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Appeal of Bail Denied The following is from the appeal filed on April 15, 2004 UNITED STATES COURT OF APPEALS __________________________________________ Docket Number 04-0812-cr __________________________________________ UNITED STATES OF AMERICA, Appellee, - against - DR. RAFIL DHAFIR, Defendant-Appellant. On Appeal from a Judgment of the United States District Court for the Northern District of New York __________________________________________________________________BRIEF OF THE DEFENDANT-APPELLANT
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JURISDICTIONAL STATEMENT Pursuant to amended Rule 28(a) (2), Federal Rules of Appellate Procedure, the following statement of subject matter and appellate jurisdiction is provided. Subject matter jurisdiction in the District Court was conferred by 18 U.S.C. § 3231, granting original and exclusive jurisdiction of all offenses against the laws of the United States. Appellant is awaiting trial and is in detention pursuant to the provisions of Title 18 U.S.C. § 3142. He now appeals, pursuant to 18 U.S.C. § 3145(c), the Detention Order(s) of the District Court. Jurisdiction of this appeal is invoked in this Court pursuant to 28 U.S.C. § 1291 and Rule 4(b) and Rule 9 of the Federal Rules of Appellate Procedure. The order of the District Court entered February 5, 2004 as to the appellant, is a final order within the meaning of § 1291. Appellant's notice of appeal was filed with the District Court within ten days after the District Court rendered its final judgment disposing of all claims with respect to all parties or pursuant to the order of the District Court. The notices of appeal were accepted for filing and docketed in the District Court as Rule 4(b) permits. STATEMENT OF THE ISSUES PRESENTED STATEMENT OF THE CASE Dr. Rafil Dhafir, an oncologist with a practice in Rome, New York, was indicted on February 19, 2003, for one count of conspiring to evade the sanctions against Iraq, one count of conspiring to launder monetary instruments and twelve counts of money laundering, stemming from his activities in soliciting, handling, reporting and disposing of contributions for Help the Needy Endowment, Inc., formerly Help the Needy. A superseding indictment was filed on April 9, 2003, adding six counts of income tax evasion in violation of 26 U.S.C. § 7201. A second superceding indictment was filed on July 2, 2003, adding 30 more counts, including 26 counts of Medicare fraud. On February 26, 2003, the Government moved for pretrial detention on the grounds that defendant was a danger to the community and that there existed a serious risk that the defendant would flee if he were released. On February 28, 2003, United States Magistrate Judge David E. Peebles held a detention hearing pursuant to 18 U.S.C. § 3142(f) (2) (A). At the close of the hearing, Magistrate Judge Peebles placed his findings on the record and ordered detention without bail. On March 5, 2003, that Court issued a written decision that found the defendant presented "a strong and serious risk of flight." Magistrate Judge Peebles further concluded that no condition or combination of conditions would reasonably assure defendant's appearance as required. Appellant moved before the District Court, Honorable Norman A. Mordue to revoke or amend Magistrate Judge Peebles' Order of Detention under 18 U.S.C. § 3145(b). The Court heard the motion on March 27, 2003. On April 22, 2003, the Court issued a Memorandum & Decision Order making findings upon a de novo review of the record. The District Court concluded that the defendant presented a risk of flight and that no condition or combination of conditions could reasonably assure his appearance as required. By Memorandum & Decision and Order dated July 3, 2003, the District Court decided various motions in the case, including a motion by the defendant seeking, inter alia, pretrial release, and offering additional security as a condition for release. The Court determined that the additional security was not sufficient to revoke the denial of pretrial release. On January 27, 2004, the District Court heard oral argument of a motion to reopen the denial of pretrial release. In a Memorandum Decision & Order dated February 5, 2004, the District Court reaffirmed its decision to deny pretrial release. The Court also concluded that there was no basis to reopen the hearing since no new information was presented for its reconsideration of bail. Appellant now appeals from the District Court's denial of bail on February 5, 2004 and incorporates the prior decisions of said Court as part of the instant grounds seeking relief. STATEMENT OF FACTS Dr. Rafil Dhafir was arrested on February 26, 2003. He has remained in pretrial detention since that time based upon findings of both Magistrate Judge Peebles and the Honorable Norman A. Mordue, District Judge, that he is a serious risk of flight. An indictment on February 19, 2003 initially charged defendant with one count of conspiring to evade the sanctions against Iraq, one count of conspiring to launder money and twelve counts of money laundering relating to his activities in connection with a charity organization, Help the Needy Endowment. A superceding indictment filed on April 9, 2003 added several counts of income tax evasion, [a violation of 26 U.S.C. § 7201]. Finally, a second superceding indictment was filed July 2, 2003, adding numerous counts of Medicare fraud [District Court's Order 2/5/04, pages 1-2, hereinafter DC]. Several general facts concerning the defendant's background are seemingly not in dispute. He is 55 years old and is a United States citizen. He has long standing roots in the Syracuse community where he has resided with his wife, Priscilla Dhafir, for twenty years [Magistrate Peebles Detention Order 3/5/03, page 3, hereinafter MDO]. Dr. Dhafir is a regularly practicing oncologist who has treated cancer patients of all walks of life for over thirty years. For the last twenty years he has been dedicated to his practice in Rome, New York and has privileges at Rome Memorial Hospital [MDO pages 3-4]. The defendant is a deeply religious man who, based upon his beliefs, has maintained excellent physical and mental health while consuming no drugs or alcohol. He has led a law-abiding life and has no reported criminal history [MDO page 4]. The Government has sought pretrial detention from the outset of this matter. In their initial papers and presentation to Magistrate Judge Peebles, the Government offered both danger to the community and risk of flight as grounds for detention. While the Government conceded to Judge Peebles that danger was the weaker of the grounds, they nevertheless refused to relinquish that argument and continued to suggest that the defendant's activities were connected to terrorism, and/or the funding thereof [MDO page 13-14]. While the Government now has seemingly abandoned the notion that the defendant was involved in terroristic related activities, the specter of terrorism and illusions to it have insurmountably lingered over the proceedings as a ghost that defendant cannot fairly fight. The Government's motion seeking detention and the Court's granting of it have been based primarily on several stated factors. Throughout the several hearings and motions regarding bail, the Court has accepted the Government's position that the evidence against Appellant is strong, multi-faceted and presents the defendant with a lengthy potential sentence [District Court Order 2/5/04, page 13]. Additionally, the Court has found that the defendant's has significant financial resources, has traveled extensively to Middle Eastern countries and has personal contacts in those areas [DCO page 5). Defendant does not dispute nor hide from the truth of the above stated facts. Facts that are in dispute and are addressed more fully as part of appellant's legal argument pertain to the following: SUMMARY OF APPELLANT'S ARGUMENT Appellant asserts that the District Court improperly ordered detention pending trial. Dr. Rafil Dhafir is a 55 year old who has led a law abiding life and was never previously accused of a crime. Dr. Dhafir is a practicing oncologist with long-standing roots in the Syracuse area where he has lived and practiced for the last twenty four years. A United States citizen, he has devoted substantial time and resources to charitable efforts. He is a religious man, who, as a dedicated oncologist, has treated thousands of cancer patients of every religion, nationality and walk of life. The crimes charged do not involve weapons or narcotics and it is undisputed that he poses no danger to the community. See, Title 18 U.S.C. § 3142(g). He also poses no serious risk of flight. Secondly, even if a flight risk exists, the Government has failed to prove that no condition or combination of conditions will reasonably assure his appearance as required. Defendant has proposed a substantial bail package that includes substantial real estate and restrictions that will assure his attendance at each and every proceeding. Finally, in determining the appropriateness, or lack thereof, of detention, the District Court has improperly shifted the burden of proof to the defendant to prove that he is worthy of reasonable bail pending trial. ARGUMENT THE DISTRICT COURT ERRED IN DENYING DEFENDANT Defendant seeks direct review of the detention orders of the District Court. This Circuit has adopted a deferential "clearly erroneous" standard for reviewing trial court determinations under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. See, United States v. Chimurenga, 760 F.2d 400, 405 (2nd Cir. 1985). A defendant facing trial should be released, rather than detained, unless there exists strong reasons justifying detention. Title 18 U.S.C § 3142 reflects a policy that strongly favors post-trial as well as pretrial release. 18 U.S.C. Sections 3142 (b) and (c) both provide that a judicial official "shall" order the pretrial release of a defendant. Release is mandated pursuant to 18 U.S.C. Section 3142 (b) upon a personal recognizance or unsecured appearance bond. 18 U.S.C. § 3142 (c) allows for release upon conditions that "reasonably assure the appearance of the person as required." In enacting the Bail Reform Act, Congress recognized the traditional presumption favoring pretrial release for the majority of Federal defendants. United States v. Berrios, 791 F.2d 246, 250 (2d Cir. 1986). In United States v. Salerno, 481 U.S. 739, 755 (1987), the Supreme Court stated that "in our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. 18 U.S.C § 3142 (j) is telling as the final subdivision of the statutory provision. It provides in whole: "(j) Presumption of innocence - nothing in this section shall be construed as modifying or limiting the presumption of innocence." Pretrial detention is considered such a drastic measure because it is so contrary to the fundamental principle and the underlying notions of due process in a criminal matter. Pretrial detention without bail is, by anyone's reasonable measure, an extraordinary and drastic curtailment of an accused's right to defend himself. Obviously, the framers of the United States Constitution recognized this reality in drafting the Eighth Amendment which succinctly states "excessive bail shall not be required". It is well recognized that when Congress passed the Bail Reform Act, the legislation still proceeded from a presumption and inclination towards pretrial release. A Court should "bear in mind that it is only a 'limited group of offenders' who should be denied bail pending trial." United States v. Shakur, 8176 F.2d 189, 195 (2d Cir.), cert. denied, 484 U.S. 840, 108 S. Ct. 128, 98 L.Ed.2d 85 (1987) (quoting S.Rep. No.225, 98th Cong., 2d Sess. 7, reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3189); United States v. Khashoggi, 717 F. Supp. 1048, 1049 (S.D.N.Y. 1989). In this case, detention has been ordered pursuant to a determination that defendant poses a risk of flight. 18 U.S.C. § 3142 (f)(2)(A) provides that the Government may seek detention in a case that involves "a serious risk that such person will flee" (emphasis added). It is well settled that the Bail Reform Act of 1984 requires that the District Court engage in a dual inquiry in order to determine whether detention is justified. First, the Court must make an initial finding that the defendant presents a serious risk of flight if not detained. Secondly, and only if a flight risk is found, the Court pursuant to § 3142 (e) must find that "no condition or combination of conditions will reasonably assure the appearance of the person as required..." See, Shakur at 817. In deciding whether detention is appropriate, the Government bears the burden of establishing these elements by a "preponderance of the evidence". See, United States v. Friedman, 837 F. 2d 48, 49 (2nd Cir. 1988.) 18 U.S.C. § 3142 (g) sets forth the factors Congress has determined must be considered in deciding whether detention is required. See, United States v. Jackson, 823 F. 2d 4, 5 (2nd Cir. 1987); United States v. Khashoggi, 1048. 18 U.S.C § 3142(g) provides in pertinent part: (1) the nature and circumstances of the offense charged...; (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(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. In considering the conditions of release described in subsection c (1) (b) (xi) or (c) (1) (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". Defendant asserts that the District Court's February 5, 2004 Order of Detention and its previous Orders denying reasonable bail were "clearly erroneous". B. THE DEFENDANT MEETS THE STANDARD FOR BAIL The District Court erred in concluding that there existed a serious risk of flight. Several undisputed factors established at the detention hearings before Magistrate Judge Peebles and the Honorable Norman A. Mordue support the conclusion that the defendant does not pose a serious risk of flight. 1. Defendant's History and Character First, Dr. Rafil Dhafir is 55 years old and has never been accused of, let alone charged with, a crime. [MDO, page 4] Secondly, the defendant has led a law-abiding life that has been devoted to his work. In practice since 1978, the Doctor relocated from Detroit in 1980 and has remained in the Syracuse area since that time. A United States citizen, the defendant has dedicated substantial efforts to charitable endeavors both here in the United States and abroad. He is an honored member of his religious community and a dedicated oncologist who has treated thousands of cancer patients of every religion, nationality and walk of life. [MDO, page 4] Third, his roots in this community are real and substantial. He is married and has the support of many family members, friends and community members. Many of those individuals have provided emotional support and promised monetary aid to him as part of a bail package. Finally, the defendant was in excellent physical and mental condition at the time of his arrest. Moreover, he has absolutely no history of drugs or alcohol abuse. [MDO, page 4] 2. Danger to the Community In his decision dated March 5, 2003, Magistrate Judge Peebles has found that the Defendant does not pose a danger to the community. The Probation Department's Pretrial Services report came to the same conclusion. The Government has made no serious argument on the issue. Indeed, it is undisputed that this matter involves no element of weapons, danger or violence. It does not involve narcotics and involves no statutory presumption of detention. While the Government has injected the unfounded specter of terrorism into this matter [CMDO, pages 13-14] no such basis exists to unfairly prejudice the defendant. Indeed, in denying defendant's motion for recusal, based upon his Honor's son's current military service in Afghanistan, Judge Mordue stated that those circumstances "involves concerns so remote from the present charges, that it would not prompt a reasonable person to doubt that Dr. Dhafir has been and will be fairly treated by this Court."[District Court Order 7/3/03, pages 4-5] Unfortunately, while not questioning Judge Mordue's fairness and objectivity, the reality has been that the specter of foreign terrorism has tainted the defendant from the outset and severely hampered his ability to fairly prepare for his defense. 3. The Nature and Circumstances of the Offense Defendant asserts that the instant indictment, while serious, is of the garden variety, white collar kind. Defendant submits that but for his national origin, religion and foreign travels, this matter is no different than most similarly charged cases. The Government's failure to prove that no combination of conditions can reasonably assure the defendant's appearance is best seen by the transparent effort to attack the defendant personally with alleged ties to anti-American or terroristic views. However, the indictment herein charges that the defendant has engaged in activities whose sole purpose was to provide humanitarian aid to Iraq and no proof has been asserted, indeed none exists, to establish any immoral or illegal terroristic or anti-American activities. 4. The Weight of the Evidence The Defendant does not choose to turn this proceeding into an evidentiary inquest or a mini-trial and for purposes of this proceeding concedes that there is "evidence" the Government has gathered and intends to use at trial. However, that does not resolve the issue before the Court. In cases concerning risk of flight - without a showing of danger to the community or involving statutory presumption of detention, as is the case here - the Second Circuit has "required more than evidence of the commission of a serious crime and the fact of a potentially long sentence to support a finding of risk of flight". United States v. Friedman, 837 F. 2d 48, 50 (2 d Cir. 1988). In Friedman's the defendant's situation (in which he also faced parallel state charges) is remarkably similar to Dr. Dhafir's: The Government contends that Friedman presents a serious risk of flight because of the nature of the charges against him, the strength of the Government's case, the long sentence of incarceration he may receive, his age and the obloquy that he faces in his community. Yet, it is undisputed that Friedman is a life-long New York resident, that he has no prior criminal record, that he has no passport or known ability to evade surveillance, that he has worked gainfully in the New York area for twenty-five years prior to his arrest, and that he is married and has three children, all of whom live in the New York area. Friedman, 836 F.2d 48, 49-50 (2d Cir. 1988) Dr. Dhafir is married (he has no children), he has lived in the United States for thirty years, and is a citizen of this country (the Government has seized his passport). He has stated (and affirmed) that "I can and do give this Court my word of honor that I would appear at every scheduled Court appearance required in my case." While admittedly the weight of the evidence is a factor to be considered, it is, or should be clear, that it is not a dispositive factor and that the Government must show "something more." None of above factors alone or collectively can support the position that defendant poses serious risk of flight justifying the drastic measure of detention.
C. EVEN IF DEFENDANT POSES A SERIOUS RISK OF FLIGHT, The defendant has submitted a substantial bail package as set forth below. The aforementioned bail package is substantial and would ensure the defendant's appearance to answer the charges herein. However, it is appellant's contention that if the bail was fixed at a dollar, his integrity will make him appear. It is lost on the Government that it is not the money or property that would drive the defendant to appear but his integrity. Moreover, it is inconceivable that someone who has literally risked his life to help those who are in need would not stand up to fight and clear his name. D. THE DISTRICT COURT IMPROPERLY SHIFTED THE BURDEN OF PROOF It is undisputed that the Government bears the burden of proof, by a preponderance of the evidence, to establish that there exists a serious risk of flight and that no condition or combination of conditions of release will reasonably assure defendant's appearance. Defendant respectfully asserts that while the Government and the District Court acknowledges this standard, in practice the history of this case clearly demonstrates that it is defendant who has from the outset bore the burden of establishing why detention was not required. For example, it was the Government who first introduced the specter of foreign terrorism. Yet, while no charges or connection to foreign terrorism has ever been established, indeed none exists; it is defendant who since the outset has been left having to prove that his relationship to Help the Needy was a charitable endeavor to supply desperately needy assistance to the impoverished of Iraq. Despite the Government's failed efforts to connect the dots to the defendant's alleged "connections" with organizations that have anti-American or terroristic views, the defendant's humanitarian efforts simply reflect his true nature and his deeply religious beliefs. In the face of a three year investigation that included numerous Title III monitorings, search warrants, e-mails and the involvement of dozens of agents and agencies, no alleged ties to any terrorist organization has even been alleged. Instead, defendant has been euphemistically faced with a big elephant standing at the back of the courtroom with the terrorism sign hanging over it. The reality has been that it is the defendant who had to bear the impossible burden of making that elephant disappear. Another example of how the burden of proof has been shifted relates to a post indictment restraining order signed by the District Court on February 25, 2004 that required repatriation of funds raised by Help the Needy that were in bank accounts in Jordan. [See transcript oral argument, 1/27/04, pages 10-13, 32-33] Subsequent to the Court's Order, the defendant's lawyers learned that the funds in questions had been confiscated by the Jordanian government. They presented bank records to the Government that they had received from individuals in Jordan supporting this fact. At the bail hearing, the Government argued that it was not in the position to authenticate these records. It is significant to note that the government did not have any proof or cause to believe that the documents were not authentic. To the contrary, the Government had means of getting the records or authentication from the Jordan bank as well as its corresponding bank, Chase Manhattan. During the course of their investigations, the Government has received literally thousands of documents from the Chase bank regarding the accounts in question. However, here they simply hid behind the argument that they did not know the authenticity of the documents presented by the defense. Again, this is a shift of burden and the Court went along with it. Also, the information regarding the confiscation of funds by the Jordanian authorities was new information that was not known by the defense at the previous bail hearing. Notwithstanding this fact, Honorable Judge Mordue, in his February 5, 2004 Order accepted the Government's contention that no new information exists that would warrant reopening of the bail issue. In its Order of February 5, 2004, the District Court stated in response to appellant's repeated pronouncements that the money was not available to defendant, "No competent proof to this effect has been presented to the Court." For its part, the Government submits absolutely no proof to the contrary as to the authenticity, or lack thereof, and no independent proof of defendant's possession or control of the funds. Moreover, it is the Government who is in the best position to prove the contrary and repeatedly has failed to do so. It should be noted that an affidavit submitted to the Court for the purpose of obtaining a search warrant, the Government stated that it had obtained numerous bank documents pertaining to the funds in question from the aforementioned corresponding bank, (Chase). Clearly, if they legitimately believe that there was a reason to doubt the authenticity of the documents given to them by counsel, they could have utilized their means or contacts with Chase to obtain whatever documents they wished. Another factor seemingly paramount to the Court and the Government, relates to the defendant's residence as being in close proximity to the Canadian border. [MDO, page 8] Again, the burden is shifted to defendant to prove that he is somehow not more of a flight risk because he has been a stable member of the Syracuse community for over twenty years. This fallacious argument would then support the notion that living in certain geographical areas or near airports or waterways somehow represents a greater risk of flight than other similarly charged. In short, while the defendant's proximity to the Canadian border may arguably make it easier to facilitate flight, the essential question in the first instance is whether or not there is an intent or desire to flee. The burden of proof thus is again shifted because this defendant is left having to disprove why he is less likely to flee simply because he lives near a border. Also, the Court failed to take into consideration the realities of today's world regarding Arabs and Muslims in post 9/11. The fact of the matter is that it would be near impossible for the defendant to travel into Canada or any other part of the world for that matter without being stopped at its border and thoroughly interrogated. Likewise, when defendant proves that he has no gold in Montreal, like many other factors alleged by the Government that have been initially relied upon by the Court and subsequently disproved by the defendant, defendant is told that said issue was just one factor in the Court's determination. Yet, the Court continues to adopt the Government's "history of duplicity" argument despite the fact that defendant is often left successfully proving the contrary. In a similar vein, the defendant offers that his use of an alias(s) (which he has used for over two decades was solely to avoid discrimination in business dealings both home and abroad. The defendant has never applied for or obtained any legal documents (travel or otherwise) under any other name. He has used the name in question to obtain a separate telephone line for his home and on certain business correspondence. Finally and perhaps most significantly, the defendant is repeatedly and unfairly challenged as to the sources of his bail package. The District Court continues to conclude that the defendant has submitted "no competent proof supporting the statements by defendant's counsel regarding the title, ownership, value and equity of the properties". Defendant asserts that in this regard, form has taken undue paramount prominence over substance. The people, the property and interests offered are all substantial and real. The Court's conclusion that the pledges are unsigned ignores the common practice that such an undertaking is done upon acceptance of the package and appellant has repeatedly reiterated his preparedness to execute all necessary documentation upon acceptance of his package by the Court. The Government also has made much of the fact that the properties that have been proffered to support the bail package were commercial in nature and/or not the principal residence of the pledger. This argument is preposterous. Those who pledged to put up their property have no objections to putting up their residences. It was the decision of defense counsel to use those properties that were unencumbered and of a value at $2 million dollars while using the least amount of properties as possible. We are convinced however, that if the defendant had proffered principal residences, the Government would then argue that the supporters did not pledge or put up valuable commercial properties. In conclusion, for the reasons stated above, the burden of proof has been improperly shifted to the defendant to prove that he is worthy of reasonable bail. CONCLUSION Appellant respectfully prays that the order of detention be reversed and appropriate bail be imposed that will reasonably assure his appearance as required and such other and further relief that this Court deems just and proper. Respectfully Submitted, Date: April 15, 2004 CERTIFICATE OF COMPLIANCE I, Deveraux L. Cannick, hereby certify that the total word count in the brief is 5,539 words in Courier, 11 pt. Type and that it has complied with the Federal Rules of Civil Procedure, Rule 32 (a)(7). Respectfully Submitted, Deveraux L. Cannick Date: April 15, 2004 |