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United States v. Shalash

United States District Court, E.D. Kentucky, Central Division

June 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MAHMOUD SHAKER SHALASH, Defendant.

          OPINION AND ORDER

          KAREN K.CALDWELL, CHIEF JUDGE

         This matter is before the Court on the defendant Mahmoud Shaker Shalash's motion (DE 25) to revoke the magistrate judge's detention order.

         Shalash is charged with one count of conspiring to kidnap certain individuals for ransom in violation of 18 U.S.C. § 1201(c) and one count of conspiring to use interstate facilities in the commission of a murder for hire in violation of 18 U.S.C. § 1958.

         The government moved that he be detained pending trial. Pursuant to 18 U.S.C. § 3142(e)(1), a defendant must be detained pending trial if, after a hearing, a judicial officer finds that no condition or combination of conditions will reasonably assure his appearance at future court proceedings and the public safety.

         The magistrate judge conducted a detention hearing and determined that the government had proved by a preponderance of the evidence that there are no conditions or combination of conditions that would assure Shalash's appearance at future court proceedings. (DE 21, Detention Order.) The magistrate judge also concluded that the government has presented clear and convincing evidence that Shalash poses a danger to the community, particularly to an individual the government has identified as “Victim 2.” Accordingly, the magistrate judge ordered that Shalash be detained pending trial. Shalash then filed this motion, asking the Court to revoke the magistrate judge's detention order.

         The Court will conduct a de novo review of the magistrate judge's detention order. The statute providing for review of the magistrate judge's detention order does not specifically require that the Court conduct an additional hearing. 18 U.S.C. § 3145(b). In his motion, Shalash does not request a hearing, and he does not rely on or explain evidence not already in the record that he would proffer at a hearing in support of the motion to revoke the detention order. Accordingly, a second detention hearing is not necessary. See United States v. Gaviria, 828 F.2d 667, 670 (11th Cir.1987); United States v. Jones, No. 12:CR-105, 2012 WL 6737784, at * 1, n.1 (D. Conn. 2012); United States v. Burks, 141 F.Supp.2d 1283, 1285 (D. Kan. 2001);United States v. Alonso, 832 F.Supp. 503, 504 (D. Puerto Rico 1993); United States v. Bergner, 800 F.Supp. 659, 661 (N.D.Ind.1992).

         In resolving this motion, the Court will rely on the affidavit filed in support of the criminal complaint, the indictment, the Pretrial Services Report prepared by the U.S. Probation Office, the transcript of the detention hearing, the “Notice” filed by the United States after the detention hearing (which Shalash states he has no objection to the Court considering), and the pleadings submitted by the parties.

         At the time of the detention hearing and the magistrate judge's detention order, the only charge against Shalash was the murder-for-hire charge contained in the criminal complaint. There is no presumption of detention on such a charge. After the magistrate judge issued his detention order, the government filed an indictment against Shalash, which contains the kidnapping charge in addition to the murder-for-hire charge. The government alleges in its response to Shalash's motion that the victim of the kidnapping charge was a minor. If that were the charge against Shalash, there would be a presumption of detention in this case, which Shalash would have to rebut. 18 U.S.C. § 3142(e)(3)(E).

         Nevertheless, the Court will not apply the presumption in determining whether Shalash's detention should be revoked. As discussed, in making its detention decision, the Court is relying on evidence presented at the detention hearing. At that time, Shalash was facing only the murder-for-hire charge and all parties agreed the presumption did not apply. Further, there is no evidence in the record regarding the age of the alleged victim of the kidnapping, and the indictment does not allege that the victim was a minor.

         Where the presumption does not apply, detention is appropriate if the government proves by a preponderance of the evidence that the defendant is a flight risk or if it proves by clear and convincing evidence that the defendant poses a danger to the public or any person. United States v. Hinton, 113 Fed.Appx. 76, 77 (6th Cir. 2004).

         In making this determination, the court is to consider “the available information” on the following factors: the nature and circumstances of the offense charged, including whether the offense is a crime of violence; the weight of the evidence against the person; the history and characteristics of the person; and the nature and seriousness of the danger to any person or the community posed by the person's release. 18 U.S.C. § 3142(g).

         As to the nature and circumstances of the offenses at issue here, conspiracy to commit murder for hire and to kidnap are both serious charges. The murder-for-hire charge carries a possible prison term of 10 years; the kidnapping charge carries a maximum life sentence. Further, both are “crimes of violence.” The Bail Reform Act defines a crime of violence as “an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another, ” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 3156(a)(4)(A), (B). Thus, this factor weights in favor of detention.

         As to the weight of the evidence against Shalash, the Court must weigh the evidence regarding the danger Shalash poses to the public or any person, not the evidence of his guilt. United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010). Likewise, where the flight risk is under consideration, the weight of the evidence goes to the evidence of the flight risk. United States v. Xiaorong You, No. 2:19-CR-14, 2019 WL 2426659, at *2 (E.D. Tenn. June 10, 2019). In weighing the evidence on these issues, the Court will consider Shalash's personal history and characteristics and the nature and seriousness of any danger to any person or the community posed by his release.

         A large portion of the evidence regarding any danger posed by Shalash was presented in the affidavit submitted in support of the criminal complaint and the testimony of William J. Jackson. In the affidavit, Jackson identifies himself as a deputy U.S. Marshal with the Federal Bureau of Investigation and as a detective with the University of Kentucky Police Department. At the detention hearing, ...


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