OPINION

V.KOLE AKINOLA, alicia Kale Akin, alk/a

Kalee Akins, alicia Black Law, alkla Black,

LINARES, District Judge.

This matter comes before the Court by way of Defendant Kole Akinola’s motion for

reconsideration of this Court’s June 2$, 2016 Letter Order denying Defendant’s eighth motion for

bail. (ECf No. 224). The Government has opposed this motion, and Defendant has replied to

same. For the reasons stated herein the Court denies Defendant’s motion for reconsideration.

I. Background

Defendant was arrested in connection with the pending criminal charges on April 27, 2011.

(ECf No. 3). The following day, a criminal complaint was filed against Defendant, alleging thatDefendant conspired with others to defraud the Internal Revenue Service “by obtaining or aiding

to obtain the payment or allowance of any false, fictitious or fraudulent claim in violation of 1$.

U.S.C. § 286.” (ECF No. 1).

1
Magistrate Judge specifically indicated that detention was warranted based upon Defendant’s risk

of non-appearance and the risk that Defendant will pose a danger to another person or the

community. (ECF No.6).

Since April 28, 2011, Defendant has filed eight applications seeking release on bail. The Court

has denied each of these applications, and the Third Circuit has twice—first on August 12, 2014,

and more recently on October 5, 2015—denied Defendant’s appeals. (ECF No. 137; CoA No. 15-

2674).

On May 3, 2016, Defendant filed his eighth bail application. (ECF No. 205). The Court heard

argument with respect to this motion on June 13, 2016, and permitted the parties to offer arguments

in summation on June 15, 2016. On June 28, 2016, this Court entered a letter order denying

Defendant’s eighth bail application. (ECF No. 221, “Op.”). It is this June 28, 2016 letter orderfor which Mr. Akinola seeks reconsideration. (ECF No. 224, “Def.’s Mov. Br.”). The Government

has opposed Defendant’s motion (ECF No. 226 “Gov’t. Br.”) and Defendant has replied to that

opposition (ECF No. 227, “Def.’s Reply Br.”). This motion is now ripe for the Court’s

adjudication.

II. Legat Standard

1 Section 3142(f) permits a judicial officer to “hold a hearing to determine whether any condition or combination of

conditions ill reasonably assure the appearance of such person as required and the safety of any other person

and the community.” 18 U.S.C. § 3142(f).

2
“may not be used to re-litigate old matters, nor to raise arguments or present evidence that could

have been raised prior to the entry of judgment.” P. Schoenfeld Asset Mgmt., LLC v. Cendant

Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001). To prevail on a motion for reconsideration, the

moving party must “set[ ] forth concisely the matter or controlling decisions which the party

believes the Judge or Magistrate Judge has overlooked.” L. Civ. R. 7.1(i).

The Court will reconsider a prior order only where a different outcome is justified by: “(1)

an intervening change in controlling law; (2) the availability of new evidence not previouslyavailable; or (3) the need to correct a clear error of law or prevent manifest injustice.” N River

Ins. Co. v. CIGNA Reinsurance, Co., 52 F.3d 1194, 1218 (3d Cir. 1995) (internal quotations and

alterations omitted). A court commits clear error of law “only if the record cannot support thefindings that led to the ruling.” ABS Brokerage Servs. v. Penson Fin. Servs., Inc., No. 09—4590,

2010 WL 3257992, at *6 (D.N.J. Aug. 16, 2010) (citing United States v. Grape, 549 F.3d 591,603—04 (3d Cir. 2008). “Thus, a party must. . . demonstrate that (1) the holdings on which it bases

its request were without support in the record, or (2) would result in ‘manifest injustice’ if not

addressed.” Id. “Mere ‘disagreement with the Court’s decision’ does not suffice.” Id. (quoting

P. Schoenfeld, 161 F.Supp. 2d at 353). Moreover, when the assertion is that the Court overlooked

something, the Court must have “overlooked some dispositive factual or legal matter that was

presented to it.” McGovern v. City ofJersey City, Civ. No. 98—5186, 2008 WL 58820, at *2

(D.N.J. Jan. 2, 2008).

3
(Def.’s Mov. Br. at 1). Next, Defendant argues that this Court erred in its finding that the amountof equity in Defendant’s proposed bail package was less than that previously offered. (Id. at 2-3).Further, Mr. Akinola maintains that there is no clear and convincing evidence that, ifreleased, he

would pose a danger to the community by committing a crime contemplated by the Bail ReformAct. (Id. at 4). Additionally, Defendant argues that in rejecting his proposed bail package asinsufficient to secure his appearance and by not setting the least restrictive amount to reach thatgoal, the Court has violated Section 3 142(c)(2) of the Bail Reform Act, Defendant’s Eighth

Amendment rights, and Federal Rule ofAppellate Procedure 9(a). (Id. at 4-5). Lastly, in his reply

brief, Mr. Akinola has included “as added basis for this Court’s reconsideration of its recent bail

denial, the fact that after he moved for reconsideration the Court postponed trial and set a new trialdate for November 28, 2016.” (Def.’s Reply Br. at 1). The Court addresses each argument, in

turn.

first, Defendant argues that “[his] case qualifies as the ‘rare’ instance where the law

provides that the length of his detention by itself offends due process.” (Def.’s Mov. Br. at 1).

However, this argument was already raised by Mr. Akinola, and the Court addressed same in itsopinion denying Defendant’s eighth bail application. (See Op. at 2-6). Specifically, and

notwithstanding the fact that the Government filed the operative Second Superseding Indictment

on December 21, 2015, the Court found that “based on the lengthy record before the Court, it isclear that the delay of this matter proceeding to trial is a consequence of Defendant’s litigation

4
Akinola’s proposed bail package with earlier-proposed packages. (Def.’s Mov. Br. at 2-4).

Specifically, Mr. Akinola states that the Court incorrectly concluded that his proposed bail package

had less equity than packages previously considered. (Id.). For its part, the Government has not

disputed Mr. Akinola’s representation that the presently-proposed bail package has a greater equity

than any prior packages. (See Gov’t. Br. at 3). Therefore, the Court accepts Defendant’srepresentation that the available equity in his proposed packages exceeds that of his previously

proposed bail packages. That said, however, the Court notes that it correctly identified Mr.Akinola’s bail package as having an equity—rather than value—of $1,375.046.89. (Op. at 6). In

other words, despite any conflation of the value of the properties in question with the available

equity of those properties, the Court was well aware of the significance of the bail package andwas “not satisfied that the proposed bail package will adequately secure Defendant’s futureappearance before the Court.” (Id.).

Defendant asserts that even assuming his proposed bail package had less equity than

packages previously offered, “that was before Akinola served five years in pretrial detention andthe reasons for that denial have since been shown not to apply in this case.” (Def.’s Mov. Br. at

3). That is, according to Defendant, since the Court’s initial order denying Plaintiff bail in 2011,

2 In any event, the Court is not swayed by Plaintiffs citation to United States v. Briggs, 697 F.3d 9$ (2d. Cir. 2012).In that case, while the Second Circuit did express that it was “deepLy troubled” by the defendant’s over two-year pre

trial detention, the Court stated: “There is no bright-line limit on the length of detention that applies in all

circumstances; but for every set of circumstances, due process does impose some Limit.” Id. at 103. Similarly,

Defendant’s citations to district court cases out of the Western District of New York and the Middle District ofTennessee are not binding on this Court.

5
argument.

In Him/er, the Third Circuit outlined the statutory scheme of the Bail Refonn Act as

follows:

Under the [Bail Reform Act] judicial officers must now consider danger to the

community in all cases in setting conditions ofrelease. See 18 U.S.C. § 3 142(g)(4)(Supp. II, 1985). furthermore, a defendant’s dangerousness may serve as a basis

forpretrial detention. See 1$ U.S.C. § 3142(e) (Supp. II, 1985). Ifajudicial officer

finds that release on personal recognizance or unsecured appearance bond will not

provide the requisite assurances, the judicial officer must impose the leastrestrictive bail conditions necessary to assure appearance and safety.

In a narrowly drawn section, the Act provides statutory authority for the judicial

officer to consider whether, in certain specific cases, no conditions of release willassure appearance and safety and whether the defendant may then be detained

pending trial. 18 U.S.C. § 3 142(e), (f) (Supp. II, 1985).

In a nutshell, a detention hearing, i.e., for considering detention as opposed to

setting conditions of release, may be held upon an appropriate motion in a case

involving:

(1) a crime of violence, 1$ U.S.C. § 3142(f)(1) (Supp. II, 1985)

(2) a crime punishable by life imprisonment or death, Id.;

(3) a federal narcotics offense with a potential sentence often years or more, Id.;(4) any felony following convictions for two or more offenses in the nature of the

above, whether state or federal, Id.;

(5) a serious risk of flight, 18 U.S.C. §3142(0(2) (Supp. II, 1985); or

(6) a serious risk that the person will attempt to obstruct justice or to threaten, injure

or intimidate a witness or juror. Id.

Id. at 159.

In Himler, a magistrate judge ordered the pretrial detention ofthe defendant pursuant to 1$

U.S.C. § 3142(0, based upon what the judge believed to be “a serious risk of flight as well as the

6
identification. Id.

On appeal, Himler challenged the district court’s finding that he was a danger to the

community under the Act. Id. at 159. Specifically, Himler argued that the offense of creatingfraudulent documents is not the kind of danger to the community that Congress had in mind when

enacting the Bail Reform Act. Id. The Third Circuit agreed. Id. at 160-62. That is, the ThirdCircuit held that the Act does not “authorize[] pretrial detention upon proof of danger to the

community other than from those offenses which will support a motion for detention.” Id. at 159.

As noted above, the Act specifically references crimes involving violence and serious narcotics

offenses.

Having reviewed Himler, the Court agrees with Defendant that only the crimes identified

in Section 3142 ofthe Act would support a finding by the Court that the Defendant poses a danger

to the community. The Court further notes that the Government has not specifically addressed or

disputed this argument in its opposing papers. Thus, the Court finds that Defendant’s pretrialdetention pursuant to 18 U.S.C. § 3142(f) cannot be premised upon a finding by the Court that

Defendant poses a danger to the community ifreleased.

While Defendant caimot be said to be a danger to the community as contemplated by the

Bail Reform Act, Defendant’s pretrial detention is nevertheless authorized by this Court’s findings,

on numerous prior occasions, that Defendant poses a serious risk of flight. 18 U.S.C.

§3 142(f)(2)(A); see also Him/er, 797 F.2d at 160. That is, the Court has considered the factors

7
involves a minor victim or controlled substance, fireann, explosive, or destructive

device;

(2) the weight of the evidence against the [Defendant];(3) the history and characteristics of the person, including—

a. (A) the [Defendant’s] character, physical and mental condition, family ties,

employment, financial resources, length of residence in the community,

community ties, past conduct, history relating to drug or alcohol abuse, criminal

history, and record concerning appearance at court proceedings; and

b. (B) whether, at the time ofthe current offense or arrest, the [Defendant] was on

probation, on parole, or on other release pending trial, sentencing, appeal, or

completion ofsentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be

posed by the person’s release.

18 U.S.C. § 3 142(g).

As to the first factor, the Court finds that “the nature and circumstances of the offense

charged” supports a determination that Defendant poses a flight risk. Notwithstanding the

proposed conditions of release, the Court is concerned that the alleged falsification of documents

is the kind of action that can be done within the confines of a custodian’s home.3 With respect to

the second factor, the Court only notes that having heard multiple days of hearings involving

evidentiary issues, the Court is familiar with the factual allegations underlying the charges against

Mr. Akinola, and finds that the weight of evidence against Defendant is not insignificant.

It is, however, a review of the third factor that most convinces the Court that there are no

conditions ofrelease sufficient so secure Defendant’s appearance. First, the Court is familiar with

This is not to say that there is a “per se presumption of flight where the crime charged involves the production of

fraudulent identification.” Him/er, 797 f.2d at 160. Rather, the Court’s determination that there are no conditions ofrelease sufficient to secure Defendant’s appearance is based upon a review of the totality of the circumstances of this

case.

8
release for a different federal offense. Each of these factors supports a finding that Defendant

poses a serious risk of flight such that there are no conditions of release sufficient to secure his

appearance.

In summary, based on a review of each of the factors itemized in the Bail Reform Act for

assessing risk of non-appearance, the Court has not found any reason to part ways the numerous

prior determinations by this Court that there are no conditions of release sufficient to secure his

appearance before this Court4

For all of these reasons, the Court declines to alter its June 28, 2016 letter order denying

Defendant’s eighth application for bail. Further, as the Court stands by Judge Cecchi’s initialdetermination that there are no conditions of release that would secure Defendant’s appearance

pursuant to 18 U.S.C. § 3142(f), Mr. Akinola’s citation to the Eighth Amendment, 18 U.S.C. §

3 142(c)(2) and federal Rule of Civil Procedure 9(a), in support of his arguments that the Court is

required to set “the least restrictive reasonable bail amount necessary” to secure Defendant’sappearance are inapposite. (Def.’s Mov. Br. at 4).

IV. Conclusion

The Court is aware that at the time the Court entered its June 28, 2016 letter order, trial was scheduled to begin in

early September, and that trial has since been adjourned to November 28, 2016. (See ECF No. 225). However, given

that the trial was adjourned at Defendant’s request (ECF Nos. 222, 223) and that this request was strongly opposed bythe Government. the Court does not see the adjournment of this trial date as grounds for granting bail.

9
order, it is Defendant’s litigation tactics that are largely to blame for this delay. Mr. Akinola’s

recent bail motions have certainly caused even further delay to the resolution ofthese charges, and

it is imperative that this matter proceed to trial as scheduled. Accordingly, the Court will not

entertain any further bail motions from Defendant. An appropriate Order accompanies this

opinion.

IT IS SO ORDERED.

DATED: August.2_, 2016

JOSE L. LINARES, U.S.D.J.

10