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United States v. Abdullahu

May 24, 2007

UNITED STATES OF AMERICA
v.
AGRON ABDULLAHU



The opinion of the court was delivered by: Schneider, United States Magistrate Judge.

OPINION DENYING DEFENDANT'S MOTION FOR RELEASE ON BAIL AND IN SUPPORT OF DETENTION ORDER

This matter is before the Court on the request of defendant Agron Abdullahu (hereinafter "defendant") for a detention hearing pursuant to 18 U.S.C. § 3142(f). On May 14, 2007, defendant filed his "Motion for Release on Bail." [Doc. No. 10]. Pursuant to 18 U.S.C. § 3142(f) the Court held a detention hearing on May 17, 2007. For the reasons to be discussed, the Court denies defendant's Motion and finds that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other person and the community.*fn1 Pursuant to the requirements of 18 U.S.C. § 3142(i) this Opinion will set forth the Court's written findings of fact and a written statement of the reasons for the detention.

Background

On May 7, 2007, this Court signed a Complaint [Doc. No. 1] and Arrest Warrant [Doc. No. 2] naming defendant. The Complaint charges defendant with violating 18 U.S.C. § 922(g) and 2. Contemporaneously with the issuance of these documents the Court also signed five related Complaints and Arrest Warrants naming Eljvir Duka (07-2047(JS)), Mohamad Ibrahim Shnewer (07-2045(JS)), Dritan Duka (07-2046(JS)), Shain Duka (07-2048(JS)) and Serdar Tatar (07-2049(JS)). (These five (5) individuals will hereinafter be referred to as the "other charged individuals.") Defendant and the other charged individuals were arrested on May 7, 2007 and pursuant to Fed.R.Crim.P. 5, appeared before this Court for an initial appearance on May 8, 2007. On that date an Order of Temporary Detention was entered and a detention hearing was scheduled for May 11, 2007. [Doc. No. 7]. On May 11, 2007, defendant's counsel requested and was granted an extension for the date of the detention hearing until May 17, 2007.

Findings of Fact*fn2

In order to understand and appreciate the nature, circumstances and background of the charges against defendant it is necessary to set forth a comprehensive summary of the relevant evidence. Defendant is charged with violating 18 U.S.C. § 922(g)(5) and 2. The essence of the charge is that defendant aided and abetted the receipt or transportation of firearms in interstate commerce by three (3) aliens. Section 2 of the charge treats as a principal a person who aids or abets an offense against the United States or willfully causes an act to be done that is an offense against the United States. Defendant is charged with providing firearms to Dritan Duka, Eljvir Duka and Shain Duka, all of whom are illegal aliens.

The charges against defendant arise in the context of the government's claim that the five other charged individuals conspired to attack soldiers or other personnel at the United States Army Base in Fort Dix, Burlington County, New Jersey. The government's investigation started after it learned that an individual brought to a local store a video to be duplicated onto a digital video disk ("DVD"). The video depicted conduct that was recorded as having occurred on January 3, 2006. The government describes the video as showing "men shooting assault weapons at a firing range in a militia-like style while calling for jihad and shouting in Arabic 'Allah Akbar'('God is Great')."*fn3 The government identified defendant in the video. Thereafter, the FBI and Joint Terrorism Task Force undertook an investigation of the activities of defendant and the other charged individuals.

Defendant and the other charged individuals were under close surveillance from March 2006 until their arrest on May 7, 2007. During that time two cooperating witnesses (CW-1 and CW-2) earned the trust of defendant and the other charged individuals and ultimately learned about the plan to attack Fort Dix. During the surveillance the other charged individuals discussed their willingness and intent to participate in the attack. It is not alleged that defendant stated he would participate in the actual attack. Albeit, on August 13, 2006, Shnewer told an informant that defendant was a member of the attack group. See Complaint at ¶ 18.

Although the government did not proffer direct evidence that the defendant specifically knew the other charged individuals were planning to attack Fort Dix, defendant was in their company on several occasions when plans for the attack were more likely than not discussed or preparations for the attack took place. For example, defendant appeared in the shooting video at the Pocono Mountain firing range that was taken on January 3, 2006. Further, approximately one (1) year later, between January 31 to February 1, 2007, defendant was also observed (via video and photographic surveillance) carrying "dark colored rifle style bags" into Dritan Duka's residence. An informant also reported that defendant brought two firearms, a 9 millimeter handgun and a Yugoslavian semi-automatic rifle, to Dritan Duka's residence. Law enforcement officers also observed Shain Duka transfer a green rifle style soft case from Dritan Duka's residence to defendant who then loaded it into his vehicle. CW-2 also reported that defendant loaded a shotgun and Beretta rifle into his car. Id. at ¶¶ 47, 48. This informant, defendant and most of the other charged individuals drove to the Pocono Mountain home the Duka brothers rented. Law enforcement officers continued their surveillance and observed defendant participating in shooting practice on February 2, 2007 and "teaching" several individuals where to place a shotgun when firing it. Id. at ¶ 50. The weapons used included an SKS semi-automatic rifle, a Beretta storm semi-automatic rifle, a Mossberg 12 gauge pump shotgun and a 9 millimeter Beretta handgun. Defendant admitted he bought ammunition used in the Pocono training.

Even though defendant argues "there are no allegations in the complaint indicating that [he] ... knew of the Duka brothers' status as illegal aliens" ( see Brief at 6-7), contrary evidence exists. After he was arrested, defendant admitted he kept a 9 millimeter Beretta rifle and a shotgun given to him by the Duka brothers because he knew they were illegally in the United States and could not possess firearms. In addition, the Dukas also told CW-2 they kept their firearms with several individuals, including "Agron", who law enforcement officers determined is defendant. CW-2 also recorded a meeting on January 19, 2007 where Dritan Duka explained that defendant brought weapons to the Duka brothers because the brothers had "green cards" and could not have firearms.

Shnewer, Dritan Duka, Eljvir Duka, Shain Duka and Tatar are charged with violating 18 U.S.C. §§ 1114 and 1117. The government alleges these individuals conspired to kill an officer or employee of the United States (including any member of the uniformed services) while the officer or employee was engaged in the performance of official duties. The charges carry a potential term of life imprisonment. According to the relevant Complaints, the alleged overt acts in support of the conspiracy include firearms training, surveillance at Fort Dix and other federal facilities, acquiring a map of Fort Dix, collecting weapons to be used in small arms training, reviewing terrorist videos, conducting tactical training, and ordering fully automatic machine guns as well as M-16 firearms and handguns. Defendants Driton Duka, Eljvir Duka and Shain Duka are also charged with violating 18 U.S.C. § 922(g) and 2. Dritan Duka and Shain Duka were arrested on May 7, 2007 after they purchased three AK-47 fully automatic machine guns and four M-16 rifles from undercover agents.

At the May 17, 2007 detention hearing the government submitted its evidence by proffer as is its right. See 18 U.S.C. § 3142(f); United States v. Delker, 757 F.2d 1390, 1395 (3d Cir.1985). The defendant presented the live testimony of his parents, Sejdulla and Vaxhide Abdullahu, his sister, Ylberin Abdullahu, and Ray Millian, a family friend and former supervisor at a supermarket Millian and defendant worked at together.*fn4

Discussion

The defendant's right to bail is addressed in the Bail Reform Act of 1984 (18 U.S.C. §§ 3141, et seq.), which was effective October 12, 1984. Generally, a defendant must be released on bail on the least restrictive condition or combination of conditions that will reasonably assure the defendant's appearance and the safety of the community. See 18 U.S.C. § 3142(c)(B). Pursuant to l8 U.S.C. § 3142(e), however, if after a detention hearing a court determines 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" the court must Order the detention of the person before trial. If the government moves for detention on the basis of danger to the community, it must prove this by clear and convincing evidence. Id. at § 3142(f). A recent Third Circuit case cited with approval the definition of clear and convincing evidence summarized by the Supreme Court of New Jersey:

[Clear and convincing evidence] produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue.

See United States v. Askari, 222 Fed.Appx. 115, 2007 WL 1073698 (3d Cir.2007)(quoting In re Jobes, 108 N.J. 394, 408, 529 A.2d 434 (1987)). See also United States Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306, 309 (3d Cir.1985); United States v. Montague, 40 F.3d 1251, 1255 (C.A.D.C.1994) (clear and convincing evidence "generally requires the trier of fact, in viewing each party's pile of evidence, to reach a firm conviction of the truth on the evidence about which he or she is certain"). The government may move for detention on the basis of danger to the community only for an offense that is listed in 18 U.S.C. § 3142(f)(1)(A) to (E). In this case the government may move for detention on dangerousness grounds because defendant is charged with an offense that "involves the possession or use of a firearm". See id. at 3142(f)(1)(E).*fn5

If the government or court believes detention is appropriate because there is a risk of flight, this must be proved by a preponderance of the evidence. United States v. Himler, 797 F.2d 156, 161 (3d Cir.1986). The preponderance of the evidence standard requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence. In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). The District of Columbia Circuit has pointed out that the preponderance of the evidence standard is often misinterpreted to require an abstract weighing of the evidence to determine which side produced the greater quantum. Montague, supra, 40 F.3d at 1254. However, a more accurate description of the preponderance of the evidence standard is "evidence which as a whole shows that the fact sought to be proved is more probable than not." Id. at 1255 (quoting Black's Law Dictionary 1182 (6th Ed.1990)).

If the conditions in 18 U.S.C. § 3142(e) are met a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person in the community. If a rebuttable presumption applies the defendant carries the burden of production to come forward with evidence to rebut the presumption. The defendant's obligation to come forward with evidence does not shift the burden of persuasion to defendant. United States v. Perry, 788 F.2d 100, ...


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