18-217-cr United States v. Khusanov

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of April, two thousand eighteen.

PRESENT: BARRINGTON D. PARKER, REENA RAGGI, DEBRA ANN LIVINGSTON, Circuit Judges. ---------------------------------------------------------------------- UNITED STATES OF AMERICA, Appellee,

v. No. 18-217-cr

DILSHOD KHUSANOV, Defendant-Appellant,

---------------------------------------------------------------------- APPEARING FOR APPELLANT: NICHOLAS KAIZER (Richard W. Levitt, on the brief), Levitt & Kaizer, New York, New York.

APPEARING FOR APPELLEE: DAVID K. KESSLER, Assistant United States Attorney (Jo Ann Navickas, Alexander A. Solomon, Douglas M. Pravda, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York. Appeal from an order of the United States District Court for the Eastern District of

New York (William F. Kuntz, Judge) denying bail and ordering pretrial detention.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order entered on January 10, 2018, is AFFIRMED.

Defendant Dilshod Khusanov, who is awaiting trial on charges of conspiring and

attempting to provide material support to a foreign terrorist organization, appeals from an

order denying him pretrial release on bail. See 18 U.S.C. § 2339B(a)(1). We review a

denial of pretrial bail for clear error. See United States v. English,

(2d

Cir. 2011). In applying that standard here, we assume the parties’ familiarity with the

facts and the record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.

1. The Legal Standard

The Bail Reform Act permits a district court to order pretrial detention only if it

finds “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.”

(e)(1). Four factors properly inform this determination: “(1) the nature and

circumstances of the offense charged”; “(2) the weight of the evidence against the person”;

“(3) the history and characteristics of the person”; and “(4) the nature and seriousness of

the danger to any person or the community that would be posed by the person’s release.”

§ 3142(g). Where, as here, a defendant has been indicted for violating 18 U.S.C. §

2339B(a)(1), a rebuttable presumption arises that no conditions can provide the requisite

2 assurances. See id. at § 3142(e)(3). Such a presumption places “a limited burden of

production—not a burden of persuasion” on the defendant to “com[e] forward with

evidence that he does not pose a danger to the community or a risk of flight.” United

States v. English,

(internal quotation marks omitted). Such production

“does not eliminate the presumption favoring detention.”

Rather, it “remains a

factor to be considered among those weighed by the district court,” with the government

bearing the ultimate burden of making a preponderance showing that the defendant poses

a risk of flight and a clear and convincing showing that he presents a danger to persons or

the community.

(internal quotation marks omitted).

2. The District Court Did Not Clearly Err in Denying Khusanov Bail

Khusanov argues that the district court clearly erred in denying him bail because it

gave undue weight to the nature of the charged offense, transforming a rebuttable

presumption into an irrefutable one; failed to consider certain information; and made “a

series of erroneous and misleading factual findings.” Def. Br. 10 (emphasis omitted).

We are not persuaded.

The district court correctly characterized the charges against Khusanov as “serious”

and observed that they exposed him to a maximum possible prison term of 30 years, thereby

providing a strong incentive to flee the country. As Khusanov himself acknowledges, a

district court does not clearly err in concluding that a defendant facing a potentially lengthy

prison sentence possesses a strong motive to flee. See United States v. Sabhnani,

(2d Cir. 2007). Nevertheless, Khusanov urges error by maintaining that he is

3 unlikely to face such a sentence, even if convicted, because a more culpable party in the

conspiracy received only a 15-year sentence. Before the district court, he also maintained

that his alleged support for terrorism—providing approximately $2,400 to finance a would-

be ISIS supporter’s travels—was relatively minor. 1 The arguments merit little discussion.

First, we need not consider how, at a future sentencing following trial, the district

court might view Khusanov’s culpability compared to that of a confederate who pleaded

guilty. This is because, even if, as a practical matter, Khusanov’s maximum sentence

exposure were only 15, rather than 30, years’ imprisonment, that would still be sufficient

to provide him with a strong incentive to flee. See United States v. Jackson,

,

6–7 (2d Cir. 1987) (concluding that “indictment under which the defendant faces at least

ten years of imprisonment” created risk of flight). Insofar as Khusanov argues that his

failure to flee when confederates were first apprehended rebuts any presumption that he is

a risk of flight now, the district court was not compelled so to conclude. Rather, the court

could think that a defendant would perceive a greater threat to his liberty—and, therefore,

posed a greater risk of flight—when he faced actual charges rather than simply anticipated

possible charges. See

(rejecting argument defendant’s failure to flee prior to arrest

although knowing he was under investigation did not make him a risk of flight).

Second, the district court acted well within its discretion in viewing Khusanov’s

conduct as more serious than he urges. As the district court observed, the terrorist

1 At oral argument, the government clarified that Khusanov himself actually contributed only $200 to $400.

4 organizations to which Khusanov allegedly provided support have a history of particularly

violent conduct. Further, the specific purpose for Khusanov’s attempted support was to

facilitate violence by allowing persons to travel to Syria to wage “jihad against the United

States and its allies.” Tr. 31:4–11.

In thus reasonably deciding that the first statutory factor weighed heavily in favor

of detention, the district court hardly transformed a rebuttable presumption against pretrial

release into an irrefutable one. This is evident from the district court’s recognition of its

obligation to consider the remaining § 3142(g) factors.

As to the second factor, the weight of the evidence against Khusanov, the district

court recognized that much of the evidence was recorded or documented, making it

difficult to refute. This included intercepted communications in which Khusanov

discussed financing Akhror Saidakhmetov’s travel to Syria to participate in ISIS jihad, 2 as

well as bank records documenting Khusanov’s transfer of funds to co-conspirator Akmal

Zakirov only days before Saidakhmetov’s planned travel to Syria. Khusanov’s argument

that this evidence is not as inculpatory as the government urges may show the possibility

for disagreement as to weight, but not clear error as to the weight assigned by the district

court. See United States v. Shakur,

(2d Cir. 1987) (recognizing that

weight to be accorded each § 3142(g) factor is special province of district court); see also

2 The district court appears to have erred in stating that Khusanov “discussed efforts to raise money with [rather than for] Mr. Saidakhmetov, to enable Saidakhmetov to join ISIS . . .,” Tr. 31:23–25, but the error is harmless because the corrected fact is equally inculpatory.

5 United States v. English,

(holding that, in bail context, “[w]here there are

two permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous” (internal quotation marks omitted)).

As to the third factor, personal history, Khusanov’s claim that the district court

failed to consider this at all is belied by the record wherein the district court acknowledged

reviewing all materials presented on bail, which included a defense letter detailing

Khusanov’s age, immigration status, criminal record, country of origin, family

information, occupation, and state of residence. Moreover, the district court stated on the

record its awareness that Khusanov “was in the process of obtaining U.S. citizenship and

has a strong support network of financially responsible individuals who are willing to

cosign a bond securing his pre-trial release.” Tr. 7:23–8:1; see

at 32:11–12

(commending as “admirable” fact that sureties have come forward). In sum, the district

court may not have assigned these facts favoring bail as much weight as Khusanov thinks

they warrant; but that is no basis for identifying clear error. See United States v. Shakur,

817 F.3d at 196.

We reach the same conclusion as to the fourth factor, the nature and seriousness of

the danger to any person or the community posed by Khusanov’s release. The

government argued that Khusanov’s danger was evident from his involvement in a

domestic terrorist support network and his text messages lamenting that “mistakes . . .

among the mujahedeen” had prevented confederate Zakirov from participating in “jihad.”

Tr. 8:2–14; Gov’t App’x 29–30. Khusanov argues that even if this evidence demonstrates

6 that Khusanov could pose a danger to persons outside the United States if released, it

demonstrates no danger to any person or community within the United States. We are

doubtful that the fourth factor is so geographically cabined, particularly when the terrorist

organizations that Khusanov allegedly attempted to support target members of the United

States armed forces serving abroad and encourage terrorist acts within this country. See,

e.g., Rukmini Callimachi, Benjamin Mueller, Michael Schwirtz, and Adam Goldman,

Islamic State Claims Responsibility for Lower Manhattan Terrorist Attack, N.Y. Times

(Nov. 2, 2017), https://www.nytimes.com/2017/11/02/nyregion/manh

attan-terror-attack-wedding.html; see also Am. Civil Liberties Union v. Dep’t of Def.,

(S.D.N.Y. 2017) (“Today, portions of Iraq have been overrun by ISIS,

a barbaric terrorist organization whose pernicious campaign of public beheadings,

enslavement, and indiscriminate killings of people it considers apostates are indisputable

proof that its members, like many other terrorists that the United States has fought in Iraq

and Afghanistan, do not need pretexts for their barbarism.” (internal quotations marks

omitted)). But even assuming the narrow construction urged by Khusanov, where, as

here, there is a presumption that defendant cannot be released on any conditions that will

ensure the safety of persons or the community, and where that presumption arises because

defendant attempted to support a terrorist organization, ISIS, committed to surprise, as well

as planned, attacks on United States persons inside, as well as outside, this country,

Khusanov cannot demonstrate that the district court clearly erred in denying him bail

because his particular charged crimes sought to support ISIS abroad. Rather, the district

7 court was entitled to conclude that a person in this country who criminally commits to

supporting ISIS clearly and convincingly presents a danger to United States persons and

communities in this country, as well as abroad.

Khusanov argues that the district court’s denial of bail rests on erroneous factual

findings. We have already explained why any misstatement about speaking “with”

Saidakhmetov is harmless. See supra at 5 n.1. As for the district court’s observation

that Khusanov posted on an Uzbek ISIS website, which the government concedes was

mistaken, we conclude that this error was also harmless as the observation appears not to

have played any significant part in the district court’s bail decision. Insofar as Khusanov

charges the district court with erroneously accusing him of direct participation in various

ISIS atrocities, the record does not support the argument. The district court stated that

Khusanov stood “indicted for attempting and conspiring to provide material support to

ISIS,” which is “an organization[] responsible for” various extreme acts of violence. Tr.

31:3–11. Both parts of this statement are correct and do not imply what Khusanov urges.

The district court’s other challenged factual findings are well supported by the record.

We have considered Khusanov’s remaining arguments and conclude that they are without

merit. Accordingly, the district court’s order denying bail pending trial is AFFIRMED.

FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of Court

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