10-0373-cr
United States v. Banki


                               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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 8th day of March, two thousand ten.

PRESENT:
            PETER W. HALL,
            GERARD E. LYNCH
                        Circuit Judges,
            TIMOTHY C. STANCEU,*
                        District Judge.
______________________________________________

UNITED STATES OF AMERICA,
                                          Appellee,

                          v.                                                No. 10-0373-cr

MAHMOUD REZA BANKI,
                              Defendant-Appellant.
______________________________________________

FOR APPELLEE:                                      E. DANYA PERRY, Assistant United States
                                                   Attorney for the Southern District of New York,
                                                   New York, N.Y.

FOR DEFENDANT-APPELLANT:                           CHRISTINE H. CHUNG, Quinn Emanuel Urquhart
                                                   Oliver & Hedges, LLP, New York, N.Y.




        *
         The Honorable Timothy C. Stanceu of the United States Court of International Trade,
sitting by designation.
        Appeal from a January 21, 2010 order of detention pending trial entered in the United

States District Court for the Southern District of New York (Keenan, J.). UPON DUE

CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED, that the order

of the district court is AFFIRMED.

        We begin by noting the deferential posture we must assume when reviewing a district

court’s order of detention. Accordingly, we “will not reverse except for clear error, i.e., unless

‘on the entire evidence we are left with the definite and firm conviction that a mistake has been

committed.’” United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (quoting United States

v. Shakur, 817 F.2d 189, 195 (2d Cir. 1987)); see also United States v. McConnell, 842 F.2d 105,

107 (5th Cir. 1988) ( “The setting of bail is a matter committed to the sound discretion of the

district court.”).

        A district court may deny bail if, after a hearing, 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.” 18 U.S.C. § 3142(e). In seeking pre-trial

detention, the government faces a “dual burden”: “First, it must establish by a preponderance of

the evidence that the defendant, if released, presents an actual risk of flight. If it satisfies this

burden, the government must then demonstrate by a preponderance of the evidence that no

condition or combination of conditions could be imposed on the defendant that would reasonably

assure his presence in court.” Sabhnani, 493 F.3d at 75 (citations omitted). The ultimate

determination of whether any conditions will assure defendant’s appearance is a mixed question

of law and fact, see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995), and this Court

will set aside a determination if it is based on a mistake of law, see Shakur, 817 F.2d at 197.


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       With respect to the first issue, we hold that the district court did not clearly err in

considering the facts—including, inter alia, the lengthy and onerous maximum penalties to

which defendant-appellant was exposed and the strength of his ties to Iran—and concluding that

Mr. Banki’s release would pose a serious risk of flight.

       With respect to the second required showing, Mr. Banki argues that the district court

erred as a matter of law in rejecting his proposal that he be released on home confinement

enforced by private security guards financed at his expense. Mr. Banki contends that our

decision in Sabhnani entails a legal obligation on district courts to evaluate whether such

privately-financed home confinement would suffice to secure a defendant’s attendance.

Sabhnani does not impose such a requirement. In that case, rather, we concluded that the

government’s argument that no conditions of release could prevent defendants’ flight was

“undermine[d]” by its own submission, which argued only that the defendants’ proposal

contained certain loopholes, which the defendants promptly agreed to close by accepting the

government’s proposed amendments to its plans. Sabhnani, 493 F.3d at 78. Thus, far from

requiring such private monitoring, we stated that because the government had not opposed the

private monitoring plan in principle, we had “no occasion to consider whether it would be

‘contrary to principles of detention and release on bail’ to allow wealthy defendants ‘to buy their

way out by constructing a private jail.’” Id. at 78 n.18 (quoting Borodin v. Ashcroft, 136 F. Supp.

2d 125, 134 (E.D.N.Y. 2001)). We remain troubled by that possibility.

       Moreover, there are issues regarding the nature of the security that would be provided by

such an arrangement, and the additional costs to the government in supervising such an

arrangement, that persuade us that it is not legal error for a district court to decline to accept such


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a condition of release as a substitute for detention. (Indeed, such conditions might be best seen

not as specific conditions of release, but simply as a less onerous form of detention available only

to the wealthy.) At any rate, because the only issue actually decided in Sabhnani was the

adequacy of the particular terms of the proposed monitoring arrangement, we did not there hold

that district courts routinely must consider the retention of self-paid private security guards as an

acceptable condition of release before ordering detention.

       As for the district court’s ultimate finding that Mr. Banki should be detained because no

combination of conditions of release could reasonably assure his presence at trial, we have

reviewed the record and the factors listed in 18 U.S.C. § 3142(g)—factors carefully considered

by the district court—and we conclude that Mr. Banki has failed to show clear error in the district

court’s finding and also that the district court did not make an error of law in reaching the

decision it did. Shakur, 817 F.2d at 196-97.

       Accordingly, the order of the district court is AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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