     14-4033
     United States v. Zherka

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       United States of America,
13                Appellee,
14
15                    -v.-                                               14-4033
16
17       Selim Zherka,
18                Defendant-Appellant.*
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        FREDERICK P. HAFETZ, with Brian
22                                             L. Doppelt and Kathleen E.
23                                             Cassidy, on the brief, Hafetz &



                *
                  The Clerk of Court is respectfully directed to
         amend the official caption in this case to conform with the
         caption above.
                                                  1
 1                              Necheles LLP, New York, New York.
 2
 3   FOR APPELLEE:              ELLIOT B. JACOBSON, with Michael
 4                              A. Levy, on the brief, Assistant
 5                              United States Attorneys (for
 6                              Preet Bharara, United States
 7                              Attorney for the Southern
 8                              District of New York), New York,
 9                              New York.
10
11        Appeal from an order of the United States District
12   Court for the Southern District of New York (Seibel, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the order of the district court be
16   AFFIRMED.
17
18        Defendant Selim Zherka appeals from an order of the
19   United States District Court for the Southern District of
20   New York (Seibel, J.), granting the government’s motion for
21   detention pending trial. We assume the parties’ familiarity
22   with the underlying facts, the procedural history, and the
23   issues presented for review.
24
25        The Bail Reform Act of 1984 requires pre-trial release
26   on a personal recognizance bond “unless the [court]
27   determines that such release will not reasonably assure the
28   appearance of the person as required or will endanger the
29   safety of any other person or the community.” 18 U.S.C.
30   § 3142(b). A serious risk of obstruction of justice may
31   qualify as such a danger to the community. See United
32   States v. LaFontaine, 210 F.3d 125, 134-35 (2d Cir. 2000).
33
34        If the district court determines that release on the
35   defendant’s personal recognizance creates a risk of flight
36   or a danger to the community, “the law still favors pre-
37   trial release,” United States v. Sabhnani, 493 F.3d 63, 75
38   (2d Cir. 2007), but “subject to the least restrictive
39   further condition, or combination of conditions, that [the
40   court] determines will reasonably assure the appearance of
41   the person as required and the safety of any other person
42   and the community,” 18 U.S.C. § 3142(c)(1)(B).
43
44        Only if the district court finds “that no condition or
45   combination of conditions will reasonably assure the
46   appearance of the person as required and the safety of any
47   other person and the community” shall the court “order the

                                  2
 1   detention of the person before trial.” 18 U.S.C. § 3142(e).
 2   “Under this statutory scheme, ‘it is only a limited group of
 3   offenders who should be denied bail pending trial.’”
 4   Sabhnani, 493 F.3d at 75 (quoting United States v. Shakur,
 5   817 F.2d 189, 195 (2d Cir. 1987)) (internal quotation marks
 6   omitted).1
 7
 8        Assuming the district court applied the correct legal
 9   standard, we review an order of detention only for clear
10   error. United States v. Abuhamra, 389 F.3d 309, 317 (2d
11   Cir. 2004). “This clear error standard applies not only to
12   the court’s specific predicate factual findings but also to
13   its overall assessment, based on those predicate facts, as
14   to the risk of flight or danger presented by defendant’s
15   release.” Id.
16
17        The district court’s order of detention pending trial,
18   although interlocutory, “qualifies as a final order that may
19   be directly appealed to this court.” Abuhamra, 389 F.3d at
20   317; see also 18 U.S.C. § 3145(c).
21
22        After a lengthy detention hearing, the district court
23   made the following factual findings: (1) Zherka is a flight
24   risk by reason of his incentive to flee, foreign-born
25   relatives, foreign assets, and prior statements about moving
26   to Europe; (2) Zherka is a danger to the community by reason
27   of prior instances of violence (and more recent boasts about
28   that violence), as well as a history of obstruction of
29   justice; and (3) no condition (or combination of conditions)
30   could be imposed, short of detention, that would reasonably
31   assure Zherka’s presence at trial or the safety of the
32   community.
33
34        The district court applied the correct legal standard
35   and, on this record, we cannot say that any of the district
36   court’s factual findings--about risk of flight,
37   dangerousness, or less restrictive conditions--were clearly
38   erroneous. So we must affirm the order of detention.
39


         1
              “Certain crimes trigger a statutory presumption
     that no condition or combination of conditions will
     reasonably assure a defendant’s appearance before the court
     or the safety of the community.” Sabhnani, 493 F.3d at 75
     n.14 (citing 18 U.S.C. § 3142(e)). None of these crimes is
     at issue here.
                                  3
1        For the foregoing reasons, and finding no merit in
2   Zherka’s other arguments, we hereby AFFIRM the order of the
3   district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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