marty your honor how are you today your honor i'm here on a bail application as you are aware the defendant here is charged with a conspiracy to commit kidnapping and murder for hi e the evidence includes it involved again and trying to obtain a get for a woman who was unable to get a divorce for sixteen years the evidence primarily is tape recorded conversations and a confidential source who the discovery has revealed is a long time government agent and acting as a government agent in this case and justified i want to be clear we do not dispute there were serious discussions of violence on this case very serious violence on the tape recorded conversations we believe that there is an entrapment defense we're just beginning to get into the evidence so we're not here to litigate that entrapment defense or to argue that entrapment defense  honor with respect to the issue of bail we believe that there was a clear error by the district court in relying solely on evidence of past criminal and dangerous behavior to predict future that past activities the t v in this case yes your honor and it's all the it's solely based on and you can tell what the district court's ruling is based on pages thirty two through thirty four of the transcript from the hearing you're on so your view is in predicting future violence you should not consider the conduct in the charge  yes i believe your honor the law is clear and particularly with respect to as stated by the seventh circuit in its case united states will be domingo's that you can rely on what occurred in the case but you cannot rely solely on that evidence if it doesn't predict future behavior just to say that the person committed a bad crime in extremely violent crime in the past and there's nothing in there issue of danger to the community and i right you would stand this so if in this case the target had been killed your argument would be that since he was the only target it says nothing about future violence it could say something about future violence if it were for example if someone was a terrorist and they went out and that but in this case in there was lots of talk as you say about violence but it wasn't carried out on your theory if i understand it if they'd killed the man because that was the only target and there was no history of violence before this you would take the view that it doesn't predict anything about it is a case with a statutory presumption of future danger i believe it is but i believe that is so obviously if it is then yes you could say i'm denying bail because there's a statutory presumption a presumption he will be a danger he's killed someone already but he hasn't here that's a legislative decision and under our statutory system i believe only if there is a presumption bilton that you can bury me you don't have a presumption here but wouldn't the same rationale apply that people who are prepared to discuss violence and talk of make arrangements for the carrying out of violence even if it's with a singular objective present a risk i believe that if you draw that conclusion you are creating a statutory presumption for cases where the legislature has decided there should not be a statue type because since this was talk rather than action there might be arguments for why one shouldn't assume things but but i was concerned about the absolute argument that past conduct should not be viewed as predictive of future conduct as i understand it now unless you think there's a statutory perception and more than that judge i wouldn't be so black and white because i would say that sometimes past conduct you can see someone's done this a bunch of times a future violence no your honor i think that the finding that he paid cash shows that the defendant is it may be evidence that the defendant's clue was involved in this past crime but the seventy five was being paid for that particular crime itself and i don't believe that it shows any future likelihood of committing other crimes particularly when you know i believe it shows you no real desire to engage in  yeah i believe that the seventy five thousand is clear from the tapes and the evidence of the seventy five thousand was fun raised primarily i believe the tapes show from the family to pay for this person who there is strong suggestion on the first tape that a lot of the money is being paid to follow the person i just want to address the issue of risk of flight as well because that was the second basis for the finding and with respect to the risk of flight the court the district court clearly stated on page thirty four of the court transfer of the september nineteenth hearing that although the defendant had foreign ties the court said and i quote that there was a very substantial bail package being offered and that bail package included five million dollars bail three financially responsible people signing on three million dollars worth of property of equity and property being posted as bail home detention electronic monitoring but the court said that for two reasons it was denying bail and those two reasons were one that it was not nuclear family posting the property and your honor i would suggest that i would submit that that's common that non nuclear family often post their family didn't have that money is our close relatives uncles who came to court and immediately were willing to put up that amount of money which are is money that they have spent their life earning and saving in and putting away and of course they will be available to be interviewed by the government to determine whether their financing of responsible and the second reason that was set forth by the court was that the defendant would have to leave home for religious services and he said that that was a typical that would be more than normal in electronic monitoring right suggest that at the time that the court made that finding it was right before the jewish holidays which occurred for the last month and i understand that at that point the defendant would have been out for a lot of time but that going forward at this point that a person would not have to leave their home for a long periods of time for religious services and that that could be accommodated and that is not unusual also with respect to allowing electronic monitoring in this district please the court my name is scott hartmann i represent the government on this appeal and i were present to go below in the district court judge stein did not err much less clearly error in finding that there are no combination of conditions they could reasonably guarantee the safety of the community and the defendant's ins for future court proceedings that finding is consistent with the finding of the magistrate judge who initially heard mr lee which is a bail application and it's also consistent with the evidence in this case i'd like to start by addressing the argument that was made with respect to the court's finding a future dangerousness and i think what you see is a slight bit of it from what we saw in the papers there was an indication in the papers that judge stein had not considered the issue of future dangerous and the fact is that he very clearly did there's a new extended discussion in the bail argument for hundreds signed it begins on page nine of the transcript and which judge stein is querying the government on why it is that the government believes  if there is past criminal conduct that makes one think that the violence is not uniquely targeted on a particular individual and the suggestion by your adversaries that that makes a difference here so tell me why you don't think it would point to two things first of all to indicate that there may be other violence associated with this individual so one of the things is there's a conversation that occurs i believe on september the second in which mr asks the source whether he's had a conversation with benjamin gottlieb who is the person who put the source in communication with these individuals about mr gottlieb desire to have someone follow our view is that that conversation relates to another one of these forced get it's there are statements that mr lee woods makes where he indicates that he has not done this before and the appellant wants to argue that those are statements about obtaining force de but if you look at the context in which those statements are made it's clear that what they're talking about is a murder plan and one of the things that i think has gotten lost it at various points in this litigation over the bail issue is how serious the kidnapping plan was in this case even putting aside the murder for hire plan the plan in this case was to forcibly take someone off the street put them in a cage and torture them until they agreed to give this religious divorce and so even putting aside the allegations of murder and a conspiracy to kill someone we would be looking at a very serious violent crime and the government would be arguing for detention and in fact we did argue for detention with dot lee who is only charged in the kidnapping conspiracy and was not charged in the murder for hire don't stop i actually consider those arguments and made the determination that with respect to mr gottlieb there wasn't an cation a future dangerousness sufficient to overcome the possibility of fashioning bail conditions and he did bail mr gottlieb he bailed him over our generation and also over the magistrate's finding that there weren't such conditions i think the court can look at that  making an assessment about judge sign and whether or not he applied the appropriate standard and whether or not he appropriately applied the law here and what you see is far from some sort of reflexive decision to detain these individuals based on the fact that they were engaged in a violent crime he's clearly engaging in an individualized and careful analysis of the evidence in the case the evidence of other dangerousness and also of what combination of conditions could guarantee the safety of the community and there is a threat to the community here there's a threat not only with respect to other force to get there is a threat with respect to the source who is someone who would be very important to the government's case and we have concerns about the safety of the source if the defendant were veiled i admit home detention there are certain things that could limit the defendant's ability to act but one of the things that we argued below and that judge freeman in particular focused on is the fact the defendant's role in this offense was he was using means of communication and intermediaries to orchestrate this violence and that's something that can't be fully controlled in even in a home detention center that's in question about that it's is limited to short things that the person will be available and my question is simply given what's going on in the electronic world is our means modern means of keeping track of people monitor them keeping them in their home is it has that changed so far as you know over the last i mean i think the one can't help not violent but think about bernard made off who is after all out on bail he certainly had enough money to get himself and a whole lot of other people to be or were there but i'm wondering about the technical part just i don't know the specific industries under which mr madoff was released and my memory is that there were no  something like out of the house but there are two different ways in which pretrial services monitors people who are under home detention one way is that there is an electronic traditionally tronic monitoring and so what that is is the bracelet tied to your landline and when you leave the home it alerts and the landline phones some person or service that's monitoring all fashion that's the old fashioned way the modern way is a g p s bracelet that's actually affixed to the person and it monitors their movements now again to rely on a human being to actually be looking at the computer or keeping track of where this person is and even when alarm goes off it's still require someone to respond we actually had a case in the southern district of new york i think a couple of years ago variations on how to to how escaped that nevertheless the process is still used and so the question is whether we've got the kind of findings necessary to deny it anything else two small points thank you ron first the government suggests that in one of the tapes the defendant said that he wanted that there was another case that he was involved in where someone was being followed and we don't have that tape that hasn't been given to us still by the government is the only transcript or they don't there's no transcript there is a summary that i understand was made by the confidential source but nonetheless even if he was following someone was being followed following someone  not uncommon in a divorce case there's no indication of any violence in that other matter and my understanding of what happened in that other tape is the confidential source asks abo and mentions that there's another matter involving gottlieb and that involves someone being followed so i don't think that that's any evidence i just disagree with the government about what the statement the very strong statement by my defendant  client where he says i've never been involved in this what this means he says he's nervous about it it's making him sick to think that there was going to be this kidnapping and he's very nervous and the confidential source reassures him i've done this many times it will be fine they're not talking about a murder the confidential source does not say he's murdered many people he says that he's done this whatever your defense may be as this proceeds forward here's further involvement by your client that's not the last that he participates in this just goes to the issue of whether he's done this on any other occasion in my case you know my argument here is he hasn't and that the evidence is pretty strong that he's never done this on any other cation except when it's suggested to him by the confidential source and finally with respect to the concerns about the safety of the source which is the other argument the government said it's kind of it i'm surprised by that argument the only in to me that my client ever went to was a confidential source he is not a person he's a twenty five year old skinny guy who's never been involved in any violence before never been arrested before for anything in his life was involved in a case where he did something wrong no question about it he was trying to help a woman he was wrong in what he did but there is no evidence none that he's ever done anything violent in any case before or that he would be if you act violently in the future all right thank you thank you very much we're going to take this matter and your advise and obviously it's a a matter we're trying to get you decision quite quickly thank you