22-1761 United States v. Zhang

In the United States Court of Appeals For the Second Circuit

August Term, 2022 No. 22-1761

UNITED STATES OF AMERICA, Appellee,

v.

ZHE ZHANG, AKA ZACK, Defendant-Appellant,

QING MING YU, AKA ALLEN YU, ANTONY ABREU, AKA ANTHONY, YOU YOU, AKA EDDIE Defendants.

On Appeal from the United States District Court for the Eastern District of New York.

ARGUED: SEPTEMBER 21, 2022 DECIDED: DECEMBER 6, 2022

Before: RAGGI, WESLEY, and NARDINI, Circuit Judges. Defendant-Appellant Zhe Zhang, indicted for participating in a successful murder-for-hire scheme, was ordered detained pending trial. Zhang appeals the district court’s decision not to reopen his detention hearing under

(f) after the U.S. Department of Justice confirmed that it would not seek the death penalty against him. We conclude that the district court did not abuse its discretion in declining to revisit its detention ruling. In its initial detention determination, the district court had assumed that the death penalty would not be sought, and so the government’s later confirmation of that point did not materially change the detention calculus. Moreover, the district court’s consideration of the strength of the evidence that Zhang committed the charged offense, as part of its assessment of whether Zhang posed a danger to the community or a risk of flight, was consistent with the Bail Reform Act and did not undermine the presumption of innocence, which is a trial right. We therefore AFFIRM the district court’s decision not to reopen Zhang’s detention hearing and DENY Zhang’s motion for bail.

GABRIEL PARK, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

JASON I. SER (Henry E. Mazurek, on the brief), Meister Seelig & Fein LLP, New York, NY, for Defendant-Appellant.

2 WILLIAM J. NARDINI, Circuit Judge:

Defendant-Appellant Zhe Zhang was indicted for participating

in a successful murder-for-hire scheme, see

(a), and

the government sought his detention. After a hearing, the district

court determined that Zhang should be detained because he posed a

danger to the community as well as a risk of flight, and no set of

release conditions would offset those risks. In reaching that

conclusion, the court considered a variety of factors, including the

government’s proffer of strong evidence that Zhang committed the

charged capital offense. It assumed, however, that the government

would not seek the death penalty. About a month later, the

government formally confirmed that it would not do so, and Zhang

moved unsuccessfully to reopen his detention hearing.

On appeal, Zhang raises two challenges to the district court’s

August 3, 2022, denial of his motion to reopen, but neither is

persuasive.

3 First, he contends that the court was obliged to reopen his

detention hearing under

(f) because the government’s

formal decision not to seek the death penalty was information that

was both new and material to the question of whether he should be

released or detained. But the district court made clear that the

availability of the death penalty had not factored into its original

detention decision. Thus, the government’s confirmation of the

court’s assumption would not have materially altered the court’s

determination that detention was necessary, and so the district court

did not abuse its discretion under § 3142(f) in denying the motion to

reopen.

Second, Zhang argues that the district court relied too much on

the strength of the evidence that he committed the charged offense in

deciding not to exercise its inherent powers to reopen the detention

hearing, and that its reliance contravened the presumption of

innocence. But a district court has broad discretion to determine how

4 much weight to assign the factors listed in § 3142(g) based on the

circumstances of a particular case. The presumption of innocence is

a trial right, and a district court does not violate that presumption by

considering the strength or weakness of the evidence to determine

whether pretrial detention is appropriate.

We therefore AFFIRM the district court’s decision not to reopen

Zhang’s detention hearing and DENY Zhang’s motion for bail.

I. Background

On May 4, 2022, a federal grand jury sitting in the Eastern

District of New York returned an indictment charging Zhang and

three co-defendants with murder-for-hire and conspiracy to commit

murder-for-hire for the 2019 killing of Xin Gu in Flushing, Queens.

The government alleges that Gu’s former employer, Qing Ming Yu,

hired his nephew, You You, to kill Gu when he started a rival real

estate company in late 2018. You then allegedly hired Zhe Zhang and

Anthony Abreu to help him carry out the murder.

5 The government alleges that in the early hours of February 12,

2019, You, Zhang, and Abreu lay in wait outside a bar in Flushing,

where Gu was hosting a Lunar New Year celebration. When Gu left

the bar at 2:30 a.m., Abreu shot Gu multiple times and then fled the

scene in a car driven by Zhang. Several months later, Yu’s company

wired $30,000 to a company registered to Zhang.

On May 10, 2022, Zhang was arrested in the Central District of

California. On May 12, 2022, he sought pretrial release at a hearing

before a magistrate judge in that district (Jacqueline Chooljian, M.J.).

Zhang proposed a bond of $1.55 million and emphasized his U.S.-

based family, his job, and his willingness to accept electronic

monitoring. Seeking pretrial detention, the government pointed to,

among other things, the seriousness of the charges (carrying a

mandatory minimum sentence of life imprisonment upon

conviction), Zhang’s frequent trips overseas, and the disclosed

existence of a cooperating witness. The magistrate judge granted

6 pretrial release subject to home detention and the proposed bond but,

recognizing that the U.S. Attorney’s Office for the Eastern District of

New York was planning to appeal and that Zhang would not be able

to finalize the bond paperwork for several days, she stayed the release

order until May 18, 2022.

On May 13, 2022, the government appealed the California

pretrial release order to the U.S. District Court for the Eastern District

of New York (Carol Bagley Amon, J.).

On May 19, 2022, the district court heard the government’s

appeal. The government and Zhang presented largely the same

arguments as they had before the magistrate judge, although the

government described its evidence against Zhang in more detail. This

evidence included cell site location records, telephone toll records, a

text message sent from Zhang to a codefendant 20 minutes after the

murder, the testimony of multiple witnesses, and financial records

showing the payment from Yu to Zhang. In addition, the government

7 claimed to have significant evidence that Zhang was heavily involved

in the illegal sale of marijuana, that he had extensive ties to China,

and that certain of the suretors put forward by Zhang for his bond

were not, in fact, close social, familial, or professional relations.

The hearing also included a brief discussion of the possibility

of capital punishment. The government could not say for certain

whether it would seek the death penalty, because the matter was still

pending with U.S. Department of Justice in Washington, D.C. But the

court noted its understanding that, as matter of policy, “this Justice

Department was not pursuing the death penalty in any case,” and

stated its belief that appointing the additional counsel required for a

death penalty case would therefore be “wasting the court’s time and

taxpayers’ money.”

Reviewing the magistrate judge’s decision de novo, the district

court ordered Zhang detained because no combination of conditions

would reasonably ensure Zhang’s appearance in the case and the

8 safety of the community. The court noted that the charged crime was

“extremely serious” and the evidence against Zhang was strong.

Additionally, Zhang had substantial ties to China and Taiwan, had

previously threatened a witness, and had access to weapons. The

court further concluded that the suretors did not alleviate the risk of

flight because they provided little “moral suasion” over Zhang given

their attenuated connections to him.

Approximately one month after the district court ordered

Zhang detained, on June 29, 2022, the government informed the court

that the Attorney General had directed the U.S. Attorney’s Office for

the Eastern District of New York not to seek the death penalty against

any of the defendants named in the indictment.

On July 22, 2022, Zhang filed a motion to reopen his detention

hearing under

(f). He argued that the government’s

decision not to seek capital punishment constituted a material change

in circumstances that justified reopening the detention decision. That

9 fact, coupled with a newly proposed $5 million bond (secured by

properties and co-signors with whom he claimed to have closer

relationships), now made pretrial release appropriate.

On July 28, 2022, the district court held a hearing on Zhang’s

motion to reopen. There, the district court reiterated that its “original

ruling did not consider the death penalty” because it had been “of the

view that there would be no death penalty authorized in this case.”

Appellant Br., Ex. G, July 28, 2022, Bail Reopening Hearing Tr. at 4;

see

(“[T]he Court did not take [the potential death penalty] into

account at all.”). Thus, the district court indicated that it would not

reopen the hearing because the fact that the government would not

seek the death penalty was not material information unknown at the

time of the initial bail hearing. The district court informed the parties

that it would issue a written order memorializing its ruling.

On August 3, 2022, the district court issued that written ruling,

denying Zhang’s motion to reopen his detention hearing and for

10 pretrial release. The district court found that the government’s

decision not to seek the death penalty was not material information

that justified revisiting the court’s initial determination, because its

“original decision denying bail did not rely in any way on the

potential for a capital sentence.” United States v. Zhang, 22-cr-208-4,

Dkt. No. 53, 2 (E.D.N.Y. Aug. 3, 2022).

The court also declined to revisit its prior decision under its

inherent powers.

at 2–3. It observed that a review of the factors

outlined in

(g)—the severity of the alleged offense, the

strong weight of the evidence against Zhang, Zhang’s personal

characteristics (including his ties to other countries and past criminal

conduct), and the danger posed by Zhang’s release—indicated that

Zhang was both a flight risk and a danger to the community.

at 3–

8. The court noted that it would have reached this conclusion even if

it had given less weight to the evidence against Zhang.

. The

court went on to find that the bond package and release terms

11 proposed by Zhang could not mitigate his risk of flight and danger to

the community, particularly in light of the modest incomes of those

acting as sureties, the uncertain ownership of the properties to be

pledged, and Zhang’s prior use of encrypted messaging applications

and burner cellphones.

8–11.

On August 12, 2022, Zhang filed a notice of interlocutory

appeal of the district court’s August 3, 2022, Memorandum and

Order. On August 29, 2022, Zhang also filed a motion for bail before

this Court.

II. Discussion

In the usual case of a direct appeal from a district court’s denial

of pretrial release, we “apply deferential review to a district court’s

bail determination and will not reverse except for clear error.” United

States v. Mattis,

(2d Cir. 2020) (cleaned up). “The

clear error standard applies not only to the factual predicates

underlying the district court’s decision, but also to its overall

assessment, based on those predicate facts, as to the risk of flight or

12 danger presented by a defendant’s release.”

(cleaned up). The

district court’s “ultimate finding may be subject to plenary review if

it rests on a predicate finding which reflects a misperception of a legal

rule applicable to the particular factor involved.” United States v.

Shakur,

(2d Cir. 1987).

Here, however, we are a step removed from the usual case.

Zhang did not appeal the district court’s original detention

determination, which was conveyed orally at the May 19, 2022,

hearing. Instead, Zhang appeals only the district court’s later decision

on August 3, 2022, denying his motion to reopen the detention

hearing. That decision is reviewed for abuse of discretion. See United

States v. Gotti,

(2d Cir. 1986) (reviewing decision not

to reopen bail hearing for abuse of discretion). As in other contexts, a

“district court has abused its discretion if it has (1) based its ruling on

an erroneous view of the law, (2) made a clearly erroneous assessment

of the evidence, or (3) rendered a decision that cannot be located

13 within the range of permissible decisions.” Warren v. Pataki,

(2d Cir. 2016) (cleaned up). And so, to the extent that the

district court’s decision not to reopen was premised on factual

findings—including its ultimate assessment of danger and risk of

flight—that component of its ruling remains subject to review for

clear error.

Zhang’s August 29, 2022, motion for bail, filed directly with this

Court, does not alter our standard of review. In the normal course,

motions for detention or release must be filed in the district court in

the first instance. Cf. United States v. Hochevar,

, 342–44

(2d Cir. 2000) (holding that a motion for bail pending appeal must

first be filed before a district court). A court of appeals then sits in

review of the district court’s decision. See Fed. R. App. P. 9(a). Here,

the district court ordered Zhang’s detention on May 19, 2022, and

Zhang did not file a timely notice of appeal from that decision.

Instead, it was only after the district court denied his motion to reopen

14 that Zhang filed a notice of appeal. It is therefore only that latter

order—denying the motion to reopen—that is properly before us. Put

another way, Zhang’s direct filing of a motion for bail in this Court

cannot serve as an end-run around his decision not to appeal the

district court’s initial bail decision, and it does not expand the scope

of our review on appeal. See United States v. Watkins,

,

157–58 (2d Cir. 2019) (applying clear error standard to defendant’s

appeal of denial of bail and to motion for bail filed directly before the

Court).

A. The government’s decision not to seek the death penalty

The district court did not abuse its discretion in declining to

reopen Zhang’s detention hearing under

(f) in light of

the Attorney General’s decision not to seek the death penalty.

Under the Bail Reform Act, of which § 3142(f) is a part, a court

has discretion to reopen a bail hearing if information comes to light

that is both new and material to the detention question. Specifically,

a hearing “may be reopened” if

15 the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.

(f) (emphases added). Here, the district court

concluded that Zhang presented no “material” information to justify

reopening the bail hearing because the court had not relied on the

possibility of the death penalty in its initial holding. See Zhang, 22-cr-

208-4, Dkt. No. 53, 2 (E.D.N.Y. Aug. 3, 2022); Appellant Br., Ex. G, July

28, 2022, Bail Reopening Hearing Tr. at 5:5–8, 47:7–12.

Zhang argues that the district court erred by applying the

wrong standards for determining whether the relevant information

was “new” and “material.” The Bail Reform Act, he submits, asks

whether the new information was “known to the movant at the time

of the hearing,”

(f), not whether it was known to the

court. Further, he argues that whether the new information has a

“material bearing” on the availability of satisfactory release

16 conditions cannot be determined by looking to the district court’s

original rationale for denying release. Zhang contends that, with

these standards correctly applied, the fact that the Attorney General

had formally decided not to seek the death penalty was both new and

material information, and so the district court erred in declining to

reopen his detention hearing.

As an initial matter, we emphasize that the Bail Reform Act

states only that a hearing “may” be reopened if new and material

information is presented.

(f). The Act therefore leaves

the decision to reopen a hearing to the sound discretion of the district

court. Cf. In re Worldcom, Inc.,

(2d Cir. 2013) (“By

saying that the district court ‘may’ grant relief, [a] rule does not

require the district court to grant the relief, even if the requirements

are met.” (cleaned up)). Accordingly, even if Zhang’s arguments

were otherwise correct, the district court could still decide, in its

discretion, not to reopen the detention hearing.

17 But Zhang’s arguments are not correct; rather, they fail on their

own terms. Although he is correct that new information under the

statute must have been “not known to the movant at the time of the

hearing,”

(f), that definition does not help his case. As

the district court made clear, it declined to reopen the detention

hearing because the Attorney General’s decision was not material, not

because it was not new. See Zhang, 22-cr-208-4, Dkt. No. 53, 2

(E.D.N.Y. Aug. 3, 2022) (“Accordingly, the government’s decision not

to pursue the death penalty does not have a material bearing on

Zhang’s detention.” (emphasis added)).

Zhang’s argument as to materiality is also unavailing. He

contends that because § 3142(f) does not explicitly link the materiality

requirement to the court’s prior detention order, new information

may be material even if the court previously assumed it to be true. To

hold otherwise, he suggests, “could incentivize courts to intentionally

exclude critical information when making bail determinations to

18 shield them from later reconsideration.” But Zhang does not explain

how a court “exclude[s] critical information” from its analysis when

it assumes that very same information to be true. And because a party

can take a timely appeal from a detention or release decision, the

district court’s analysis—including information that it found, or

merely assumed, to be true—is subject to this Court’s review, with the

district court’s factual findings and assumptions open to appellate

scrutiny. Moreover, Zhang’s policy argument presumes bad faith by

judicial officers and untethers the materiality inquiry from those facts

that the court found consequential to its earlier detention decision. A

court’s prior detention determination is a natural reference point

against which to measure the materiality of new information for the

purpose of reopening the hearing—that is, revisiting its earlier

decision. Doing so, as the district court did here, is fully consistent

with

(f).

19 Finally, Zhang disputes the district court’s statement that it did

not consider the death penalty in its initial detention decision, but that

statement is well supported by the record. During the hearing on

May 19, 2022, the district court made clear its understanding that the

government would not be pursuing the death penalty. Appellant Br.,

Ex. D, May 19, 2022, Bail Hearing Tr. at 13 (stating that it was “wasting

the Court’s time and the taxpayers’ money [to be] appointing [death

penalty] counsel who will not be necessary”). The district court

certainly did not rely on the availability of the death penalty in its

initial decision; no mention was made of capital punishment in the

district court’s oral reasoning for its decision to detain Zhang. To the

extent that the district court relied on the possible punishment to

which Zhang was exposed, it said only that a conviction would entail

a mandatory minimum of life imprisonment. Finally, the district

court explicitly stated, in its written ruling denying reopening, that it

had not factored the death penalty into its original detention decision.

20 We will not lightly disregard a district court’s characterization of its

own analysis, particularly not when, as here, the record fully supports

that characterization.

In sum, the district court did not abuse its discretion when it

declined to reopen the detention hearing in light of the Department

of Justice’s confirmation that it would not seek the death penalty.

B. The “weight of the evidence” factor

Zhang next argues that the district court, in its analysis of the

§ 3142(g) factors, relied too heavily on the strength of the evidence

that he committed the charged offense when it declined to exercise its

inherent power to revisit its detention decision. Putting significant

weight on that evidence, he claims, undermines the presumption of

innocence to which a defendant is entitled. We are unpersuaded.

Beginning with the statute, the Bail Reform Act identifies key

considerations for a detention decision. It states that a court “shall, in

determining whether there are conditions of release that will

reasonably assure the appearance of the person as required and the

21 safety of any other person and the community, take into account the

available information concerning”: (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.”

(g).

The statute provides additional detail for some of those factors.

For example, it lists certain types of crimes that warrant particular

consideration under the rubric of the “nature and circumstances of

the offense charged.” See

(g)(1) (instructing courts to

consider whether the offense is “a crime of violence, a violation of

section 1591, a Federal crime of terrorism, or involves a minor victim

or a controlled substance, firearm, explosive, or destructive device”).

The statute also provides an illustrative list of factors that relate to a

defendant’s personal history and characteristics, including “the

22 person’s character, physical and mental condition, family ties,

employment, financial resources, length of residence in the

community, community ties, past conduct, history relating to drug or

alcohol abuse, criminal history, and record concerning appearance at

court proceedings.”

(g)(3)(A). Furthermore,

subsection (g)(3)(B) tells the court to consider whether the defendant

was under court supervision when he was arrested or committed the

charged crime. See

§ 3142(g)(3)(B).

Although § 3142(g) of the Bail Reform Act lists various factors

to consider, it says nothing about the relative weight a court should

give them when deciding whether to release or detain a defendant.

See generally

(g). That silence is unsurprising, because

the weight given to each factor will inevitably vary from case to case,

and might even vary depending on whether the inquiry relates to a

defendant’s danger or to his risk of flight. What is more, certain

factors might interact with one another in a particular case in a way

23 that alters a court’s analysis of a defendant’s danger to the community

or flight risk.

The district court’s ruling on the motion to reopen

demonstrates careful consideration of § 3142(g), the “available

information,” and its relevance to Zhang’s danger to the community

if released. Regarding the first factor—the nature and circumstances

of the crime—the district court observed that the charged offense was

“extremely serious” because it involved a victim’s death for payment,

“evinc[ing] a calculated disregard for human life.” It was entirely

appropriate for the court to focus on the fact that the charged offense

involved murder, which by its nature involves violence and bespeaks

danger to others. Here, where the defendant was charged with

murder for which he collected a fee, this factor weighed substantially

in favor of a finding of future dangerousness.

The court also properly considered the second factor—the

weight of the evidence—in determining that there was “significant

24 evidence” that Zhang had in fact committed the charged murder. The

court observed that the government had proffered witness testimony,

including that of a cooperating witness, video surveillance, financial

records, cell phone records, and texts linking Zhang to the crime, all

of which formed a “strong” case against him. In making a predictive

assessment of the defendant’s future dangerousness if released into

the community, common sense and § 3142(g)(2) aligned with the

district court’s consideration of the strength of this evidence,

especially coupled with the nature of the charged offense. It stands

to reason that the more strongly the evidence indicated that the

defendant committed the murder, the more likely he poses a danger

to the community if released on bail.

The district court next considered the third factor—the history

and characteristics of the defendant—determining that this, too,

weighed in favor of detention. The court appears not to have ascribed

much weight to Zhang’s criminal history in determining his

25 dangerousness. But the district court expressed significant concern

about social media posts by Zhang threatening a witness in another

case, as well as another post in which he displayed “a veritable

arsenal of firearms in the trunk of his car.” Zhang, 22-cr-208-4, Dkt.

No. 53, 6 (E.D.N.Y. Aug. 3, 2022). These instances of past conduct

strongly indicated a history and characteristics posing a danger to the

community if released, which was highly relevant to a finding of

dangerousness.

Finally, the charged offense and Zhang’s social media posts

also supported a finding of dangerousness in light of the fourth

factor—the nature and seriousness of the danger to any person or the

community.

(g)(4). Although this factor is closely tied

to the ultimate inquiry, the district court reasonably concluded that

the charged crime and past conduct surely indicated that Zhang

presented a serious danger to the community, particularly with

regard to his potential threatening conduct towards witnesses.

26 Far from manifesting error, the court’s reasoning demonstrates

the flexible, fact-intensive nature of a detention decision. The court

called on case-specific information to assess each factor’s relevance,

and reasonably found that, individually and as a whole, the factors

pointed towards the need to detain the defendant to avoid danger to

the community.

The district court conducted a similarly probing analysis of the

§ 3142(g) factors as to Zhang’s flight risk. Regarding the nature and

circumstances of the offense charged, the district court observed that

Congress has set a mandatory minimum of life in prison for murder-

for-hire, which creates an “extraordinary” risk of flight, particularly

for a 34-year-old defendant such as Zhang. The prospect of a severe

sentence can create a strong incentive for a defendant to flee and

thereby avoid that sentence. See United States v. Sabhnani,

(2d Cir. 2007).

27 The weight of the evidence against Zhang functioned likewise.

Observing the strong evidence against Zhang, the district court noted

that “an increased probability of conviction increases his risk of

flight.” Zhang, 22-cr-208-4, Dkt. No. 53, 5. Where, as here, the

evidence against a defendant is strong, it follows that the defendant

faces an elevated risk of conviction (and of the attendant

punishment), and therefore may present an elevated risk of flight.

The district court also thoroughly considered the history and

characteristics of the defendant, concluding that they supported a

finding that he was a flight risk. The court observed that Zhang’s

close family ties with China and Taiwan provided him with an

incentive and avenue to flee the potential life sentence he faces. The

court further considered Zhang’s history of marijuana distribution,

primarily as it provided him with an alternative source of income to

flee, even if the government froze his other assets. The history and

characteristics of a defendant may affect a court’s risk-of-flight-

28 analysis by demonstrating a defendant’s incentives, ability, or

probability of flight (or lack thereof).

Having found that Zhang presented a danger to the community

and risk of flight if released, the district court considered “whether

there are conditions of release that will reasonably assure the

appearance of the person as required and the safety of any other

person and the community.”

(g). The court found

that there were not. Although the proposed bond package was $5

million, it was “backed by only $1.4 million in real property,” and the

signatures of nine sureties, “most of whom have modest incomes.”

Zhang, 22-cr-208-4, Dkt. No. 53, 8–9. This package held insufficient

“moral suasion” over Zhang, particularly considering his “substantial

incentive and ability to flee a potential life sentence.”

. The

district court also found the other proposed conditions insufficient to

prevent flight and protect witnesses and the community. In the

context of this case, Zhang’s agreement to waive extradition,

29 proposed monitoring of his cellphone, and proposed electronic

monitoring and home detention were also insufficient to allay the

risks. See

at 10–11 (discussing the “empty gesture” of extradition

waivers, Zhang’s past use of encrypted messages, and his ability,

upon deciding to flee, to remove any electronic monitoring).

In short, the district court engaged in precisely the sort of case-

specific approach that this Court has endorsed. See, e.g., Mattis, 963

F.3d at 295–96 (affirming district court’s grant of pretrial release,

despite “strong” evidence of guilt, on account of the defendants’

personal characteristics and a bond condition determined to

sufficiently deter flight); United States v. English,

(2d Cir. 2011) (affirming the district court’s denial of pretrial release

where the evidence against the defendant was “incredibly strong”

and evidence “is one of the most important factors to consider”).

Zhang counters that putting significant weight on the evidence

that he committed the charged offense undercuts the presumption of

30 innocence owed to criminal defendants. He is mistaken. The

presumption of innocence “is a doctrine that allocates the burden of

proof in criminal trials; . . . it has no application to a determination of

the rights of a pretrial detainee.” Bell v. Wolfish,

(1979). That is because pretrial detention is regulatory in nature,

United States v. Salerno,

, 747–48 (1987), and is assessed not

to preemptively punish a defendant, but only to reasonably assure the

safety of the community and the appearance of the defendant at court

proceedings.

(g). See also United States v. Kostadinov,

(2d Cir. 1983) (“[W]e find no merit in the appellant’s

contention that consideration of the weight of the evidence [in bail

determinations] contradicts the presumption of innocence in criminal

cases.”).

Section 3142(j) of the Bail Reform Act does not alter this

conclusion. Section 3142(j) states: “Nothing in this section shall be

construed as modifying or limiting the presumption of innocence.”

31 Contrary to Zhang’s argument, this does not mean that the

presumption of innocence limits a district court’s ability to engage in

factfinding as to pretrial detention. Instead, it must be read only to

emphasize that the outcome of pretrial detention hearings can have

no bearing on the presumptions owed to a defendant in the ultimate

determination of guilt at trial. 1 See Salerno,

(rejecting

the argument that the Bail Reform Act unconstitutionally

undermined the presumption of innocence).

Our conclusion is unchanged by courts that have found

otherwise. Most notably, the Ninth Circuit has suggested that “the

weight of the evidence is the least important of the various [§ 3142(g)]

factors,” lest a court make a “pretrial determination that the person is

guilty.” United States v. Motamedi,

(9th Cir. 1985).

1 In fact, courts often undertake the difficult task of making pretrial factual determinations, including preliminary assessments of the evidence against a defendant, without undermining a defendant’s presumption of innocence at trial. See, e.g., United States v. Geaney,

, 1118–21 (2d Cir. 1969) (holding that trial court must make pretrial findings by a preponderance of the evidence on the existence of a conspiracy in order to determine whether the co-conspirator exception to the hearsay rule applies).

32 We agree, of course, that in deciding whether to release or detain a

defendant before trial, it is not the district court’s role to definitively

conclude whether the defendant is guilty. But as we have explained,

a preliminary assessment of the strength or the weakness of the

evidence can be a key consideration in whether the defendant is

dangerous or poses a flight risk, and such a finding does not in fact

impinge upon the presumption of innocence. Moreover, § 3142(g)

itself does not suggest any hierarchy among the various factors to be

considered by a court in a detention hearing. 2 See Kostadinov,

.

2 Our conclusion is unaltered by the district court opinions in this Circuit that cite Motamedi,

, or each other, for the proposition that the weight of the evidence is the least important factor. See, e.g., United States v. Boustani,

(E.D.N.Y. 2019); United States v. Paulino,

(S.D.N.Y. 2018); United States v. Jones,

(S.D.N.Y. 2008); United States v. Watkins, 21-cr-50,

, at *2 (W.D.N.Y. May 12, 2022); United States v. Fox, 22-cr-53,

, at *5 (W.D.N.Y. May 5, 2022); United States v. Budd, 20-cr-06101,

, at *3 (W.D.N.Y. Oct. 8, 2020); United States v. Williams, 20-cr-293-2,

, at *3 (E.D.N.Y. Aug. 13, 2020); United States v. Angwang, 20-mj-0837,

, at *3 (E.D.N.Y. Oct. 7, 2020). By and large, these cases still consider the weight of the evidence in the context of the case before them, and do not, in substance, indicate a practice of finding the weight of the evidence to be universally less important than other

33 III. Conclusion

In summary: We hold that the district court did not abuse its

discretion in declining to reopen Zhang’s detention hearing.

(1) The government’s official decision not to pursue the death

penalty—made after the district court ordered Zhang

detained—did not constitute material information that

warranted reopening the detention hearing under

(f) because the district court had already assumed in

its initial detention determination that capital punishment

would not be sought.

(2) The district court was free to determine the appropriate

weight for each of the U.S.C. § 3142(g) factors, including the

strength of the evidence that the defendant committed the

factors. See, e.g., Boustani,

(clarifying that despite caution to afford undue weight to evidence against defendant, “significant evidence, including extensive documentation, of a defendant’s role in a crime may weigh against release”). To the extent those cases could be read to suggest that the weight of the evidence is a generally less important factor in a detention decision, they are unpersuasive for the reasons explained in this opinion.

34 charged offense, based on the circumstances of the case. Its

consideration of the strength of the evidence did not

contravene the presumption of innocence to which the

defendant was entitled at trial.

We therefore AFFIRM the district court’s challenged August 3,

2022, order, and we DENY Zhang’s motion for bail.

35