Free Memorandum in Opposition - District Court of California - California

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BARRY J. PORTMAN Federal Public Defender MANUEL U. ARAUJO, Assistant Federal Public Defender 160 West Santa Clara Street, Suite 575 San Jose, CA 95113 Telephone: (408) 291-7753 Counsel for Defendant ABPIKAR

IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO: UNITED STATES DISTRICT COURT JUDGE JAMES WARE and to the United States of America acting through their attorney of record, the United States Attorney's Office for the Northen District of California, PLEASE TAKE NOTICE that on August 25, 2008, at 1:30 p.m. or as soon as the parties may be heard, the defendant, Hassan Abpikar, will oppose the government's motion to revoke bail and will rely in part of the attached memorandum of points and authorities, the tape recording of the detention hearing conducted on August 13, 2008, and any oral arguments as may be made on that date. I. INTRODUCTION Magistrate Judge Trumbull set bail in the amount of $50,000, to be signed by two responsible persons. She further ordered that Mr. Abpikar be placed on electronic monitoring. The government's request for an order revoking the Magistrate/Judge's August 13, 2008, order v. HASSAN ABPIKAR, Defendant. _______________________________ ) ) ) ) ) ) ) ) ) No. CR 08-00560 RMW (PVT) DEFENDANT ABPIKAR'S OPPOSITION TO THE UNITED STATES' MOTION TO REVOKE PRETRIAL RELEASE ORDER FOR DEFENDANT HASSAN ABPIKAR; EXHIBITS

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granting pre-trial release should be denied. The government fails to establish or even claim that Mr. Abpikar is a serious flight risk. Instead the government in its memorandum relies heavily on the claim that Mr. Abpikar is guilty of violating 18 United States Code, § 1001(a)(1) and (3), and § 1015 (a) and (d), making a false statement on a citizenship application. However, Title 18, United States Code § 3142(j) makes it clear that nothing in § 3142 "shall be construed as modifying or limiting the presumption of innocence." II. ARGUMENT a. There Is No Serious Risk That the Defendant Will Flee The Government is not entitled to ask for detention unless and until it can first show ­ by a preponderance of the evidence ­ that there is "a serious risk that such person will flee." 18 U.S.C. § 3142(f)(2)(A) (Emphasis added.) If, as in this case, the Government cannot satisfy that burden, a detention hearing is not authorized and the Defendant must be released upon the least restrictive set of conditions. The government's request for detention does not claim that the defendant poises a serious risk of flight, it merely asserts that he is a "flight risk." (See Gov't Motion, pg. 2: 19 - 22.] Under these circumstances, the Government is not entitled to detention, in fact it is not entitled to a detention hearing. It is only entitled to argue for detention if it asserts that Mr. Abpikar is a serious flight risk and proves by a clear preponderance of the evidence that he is a serious risk of flight. The Bail Reform Act of 1984 (codified as amended at 18 U.S.C. §§ 3141-3156) authorizes courts to release or detain persons who have been arrested and sets forth the procedures which courts must follow. See 18 U.S.C. § 3141(a). Congress intended the Bail Reform Act to authorize detention only in the rarest of circumstances. United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985). A court must conduct a section 3142(f) hearing "[u]pon motion of the attorney for the Government or upon the [court's] own motion, in a case that involves" the following: (A) (B) a serious risk that such person will flee; or a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, a prospective witness or juror.

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Id. § 3142(f)(2) (Emphasis added.). The government has not made or proven either requirement. Congress intended that these "circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial." S. Rep. No. 225, 98th Cong., 1st Sess. 20 (1983), reprinted at 1984 U.S.C.C.A.N. 3203. To detain a person pending trial, a court must find by a "clear preponderance of the evidence," Motamedi, 767 F.2d at 14061 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 . . . ." 18 U.S.C. § 3142(e). b. The Government's Reliance on the Weight of the Evidence Against Mr. Abpikar Is Misplaced.

Mr. Abpikar is presumed innocent as a matter of Constitutional Law. In recognition fo this 12 Right, Title 18, United States Code § 3142(j) makes it clear that nothing in § 3142 "shall be construed 13 as modifying or limiting the presumption of innocence." Therefore, the weight of the evidence while 14 a consideration is the least important of the factors to be considered. 15 While it is the government which bears the burden of proof, the defense will address the 16 evidentiary issues alleged against Mr. Abpikar for the purpose of demonstrating to the Court that Mr. 17 Abpikar's conviction is far from certain. The government has submitted Exhibit A, which are the court 18 documents regarding the Mr. Abpikar's 1980 conviction. This document has a number of problems 19 on its face. First, it is not clear that Mr. Abpikar was convicted of "telephoning a bomb threat." The 20 supporting document allegedly signed by Mr. Abpikar and all the parties, advised him only that he had 21 been charged with "making a threatening phone call." 22 Additionally, there was no court reporter present. Therefore, the only reliable proof of the crime to 23 which Mr. Abpikar pled guilty is the document that he was pleading guilty to making a "threatening 24 phone call." There is nothing to indicate that the defendant agreed to the modification of the charges, 25 or that he gave a sufficient factual basis for the guilty plea. The defense asserts that the conviction is 26 27 28
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It mentions nothing about a "bomb."

The rebuttal presumption of 18 U.S.C. § 3142(e) does not apply to this case. 3

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not valid. Additionally, it is important to note that Mr. Abpikar was a nineteen-year-old in 1980, had recently arrived from Iran, with limited English skills. Mr. Abpikar did not enjoy the benefit of an interpreter, and nothing in the record indicates that the matters were interpreted to him. He was not jailed, and it is reasonable to infer that he did not understand that he had been convicted of a crime. In any case, were the matter to proceed to trial, the government would need to prove wilful intent. The government claims that Mr. Abpikar failed to disclose that he had been married, but later divorced. Mr. Abpikar told Pretrial Services the same thing, initially stating that he was single. [See Pretrial Services Report.] After follow-up questions by the Pretrial Services Officer, Mr. Abpikar explained that he was single because in his country of origin, a man is single once he divorces his wife, while the former wife is divorced. There is no evidence that the failure to disclose the former marriage in 2004, was wilful. In fact, the government concedes that in 1990, in connection with an Application to File Petition for Naturalization, Mr. Abpikar did disclose that he had been married in 1982 and divorced in 1983. [Gov't Motion, pg. 3:14-16.] The government claims that Mr. Abpikar made a false statement to Pretrial Services regarding his former residence at 3254 Fleur De Lis Court. [Gov't Motion, pg. 3:26 - 27.] Contrary to the government's assertion, Mr. Abpikar did not tell Pretrial Services that this had recently lived at 3254 Fleur De Lis Court. (Gov't Motion pg. 1: 28) He did not tell them that he lived there within the last eight years. He told them only that he had previously lived at 3254 Fleur De Lis Court. The government's claim that Mr. Abpikar lied in his 2004, application regarding his residence, relies on the unsupported assertion that the current 3254 Fleur De Lis Court residents recently told an unnamed Deputy Sheriff that during the eight years that they lived there, the defendant did not live there. However, even if the above claim were proven, the government would at a trial need to prove beyond a reasonable doubt the materiality and wilfulness of the statement. The government claims that the United States Citizenship and Immigration Services initiated removal proceedings against Mr. Abpikar, initiated because of his criminal history which included his alleged 1980 bomb threat conviction, a final misdemeanor conviction for theft, and a pending 4

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misdemeanor case for which the defendant had not yet been sentenced2. [Gov't Motion, pg. 4:1-11.] It is interesting to note that the United States Citizenship and Immigration Services "terminated" the removal proceeding. [Gov't Motion, pg. 4:7.] The United States Citizenship and Immigration Services did not release Mr. Abpikar on bail so that he could appear on the misdemeanor matter, the proceedings were terminated. This strongly suggests that contrary to the government's assertion, the case against Mr. Abpikar is substantially weaker than purported. Certainly, the United States Citizenship and Immigration Services had before it the 1980, conviction! They apparently did not believe that it merited removal. In fact, Mr. Abpikar retains his green card. Forged passports from the Republic of Iran. As the government told the Magistrate Judge on August 13, 2008, these are not actual passports but photocopies of what purports to be an Iranian Passport. [Gov't Motion, pg. 4:27-28.] It is not a document which would permit travel into or out of the United States. There is no allegation that Mr. Abpikar has traveled to Iran in the last 28 years.

c.

The Current Arrest Warrants Against Mr. Abpikar Are the Result of His Federal Custody. Aside from the facts of the underlying allegations supporting the complaint, the other basis for

16 the government's detention requests is the assertion that Mr. Abpikar has on numerous occasions failed 17 to appear in court as directed. However, in each known cases the defendant was in Federal custody and 18 19 Orange County Superior Court in New Port Beach, California, and the court had no option but to issue 20 a warrant for his arrest. The three recent failures to appear in the Santa Clara Superior Court can be 21 traced directly to the actions of the United States government and/or its agencies. [Exhibit A, attached 22 Declaration of Mr. Dennis Lempert.] 23 issued against Mr. Abpikar on August 11, 2008, in misdemeanor cases numbered CC 592749, 24 CC619862, and CC 808220. Because the United States Marshal's Service would not permit the Santa 25 26
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could not appear. On July 21, 2008, Mr. Abpikar was in ICE custody3. He could not appear before the

Mr. Lempert points out that three bench arrest warrants were

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This conviction was set aside and the charges dismissed on August 11, 2008. See exhibit B. The government concedes that the defendant was arrested on June 9, 2008 and that an

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ICE hold was placed on him. [Gov't Motion, pg. 4:12 thru pg. 5: 11-13.] 5

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Clara County Sheriff's Office to present him before the Santa Clara Superior Court,4 the Superior Court was obligated to issue the arrest warrants. The one case in which the Sheriff's Office did transport Mr. Abpikar to Court, case number CC629857,5 the felony charges were dismissed. Mr. Abpikar had posted bonds and had every interest in resolving those matters. As exhibit C, makes clear, the Judge was aware that Mr. Abpikar was in Federal custody. Therefore, given the circumstances, the government's own actions contributed to the issuance of arrest warrants against Mr. Abpikar for the failures to appear.

d.

The Magistrate Judge Struck the Proper Balance, Placing Mr. Abpikar under a Combination of Conditions Which Reasonably Assures His Appearance. The Magistrate Judge took into account that Mr. Abpikar continues to hold a green card. The

United States Citizenship and Immigration Services terminated the removal proceeding against him. The Magistrate Judge set bail in the amount of $50,000 and released him only upon the signature of two responsible persons. Additionally, the Magistrate Judge ordered that Mr. Abpikar be placed on electronic monitoring and Pretrial Services's supervision. Given the circumstances the bail is designed to reasonably assure the defendant's appearance. The Court should consider that Mr. Abpikar has every desire and motive to appear. If he wishes to maximize his opportunity to remain the United States, he must appear and contest the charges filed against him. Additionally, the punishment for the alleged offense is a maximum of five years on each count. Under the Sentencing Guidelines for a false statement his base offense level would be set at 6, with a worst case scenario criminal history III, giving a range of 2 to 8 months in custody. If the government could prove perjury, his base offense level would be set at 14, and there is no indication of any justifiable upward adjustments. A worst case guideline range for a perjury conviction is 21 to 27 months. This is not the type of sentence which creates a significant motivation to flee.
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The warrants issued by the Santa Clara Superior Court were on cases numbered CC619862, CC592749, and CC808220. This is the same case that the government alleges he was released for the purpose of

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III. CONCLUSION The Government is not entitled to revocation of the bail order because it has neither alleged nor proven that the combination of conditions will not reasonably assure the defendant's appearance. Because the Government has not and cannot show that a serious risk of flight is present, Mr. Abpikar respectfully requests that the Court order his release as previously set by Magistrate/Judge Trumbull. Respectfully Submitted,

___/s/______________________ Manuel U. Araujo, Assistant Federal Public Defender

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