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Government’s response to defendant’s petition for review of magistrate’s report and recommendation denying defendant’s motion for bond and granting government’s motion for pretrial detention
 

Government’s response to defendant’s petition for review of magistrate’s report and recommendation denying defendant’s motion for bond and granting government’s motion for pretrial detention

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    Government’s response to defendant’s petition for review of magistrate’s report and recommendation denying defendant’s motion for bond and granting government’s motion for pretrial detention Government’s response to defendant’s petition for review of magistrate’s report and recommendation denying defendant’s motion for bond and granting government’s motion for pretrial detention Document Transcript

    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-20612-CR-SEITZ Magistrate Judge John J. O’Sullivan UNITED STATES OF AMERICA vs. TRAIAN BUJDUVEANU, Defendant. ________________________________/ GOVERNMENT’S RESPONSE TO DEFENDANT’S PETITION FOR REVIEW OF MAGISTRATE’S REPORT AND RECOMMENDATION DENYING DEFENDANT’S MOTION FOR BOND AND GRANTING GOVERNMENT’S MOTION FOR PRETRIAL DETENTION COMES NOW, the United States of America, by and through the undersigned Assistant United States Attorney, and files this Response to Defendant Bujduveanu’s Petition for Review of Magistrate’s Report and Recommendation Denying Defendant’s Motion for Bond and Granting Government’s Motion for Pretrial Detention Hearing (D.E. 79), filed September 9, 2008, and states as follows: Defendant’s Petition should be denied because Defendant Bujduveanu has failed to demonstrate any reason why the Pretrial Detention Hearing should be reopened nor that the Magistrate Judge’s findings were clearly erroneous. Defendant’s Petition appears to rely on two separate bases in support of his request to review the Magistrate Judge’s Order1: (1) Defendant seeks to reopen the Pretrial Detention Hearing, 1 In his Petition, Defendant refers to the Magistrate Judge’s “Report and Recommendation.” In fact, the Magistrate Judge issued an Order pursuant to his authority under 28 U.S.C. § 636(a) and SDFL Mag J Rule 1. See D.E. 16 (Detention Order as to Traian Bujduveanu).
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 2 of 12 pursuant to 18 U.S.C. § 3142(f) (see Defendant’s Petition at ¶ 7); and, (2) Defendant seeks to appeal the Magistrate Judge’s Order to the District Court (see citation in introductory paragraph to 28 U.S.C. § 636(b)(1)(A)). Defendant is not entitled to relief under either basis as a matter of law. I. Defendant Demonstrates No Basis Upon Which to Reopen the Pretrial Detention Hearing. Defendant has not demonstrated that any information exists that was not known to the defendant at the time of the pretrial detention hearing which has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of the defendant as required. Defendant is not, therefore, entitled to have the pretrial detention hearing reopened. As Defendant is aware, and the Bail Reform Act makes clear, the pretrial detention hearing may be reopened “if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of such person as required...” 18 U.S.C. § 3142(f) (emphasis added). A review of Defendant’s Petition confirms that the only things that have changed since the pretrial detention hearing on June 26, 2008, are that a federal grand jury returned an indictment against the Defendant, Defendant retained new defense counsel, and Defendant received the discovery in the case. None of these issues has a bearing on the issue of whether Defendant is a risk of flight - at least not toward a finding that he is any less of a risk of flight than he was at the time of the original pretrial detention hearing. Rather, as set forth below, Defendant’s Petition only lays out information which was known to Defendant at the time of his pretrial detention hearing, the majority of which was actually discussed at the hearing. The June 26, 2008, Detention Hearing 2
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 3 of 12 On June 26, 2008, this Court held a detention hearing. Defendant was present at that hearing and was represented by privately retained counsel. At the hearing, the Government moved for pretrial detention on the basis that the Defendant presents a risk of flight. Undersigned counsel for the Government proceeded, by way of proffer, to summarize the charges against the Defendant and the facts underlying those charges, as well as the facts underlying each of the factors the Court must consider in determining whether the defendant presents a risk of flight. It is settled in the Eleventh Circuit that the Government, as well as the defense, “may proceed by proffering evidence subject to the discretion of the judicial officer presiding at the detention hearing.” United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987). Defense counsel then also proceeded to proffer evidence in support of the Defendant’s claim that he did not export or possess military aircraft parts of any value, as alleged in the indictment. See Pretrial Detention Hearing Transcript (herein referred to as “Tr”) at pp. 34-35 and 39-40. Defense counsel also challenged the Government’s proffered evidence and set forth his argument as to each of the factors to be considered by the Court regarding whether the Defendant presents a risk of flight. Defense counsel identified for the Court several friends and family members willing to vouch that the defendant was not a flight risk, but he did not seek to present further evidence or witnesses, nor did he request an opportunity to cross examine a law enforcement agent involved in the case.2 At the close of counsels’ arguments, the Court held that the Defendant presents a risk of flight, stating that the weight of the evidence against the Defendant is overwhelming that the Defendant and his co-defendant, Hassan Saied Keshari, participated in a scheme to export military 2 Special Agent Blake Schnitker, Defense Criminal Investigative Service, was present for the hearing but was not called by either party or the Court to testify. 3
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 4 of 12 goods to Iran. In support of these findings, the Court explained that it had considered that the Defendants admitted during post-arrest interviews that they knew these goods were going to Iran and that circumstantial evidence, including emails and general knowledge based on recent publicity about Iran and the use of F-14s by the Iranian military, also lead to the conclusion that these Defendants knew the goods were going to Iran. See Pretrial Detention Hearing Transcript at pp. 46- 47. The Court also found by a preponderance of the evidence3 that no condition or combination of conditions will reasonably assure the appearance of this Defendant as required at future proceedings. In support of this finding, the Court explained that it had considered that the Defendant was born in Romania, is very familiar with international travel and does substantial international business. The Court also considered that the Defendant has traveled frequently throughout the world and that he possesses a pilot’s license. The Court further considered that the defendant had a substantial amount of cash in his house at the time of his arrest and that defendant has been involved in millions of dollars of business in the airline industry. Finally, the Court explained that although the Defendant has substantial family ties in the community, the Court did not find that this was sufficient to reasonably assure the defendant’s appearance at future court proceedings. See Tr. at pp. 48-50. The Defendant has now filed a Motion to Reopen the Detention Hearing on the grounds, generally, that “the pre-indictment claims made by the government went unchallenged because, at the time, the evidence had not yet been provided to either defendant.” See Petition at ¶ 4. 3 The need only find by a preponderance of the evidence that a defendant presents a risk of flight. See US v. Quartermaine, 913 F.2d 910, 917 (11th Cir. 1990);US v. King, 849 F.2d 485, 489 (11th Cir. 1988). 4
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 5 of 12 Defendant’s claims certainly do not demonstrate that there is information that was not previously known to the Defendant which bears on the issue of risk of flight and which warrants a reopening of the hearing. A review of Defendant’s Motion makes this clear. Information About Defendant’s Personal Background Was All Previously Known. Specifically, on the bottom of page 3 through page 4 of his Petition, Defendant reviews his personal background, as well as that of his immediate family. Of course, this is all information known to the Defendant at the time of his original hearing, as it is the Defendant’s personal information. And, this is all information laid out by Defendant’s previous counsel during the detention hearing. Defendant also states that he knew he was being investigated but did not flee. Defendant fails to explain this allegation. The Government is unaware of how the defendant could have known that he was being investigated. No one approached the defendant in connection with this investigation and advised him that he was being investigated. And, nothing was done as part of this investigation that might have put defendant on notice that he was being investigated. Rather, a brief surveillance was conducted on one date prior to defendant’s arrest for the purpose of preparing an operation plan for execution of the arrest warrant for the defendant. Nonetheless, this was all information known to the defendant at the time of the pretrial detention hearing. Defendant further claims that he cooperated with law enforcement during his post-arrest statement. To the contrary, as explained at the pretrial detention hearing, other than waiving his Miranda rights and agreeing to be interviewed, Defendant Bujduveanu was otherwise rather uncooperative during his post-arrest interview. See Tr. p.15:15-18 and 26:17-23. Again, this is information that was known to the defendant at the time of the pretrial detention hearing. 5
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 6 of 12 Certainly, none of this information warrants a reopening of the hearing as it was known to the Defendant at the time of the original hearing. Defendant’s Arguments That the Government’s Claims Were Exaggerated Are Baseless. The Government also notes that, other than laying out information which was already known to the defendant at the time of the pretrial detention hearing, the defendant makes one wholly unsupported general claim that “the defendant maintains that the government grossly exaggerated and/or misrepresented what they had in order to persuade Judge O’Sullivan to hold Mr. Bujduveanu without bond.” The Government takes allegations that counsel “misrepresented” anything to the Court very seriously. As indicated, the allegation is completely unsupported in Defendant’s Motion and lacks any specific basis upon which to make such a serious claim. Without any reference to a specific “gross exaggeration” or “misrepresentation”, it is somewhat impossible to respond to this allegation. Therefore, at this point, the Government simply submits that the defendant’s allegation is incorrect and stands by its representations on the record before the court at the Pretrial Detention Hearing. Defendant’s Petition, therefore, does nothing more than re-hash what was already before this Court and does not lend itself to support a finding by the Magistrate Judge that “information exists that was not known to the movant at the time of the hearing,” as required by 18 U.S.C. § 3142(f) . Therefore, Defendant’s Motion, insofar as it is a Motion to Reopen the Pretrial Detention Hearing, must be denied as a matter of law. II. Defendant Fails to Demonstrate That the Magistrate’s Findings Were Clearly Erroneous. 6
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 7 of 12 Although it is unclear from his Petition, the defendant appears to suggest that he also seeks to appeal the Magistrate Judge’s Detention Order as to Defendant Bujduveanu. To succeed on such an appeal, the defendant must demonstrate that the Magistrate Judge’s findings are clearly erroneous. The record reflects that the Magistrate Judge’s findings in this case are correct and clearly supported by the record. Defendant’s unsupported allegation to the contrary is wholly without merit and has no support in the facts. The Motion should, therefore, be denied without further hearing. As the record in this case and Defendant’s personal background make clear, Defendant Bujduveanu is a very real flight risk. The United States demonstrated at the pretrial detention hearing by a preponderance of the evidence that no condition or combination of conditions can reasonably assure that this Defendant will appear for future court appearances as directed. The United States remains very concerned that should Defendant Bujduveanu be released from custody, he will flee from the United States. The Defendant’s Petition Is Untimely and Should Be Procedurally Barred. Pursuant to Southern District of Florida, Magistrate Judge Rule 4(a), “Any party may appeal from a Magistrate Judge’s order determining a motion or matter under subsection 1(c) of these rules [“Determination of Non-Dispositive Pretrial Matters”] within 10 days after being served with the Magistrate Judge’s order...” See also Fed.R.Cr.Pr.59(a). The Magistrate Judge’s Detention Order as to Traian Bujduveanu was signed and filed by the court with the CM-ECF system on June 26, 2008. The time for filing an appeal of the detention order has long since expired, and defendant presents no reason why this Court should consider such a Petition so far out of time. 7
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 8 of 12 Even if this Court considers the merits of the Petition, the unsubstantiated Petition is completely without merit. The Magistrate’s Findings Were Not Clearly Erroneous and Are Entitled to Deference. A person who has been ordered detained by a magistrate judge may file a motion for revocation or amendment of the order with the court having original jurisdiction over the offense. 18 U.S.C. § 3145(b). The Eleventh Circuit has held that when a defendant files a motion to revoke a magistrate judge’s pretrial detention order, the district court should “undertake an independent review of the case.” United States v. King, 849 F.2d 485, 489 (11th Cir. 1988); United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987). However, in so holding, the court rejected the notion that such “independent review” requires the district court judge to conduct a de novo hearing when reviewing the magistrate judge’s detention order. Rather, the court explained, “de novo review [only] requires the court to exercise independent consideration of all facts properly before it...” Gaviria, 828 F.2d at 670 (citing United States v. Hurtado, 779 F.2d 1467, 1480 (11th Cir. 1985). See also King, 849 F.2d at 489-490. Further, the Eleventh Circuit has been clear that it is well within the discretion of the district court judge, based solely on a careful review of the pleadings and evidence developed at the magistrate’s detention hearing, to adopt the magistrate’s order should it determine that the magistrate’s findings are supported and his legal conclusions are correct. King, 849 F.2d 485. Indeed, the magistrate’s findings must be given “respectful consideration.” Id; United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986); United States v. Williams, 753 F.2d 329, 333 (4th Cir. 1985). The instant case presents the precise circumstances in which such deference to the magistrate’s findings and conclusions is warranted. Defendant has articulated no legitimate basis 8
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 9 of 12 upon which to question Magistrate Judge O’Sullivan’s findings or legal conclusions. To the contrary, as discussed above, the defendant simply makes one unsupported and unspecific allegation that “the government grossly exaggerated and/or misrepresented what they had in order to persuade Judge O’Sullivan to hold Mr. Bujduveanu without bond.” Defendant’s Petition at p.2 ¶ 6. Defendant’s counsel also makes a blanket statement that he, the undersigned counsel for Bujduveanu, “believes that the government’s position alleging that Mr. Bujduveanu poses such a flight risk that he must be held without bond is without merit.” Defendant’s Petition at p.2 ¶ 6. Defendant fails to point to any specific information upon which to question the Magistrate Judge’s findings and certainly does not point to any reason to believe that the Magistrate’s findings were clearly erroneous. The record reflects that the Magistrate Judge carefully considered each of the factors set forth in the Bail Reform Act and found that the Government had amply proven each of the factors in favor of a determination that the Defendant is a flight risk. Defendant’s unsupported allegations to the contrary do not cast any real doubt on the Magistrate Judge’s findings nor on the bases underlying those findings. The Defendant’s claims of exaggeration and misrepresentation by the Government at the pretrial detention hearing are wholly without merit. A reading of the pretrial detention hearing transcript demonstrates that the Government proved by a preponderance of the evidence that Defendant Bujduveanu is a flight risk. Each of the factors set forth in 18 U.S.C. § 3142(g) weighs heavily in favor of the determination that Bujduveanu is a serious flight risk. Bujduveanu is charged with assisting the Islamic Republic of Iran by providing much needed aircraft parts, including parts for aircraft used exclusively by the Iranian military. The weight of the evidence against him is substantial given the voluminous 9
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 10 of 12 documents and email communications documenting the charged offenses, in addition to Bujduveanu’s own post-arrest admissions concerning his knowledge of aircraft parts and the applicable regulations, as well as the fact that hundreds of thousands of dollars worth of new, boxed military aircraft parts were found during the search of his residence. Bujduveanu’s characteristics demonstrate that he has every incentive and opportunity to flee from the United States given his close contact and many business ties throughout the world. He has demonstrated a willingness and ability to travel internationally very frequently, including at least 11 international trips within the last 5 years and 2 trips to Romania within the 6 months prior to his arrest, as well as plans for travel to Japan in the month following his arrest and his possession of a pilot’s license. He has also demonstrated an unwillingness to cooperate with authorities by lying to investigators throughout his post-arrest interview. Nothing in Defendant’s Petition casts any doubt as to any of these factors. When each of these factors is considered, it is clear that Bujduveanu poses a serious risk of flight, and the Magistrate Judge was absolutely correct in so holding. Therefore, to the extent that the defendant’s Petition is intended as a Motion to Revoke the Pretrial Detention Order, the Petition is without merit and should be denied CONCLUSION In sum, the Defendant has not demonstrated that there exists new information that was not known to him at the time of the original detention hearing that has a material bearing on the issue of whether the Defendant is a risk of flight. As the Court found at the original pretrial detention hearing, all of the factors considered by the Court pursuant to 18 U.S.C. § 3142(g) lead to the conclusion that there are no conditions or combinations that will reasonably assure that the 10
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 11 of 12 Defendant will appear as needed. Moreover, Defendant fails to demonstrate in his untimely Petition that the Magistrate Judge’s conclusions were clearly erroneous. Therefore, the Defendant’s Petition for Review of Magistrate’s Report and Recommendation Denying Defendant’s Motion for Bond and Granting Government’s Motion for Pretrial Detention Hearing should be denied, and the Defendant should remain detained pending trial in this case. Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY By: S/ Melissa Damian Melissa Damian Assistant United States Attorney Florida Bar No. 0068063 99 Northeast 4th Street Miami, Florida 33132-2111 Tel: (305) 961-9018 Fax: (305) 536-4675 11
    • Case 1:08-cr-20612-PAS Document 91 Entered on FLSD Docket 09/22/2008 Page 12 of 12 CERTIFICATE OF SERVICE I hereby certify that on September 22, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to Mark Eiglarsh, counsel for Defendant Traian Bujduveanu. S/ Melissa Damian Melissa Damian Assistant United States Attorney 12