United States District Court, W.D. Missouri, Western Division
W. HAYS UNITED STATES MAGISTRATE JUDGE.
before the Court is the government's Motion for
Detention. After conducting a detention hearing on May 5 and
9, 2017, pursuant to 18 U.S.C. § 3142(f) of the Bail
Reform Act, the Court orders defendant Mohamud detained
pursuant to 18 U.S.C. § 3142(e).
Court orders defendant Mohamud's detention because it
finds by a preponderance of the evidence that no condition or
combination of conditions will reasonably assure the
appearance of the defendant as required. While the government
argued that defendant Mohamud should be detained as both a
flight risk and a danger to the community and cited to the
Court a Tenth Circuit case that suggested a court could base
detention on a finding of dangerousness grounds even though
the detention hearing itself was only authorized on flight
risk grounds, the Court has found more persuasive cases with
contrary holdings. See United States v. Ploof, 851
F.2d 7, 11 (1st Cir. 1988)(“where detention
is based on dangerousness grounds, it can be ordered only in
cases involving one of the circumstances set forth in §
3142(f)(1)”); United States v. Himler, 797
F.2d 156, 157-58 (3rd Cir. 1986)(where detention
hearing was justified only by an alleged serious risk of
flight pursuant to 18 U.S.C. § 3142(f)(2)(A), it is
improper to base detention on danger to the community);
United States v. Chavez-Rivas, 536 F.Supp.2d 962,
968 (E.D. Wis. 2008)(“detention as a danger is
permitted only in cases covered by § 3142(f)(1)”).
If the government had charged defendant Mohamud with a crime
enumerated in 18 U.S.C. § 3142(f)(1), such as an offense
listed in 18 U.S.C. § 2332b(g)(5)(B), then a rebuttable
presumption would have applied that no condition or
combination of conditions will reasonably assure the
appearance of the person as required and the safety of the
community and the Court would have had the option of
detaining defendant as a danger. See United States v.
Farah, 107 F.Supp.3d 996 (D. Minn. 2015).
the government moved for a detention hearing pursuant to 18
U.S.C. § 3142(f)(2)(A),  asserting the risk that defendant
Mohamud would flee. Thus, the Court is limited to a risk of
flight analysis. In performing that analysis, the Court has
examined the factors set forth in section 3142(g). Evidence
presented at the hearing shows that while defendant has close
family ties to this area, he traveled to Egypt without
telling his family that he was leaving. The family, in fact,
reported him missing when he failed to return home from work.
Upon learning of defendant's travel to Egypt, two close
family members expressed concern that the travel was related
to terrorist activities. Evidence presented suggests that for
several years, defendant had contemplated leaving his home to
join a foreign terrorist organization and had taken
significant steps to bring his plan to fruition, such as
saving money to finance his travel expenses, obtaining
educational books in an attempt to learn the Arabic language,
developing contacts in foreign countries, obtaining a
passport, deleting communications from his social media
accounts and electronic devices, and traveling to Egypt. The
nature and cicumstances of the offense charged, that
defendant made a false statement in his passport application,
can be viewed as an attempt to hide his actual plans and
motivation for travel, yet another step towards achieving his
goal to leave this country to join a foreign terrorist
organization. Defendant's long-held goal to leave this
country to join a foreign terrorist organization, as well as
his recently displayed ability to carry through on his plan
by covertly leaving his home for overseas travel, causes the
Court to find by a preponderance of the evidence that there
is a serious risk defendant will flee if released on bond.
The Court concludes there is no condition or combination of
conditions that will reasonably assure defendant's
appearance as required. Therefore, defendant shall be
detained pending trial.
on the foregoing, the Court directs that:
The defendant be committed to the custody of the Attorney
General for confinement in a corrections facility separate,
to the extent practicable, from persons awaiting or serving
sentences or being held in custody pending appeal.
The defendant be afforded reasonable opportunity for private
consultation with counsel.
On order of a court of the United States or on request of an
attorney for the Government, the person in charge of the
corrections facility in which the defendant is confined
deliver the defendant to a United States marshal for the
purpose of an appearance in connection with a court
Upon receipt of written consent from counsel for the United
States and counsel for the defendant, a United States marshal
is authorized to temporarily transfer custody of the
defendant, to a federal law enforcement agency for the
purpose of furthering a legitimate law enforcement purpose or
investigation. If custody of the defendant is temporarily
transferred to a federal law enforcement agency pursuant to
this authority, then federal law enforcement agents of that
agency shall be present with the defendant at all times.
Agents of the federal law enforcement agency to whom
temporary custody of the defendant is transferred shall be
responsible for the safe and secure custody of the defendant,
as well as his well-being, while he is in the temporary
custody of that federal law enforcement agency.
defendant, whose custody is temporarily transferred pursuant
to this authority, shall remain in the United States
Courthouse, 400 East 9th Street, Kansas City, Missouri, shall
not be taken to another location, and shall be returned by
the federal law enforcement agency to the United States
Marshal's Service cell block no later than 5:00 p.m. on
the day of the temporary transfer.
United States v. Gerkin, 570
F. App'x 819 (10th Cir. ...