensed physician in good standing. He entered the country legally, and he is a United States citizen. He has no criminal record and no record of drug or alcohol abuse. Finally, all of Dr. Dhafir's passports have been seized, thus, making his ability to travel, in this time of heightened security, virtually impossible.

At the time of Dr. Dhafir's detention hearing the Court reasoned that although the Department of Homeland Security has done a wonderful job of securing our borders, there was still a possibility that Dr. Dhafir could drive over the frozen St. Lawrence River into Canada and disappear into a country that has no extradition treaty with the United States. Seasons have changed. With the advent of spring, the possibility of driving a two thousand pound vehicle across the St. Lawrence River is quite remote.

It also must be pointed out that the nations airports are at Code Orange and may upgrade to Code Red. This fact is of importance because Dr. Dhafir has had problems traveling freely before the Homeland Security coding system due to his distinct Arab appearance. The Federal Bureau of Investigation is also tracking Iraqi nationals due to the developments in the Gulf. Therefore the heightened security alerts coupled with Dr. Dhafir's distinct appearance make it virtually impossible that he could leave the country undetected.

In U.S. v. Gonzales Claudio, 806 F.2d 334, 339 (2d Cir. 1986), the court reasoned that "at some point under some circumstances, the duration of pretrial detention becomes unconstitutional." The court in U.S. v. Melendez-Carrion, 820 F. 2d 56, 59 (2d Cir. 1987), further reasoned that "at some point, traditional notions of due process cannot countenance protracted pretrial detention of an individual presumed innocent. In light of the governments continuing investigation and the likely protracted pretrial preparation, it is likely that this case will not proceed to trial in less than seven months. The court in Khashoggi, in their reliance on legal precedence in the Second Circuit reasoned that "although the flexible standards of due process preclude fixing an unconstitutional period of pretrial detention with certainty, the Second Circuit has observed that grave due process concerns are implicated by a seven month period of pretrial detention. Kashoggi citing U.S. v. Jackson, 823 F. 2d 4, 7 (2d Cir. 1987).

PROPOSED CONDITIONS OF RELEASE

"If the [court] determines that [release on personal recognizance or unsecured appearance bond] will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person subject to the condition that the person not commit a Federal, State, or local crime during the period of release; and subject to the least restrictive further condition, or combination of conditions, that such [court] determines will reasonably assure the appearance of the person as required and safety of any other person in the community..." U.S.C. 18 § 3127 (c)(A)(B)

In Alwadallah, the court relied on U.S. v. Alston, 420 F. 2d 176, 178 (D.C. Cir. 1969), and concluded that "in construing the words "reasonable assurance," one court has held that "the law requires reasonable assurance but does not demand absolute certainty, which would be only a disguised way of compelling commitment in advance of judgment."

In the instant case we believe that the following conditions will reasonably assure the appearance of Dr. Dhafir as the statue requires. Accordingly, we propose that Dr. Dhafir be released under the following conditions:

CONCLUSION

We respectfully request that Dr. Rafil Dhafir be released from the custody of the United States Marshall pending the resolution of his charges before the Court. Dr. Dhafir poses an infinitesimal risk of flight, if any risk at all. It must be reemphasized that the nations airports are at heightened level of security, and the Federal Bureau of Investigation is tracking Iraqi nationals due to the developments in the Gulf. Therefore the heightened security alerts coupled with Dr. Dhafir's distinct Arab appearance makes it virtually impossible that he would flee.

Dr. Dhafir is no threat to society. He has no history of violence and he has no criminal record. Furthermore, the supervision, offered by Federal Probation, is designed to effectively monitor and restrict Dr. Dhafir's activities. Finally, Dr. Dhafir has an overwhelming degree of support in the community. Judging from the letters of support included in this memorandum, Dr. Dhafir is held in the highest of regard by his colleagues, his patients and those who know him in the community. He is a man that greatly values his reputation. It is inconceivable that he would jeopardize his well earned reputation by failing to appear in court as required.