in cases in the circuit subserve not and friedman that the weight of the evidence cannot justify detention cannot justify even a finding of an actual risk of flight without more concrete facts showing that there is actually risk of flight because weight of the evidence only establishes at the most a motive to flee it does not established an intent or inability to flee so she has no ability to flee able to show that she has any money or even that her husband has any money that she has retained any money from that that she has any accounts with anything in them and she has nothing they live in a very small house with  about the about the e mails is that this is still just the government's one sided proffer of evidence the case cannot be no matter how damning the e mails are a court cannot look at evidence documentary evidence and say come to the conclusion i think she's guilty i'm sure she's guilty she's so guilty she's going to be convicted so i'm going to start letter start serving her sentence now the only the only way the weight of the evidence can be considered the only legitimate bearing it has on the bail determination is how it bears on risk of flight and the cases have held in it makes total sense why that you cannot just detain someone or hold that there are an actual serious risk of flight based only on an assessment of the weight of the evidence that there has to be more otherwise everybody would be a risk of flight and everybody would be detained because in a one sided proffer i mean the government would have to be able to show its case was strong it got through the grand jury  would put its best foot forward and there's no strong case well that's why it's a threshold it's only a threshold if the government can't even show that in a one sided proffer that it has a strong case to put to put to trial then there can be no no laundering it is no different from any other fraud case the government keeps talking about the identity theft charges but the identity theft charges in this case are incidental to the fraud it involves the allegations involving mr jacobs not mrs jacobs mr jacob secretary while he was holding himself out as a fed official but what's important is this is not the kind of identity theft that involves forged passports official id is the kind of documents that would enable anybody to flee or get by any government official in any way this is a business card that might fool an investor but isn't going to get anybody out of the country or able to do anything official so this doesn't elevate the fraud to any greater the who are charged in the indictment also charged with the aggravated identity theft and they're one of them in particular mr lester as no mystery as he for years is much much mr edwards of words is much friendlier with him it's the same judge you yes so that this whole this whole business about how mr edwards might help them is just conjecture and there's absolutely nothing to it it's not facts it's not based on any evidence it doesn't even make sense he's dead other people have been left holding empty bags and are are being prosecuted why on earth would he ever want to have anything to do with these people and in fact there's no evidence that he has with respect to the people who've been out and who is friendlier with the  did that's why it made no sense the ultimate ruling because in the beginning of the hearing he inquired about that and so then at the end when he denied the package and defense counsel asked well what if you know coming back to the judge's own question what if we could get the was maybe i think i don't remember exactly maybe but then there was a you know a tenuous argument made about you know detention and bail that was that was offered and that the end when he was denying it he just denied it and didn't want to talk about any other conditions any other possible conditions and i just want to reiterate that this is a sixty five year old woman with no criminal record a u s citizen born here with no citizenship or residency abroad no personal professional ties abroad who made no attempt to flee but rather it be just a under when she learned there was a warrant for her arrest whose history is one of one hundred percent compliance with court orders to appear because she had a prior case that was dismissed and she appeared fourteen times before that case was dismissed while she had her passport and was allowed to travel and did she always came to court there is simply nothing here there are no markers for risk of flight nothing except the government the government's claim that it's an overwhelming case which is not enough discovery and also the government hasn't it yet the government hasn't even turned over all the discovery but it took the government six months and it's probably not like their fault they probably weren't delaying but it's so voluminous that it took them six months to go through the discovery sufficiently to produce it that that's the stuff that was taken from mishandling jacob's home lots and lots of documents electronic discovery things like electronic devices things like that they still haven't turned over because they only applied for a warrant from mr michael jacobs electronics that were taken from him in december they only apply for a warrant july for those for those items so we still don't have those some of the some of those documents could be relevant to the whole bail thing pardon yes they've got they they got the warrant and they have they have that but they're going through it and haven't haven't just disclose it to us so that's another two months so there's just this is a long case there's a lot to be done in this case now there's a superseding indictment there's not going to be a trial in november that that's just not go her a flight risk here for judge i have three responses concerning the new mexico case the first is an observation that judge cardiff you made is that that case was much much less severe  than this case involved proceeds of less than five hundred thousand dollars there are a lot of counts at stake but the time that she was facing in that case is of a much lesser magnitude than the time she's facing here which is approximately guidelines of fifteen to twenty years a statutory max of one hundred using their she was facing i believe it was like you know two or three years on each count stat max but i i don't have the information of what the guidelines were but in terms of loss amount it was five hundred thousand dollars versus over fifty four million dollars in this case so the penalties were much less severe second of all that case in terms of the timing of it she was out on bail when she was engaged in the alleged conduct here so she was traveling around the world was yes judge sacked so she was involved in the charge scheme that's an issue in this in this case while she was out on bail in this case this court has observed before that when a defendant commits crimes on bail or engages in the alleged conduct while out on bail the district court is allowed to draw the inference that she's not going to comply with any court order and i think that's a reasonable inference that judge judge card if you drew here and the third issue is that she was charged with securities fraud essentially lying to investors in the case in order to get money and then making excuses to them it was essentially a ponzi scheme which is set forth in the indictment which is part of the record so she's lying to investors in that case to get money from them and then giving excuses as to why they're not seeing any returns all the while she's engaged in the conduct that's alleged here which is you know remarkably similar just on a much larger scale so there's the nature of the evidence here it's not just the weight which obviously judge found very compelling here in terms of the penalty she's facing times the likelihood of conviction based on the government's proffer of evidence and is this court has repeatedly observed a proffer by the government is completely acceptable at the bill to terminations stage but but it wasn't just the government's proffer the government put forth evidence the e mails the photograph the bank records showing that the defendant played a direct role in impersonating helping impersonate federal reserve officials in order to entice investors to send millions of dollars and it was her name along with her husband's name that was on the bank accounts that received over ten million dollars in investor funds and then sent that money overseas and in the course of that in order to carry out the scheme she used a fake name the name and jack for which she had business cards printed for which she pretended to be the principal of a company called kingdom trust that was used to entice investors to send their money in believing that the money was going to be held in a trust account instead the defendant and her husband immediately turned around and sent millions of dollars of proceeds overseas to accounts that appear to be controlled by their codefendant rians edwards who is still out who has not been apprehended the defense says he absconded i mean he's been in sri lanka we know he's in sri lanka he has not been arrested on these charges made the same observation in the sad sad sad case saying that it's not unreasonable to believe that somebody might help a defendant flee and that's sufficient to help show that defendant has the means to flee below a convoluted process but it but she did surrenders well she didn't technically know she was sitting in her car with one of the code at co tenants of her house when the officers observed the vehicle recognized the vehicle as belonging to her or her coa ten and then they arrested her she did not actually physically surrender herself to law enforcement was the vehicle of the house or was down the road it was down the road it was at a parking lot of the gas station which was nearby to a police station so we don't you know in judge card if you took all these facts into consideration and i think the overarching point that the court should respectfully keep in mind here is that if the defense respectfully has not identified error i mean they disagree with the weight that judge cardiff he gave to different factors but they haven't identified any error much less clear air in his factual determinations which underlie his reasonable conclusion that the defendant any condition or combination of conditions that would secure her return to court the court in chicago or said you know there could be instances where the district court considers a factor an impermissible factor or just not consider more complex than just clear or clear errors is for facts but for legal conclusions including how much weight to give a mistake on the weight given or the refusal to consider to consider alternatives is a is legal or ok the government still talks basically about the weight of its case that is not enough to detain someone or even to find a risk of flight something that he says that it's all over so that it is not enough that they had a big case of a serious case a lot of evidence against  and it was the the risk of flight required to find this a flight it was required that they had extraordinary wealth and they had many many relatives abroad and they had been born abroad and they had the ability to  know her husband is in and he hasn't even sought the island he's not going anywhere her husband is detained her husband is detained and he's hasn't even sought he was at the airport when he was arrested and he does have u citizenship they've never lived in the u k she has nothing to do with the u k they've lived here for years and years he's been here for years and years and years so she has no foreign contacts subcounty they had huge foreign contacts and business worldwide they were extremely wealthy even then the conditions that the court held that there were conditions that were offered that were reasonably assured to to to guarantee their appearance and reverse the detention order ok ok the new mexico case was a state case there are no guidelines there at stake case we don't know how much time they were facing it was fifty something plus fifty plus counts that case was dismissed the government keeps talking about as if it was a real case as if they really did it  dismissed just after twenty five months when the state couldn't prove its case not only that the court in that case pointed out that the f c c refused to prosecute that case refused even biggest civil case it was not a real case ok that doesn't count for anything the fact that she was got some americans to help him out doing some things and they they're sitting here with no money he's got the money he's not an involved with them he hasn't come back to help the others escape the other two that are out he get arrested but  various places i'm not sure about his whereabouts but he isn't an indicted person who is a fugitive he's in he's not available to that to the united states authorities and there's absolutely no reason to think that he would come forward and help during this new mexico case she was allowed to travel she was allowed trial and she did and then now she's given up her passport and she's offered electronic monitoring she's also offered a huge bail package cosigned by her son who is a father with two children and  can't afford to lose five hundred thousand dollars he's a biochemist there's there's an absolutely no justification for the court's conclusion that these conditions and no conditions would guarantee her or i would