so we'll turn now to the day calendar if we could hear first from the parties united states versus crew sent off nicholas kaiser on behalf of dilshad coos enough good morning judge is mr coo stuff thirty two years old a lawful permanent resident was arrested in august on august thirty first two thousand and seventeen he's been detained since charged with conspiracy in attempt to support a foreign terrorist organization for his role in forwarding twenty four hundred dollars to a fellow who's back emigre who forwarded that twenty four hundred dollars to another person who attempted to go to november or december we had a bail appearance in the district court in january the court treated the rebuttable presumption as and the charges in this case under twenty to thirty nine b as an abject bar to bail say that i mean certainly the district court gave it considerable weight but it went on to analyze the other factors it didn't judge it it mentioned the other factors that listed the thirty one forty two factors if it stated what thirty one forty two said but didn't give one word to the history and characteristics the surety as anything that might mean the risk of his didn't say one word actually and to the fact that your client was able to come up with such surety so i mean i don't see that as anything other than a circumstance where the district court recognized that he had surety as they were able to come forward and it didn't identify any problem with the surety s but it thought it was outweighed by the seriousness of the offense and the motive to flee he also acknowledged reviewing all the materials in those included the defense mission about the defendants personal history so we usually take the district court at its word when it says that it has reviewed materials that are relevant to a decision my missing something here i say based on the weight of what was addressed in that twenty page or thirty page opinion that dictated opinion that was dictated on the record i think we missed something because the the pre services reports on the six surety s were handed up to the court and it's noted on the record page eighteen i've received these thirty seconds before taking the bench and those reports didn't factor into the opinion one way the court didn't mention the pretrial services reports for all we know the surety these could have been the attorney general and the court wouldn't have known that where they could have been employed by the attorney general during the early morning has no criminal record no criminal record been working wife and he's been working for how long and years as it truck driver his wife or u s citizen lawful permanent resident his three children under ten are citizens they're all u s citizens yes and and did  here in the eastern district in addition we made the sureties available to the government to the f b i and to the u s attorney tim intermountain that surety was ward it was a five hundred thousand dollars personal recognizance bond signed by six financially responsible persons and who were they were mr koussa enough friends and family his brother in law all truck drivers in his community in chicago some earning over one hundred thousand a year one was his brother in law earning over one hundred thousand a year who have known him for over ten years they're willing to put their lives on the line based on their belief that he wouldn't flee he would come back to court and he wouldn't pose a danger to the community are surrendered his passport and electronic monitoring we recommended an electronic home monitoring as did pretrial services here did the family surrender their passports they had but they'd be willing to do that of course and there are conditions i mean this this court the district court didn't address any conditions which might milieu rate any of the the government's concerns as in your honour's ruling in saab honey which reversed a district conceded that i don't know that there are no conditions i don't know whether the government might concede that in this case for a person who's never been arrested who's only charged with forwarding twenty four hundred dollars to keep him in pretrial custody for a period of more than three years he's been in since august thirty first we have not seen one shred classified material in this case and the case is likely to go on for many years and there was some evidence that your client destroyed or disposed of a cell to and i can certainly understand somebody whose friends getting arrested for serious terrorism charges and not wanting to talk to them in the future and knowing that he had conversations with them throwing out that cell phone i don't know that we can characterize it he could in his mind see it as obstruction or destruction of evidence but that's the government's allegation curiously we haven't seen one shred of the classified material how long  didn't flee in that period he voluntarily made statements to the f b i he gave them access to his cell phone and another computer that weren't on a star search warrant that the f b i had executed so he's been cooperative in some respect which balances out that he threw away his cell phone for sure i reserve the balance of my time for a better judge thank you may please the court david kessler and joanna vegas for the united states district court did not commit clear error here and that's the question today not whether there might be so was this man a danger to the community his community yet that is the argument the government made it's what the just how explain how he was a member of a network that supported isis and a front for multiple years and the community is one community is at least the united states you know funding individuals who seek to travel to syria to gauge in violent jihad creates a danger and even if  specific traveler who in this specific case was arrested at the airport intended to travel to syria rather than to stand new york at doesn't show that there is no danger to the community here individual to return from syria to the united states and individuals who support those individuals seeking to a me to wage violent jihad pose a threat to the community here well you know when i was on the district court our head of the case united states versus goddy and we had  were with respect to every single one of them there were conditions of release yes that i believe that is what happened in that case but that's not this case this case involves a violent terrorist organization and individuals who are supporting that terrorist organization a terrorist organization that has shown an interest any willingness any dedication to committing attacks in the united states and in syria against u s and coalition forces that was in the case the god of case each what would you c isis this is pretty forward toward one end of the spectrum i wouldn't can see that i can imagine many worse things that someone could do but funding individuals who want to go fight for eight isis is a bad thing that what he contributed that is the i believe that's the specific amount that he himself contributed for this particular that's what i don't tell his charge with right so it's two hundred dollars contributions he's charged with attempting in conspiring support this over a roughly a year period the specific incident that has been the discussion you know arising out of this bail appeal is the effort of one of the coconspirators to travel to syria and i think march and he gave one two hundred oh well he contributed it was either how much you contribute i just don't remember the exact number it's what's an order of magnitude you call that i believe it's under a thousand dollars the entire twenty four hundred dollars did not all come from his specific bank account he helped  you know bundle and then transferred that money let me pursue with you what you think that danger is i mean i could understand if you were coming to us and saying look not having succeeded in having sent this would be isis fighter over to syria we're concerned that this guy is going to blow him self up in a shopping center but i don't understand the government to be saying that do you have reason to think that his criminal conduct that he's charged with would lead him to engage in violence or support the violent conduct of others here in the united states i understood from your answer to judge parker that you are looking at the united states as a community and not not abroad which i'm surprised at but why don't you tell me what you think the danger is what will we do with these  couldn't do it let me say a couple things the first is the community is not just the united states i'm just saying we shouldn't well it's at least syria the united states it's at least syria where the fighters were going and the united states which is where this  is yes we'll get into how to look at the community no no but i think you've changed your position some but tell us tell us how you think he's a danger whatever the community is short let me say i mean to answer your question let me just say one thing though this court can affirm on the risk of flight alone so i just want to make sure we're not we're not going to address that so the danger here is that this is an individual who is supporting those willing to commit violent acts on behalf of isis we have not said in the detention mass or in the argument for the district court that this particular individual you know there's a specific reason to believe that this particular individual will take a particular violent action himself in the united states we haven't said that we haven't relied on that are coalition forces and u s forces in syria isis has taken credit for attacks in the united states it remains a designated foreign terrorist organization so i think those are that's the record that's the evidence or certainly the evidence  you you'll have his passport you'll have their parents or if he this man leaves the country he'll never see any of them again well so so we're not denying that he has ties to guess at least chicago i don't believe it's true that he'll never documents people flee even when they've surrendered their passports is in the process of obtaining citizenship i believe that's correct and he was a legal permanent resident relinking period of time that's right but this is not a case where we're saying the defendant had no ties to the community this is a case where the other considerations outweigh those ties individuals when they've surrendered their passports they can use the documents it's not in the record but i currently have a case where there is someone who fled after hi behalf of the government the there is no combination of restrictions or are that that will interfere with his possible fugitivity or protect the community none none that you can think of that is the position we've stretched your head about it you thought about it and you can come up with any position to with us yes the alternative considered by the district court and pretrial services involved home detention g p s monitoring surrender of a passport surety signing a bond and there's nothing let me to be sure i understand why you're taking this position that you're telling us yes but you don't explain and i want to be sure i understand cause then i want allow mr kaiser an opportunity to respond my doing to it that the government's view is given the nature of isis which is in gauges in particularly violent attacks engages them planned surprise everything in between and that no one who supports such an organization can be trusted not to further it terrorist activities is that the government's position and that's not something the court but so so tell us what your position is well i i don't want to gauge in a hypothetical about someone who we could all construct might be trusted no i don't and that whether it's with money or with other support that someone who's committed to this kind of been ideological terrorist organizations simply cannot be trusted not to continue to help it in its in its terrorist act i can't think of an example right now where at least i would say that that person could be trusted but i don't want to make a completely absent one of the why the government's view is that there are no conditions that can support release here so in this particular case the defendant faces extremely serious charges with an extremely long potential prison sentence the weight of the evidence of him going through the fact if you know the weight of the evidence against the defendant is very strong you know what portion of it has been laid out especially in the government second detention memo the defendant has ties to areas of the world as we laid out in the first detention memo from which it would be functionally impossible to get him back while there are countries from which i easier or conceivable to extradite a fugitive and there are other countries where it might be a lot harder and so i mean it's virtually impossible to extradite from certain countries in the world israel for example you can cure people that's right and so that is something a court can consider and then the defendant has engaged in a few can extradite people from his country right we have an extradition treaty i believe we have an concluded i've been arguing bail motions for years and i have for thirty years and i've never had a client flee to avoid prosecution i know it happens it's been known to happen but it's never happened to me and so the government makes your hono may have but i've never had it happen but we've used waivers of extradition where there are extradition treaties with a country and he can execute that mean that applies to him but whether the foreign country would honor it i'm  concerned about the government's danger argument and i don't know if mr kessler and i were on the same wavelength why don't you tell me why the district court couldn't recently be concerned that having supported in organizations such as isis for whatever amount i mean it's it is so troubling that one would support an organization such as isis given their terrorist activities he was supporting and a plan abroad but they've also acted in destructive ways here in the united states that such a person simply cannot be trusted not to pose a danger why could the district court not not conclude that after all this is  presumption case so the question is whether there are reasons to doubt the presumption it is presumption judge but first in this particular case this particular defendant i think the government alleges far far more than his actual involvement in supporting isis rather than just sending the money to an intermediary who sent it to somebody else he wasn't going to wage jihad he never made postings about ji about jihad  about isis himself what someone else who is and who is not going over simply to preach or distribute documents as i understand the person who was being supported wanted to go over to fight of course that is of course that is the allegation judge and we actually actually dispute it that's the nature of the charge charge is favorable to your client in that as you say his involvement is not as personal or direct as some others but nevertheless the end result he was trying to achieve was for a human being to become an isis fighter but if we follow that line judge all the way down no twenty to thirty nine defendant would ever be granted bail because this twenty to thirty nine defendant is the least responsible in terms of supporting a theory of terrorism sitting sitting in his in his home and and sending money to someone i mean what let's let least level of support could there be certainly no danger in his past you know on on another way of looking at it and i'm not by any means suggesting you're this is your client sitting at his in his home and funding or directing things is also what the head of  mob cases where people are actually responsible for ordering the murders and have done great violence in the past and those cases those defendants have bail they're entitled to been difference is that there's are targeted for whatever criminal checks if they have here at the nature of terrorism is to wreak havoc and that that's the danger that's the difference here i understand that judge moving on i'd like to just briefly say two hundred dollars is the amount that i saw in the papers that he personally donated two hundred or four hundred i'm not quite clear at this moment so that's about right and lastly i i don't think this is a clearly erroneous standard where we assert the court failed to address the specific thirty one forty two factors in insufficient weight i think it's plenary review subject to shut couper barry xperia yes it's a plenary review  understanding the argument that the district court didn't consider the factors given our case law that says we generally presume that district courts are doing what they said is there anything else in this record other than the fact that the the specific reports about the were handed up at the last minute and that leads you to that conclusion reading a prepared for page statement into the record  use are you backing off of them is not not at all the court actually made those errors he in fact did not support multiple people's travel for he did not raise money for the purchase of  weapons he didn't leave posts espousing isis ideology on websites so those are factual errors that the court made and this court should should consider that as part of its analysis i mean i had i looked at your assertions and w district court judges have busy we go we we certainly have been there but but in a case where a person is expected to spend the next three years in the m d c in a serious high custody situation where we are so you've got to get it is back and transfer the the majority of the materials i'm informed are in who's back there in the secure room we have an interpreter willing to go in we've been approved we've had security clearance for years and we still have not been given any of the evidence so it's not waiting for our security clearance we thought that might have been the issue but it's not they just haven't turned over any of the secure information and it's for the most part all in it was back i'm informed me concerned when someone is of classified material we're not trying to set a schedule for you it's just i wanted to get a little information about this thank you we're going to take the appeal under advisement and we'll try and get you a decision as quickly as possible