UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. JAMSHID MUHTOROV, Defendant - Appellee. No. 17-1220 (D.C. No. 1:12-CR -00033-JLK-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , LUCERO , and HOLMES , Circuit Judges.

________________ _________________ The defendant, Jamshid Muhtorov, is a refugee from Uzbekistan who has been charged with conspiracy and attempt to provide material s upport to a designated terrorist organization, the Islamic Jihad Union (IJU), in viol ation of 18 U.S.C. § 2339B. He has been detained pending tria l since his arrest in 2012. At Muhtorov’s request, the district court r ecently continued his trial until March 12, 2018, so it can take place after his co-defendant, Bakh tiyor Jumaev, is tried in January.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 21, 2017
Elisabeth A. Shumaker Clerk of Court2 Muhtorov has filed three motions for pr etrial release—in 2012, 2015, and 2017. The district court denied his first two motions, but on June 23, 2017, it issued an order allowing his release (“the June 23 order”), subject to home detention with an ankle bracelet and various other conditi ons. The government now challenges the June 23 order, which we have stayed pendi ng resolution of this appeal. Exercising jurisdiction under 28 U.S.C. § 1291 a nd 18 U.S.C. § 3145(c), we reverse.
I. Background A. Facts Muhtorov came to the United States from Uzbekistan as a refugee in 2007. The government became aware of him th rough his year-long e- mail communications with an administrator of the IJU’s official website. The IJU has been designated as a foreign terrorist organization si nce 2005. It is an ally of Al-Qaeda and the Taliban and has engaged in fights against Unite d States troops in Afghanistan. The government intercepted Muhtorov ’s communications during surveillance under the Foreign Intellig ence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-1811, 1821-1829. In them, Muht orov expressed his “support of the [IJU], his profession of allegiance to them, a nd his profession of wanting to provide whatever support he could to them.” App., Vol. 4 at 867. In particular, he discussed purchasing portable satellite equipment a nd sending $300 in cash, which he had
received from his co -defendant, Jumaev. Further, he swore his “Bay’ah,” or allegiance, to the IJU and said “he would do whatever is necessary for them or whatever they asked of him, ev en to the point of death.” Id. at 903. Muhtorov also3 discussed martyrdom with Jumaev, and the men said they would meet in heaven. Id. at 920. Additionally, in e-ma il and phone conversations, they talked about joining the “wedding” (a common code word for the jihadist movement, martyrdom operations, or an armed struggle) and re ferenced the “wedding house,” and the “wedding gift” (which typically refers to fi nancial support). Th e men also discussed going to Turkey to study at a madrassa, or religious school. In January 2012, Muhtorov was arrested at the Chicago airport, en route to Istanbul, Turkey. He had purchased a one-way ticket. At the time of his arrest, he had almost $3,000 in cash, two new iPhones in their original packaging, and a new iPad in the same condition. His own phone contained videos showing combat against coalition forces, instructions on making improvised explosive devices, and graphic images of jihadists beh eading captured men. A grand jury indicted Muhtorov for cons piracy and attempt to provide material support to a designated forei gn terrorist organization. He has been detained pending trial since his arrest for the past five and one-half ye ars. The delay in proceeding to trial is the result of a confluence of factors, incl uding his motions to suppress evidence obtained under FISA and other exte nsive pretrial motions ; threats to a key government witness, which necessitated exte nsive discussions about the conditions of that witness’s testimony; i ssues stemming from the severa nce of the trials; and the need to translate voluminous documentary evidence.4 B. Procedural History Muhtorov first sought releas e in February 2012 at a detention hearing before the magistrate judge, which centered on testimony by an FBI agent. The magistrate judge denied the motion for release after concluding (1) by a pr eponderance of the evidence, that no condition or combination of conditions of rel ease would reasonably assure Muhtorov’s appearan ce at future court proceed ings; and (2) by clear and convincing evidence, that Muhtorov presen ts a risk to other persons and the community and that no condition or combin ation of conditions of release would reasonably assure the community’s safe ty. The district court affirmed. Muhtorov next sought pret rial release in July 2015 through a motion for reconsideration of bail based on the extraord inary length of pretrial detention and the due process implications thereof. By th en, Muhtorov had been in custody for three and one-half years, though his motion ackno wledged the lack of any speedy trial issues and conceded the pret rial process had taken a lo ng time due to the case’s complexity. The government objected that Muhtorov could not reopen the detention hearing because he had not presented any ne w information that was not known to him at the time of the detention hearing and th at has a material bearing on whether there are conditions of release that will reasonably assure his a ppearance and the safety of other persons and the communi ty, as required by 18 U.S.C. § 3142(f). The district court denied the second motion for release af ter concluding that Muhtorov presents a

“ bona fide ,” “serious flight risk.” App., Vol. 3 at 475. It cited “[ t]he serious nature of the charges”; “the severi ty of the penalties for conv iction” (15 years per count,5 with a possibility the senten ces could run consecutively for a total of 60 years); 1 “the fact he was apprehended while in the process of leaving the country and destined for the Middle East carrying money and electroni c equipment capable of being used by a terrorist organization”; and “the threat of violence implicit in these acts.” Id. And it opined that the trial delays we re occasioned, to some degr ee, by the complexity of the case, numerous motions filed by Muhtorov, and translation issues—not by lack of diligence or zeal by either party. That brings us to the th ird motion for pretrial release and the June 23 order granting it. That motion was precipitated by a continuance of Jumaev’s trial, which spurred Muhtorov to request his own cont inuance so as to proceed second and call Jumaev as a defense witness. The dist rict court reopened Muhtorov’s detention hearing under 18 U.S.C. § 3142(f)(2) base d on the following new information:

 The government dismissed counts 5 and 6 of the indictment, which charged that Muhtorov and Jumaev conspire d to provide material support and resources to the IJU in the form of personnel (namely, Abdullo Jumaev) in violation of 18 U.S.C. §§ 2339A, 2339B.

 The “actual factual basis” for the nature of the alleged crimes and the flight and danger risk Muhtorov poses, App ., Vol. 9 at 1934, is now based on more than one FBI agent’s testimony. Three evidentiary h earings show the government’s case may be weaker a nd Muhtorov’s defens es stronger, so “[t]here is reason to believe . . . that Mr. Muhtorov has been invested with a sense of a direction and a reason to stay and see the trial of his case through.” Id. at 1934-35.

 The district court reassessed the fact ors listed in 18 U.S.C. § 3142(g)(1) and (2), as detailed below, and determined the evidence “suggest[s] Mr. Muhtorov’s bark was more serious than his bite.” Id. at 1936.

1 Since the time of Muhtorov’s indictme nt, the maximum prison term listed in § 2339B has since been amended from 15 years to 20 years.6 Ultimately, the district c ourt found that “a co mbination of cond itions for release can be crafted that will assu re [Muhtorov’s] atte ndance at [trial] and protect the safety of the community.” Id. at 1935. It imposed those conditio ns of release at a hearing on June 26, 2017. Restrictions include GPS ankle mo nitoring and a 24 -hour lockdown at Muhtorov’s home, though he may leave his home for three approved exceptions: (1) religious purposes (i.e., weekly mosque se rvices); (2) meetings with his attorneys; and (3) medical appointments. In addition, Muhtorov has surrendered his passport and cannot have access to internet-c apable devices that allow access to social media. The probation office will monitor his electronics as well. The government filed this a ppeal and sought an emerge ncy stay of the release order, which we granted.
II. Legal Framework The Bail Reform Act sets out the fram ework for evaluating whether pretrial detention is appropriate. See 18 U.S.C. § 3142. A defe ndant may be detained pending trial only if a “judi cial officer finds that no condition or combination of conditions will reasonably assure the app earance of the person as required and the safety of any other person and the community.” Id. § 3142(e)(1). To make such a finding, the judicial officer must hold a dete ntion hearing per 18 U.S.C. § 3142(f). The factors relevant to considering whether th ere are release conditio ns that can ensure the defendant’s appearance and the safety of the community are: (1) the nature and circumstances of the offens e, including whether the offe nse is a federal crime of terrorism; (2) the weight of the evidence; (3) the defendant’s history and7 characteristics; and (4) the nature and seriousness of th e danger the defendant would pose to the community if released. Id. § 3142(g). In this case, the charges against Muht orov establish a rebu ttable presumption that “no condition or combination of conditi ons will reasonably as sure the appearance of the person as requi red and the safety of the community.” Id. § 3142(e)(3)(C). 2 It is Muhtorov’s burden to rebut the presumption. United States v. Stricklin , 932 F.2d 1353, 1355 (10th Cir. 1991) (per curiam) (“The defendant’s burden of production is not heavy, but some eviden ce must be produced. ”). “However, the bu rden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” Id. at 1354-55. “The government mu st prove risk of flight by a preponderance of the evidence , and it must prove dangero usness to any other person or to the community by clear and convincing evidence.” United States v. Cisneros , 328 F.3d 610, 616 (10th Ci r. 2003) (citations omitted). Having twice found the government met this bur den, the district c ourt changed course in the June 23 order. We review the district court’s ultimat e release decision de novo because it presents mixed questions of law and fact; however, we review the underlying findings of historical f act for clear error. Id. at 613. “A finding is clearly erroneous when, although there is eviden ce to support it, the reviewing court, on review of the entire record, is left with the definite and firm convi ction that a mistake has been

2 A rebuttable presumption arises under this provision where the defendant faces charges for certain of fenses listed in 18 U.S.C. § 2332(g)(5 )(B) that carry sentences of ten years. Muhtorov’s alleged crime— a violation of 18 U.S.C. § 2339B—is among the designated offenses.8 committed.” United States v. Gilgert , 314 F.3d 506, 515 (10t h Cir. 2002) (brackets and internal quotation marks omitted). We review the district court’s findings with significant deference, cognizan t that “our role is not to re-weigh the evidence.” Id. at 515-16.
III. Discussion A. The Statutory Presumption of Detention The government faults the district cour t for not “addressing the presumption of detention” and “not mak[ing] a specific finding that the defendant has rebutted the presumption.” Mem. Br. at 11-12. We have previously held that “[e]ven if a defendant’s burden of produc tion is met, the presumpt ion remains a factor for consideration by the district court in dete rmining whether to re lease or detain.” Stricklin , 932 F.2d at 1355 (citing United States v. Cook , 880 F.2d 1158, 1162 (10th Cir. 1989)). But the district court did not need to use a set of “magic” words when considering the presumption, as the government intimates. We deemed it “significant[]” in Stricklin that “there was no finding th at defendant was successful in rebutting” the § 3142(e) detention pres umption, 932 F.2d at 1355. But we emphasized that the governme nt made a “strong evidentia ry showing” while noting that the defendant offered no documentary evidence and the dist rict court made no findings whatsoever on the strength of the defendant’s showings. Id. at 1354-55. Likewise, in Cook , we found error when the district court “completely skipped over” the rebuttable presumption of detention in denying a motion to revoke release under 18 U.S.C. § 3148(b). 880 F.2d at 1162.9 Here, by contrast, it is clear the distri ct court was aware of , and guided by, the rebuttable presumption. This was the third motion for pretri al release, and the parties and court discussed the presumption in de tail with respect to all three motions; indeed, it played a role in Muhtorov’s conti nuing detention. And the district court explicitly referenced the presumption at the outset of the June 23 order. See App., Vol. 9 at 1929. It also operated within the framework of th e presumption when it made detailed findings on the ways in whic h the circumstances had changed since its original finding that no c onditions could guarantee Muht orov’s appearance at trial or the community’s safety. For these reasons, we reject the government’s argument that the district court did not give any weight to the rebuttable pr esumption or make appropriate findings as to whether Muhtorov rebutted the presumption.
B. The § 3142(g) Factors Next, we turn to the government’s ar gument that the dist rict court did not identify significant evidence to overcom e the statutory presumption and the evidentiary record—both of which show th at no conditions of re lease can reasonably assure Muhtorov’s appearance at trial or the safety of the community. 1. Nature and Circumstances of Offense Charged The first factor is “the nature and circumstances of th e offense charged, including whether the offense is . . . a Fe deral crime of terrorism.” 18 U.S.C. § 3142(g)(1). Muhtorov has been charge d with knowingly providing support or resources to a foreign terrorist organization, or attempting or conspiring to do so, in violation of 18 U.S.C. § 2339B, which is a federal crime of te rrorism. This factor has10 remained constant: The distri ct court repeatedly recognized the serious nature of the charges in resolving all three of Muhtor ov’s motions for pret rial release. Likewise, the circumstances surrounding M uhtorov’s arrest have not changed. He expressed his willingne ss to support the IJU in multiple e-mails and phone conversations and was arrested while attempting to board a one-way flight to Turkey, in possession of cash and electronic equipm ent. He resigned from his job shortly before the trip. And he told his daughter in the precedi ng months that he might not see her again on earth, but he would see her in heaven if she was a good Muslim girl. 2. Weight of the Evidence The second factor—“the weight of the evidence against the person,” 18 U.S.C. § 3142(g)(2)—was the primary focus of the June 23 order. The district court’s treatment of this factor changed dr amatically from its earlier analyses. The district court noted the government’s dismissal of the last two counts of the indictment. It then reassessed th e strength of the evidence against Muhtorov based on new or changed information glean ed from three heari ngs: (1) a January 2017 suppression hearing that demonstrat ed some weaknesses in the government’s translations of the evidence and its linguists; (2) a February 2017 James hearing that gave a thorough overview of the governme nt’s evidence to s upport its conspiracy claims; and (3) a March 2017 Daubert hearing from which it can be inferred that the IJU’s administrator did not take Muhtor ov seriously and that Muhtorov left for Turkey without a definitive pl an with anyone from the IJU. Ultimately, the district11 court concluded that the evidence against Muht orov is not as strong as it seemed to be at the initial detention hearing. To support its revised assessment, the district court also cited expert testimony that may undermine the government ’s theory that th e madrassa that Muhtorov planned to attend was a known conduit to the IJU. It focused on the fact that Muhtorov’s oath to the IJU was made but not accepted. And it observed that “large majorities” of the Muhtorov-Jum aev conversations i nvolved “prattle and topics other than terrorism or plans to supp ort it.” App., Vol. 9 at 1936. Pointing to all of these purported deficiencies, the dist rict court concluded that the evidence now “suggest[s] Mr. Muhtorov’s bark was more serious than his bite,” id . Even so, the district court expressed “concern[s] about witness intimidation and the actions of Mrs. Muhtorov and others having previously attempted to contact” po tential witnesses. Id. at 1935. It also acknowledg ed the government “may have thwarted an actual plan to provide smartphones and se rvices to the IJU.” Id. at 1936. 3. Defendant’s History and Characteristics The third factor is “the hi story and characteristics of the person.” 18 U.S.C. § 3142(g)(3). It encompasses the defe ndant’s “character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, hi story relating to drug or alcohol abuse, criminal history, and reco rd concerning appearance at court proceedings.” Id. § 3142(g)(3)(A). It also ta kes into account whether the defendant was being punished for another offens e at the time of his arrest. Id. § 3142(g)(3)(B).12 The district court genera lly referenced Muhtorov’s “work history” as a commercial truck driver. App., Vol. 9 at 1936. It also desc ribed his “family and community ties” as “substantial,” focusi ng on his relationship with his wife. Id. The district court stated that his wife has lived and worked in the community for ten years, as Muhtorov did for five years without incident be fore his arrest. Id. And it noted that his wife has visited him during his detention, the couple now has a third child born during his incarceration, and th us “[t]heir familial relationship has deepened.” Id. 4. Nature and Seriousness of the Danger to Any Person or the Community The fourth factor is “the nature and se riousness of the danger to any person or the community that would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4). As explaine d above, Muhtorov is presumed to be a danger to the community because of the na ture of his charges. See id. § 3142(e). This presumption is rebuttable, but it remains in the case as a fact or militating against release, to be weighed along with eviden ce related to the § 3142(g) factors. The district court’s reassessment of this factor is closely tied to its revised appraisal of the second factor . It suggests that since the evidence against Muhtorov is not as strong as the district court orig inally appraised it to be, Muhtorov may not be as dangerous either.13 5. Analysis We discern no clear error in the individual factual findings listed above. But reviewing the overall release decision de novo, we disagree with the district court’s assessment of the implications a nd significance of those findings. It does not appear that the district court’s release decision turned on its assessment of the first and th ird factors. Its findings on those factors deviated from its earlier findings in minor respects only. The bulk of the June 23 order was devoted to the district court’s analysis of the second and fourth fa ctors, which seems to be the impetus for the release order. The dist rict court changed its position as to the propriety of release based largely on its revised assessment of the strength of the government’s evidence against Muhtorov, whic h in turn affected its opinion as to the danger Muhtorov presents to the community and the li kelihood he will appear for trial. Its analysis suffers from several major flaws, however. First, the district court cited newly exposed weaknesses in the government’s translations and linguists as a new developm ent that undermines the strength of the government’s case even t hough any implications are unclear. Testimony at the January 2017 suppression hearing revealed th at one of the government’s translators listed his Interagency Language Roundtable test score for Uzbek as a “2 plus” on his resume when it was actually a “2.” A level-two score may not be ideal for translations at a professional level; howev er, a government expe rt testified that “almost all of the language that occurs in regular life is at a level 2,” including “routine day-to-day conversation.” App., Vo l. 8 at 1525. The court did not identify14 what material inculpatory st atements, if any, depend on the translator’s interpreting skills. At least some of the post-arrest statements can be proven without his translations, such as Muhtorov’s admissio ns as to the telephone number and e-mail addresses he used to communicate with the IJU and the websites he visited. Second, the district court c oncluded that testimony from the James and Daubert hearings—which focused on the IJ U’s failure to accept Muhtorov’s overtures or take him serious ly—“gave rise to additiona l inferences that may be favorable to” Muhtorov and “undermine d the seriousness or depth” of the co-defendant’s conspiracy. App., Vol. 9 at 1934, 1936. This focus on the IJU’s actions is misplaced. Muhtorov is charged, in part, with conspiring to provide and an attempt to provide material supp ort to terrorists. Even assuming the testimony from these hearings weakens the gover nment’s evidence that Muhtorov actually provided material support to the IJU, it does not impact the conspiracy and attempt components of the offense. Likewise, any purported di sinterest from the IJU does not minimize his coordinated efforts w ith his alleged co-conspirator. Third, for the same reasons , we reject the district court’s conclusion that Muhtorov is less dangerous because the IJU had not accepted him and he had not formulated a concrete plan to serve the IJU before his attempted departure. Here, too, the significant concern of our dangero usness inquiry is Muhtorov’s alleged intent to further IJU’s terrorism and the concre te, affirmative steps that he took in manifesting his intent. Nor does the timi ng of his statement to his daughter, which Muhtorov emphasizes took place months before his arrest, alter our conclusion. The15 implications of that statem ent still evince a substantial ri sk of community danger in light of his ongoing communications with the IJU and Jumaev at the time. Simply put, the evidence does not support th e district court’s assessment that Muhtorov no longer poses a danger or presents a flight risk that cannot be minimized by strict release conditions. Muhtorov has professed that he is willing to fight and die for his cause, and he took affirmative step s to further that goal. The contents of his phone reflect Islamic extremist tendencies. And the government alleges that his brother, Hurshid Mu htorov, fought in Syria for the Islamic State in the recent past and has attempted to intimidate a witness in this case. The government has show n by a preponderance of th e evidence that Muhtorov would be a flight risk, even with the releas e conditions imposed by the district court. And it has shown by clear and convincing evidence that th e conditions of release, though restrictive, would not reasonably assure the safe ty of the community.
IV. Conclusion The temporary stay of the June 23 order, which was granted on July 7, 2017, is now lifted. For the reasons set forth above , we reverse the district court’s release order dated June 23, 2017. Muhtorov shall be detained pending trial.

Entered for the Court Per Curiam