                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                          March 3, 2020
                        _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 20-4000
                                              (D.C. No. 2:18-CR-00365-JNP-BCW-3)
 LEV ASLAN DERMEN,                                           (D. Utah)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and CARSON, Circuit Judges.
                   _________________________________

      Lev Aslan Dermen appeals from the district court’s order continuing his

pretrial detention. Exercising jurisdiction under 18 U.S.C. § 3145(c) and 28 U.S.C.

§ 1291, we affirm.

                                    Background

      This is Dermen’s third proceeding before this court concerning the district

court’s detention orders. The factual and procedural background through June 2019,



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
including the basis for the district court’s detention orders and trial continuances, is

described at length in our previous decision, United States v. Dermen, 779 F. App’x

497 (10th Cir. 2019) (unpublished) (Dermen I), and we do not repeat it here other

than as necessary to provide context for our consideration of Dermen’s current

claims.

      As noted in Dermen I, Dermen did not appeal the district court’s initial flight

risk determination and order detaining him pending trial. But he filed an

unsuccessful petition for writ of mandamus after the district court continued the trial

date for the second time and denied his request for reconsideration of his release.

And he appealed the district court’s denial of his motion for release and for detention

review under 18 U.S.C. § 3142(f)(2), which he filed after the court granted a third

continuance. In affirming that order, we agreed with the district court that Dermen

was not entitled to a detention review under § 3142(f)(2) because he did not present

new information to warrant reopening the detention hearing. Dermen I, 779 F. App’x

at 502. We also rejected his argument that he was entitled to release under the

90-day detention provision of the Speedy Trial Act, 18 U.S.C. § 3164(b), finding no

clear error in the district court’s speedy trial exclusions and its determination that he

had not shown that the trial delays were not attributable to him or his counsel. Id. at

506. Finally, we rejected his argument that he was entitled to release under the Due

Process Clause, upholding the district court’s determinations that the length of his

detention was not constitutionally excessive under the circumstances, that the defense



                                                2
was responsible for most of the trial delays, and that compelling evidence supported

his continued detention as a flight risk. Id. at 507.

      Since June 2019, when Dermen I was issued, the district court continued the

trial date four more times—each time at Dermen’s request—and found that none of

these continuances was the fault of the government. Both parties sought the first of

these continuances after the other four defendants pled guilty and started cooperating

with the government in its prosecution of Dermen. Dermen sought the second

continuance, citing delays in receiving discovery materials from the government and

what he characterized as changes in its theory of the case. Although the government

disputed that it had changed its theory of the case, it acknowledged that the

codefendants’ cooperation with the government generated new evidence and

discoverable material, and did not object to the requested continuance. Dermen

sought the third continuance because he needed additional time to review complex

financial documents obtained from international banks and from the country of

Luxembourg pursuant to a Mutual Legal Assistance Treaty request by the

government. And he requested the fourth continuance saying the defense could not

be ready for trial because of the volume of complex financial records the defense

team had not yet reviewed and citing the need to hire a forensic accountant to

evaluate those records. Trial finally began on January 27, 2020, and is expected to

last until sometime in March.

      Dermen filed the motion to reopen the detention hearing and for review of

detention at issue here in November 2019, after the district court granted the fourth

                                                3
post-June 2019 continuance and set the January 2020 trial date. As in his previous

motions, he maintained that his continued detention violates both the Bail Reform

Act and due process, this time arguing that changed circumstances and new

information uncovered in discovery undermined the district court’s previous

flight-risk determinations.

      The district court granted Dermen’s motion to reopen the detention hearing

based on his new flight-risk evidence, which is described below. The government

argued at the reopened hearing that Dermen’s continued detention was necessary not

only because he is a flight risk but also because he is a danger to the community.

The court granted the parties’ request to file supplemental briefs on dangerousness.

The parties did not request another hearing on dangerousness and the court did not

hold one.

      As discussed more fully below, the court denied Dermen’s motion for review

of his detention, finding that he is both dangerous and a flight risk and that his

continued detention does not violate due process. Because of the sensitive nature of

the dangerousness evidence, the court issued its order under seal and ordered that the

materials in the record addressing that issue, including the parties’ supplemental

briefs and portions of the hearing transcript, be sealed.

                                      Discussion

      A. Legal Standards

      A defendant may be detained pending trial if the court finds that “no condition

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

                                               4
required and the safety of any other person and the community.” 18 U.S.C.

§ 3142(e)(1). The court may make such a finding only after holding a hearing under

§ 3142(f). United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). In making

its decision, the court must consider the following four factors: the nature and

circumstances of the charges, the weight of the evidence, the defendant’s history and

characteristics, and “the nature and seriousness of the danger to any person or the

community that would be posed by the person’s release.” § 3142(g). The

government has the burden of proving by a preponderance of the evidence that the

defendant presents a risk of flight and by clear and convincing evidence that he

presents a danger to the community. Cisneros, 328 F.3d at 616.

      After the initial detention decision is made, the district court may reopen the

detention hearing if it finds that (1) new information exists that was unknown to the

movant at the time of the initial detention hearing; and (2) the new information has a

material bearing on the issue of whether there are conditions of release that will

reasonably assure a defendant’s appearance at trial and the safety of the community.

§ 3142(f)(2).

      We review de novo mixed questions of law and fact concerning the detention

decision, but we review any findings of historical fact for clear error. Cisneros,

328 F.3d at 613. “A finding is clearly erroneous when, although there is evidence to

support it, the reviewing court, on review of the entire record, is left with the definite

and firm conviction that a mistake has been committed.” United States v. Gilgert,

314 F.3d 506, 515 (10th Cir. 2002) (brackets and internal quotation marks omitted).

                                                5
“On clear error review, our role is not to re-weigh the evidence; rather, our review of

the district court’s finding is significantly deferential.” Id. at 515-16 (internal

quotation marks omitted).

       B. Arguments on Appeal

       1.     Flight-Risk and Dangerousness Determinations

       Dermen argues that the district court clearly erred by finding that he is

dangerous and a flight risk. He also challenges several procedural aspects of the

district court’s rulings. Because we find no clear error in the flight-risk

determination, we need not consider Dermen’s challenges to the dangerousness

determination, including his contentions that the district court erred by not holding a

hearing on dangerousness after the parties filed their supplemental briefs and that it

considered improper ex parte evidence on that issue.

       As an initial matter, we reject Dermen’s contention that the district court erred

by failing to specifically address each of the § 3142(g) factors in its order. The court

addressed those factors in detail in its initial detention order and nothing in the

statute requires the court to consider them again after reopening the hearing. Indeed,

as § 3142(f)(2) makes clear, the sole purpose of reopening a detention hearing is to

give the moving party an opportunity to present evidence that was unavailable at the

initial detention hearing. Here, the new evidence Dermen presented focused on

discrete aspects of the district court’s flight-risk determination, and both parties

presented new evidence regarding whether he presents a danger to the community.

The parties’ new evidence framed the issues to be considered at the reopened

                                                6
hearing, and there was no reason for the district court to consider issues unrelated to

the new evidence.

      As explained in Dermen I, the key evidence supporting the district court’s

initial flight-risk determination was that Dermen has substantial assets in Turkey,

including real estate, a yacht, and sizeable bank accounts; he spent significant time in

Turkey for several years before his arrest; he and entities under his control funneled

millions of dollars into Turkey’s economy; he told several government witnesses that

if he were ever criminally charged, he would flee to Turkey; he has access to a

private jet and has entered and exited the United States without detection by the

American government; and Turkey refuses to honor extradition requests from the

United States. Based on this and other evidence, including his failure to comply with

civil court orders to appear for depositions for other cases, the court concluded that

Dermen has both the motive and ability to abscond to Turkey and that no condition or

combination of conditions would reasonably assure his appearance at trial. 779 F.

App’x at 499.

      In his motion to reopen, Dermen argued that three areas of new information

undermined the district court’s previous finding that he was a flight risk. First, he

maintained that some of the assets in Turkey relied on to support the initial flight-risk

determination (the yacht and a home in Istanbul) are not legally his, and that one of

the wire transfers thought to have been sent to his bank account in Turkey was

actually sent to a different account that he did not have access to. But the

government presented evidence, including from the now-cooperating codefendants,

                                               7
about fraud proceeds sent to Turkey for Dermen’s benefit, and his pattern of holding

few assets in his own name and benefitting instead from assets held by others.

Although Dermen maintained that he lost access to some of those assets after the

codefendants pleaded guilty, the government noted that their Turkish assets have not

been forfeited and that even if the court were to enter a forfeiture order there is no

assurance that the Turkish government would execute it. The district court concluded

that despite Dermen’s new information regarding the one challenged wire transfer

and ownership of the yacht and house, he still had access to significant assets in

Turkey. Specifically, the court noted that the government’s evidence about Dermen’s

“other financial transactions with Turkish bank accounts remains largely

unchallenged” and that he failed to refute the government’s evidence, including

“compelling new information” from two codefendants, that he still has access to

“substantial funds in Turkey from the alleged fraud.” Aplt. App., Vol. 8 at 2006.

      Second, Dermen presented evidence challenging the government’s claims and

the court’s findings about his ability to enter and exit the United States without

detection. In particular, he disputed the court’s finding that he “failed to rebut the

government’s assertion that he conspired with a corrupt Department of Homeland

Security official to ensure that [his] business associate would be permitted entrance

into the United States despite being barred from the country due to a criminal record

and an outstanding arrest warrant.” Aplt. App., Vol. 2 at 553 n.7. But the

government presented new evidence from the codefendants that buttressed the

evidence it presented at the initial detention hearing about Dermen having fled to

                                               8
Turkey for five months in 2017 after the execution of the California search warrant.

The court acknowledged Dermen’s evidence that he did not conspire with the DHS

official “to facilitate the entry of non-citizen felons,” but rejected his argument that

this new evidence undermined the court’s previous flight-risk determination, noting

that he “has proven that he personally has the ability to evade detection” at the

border. Id., Vol. 8 at 2007. The new evidence thus failed to “assuage the court’s

primary concern” that if released, Dermen had the ability to abscond to Turkey

without detection. Id.

       Third, Dermen took issue with the district court’s rejection of his claim that

he returned to the United States after the 2017 trip to Turkey despite his belief that

the California investigation would result in criminal charges and its suggestion that it

was more likely that he came back voluntarily because he was unaware of the gravity

of the investigation into his business dealings and the “degree of criminal exposure

he was facing.” Id., Vol. 2 at 552 n.6. Dermen presented evidence at the reopened

hearing that he was aware of the federal investigation when he returned to the United

States and he suggested that knowing about the scope of the federal investigation

meant he also knew about the gravity of the California investigation because the two

investigations overlapped and had the same objective. But the government argued

that, although Dermen may have known about the state search warrant before

returning to the United States, he was not aware until he was arrested in August 2018

that the investigation had turned its focus onto his involvement. The government

also presented new information based on interviews with one of the codefendants

                                                9
suggesting that, contrary to Dermen’s representations, he had intended to flee the

country in December 2017. Based on its evaluation of the parties’ evidence and

Dermen’s failure to present evidence that he was aware when he returned to the

country that he had become the focus of the California investigation, the court found

that he was in fact planning to flee to Turkey.

       We find no clear error in the district court’s findings of historical fact, and we

agree with its observation that “[d]espite the volume of new information,” Dermen

presented in his motion to reopen the detention hearing, he successfully challenged

“very few of the conclusions” the previous detention orders were based on. Id.,

Vol. 8 at 2022. And based on our de novo review of the record, we agree with the

district court’s determination that the fact that Dermen “is facing the prospect of life

in prison,” id., his strong ties to Turkey and access to substantial assets there, his

earlier plans to flee to Turkey and his demonstrated ability to do so, and Turkey’s

refusal to extradite to the United States, establish by a preponderance of the evidence

that he continues to pose a significant flight risk.1

       The district court also found that the government presented “an extensive

array” of evidence that establishes clearly and convincingly that Dermen is a danger



       1
         At oral argument before the district court, the defense argued that it is
unlikely that Dermen would leave the United States if he were released because most
of his immediate family live here and his daughter was expecting a child soon.
Given the weight of the evidence regarding Dermen’s ties to and assets in Turkey and
his demonstrated ability to leave the country undetected, we find no error in the
district court’s failure to expressly reject these additional arguments in its order.

                                                10
to the community. Id. at 2016. He challenges that finding, claiming that the weight

and credibility of the evidence does not support it, that the court erred by not holding

another hearing on dangerousness even though he did not request one, and that the

court considered one document containing improper ex parte evidence. We need not

address these arguments, however, because it is well established that the government

can keep a defendant in custody solely to secure his presence at trial. See United

States v. Montalvo-Murillo, 495 U.S. 711, 717 (1990) (recognizing that the Bail

Reform Act “directs a judicial officer to detain a person charged, pending trial, if the

Government has made the necessary showing of dangerousness or risk of flight”

(emphasis added)); Stack v. Boyle, 342 U.S. 1, 4 (1951) (“The right to release before

trial is conditioned upon the accused’s giving adequate assurance that he will stand

trial and submit to sentence if found guilty.”); see also United States v. Jackson,

823 F.2d 4, 8 (2d Cir. 1987) (“Since we affirm [defendant’s] continued detention on

risk of flight grounds, we need not consider whether he may properly be detained as a

danger to the community.” (footnote omitted)).

      2.     Due Process Determination

      We reject Dermen’s argument that the district court erred by concluding that

the length of his pretrial detention was not constitutionally excessive.

      Other than the new evidence discussed above, an additional six months of

detention, and four more trial continuances—all at Dermen’s request—the due

process analysis remains the same as in Dermen I. We set forth the applicable legal

standards in that decision, 779 F. App’x at 506-07, and we need not repeat them here.

                                              11
      Examining the relevant factors, the district court concluded that Dermen will

have been in custody for about 17 months at the start of trial, that the government

was not responsible for the delays, and that, as discussed above, there is substantial

evidence supporting the need for his continued detention.2 The court acknowledged

that 17 months “is a significant period of detention,” but noted that “no Tenth Circuit

case has held that a similar period of detention violates due process,” and that similar

and substantially longer periods of detention have been upheld against due process

challenges, particularly where, as here, much of the delay was caused by the

defense.3 Aplt. App., Vol. 8 at 2020. We find no clear error in the district court’s

findings of historical fact, and we agree with its conclusion that the length of

Dermen’s detention has not exceeded constitutional limits, particularly given that

trial is under way.




      2
         The district court’s analysis of the strength of the evidence supporting
detention focused primarily on the flight-risk evidence, but the court noted that “the
clear and convincing evidence” that Dermen is a danger to the community “reinforces
the court’s view that [he] must remain in pretrial detention pending his trial.” Aplt.
App., Vol. 8 at 2022. We need not address that finding because there is ample
support for the court’s due process determination without it.
      3
        Citing United States v. Hudak, 77 F. App’x 489, 489-90 (10th Cir. 2003)
(per curiam) (14-month detention did not violate due process); United States v.
Peters, No. 94-2107, 1994 WL 325419, at *1 (10th Cir. July 7, 1994) (unpublished)
(34-month detention did not violate due process where delays were attributable to
defense motions); United States v. Millan, 4 F.3d 1038, 1044, 1049 (2d Cir. 1993)
(31-month pretrial detention did not violate due process).
                                              12
      C. Motions to Seal

      Dermen filed motions for leave to file the district court’s order and volumes

six through eight of the appendix under seal, explaining that they contain highly

sensitive information and that redaction in lieu of sealing is impracticable because

the sensitive material is interwoven throughout the order and three appendix

volumes. See 10th Cir. R. 25.6(B) (requiring moving party to file a redacted version

of the materials sought to be sealed unless redaction is impracticable). The

government did not object to the motions and, as noted above, the district court

issued its order under seal and sealed the portions of its record that are now contained

in the volumes Dermen asks us to seal. We provisionally granted the motion to seal

the three appendix volumes subject to a final determination by the merits panel, and

because the district court’s order is contained in one of the sealed volumes, we

denied as unnecessary the separate motion to seal the order. Having reviewed the

motions, the district court order, and volumes six through eight of the appendix, we

now make our provisional order granting the motion to file those volumes under seal

permanent.

                                      Conclusion

      The district court’s decision is affirmed. The motion to seal volumes six

through eight of the appendix is granted.


                                            Entered for the Court
                                            Per Curiam



                                              13
