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United States v. Hamade

United States District Court, D. Minnesota

December 27, 2019

UNITED STATES OF AMERICA, Plaintiffs,
v.
ISSAM HAMADE, Defendant.

          DAVID J. MACLAUGHLIN AND JOHN DOCHERTY, ASSISTANT UNITED STATES ATTORNEYS FOR PLAINTIFF.

          BRUCE D. NESTOR, DELEON & NESTOR, LLC, FOR DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         This criminal case is before the Court on Defendant Issam Hamade's Motion for Review of the Order of Detention and to Revoke or Amend Order of Detention Pursuant to 18 U.S.C. § 3145(b). (Docket No. 77.)

         I. INTRODUCTION

         The Second Superseding Indictment in this case charges Defendants Usama Hamade, Samir Berro, and Issam Hamade with one count of conspiracy to Violate the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the International Traffic in Arms Regulations (22 U.S.C. § 2778(c)), all in violation of 18 U.S.C. § 371. Defendant Usama Hamade has also been charged with aiding and abetting smuggling in violation of 18 U.S.C. §§ 554 and 2(b). The Defendants are alleged to have exported and attempted to export certain commerce-controlled goods suitable for use in un-crewed aerial vehicles (“UAVs” or “drones”) including a TRS18 jet engine, without obtaining the required export licenses. The alleged purpose of the conspiracy was to export drone parts and technology from the United States and other countries to Lebanon and specifically to Hizballah, an organization that has been designated a Foreign Terrorist Organization by the State Department since 1997. Defendant Issam Hamade is alleged to have wired $59, 000 from Beirut to a South African bank to allow codefendant Samir Berro to illegally transship the jet engine to Hizballah coconspirators in Lebanon. It is further alleged that Defendant made additional wire transfers in the amounts of $14, 965 and $99, 959 in furtherance of the conspiracy.

         Defendant Issam Hamade was arrested in the Republic of South Africa on the conspiracy charge on February 14, 2018. Initially, Defendant opposed extradition and sought bail while in South Africa, but that request was denied. Eventually, Defendant waived extradition and he was transferred to the United States on October 17, 2019.

         After Defendant arrived in the District of Minnesota, the United States moved for Defendant's pretrial detention pursuant to 18 U.S.C. § 3142(f)(2)(A), claiming that Defendant poses a serious risk of flight.

         A detention hearing was held on October 29, 2019. Following proffers by the United States and Defendant and arguments of counsel, the Magistrate Judge found that, notwithstanding the presumption of innocence, Defendant should be detained pending trial.

         As to risk of flight, the Magistrate Judge determined the United States met its burden of showing by a preponderance of the evidence there is no condition or combination of conditions that would reasonably assure Defendant's presence at future proceedings. (Mot. Hr'g Tr. (“Tr.”) at 82, Oct. 29, 2019, Docket No. 59.) In particular, the Magistrate Judge noted that Defendant had no ties to Minnesota but had substantial ties to Lebanon and South Africa. (Id.) The Magistrate Judge further found there was probable cause to believe Defendant had committed the alleged offense and that it was undisputed that Hizballah is an enemy of the United States. (Id.)

         In the Order, the Magistrate Judge found in the alternative there was clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person or the community. (Detention Order at 9, Nov. 7, 2019, Docket No. 66.) This finding was based on the serious charges in the Second Superseding Indictment and the evidence in the record supporting the allegations of Defendant's participation in the charged conspiracy involving the provision of drone parts and technology to a designated terror organization. (Id. at 9-10.)

         Defendant now moves for review of the Detention Order and requests this Court revoke or amend the Detention Order.

         II. STANDARD FOR DETERMINING PRETRIAL DETENTION

         A defendant may be detained pending trial if “after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of such person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1).

         Detention is appropriate where the United States proves by clear and convincing evidence that a defendant is a danger to others or to the community, or when the government proves by a preponderance of the evidence that a defendant is a risk of flight, and that in either case, there are no conditions or combination of conditions that will assure the safety of the community or the defendant's appearance at future court proceedings. United States v. Abad, 350 F.3d 793, 797 (8th Cir. 2003) (citations omitted).

         In making this determination, the Court must take into account the following factors:

(1) The nature and circumstances of the offense charged, including the fact that the crime charged is an offense listed in section 2332b(g)(5)(B) for which a maximum term of ...

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