13‐2945‐cr

United States v. Baig

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE 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 (WITH THE NOTATION

“SUMMARY ORDER”).  A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit,

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 20th 3 day of September, two thousand thirteen.

4

5 PRESENT: JOHN M. WALKER, JR.,

6 DEBRA ANN LIVINGSTON,

7 DENNY CHIN,

8 Circuit Judges.

9                                                                                                 

10

11 UNITED STATES OF AMERICA,

12 Appellee,

13

14 ‐v‐ No. 13‐2945‐cr

15

16 FARRUKH BAIG, BUSHRA BAIG, ZAHID BAIG,

17 SHANNAWAZ BAIG, RAMON NANAS, TARIQ RANA,

18 Defendants,

19

20 MALIK YOUSAF,

21 Defendant‐Appellant.

22                                                                                                 

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1 ROBERT J. DEL COL, Smithtown, NY, for

2 Defendant‐Appellant.

3

4 CHRISTOPHER A. OTT  (Amy Busa, on the

5 brief), Assistant United States Attorneys, for

6 Loretta E. Lynch, United States Attorney

7 for the Eastern District of New York,

8 Brooklyn, NY, for Appellee.

9

10 UPON DUE CONSIDERATION,ITIS HEREBY ORDERED, ADJUDGED,

11 AND DECREED that the order issued on July 22, 2013, is AFFIRMED.

12 Defendant‐Appellant Malik Yousaf (“Yousaf”) appeals from an order of the

13 United States District Court for the Eastern District of New York (Feuerstein, J.),

14 issued July 22, 2013, denying him bail pending trial. We assume the parties’

15 familiarity with the underlying facts and procedural history of the case, which we

16 reference only as necessary to explain our decision to affirm the order denying bail.

17 We review a district court’s detention order deferentially and will notreverse

18 unless its findings regarding a defendant’s risk of flight are clearly erroneous.

19 United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007).    “Where there are two

20 permissible views of the evidence, the factfinder’s choice between them cannot be

21 clearly erroneous.”  United States v. English, 629 F.3d 311, 319 (2d Cir. 2011) (quoting

22 Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)) (internal quotation marks

2
1 omitted).  “[W]e will disturb the district court’s finding only if on the entire evidence

2 we are left with thedefinite and firm conviction that a mistake has been committed.”

3 United States v. Shakur, 817 F.2d 189, 195 (2d Cir. 1987) (internal quotation marks

4 omitted).

5 Under 18 U.S.C. § 3142(e), the district court must order detention if it “finds

6 that no condition or combination of conditions will reasonably assure the

7 appearance of the person as required and the safety of any other person and the

8 community.”   In making this determination, the court must hold a hearing, id.

9 § 3142(f), and consider(1) “the nature and circumstances ofthe offense charged”;(2)

10 “the weight of the evidence against the person”; (3) “the history and characteristics

11 of the person”; and (4) “the nature and seriousness of the danger to any person or

12 the community that would be posed by the person’s release,” id. § 3142(g).  In its

13 analysis of the third factor, the court must consider, inter alia, “the person’s

14 character, physical and mental condition, family ties, employment, financial

15 resources, length of residence in the community, community ties, past conduct,

16 history relating to drug or alcohol abuse, criminal history, and record concerning

17 appearance at court proceedings.”    Id. § 3142(g)(3)(A).    For a defendant to be

18 detained, the Government must prove “by a preponderance of the evidence that the

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1 defendant, if released, presents an actual risk of flight,” and that “no condition or

2 combination of conditions could be imposed on the defendant that would

3 reasonably assure his presence in court.”  Sabhnani, 493 F.3d at 75.

4 On the record presented, we cannot conclude that the District Court clearly

5 erred in finding that pretrial detention is appropriate.   Yousaf was charged by

6 indictment with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349;

7 concealing and harboring illegal aliens for financial gain in violation of 8 U.S.C.

8 § 1324; and several counts of aggravated identity theft in violation of 18 U.S.C.

9 § 1028A.    The indictment alleges a scheme whereby Yousaf and several co‐

10 defendants used over twenty‐five stolen identities to employ over fifty

11 undocumented aliens at convenience stores in order, inter alia, to steal wages from

12 these employees and force them to live in housing provided by the defendants,

13 profiting the defendants.    The Government alleges that Yousaf earned over $1

14 million in connection with this scheme, which spanned more than a decade.  See

15 Sabhnani, 493 F.3d at 76 (noting that significant assets or other “means to finance

16 flight” supports a district court’s determination that a defendant may abscond).    

17 The Government outlined a strong case at the bail hearing to prove the

18 charged scheme.  See Sabhnani, 493 F.3d at 76 & n.16 (noting that the “weight of the

4
1 evidence” is relevant to bail determinations under 18 U.S.C. § 3142(g)).    The

2 Government proffered that Yousaf made a statement to law enforcement after

3 receiving Miranda warnings in which he admitted using stolen identities to employ

4 illegal aliens.  The Government has stated that it could call at least ten witnesses to

5 testify to Yousaf’s involvement in identity theft, including undocumented aliens

6 employed at the convenience stores.  Finally, the Government indicated before the

7 district court that it had interviewed all of the victims of the identity thefts alleged

8 in the indictment – including a Coast Guard cadet and an eight‐year‐old child – and

9 none had consented to Yousaf’s use of their identities.  

10 The district court noted at the detention hearing that the charges “centered

11 around false documentation.” As we have said, “apparent access to false

12 documents” supports a finding that a defendant poses a risk of flight.  United States

13 v. El‐Hage, 213 F.3d 74, 80 (2d Cir. 2000).    Additionally, Yousaf, although a

14 permanent resident of the United States, is a citizen of Pakistan and maintains ties

15 there.  A “history of travel and residence in other countries” is another factor that

16 we have approved in the determination whether a defendant is likely to abscond

17 while on bail.  Id. at 80; see also United States v. Mercedes, 254 F.3d 433, 438 (2d Cir.

18 2001) (reversing district court’s grant of bail where defendant was a permanent

5
1 resident of the United States and had consented to electronic surveillance and home

2 monitoring).

3 Thedistrict court analyzedthe foregoing facts, among others, anddetermined

4 that Yousaf posed a risk of flight and that there was no combination of conditions

5 that wouldassureYousaf’s appearance atfutureproceedings.  Thedistrict court was

6 legitimately concerned that two of the properties Yousaf offered to secure bail were

7 alleged by the Government to have been purchased with proceeds from the scheme

8 and to be subject to forfeiture.  See 18 U.S.C. § 3142(g)(4) (providing that a district

9 court may properly  inquire into the source for property used as collateral to secure

10 a bond and reject any property if it will not reasonably assure the defendant’s

11 appearance).  At oral argument before this Court, the Government indicated that

12 these two properties have now been restrained and argued that the other properties

13 are inadequate surety because they are not owned by Yousaf’s close family

14 members, and several are located out of state.  See United States v. Martinez, 151 F.3d

15 68, 71 (2d Cir. 1998) (noting that sureties are assessed for “their ability to exercise

16 moral suasion” over the defendant, “should he decide to flee”).

17 Thus, we cannot find clear error in the district court’s conclusion that no bail

18 package could ensure Yousaf’s appearance at trial. We have considered all of

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1 Defendant‐Appellant’s remaining arguments andfindthemto be withoutmerit.  For

2 the foregoing reasons, the order of the district court is hereby AFFIRMED.

3 FOR THE COURT:

4 Catherine O’Hagan Wolfe, Clerk

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