Free Memorandum in Opposition - District Court of California - California

Case 5:07-cr-00501-JF

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Filed 08/17/2007

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BARRY J. PORTMAN Federal Public Defender NICHOLAS P. HUMY CYNTHIA LIE Assistant Federal Public Defenders 160 West Santa Clara Street, Suite 575 San Jose, CA 95113 Telephone: (408) 291-7753 Counsel for Defendant ABD HIR

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 INTRODUCTION On August 14, 2007, this Court ordered Rahmat Abd Hir released pending trial, as soon as Mr. Abd Hir and his sureties are able to post $600,000 bond. The Court's decision was made after the government had been given two separate opportunities to argue for Mr. Abd Hir's detention. Although the government is entitled to appeal this Court's decision, a stay pending that appeal is neither statutorily required nor factually justified. ARGUMENT At the initial detention hearing, the Court determined that Mr. Abd Hir is not a danger to
Opposition to M otion to Stay Release

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

UNITED STATES OF AMERICA,

) ) ) Plaintiff, ) ) vs. ) ) RAHMAT ABD HIR, ) ) Defendant. _____________________________________ )

No. CR-07-00501 JF (HRL) OPPOSITION TO GOVERNMENT'S MOTION TO STAY RELEASE PENDING APPEAL HON. HOWARD R. LLOYD

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Case 5:07-cr-00501-JF

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the community. Although the Court ordered Mr. Abd Hir detained as a potential flight risk, the Court indicated that it would likely follow the recommendation of Pretrial Services that Mr. Abd Hir be released, provided that adequate sureties could be found. One week later, Mr. Abd Hir returned to court for a second hearing. At that time, the Court was informed that Mr. Abd Hir and his wife were prepared to post their home, as were three other couples. The government again argued that Mr. Abd Hir poses a danger to the community and a flight risk. After twice hearing extensive argument from the government in favor of Mr. Abd Hir's detention, this Court concluded that Mr. Abd Hir is not a danger to the community and that any flight risk he might otherwise pose could be addressed by requiring Mr. Abd Hir to post $600,000 bond. The Court's decision was consistent with the recommendation of Pretrial Services. Nothing in § 3145(a)(1) requires this Court to stay its release order. See 18 U.S.C. § 3145(a)(1); United States v. Rios, ­ F. Supp. 2d. ­, 2007 WL 1725636 (N.D. W. Va. 2007) (denying government request to stay release order pending appeal). Nor is there any presumption in favor of a stay. The government has offered no justification for its request, other than the simple fact that it intends to appeal. It is also notable that the government failed to request a stay at the conclusion of the detention hearing, although it could have done so then. Mr. Abd Hir's sureties have already begun the time-consuming and costly process of having their homes appraised and obtaining title reports. // // // // // // //
Opposition to M otion to Stay Release

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Case 5:07-cr-00501-JF

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Opposition to M otion to Stay Release

CONCLUSION Mr. Abd Hir is not a danger to the community and, subject to the conditions this Court has imposed, does not present a flight risk. For these reasons, as well as the reasons set forth above, it is respectfully requested that the government's request for a stay pending appeal be denied. Dated: August 18, 2007 Respectfully submitted, BARRY J. PORTMAN Federal Public Defender ___________/s/______________ CYNTHIA LIE Assistant Federal Public Defender

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