15-981-cr United States of America v. Petrov

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not ha ve 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 (wit h the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 19 th day of May, two thousand fifteen. 3
4 PRESENT: 5 R ALPH K. W INTER , 6 C HESTER J. S TRAUB , 7 S USAN L. C ARNEY , 8 Circuit Judges

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_____________ _______________ ______________ 10
11 U NITED S TATES OF A MERICA , 12
13 Appellee
, 14
15 v. No. 15-981-cr 16
17 I LYA P ETROV , AKA S OLDAT , 18
19 Defendant-Appellant, 20
21 S UREN G ADAYEV , 22
23 Defendant

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25

_____________ _______________ ______________ 26
27 FOR APPELLEE: R USSELL C APONE , Assistant United States 28 Attorney, United States Attorney’s Office 292 for the Southern District of New York, 1 New York, NY. 2
3 FOR DEFENDANT-APPELLANT: E RIC M. C REIZMAN , Creizman PLLC, 4 New York, NY. 5
6 Appeal from an order of the United States District Court for the Southern District of 7 New York (Swain, J .). 8
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 9 ADJUDGED, AND DECREED that the February 25, 2015 order of the District Court is 10
AFFIRMED and Petrov’s motion for re lease pending trial is DENIED

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Defendant Ilya Petrov appeals a District Co urt order imposing pretrial detention and 12 moves for release pending trial. Petrov was a rrested pursuant to a criminal complaint and 13 charged with conspiracy to commit extortion and extortion in violation of 18 U.S.C. § 1951; 14
he has been detained without bail since his arre st. We assume the parties’ familiarity with the 15 underlying facts, the procedural history of the case, and the issues on appeal, to which we 16 refer only as necessary to explain our decision. 17
After conducting a hearing, a judicial offi cer may order pretrial detention upon its 18 finding that “no condition or combinatio n of conditions will reasonably assure the 19 appearance of the person as required and the safety of any other person and the 20 community.” 18 U.S.C. § 3142(e)(1). In maki ng this determination, the judicial officer 21 considers the following factors: (1) “the natu re and circumstances of the offense charged”; 22 (2) “the weight of the evidence against the pers on”; (3) “the history and characteristics of the 23 person”; and (4) “the nature and seriousness of the danger to any person or the community 24 that would be posed by the person’s release.” Id. § 3142(g). “[T]he government retains the 25 ultimate burden of persuasion by clear and co nvincing evidence that the defendant presents 26 a danger to the community.” United States v. English , 629 F.3d 311, 319 (2d Cir. 2011) 27 (internal quotation marks omitted). In such a pretrial detention hearing, the government 283 may proceed by proffer, see, e.g., United States v. Ferranti , 66 F.3d 540, 542 (2d Cir. 1995), and 1 the rules of evidence do not apply, see 18 U.S.C. § 3142(f). 2
“We review a district court’s findings as to the accused’s . . . potential danger to the 3 community for clear error.” English , 629 F.3d at 319. We will not reverse “unless on the 4
entire evidence we are left wi th the definite and firm convi ction that a mistake has been 5
committed.” United States v. Sabhnani , 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation 6 marks omitted). “Where there are two permissi ble views of the eviden ce, the factfinder’s 7 choice between them cannot be clearly erroneous.” English , 629 F.3d at 319 (internal 8 quotation marks omitted). We revi ew legal questions de novo. See United States v. Abuhamra
, 9 389 F.3d 309, 317 (2d Cir. 2004). 10
The District Court did not clearly err in fi nding that Petrov presents a danger to the 11 community. The government submitted cl ear and convincing evidence that Petrov 12 threatened the complainant and had previously threatened and orchestrated an assault on the 13 complainant’s cousin. The thre ats to the complainant were recorded, and the government 14 offered a series of text messages as evidence of the threats to the cousin. Further, Petrov 15 had already been the subject of two protective or ders in connection with domestic disputes. 16 Under the circumstances, we see no clear error in the District Court’s determination that no 17 condition or combination of conditions, in cluding Petrov’s proposed bail package, would 18 reasonably assure the safety of the complainan t or the community. Petrov’s arguments to 19 the contrary before this Court—which ask us to hypothesize alternative factual findings and 20 second-guess those of the District Court—do not render the District Court’s view of the 21
evidence erroneous. 22
We are also unpersuaded by Petrov’s argument that the District Court erred as a 23 matter of law by failing adequately to consid er possible combinations of conditions that 24 would permit pretrial release. In support, he cites United States v. Berrios-Berrios , 791 F.2d 246 25 (2d Cir. 1986), in which our Court remanded for th e district court to articulate its reasons for 26 concluding that no viable alternatives to detention existed for the defendant. Id. at 251. 274 Petrov’s case is different: here, the District Court considered the al ternative proposed bail 1 package and made an explicit finding that no conditions or combination thereof could 2 adequately protect the safety of the comp lainant and the community, reflecting its 3 consideration of the relevant factors under § 3142(g). Under these circumstances, we see no 4
reasonable basis to remand. 5

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We have considered all of Petrov’s remainin g arguments and find them to be without 7 merit. Accordingly, we AFFIRM the order of the District Court and DENY Petrov’s 8 motion for release pending trial. 9

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FOR THE COURT: 11
Catherine O = Hagan Wolfe, Clerk of Court 12