United States District Court, E.D. Kentucky, Central Division
OPINION AND ORDER
K.CALDWELL, CHIEF JUDGE
matter is before the Court on the defendant Mahmoud Shaker
Shalash's motion (DE 25) to revoke the magistrate
judge's detention order.
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.
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.
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
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).
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
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.
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.
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).
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).
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.
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.
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, ...