                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 December 11, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,
                                                          No. 09-3320
    v.                                         (D.C. No. 5:02-CR-40153-SAC-1)
                                                           (D. Kan.)
    KEVIN X. FRATER,

                Defendant!Appellant.



                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and GORSUCH, Circuit Judges.



         Kevin X. Frater appeals a district court order detaining him pending trial on

a charge of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. The

United States has elected not to file a response brief on appeal. We have

jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291, and we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   Background

      In 2002, Frater owned and operated a private jet charter business in Florida.

In December of that year he arranged for Austin Williams to travel on a private

plane that was subsequently raided by drug enforcement agents while refueling in

Salina, Kansas. Officers found approximately 153 kilograms of cocaine and

arrested Williams, who told them he was working for Frater. Frater admits to

arranging the charter, but denies knowledge of any drug transaction. At his

detention hearing, however, the Government offered evidence of Frater’s

involvement in a drug trafficking conspiracy including taped phone calls between

Williams and a man Williams identified as Frater. In January 2003, Williams and

Frater were indicted on charges stemming from this December 2002 raid. Count 1

of the indictment charged both men with participating in a drug conspiracy in

violation of 21 U.S.C. § 846, and Count 2 charged Williams with possession of a

controlled substance with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1).

      Shortly after the raid, Frater flew to Spain, via Cuba, for what he claims

was a scheduled vacation. Without returning to the United States, he moved on to

England, where he resided for the next several years, before moving to the United

Arab Emirates and gaining employment as a flight instructor. In April 2009, law

enforcement officers detained Frater at Heathrow Airport in London as he and his

family were returning to the UAE after a vacation. He was then extradited to the

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United States by an English court and brought before the Kansas district court to

face the 2003 charges. After a hearing, the district court granted the

Government’s request to detain Frater under 18 U.S.C. § 3142(e), concluding that

it could not otherwise reasonably assure Frater’s attendance at trial. On appeal,

Frater argues the evidence was not sufficient to support the court’s determination

that he poses a flight risk.

                                     Discussion

      “We apply de novo review to mixed questions of law and fact concerning

[a] detention or release decision, but we accept the district court’s findings of

historical fact which support that decision unless they are clearly erroneous.”

United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003). Under this

standard, we see no basis to overturn the district court’s order. In general, the

Bail Reform Act expresses a preference for pretrial release; it permits detention

only after a hearing and, as relevant here, only after a finding that “no condition

or combination of conditions will reasonably assure the appearance of the person

as required . . . .” 18 U.S.C. § 3142(e). The charge that Frater faces, however,

gives rise to a statutory presumption that nothing short of detention will

reasonably assure his attendance at trial. See id. § 3142(e)(3)(A); United States v.

Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991) (per curiam). Accordingly,

although the ultimate burden of persuasion remains with the Government, in order

to justify his release, Frater must rebut this presumption with some evidence that

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he is not a flight risk. See Stricklin, 932 F.2d at 1354-55. Moreover, even if he

meets this burden, the district court is free to consider the presumption as a factor

in determining whether to release or detain him. Id. at 1355.

      On appeal, Frater relies heavily on what he perceives as weaknesses in the

Government’s case to challenge the district court’s determination that he is a

flight risk. As he points out, the Government dropped the conspiracy charge

against his co-defendant, Williams, before trial and then failed to secure a

conviction on the remaining charge against him. Nevertheless, we think the

district court correctly assessed Frater’s potential for flight. The evidence of

Frater’s involvement in drug trafficking went beyond Williams’s statements. The

Government proffered grand jury testimony from other co-conspirators supporting

Williams’s claim that he worked for Frater, as well as incriminating phone calls

and phone records. We express no opinion on the strength of this evidence. But

we note that even a weak case presents the threat of substantial jail time for

Frater.

      Balanced against this threat are Frater’s scant ties to the United States and

penchant for international travel and residence. Although he is a United States

citizen and has family in New York, Georgia, and Florida, those ties evidently

were not enough to keep him here or justify even one visit since his departure in

December 2002 under, at best, suspicious circumstances. In short, we conclude

that Frater’s absence of substantial ties to the United States, coupled with his

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foreign contacts, past behavior, and work history, support the district court’s

determination.

                                    Conclusion

      The district court’s order of detention is AFFIRMED. Ms. Trubey’s motion

to withdraw is GRANTED as far as the Federal Public Defender’s obligation to

represent Frater in this appeal. This order should not be construed as granting

Ms. Trubey’s companion motion filed in the district court, as that court must

address any issues concerning Frater’s representation in the on-going criminal

proceeding.


                                                    Entered for the Court

                                                    Per Curiam




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