17-2035-cr, 17-2053-cr
United States v. Brennerman


                              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 23rd day of August, two thousand seventeen.

PRESENT: PIERRE N. LEVAL,
                 REENA RAGGI,
                 RAYMOND J. LOHIER, JR.,
                                                    Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                                           Appellee,
                              v.                                                Nos. 17-2035-cr
                                                                                     17-2053-cr
RAHEEM J. BRENNERMAN,
                                            Defendant-Appellant,

THE BLACKSANDS PACIFIC GROUP, INC.,
                                                         Defendant.
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APPEARING FOR APPELLANT:                          MARANDA FRITZ, Thompson Hine LLP,
                                                  New York, New York.

APPEARING FOR APPELLEE:                          ROBERT B. SOBELMAN, Assistant United
                                                 States Attorney (Nicholas Landsman-Roos,
                                                 Assistant United States Attorney, on the brief),
                                                 for Joon H. Kim, Acting United States Attorney
                                                 for the Southern District of New York, New
                                                 York, New York.



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       Appeal from orders of the United States District Court for the Southern District of

New York (Lewis A. Kaplan, Judge; Richard J. Sullivan, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the pretrial detention orders entered on June 26, 2017, and on June

29, 2017, are AFFIRMED.

       Defendant Raheem J. Brennerman awaits trial in two cases, one charging him with

criminal contempt, see 18 U.S.C. § 401(3), the other charging him with conspiratorial and

substantive bank and wire fraud, as well as visa fraud, see 18 U.S.C. §§ 1343, 1344,

1349, 1546. He now appeals from orders denying him bail pending trial in each case.

See 18 U.S.C. § 3142(e); see also id. § 3145(c) (authorizing appellate review of pretrial

detention orders under 28 U.S.C. § 1291). The government bore the burden of putting

forth sufficient evidence to support a preponderance showing that no conditions of

release could assure Brennerman’s presence at his trials. See 18 U.S.C. § 3142(f);

United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). Insofar as Judges Kaplan

and Sullivan each concluded that the government carried this burden, we review their

conclusions of law de novo, see United States v. Abuhamra, 389 F.3d 309, 317 (2d Cir.

2004), and the factual findings underlying those conclusions for clear error, see United

States v. English, 629 F.3d 311, 319 (2d Cir. 2011). The determination that a defendant

poses a risk of flight not susceptible to release conditions is “essentially factual and

require[s] little, if any, legal interpretation.”   United States v. Berrios-Berrios, 791 F.2d

246, 250 (2d Cir. 1986). Thus, we will not reverse such a determination “unless on the

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


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committed.”    United States v. Sabhnani, 493 F.3d at 75 (internal quotation marks

omitted); see United States v. Berrios-Berrios, 791 F.2d at 250–51. That is not our view

in these cases. In conducting our review, 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.

       Brennerman was first identified as a risk of flight at his initial appearance on the

criminal contempt charge before Chief Judge Colleen McMahon.                 That factual

determination was amply supported by the court’s particular findings that Brennerman

lacked strong ties to the United States and had a history of deceit, both generally and

particularly in his dealings with the court. Specifically, Brennerman (1) is not a United

States citizen, (2) travels abroad frequently, (3) owns no property in the United States,

(4) lacks ties to the Southern District of New York, (5) lacks strong family ties in the

United States, (6) has used at least three different names, (7) has repeatedly

misrepresented his birthplace and citizenship, (8) has had his United States visa revoked,

(9) has previously disregarded court orders, and (10) made both demonstrably and

arguably false representations to the court. Such challenges as Brennerman raises to

these findings essentially duplicate arguments made to the district court and fail to

manifest any clear error.

       Despite finding that “risk of flight is a very real possibility,” Chief Judge

McMahon determined that release conditions could be imposed to assure Brennerman’s

trial appearance because he had not attempted to flee when first alerted to the contempt

proceedings, and “contempt of court . . . is precisely the sort of charge where one would


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normally admit a defendant to bail.”       Brennerman Ex. 4, at 51.       Those conditions

provided for home detention and electronic monitoring; a $500,000 bond, signed by three

of Brennerman’s U.S. relatives and secured by $100,000 in cash posted by him; and

restricted travel within the Southern District of New York and the District of New Jersey.

        After Brennerman was indicted on the pending fraud charges, which accuse him of

misappropriating over $300 million obtained from financial institutions, Judges Kaplan

and Sullivan, to whom the contempt and fraud cases were respectively assigned, revisited

the question of whether release conditions could reasonably assure defendant’s presence

at trial.   Both judges concluded that they could not. Adopting Chief Judge McMahon’s

findings that Brennerman posed a risk of flight generally, Judge Kaplan orally concluded

that he was “much more” of a flight risk after the fraud indictment. Brennerman Ex. 9,

at 8. Judge Sullivan was of the same view, which he detailed in a written order: “Mr.

Brennerman is now charged with a much more serious crime or crimes that carry longer

penalties and higher guidelines [than contempt] and make the incentive to flee, much,

much greater.” Brennerman Ex. 12, at 2 (internal quotation marks omitted). Judge

Sullivan explained that the fraud charges exposed Brennerman to a Guidelines range of

57 to 71 months’ imprisonment, which was “9 to 12 times the term he would face for the

contempt charge alone.” Id. at 3.

        Thus, the heightened severity of these charges, coupled with Defendant’s
        substantial ties abroad—including the fact that Defendant is a foreign
        citizen; his ties to Nigeria, a country from which extradition is difficult if
        not impossible; his frequent foreign travel; the revocation of his United
        States visa; his limited United States ties and assets; his use of multiple
        names and social security numbers; and his history of false statements
        under oath . . . support the Court’s finding that Mr. Brennerman does pose a


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       risk of flight and that there are no conditions in isolation or in combination
       that could secure his appearance given the changed circumstances.

Id. (internal quotation marks omitted). This record does not leave us with a “definite

and firm conviction” that two judges were mistaken in concluding that no release

conditions could reasonably assure Brennerman’s appearance at trial. United States v.

Sabhnani, 493 F.3d at 75.

       In urging otherwise, Brennerman faults the government’s proffer of allegedly

fraudulent representations that he made to an alleged fraud victim while on bail. The

government was obliged to correct some of its initial representations but, as Judge

Sullivan observed, its central representation—that Brennerman “continued to engage with

the alleged victim in an attempt to further this supposedly fraudulent arrangement while

he was on bail—remain[ed] unaltered.” Brennerman Ex. 12, at 2. Even without this

concern, however, we would identify no clear error in the district courts’ findings that the

advent of serious fraud charges with potentially severe sentencing consequences is a

changed circumstance that, together with evidence of Brennerman’s foreign nationality

and contacts, misrepresentation of his identity, and disregard of court orders, supports a

preponderance finding that no conditions of release were reasonably likely to secure

Brennerman’s presence at trial.

       Brennerman attempts to show that the government’s evidence of fraud is

insufficiently strong to support the courts’ conclusions as to heightened risk of flight.

See United States v. Briggs, 697 F.3d 98, 102 (2d Cir. 2012) (citing strength of

government’s evidence in finding that defendant presented substantial risk of flight).



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Specifically, he argues that the bank referenced in the indictment to illustrate his fraud

scheme is not federally insured as required to prove bank fraud, and his dealings with that

financial institution took place outside the United States.        Even if correct, such

circumstances have no relevance to Brennerman’s alleged fraudulent dealings with other

banks, which include conduct in the United States, much less to the wire and visa fraud

charges that have no federal-insurance element.

         In challenging the district court’s denial of bail, Brennerman also highlights his

lack of any prior criminal record, his rental of a Las Vegas apartment since 2013, his

possession of a Nevada identification card, his relatives in this country, and his

satisfaction of the bail conditions imposed by Chief Judge McMahon. The argument

essentially challenges the district courts’ failure to accord these factors more weight than

those supporting a heightened risk of flight after the fraud indictment.        We accord

considerable discretion to district judges in weighing competing evidence, see United

States v. Oehne, 698 F.3d 119, 121 (2d Cir. 2012) (“‘[W]here there are two permissible

views of the evidence, the [district court’s] choice between them cannot be clearly

erroneous.’” (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985))), and cannot

identify clear error here in their preponderance finding that the record as a whole made it

more likely than not that no conditions of bail would reasonably secure Brennerman’s

attendance at trial, see, e.g., United States v. Yannai, 791 F.3d 226, 242 (2d Cir. 2015)

(defining “preponderance of the evidence” as “which circumstance was more likely than

not”).




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      Nor is any different conclusion compelled by Brennerman’s willingness to submit

to electronic monitoring and home detention or by the fact that certain relatives are

willing to act as sureties. See, e.g., United States v. Mercedes, 254 F.3d 433, 437 (2d

Cir. 2001) (concluding that electronic monitoring and home detention were insufficient in

case of defendant who posed substantial risk of flight, and reversing grant of pretrial

release even though defendant’s fiancée and siblings would act as sureties); United States

v. Orena, 986 F.2d 628, 632 (2d Cir. 1993) (recognizing ease with which electronic

monitoring can be circumvented).

      In sum, we identify no clear error in the district courts’ factual findings, which

were sufficient to deny him bail under 18 U.S.C. § 3142(e).         We have considered

Brennerman’s other arguments and conclude that they are without merit. Accordingly,

the district courts’ detention orders are AFFIRMED.


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




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