DECISION & ORDEROn January 8, 2019, the defendant Jean Boustani (“Defendant”) filed a motion for appeal of Magistrate Judge Peggy Kuo’s Order of Detention filed on January 2, 2019. Magistrate Judge Kuo, finding Defendant failed to present credible sureties to ensure his appearance and the safety of the community, ordered detention and granted leave to renew the bail application. This Court held oral argument on the motion on January 22, 2019. For the reasons stated below, Defendant’s appeal is DENIED.BACKGROUNDOn December 19, 2018, the United States of America (the “Government”) filed a four-count indictment (the “Indictment”) charging Defendant and others in connection with a $2 billion fraud, bribery, and money laundering scheme. The Indictment charges Defendant with the following crimes: (1) conspiracy to commit wire fraud in violation of 18 U.S.C. §1349; (2) conspiracy to commit securities fraud in violation of 18 U.S.C. §371; and (3) conspiracy to commit money laundering in violation of 18 U.S.C. §1956(h). See Indictment, ECF No. 1. The Government alleges Defendant “was a central organizing figure in a $2 billion fraud, bribery and money laundering scheme that resulted in the payment of at least $200 million in bribes and kickbacks to government officials in Mozambique and to investment bankers.” Gov.’s's Opp’n to Def.’s Renewed Appl. for Bail (“Gov.’s Opp’n”) at 1, ECF No. 27.Defendant is, at 40 years of age, a wealthy international businessman. He is a citizen of Lebanon, Antigua, and Barbuda and has no ties to the United States. On January 2, 2019, Defendant, while en route to the Dominican Republic with his wife, was arrested by Dominican authorities and transferred to the United States, pursuant to the Indictment. He was arraigned later that day before Magistrate Judge Kuo and presented a bail application consisting of $2 million dollars cash and a dollar amount on the bond to be determined by the Court. January 2, 2019 Minute Entry, ECF No. 15. The Government opposed Defendant’s bail application based on risk of flight. Id. After hearing argument from both parties, Magistrate Judge Kuo ordered detention and granted Defendant leave to renew his bail application. See id.; Order of Detention, ECF No. 16.In a letter dated January 8, 2019, Defendant filed a motion appealing this detention order to the district court. Def.’s Renewed Appl. for Bail (“Def.’s Appeal”), ECF No. 21. The Government filed its opposition brief on January 16, 2019. See Gov.’s Opp’n. Defendant filed its reply brief on January 18, 2019. See Def.’s Reply in Support of Renewed Appl. for Bail (“Def.’s Reply”), ECF No. 29. This Court then heard oral argument on the application on January 22, 2019. The Court further directed the parties to submit proposed findings of fact and conclusions of law.The defense now proposes the following bail conditions:A $20 million personal recognizance bond, secured by $1 million cashTravel restricted to the Eastern and Southern Districts of New York;Surrender of all travel documents with no new applications1;Surrender of all travel documents of Defendant’s wife to the FBI, with no new applications;Strict supervision by Pretrial Services;Home confinement with GPS monitoring to be secured by security company Guidepost Solutions2, along with additional restrictions:24-hour armed former or off-duty law enforcement officers;Two officers per shift;One supervisory security professional overseeing and scheduling the security detail, who shall take directions from, and reports to, the Government and Pretrial Services;Surveillance and security technology3 throughout the residence;Visitors limited to Defendant’s attorneys and his immediate family except upon application to Pretrial Services and the Government;Travel limited to Court appearances and to counsel’s office, except upon application to Pretrial Services and the Government, with two officers to accompany Defendant during all such travel;A security vehicle and driver for travels to Court or to counsel’s office, when needed;Security personnel posted at the residence whenever Defendant leaves the unit; andCommunication between Guidepost and Pretrial Services, the Court and/or the U.S. Attorney’s Office, if required by the Court. Def.’s Proposed Findings of Fact and Conclusions of Law (“Def.’s Mem.”) Ex. A 5, ECF No 36-1.Defendant also signed a declaration consenting to any and all actions taken by Guidepost, including the use of force, and waiving his right to bring any action against Guidepost, the Court, the United States Government, and/or any other party in connection with any risks or dangers associated with his release. See Def.’s Mem. Ex. 4.In support of its bail proposal, the defense argues: “Given the proposed bail conditions render it impossible for [Defendant] to flee, there is no lawful basis for his continued detention.” Def.’s Appeal at 15.The Government opposes pre-trial release, arguing: “the defendant is a flight risk with access to significant financial resources and no ties to the United States, and no condition or combination of conditions of release can reasonably assure the appearance of the defendant.” Gov.’s Proposed Findings of Fact and Conclusions of Law (“Gov.’s Mem.”) at 1, ECF No. 35.LEGAL STANDARDSThe Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required.” U.S. Const. amend. VIII. It does not create a right to bail; rather, it prohibits excessive bail. See United States v. Salerno, 481 U.S. 739, 754-55 (1987). Under the Bail Reform Act, a court must order pre-trial release of a defendant on a personal recognizance bond if such release will “reasonably assure the appearance of the [defendant] as required and will not endanger the safety of any other person in the community.” 18 U.S.C. §3142(b) (2018). Thus, if no condition or combination of conditions will reasonably assure the defendant will not flee or will not endanger others, a court must order detention. Id.A district court reviews de novo a magistrate judge’s decision to release or detain a defendant pending trial. See United States v. Esposito, 309 F. Supp. 3d 24, 30 (S.D.N.Y. 2018) (Marrero, J.) (citing United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985)). A district court undertakes a two-step inquiry when evaluating an application for bail. See 18 U.S.C. §3142(e). First, the Court must determine whether the Government has established the defendant presents a danger to the community or a risk of flight. See 18 U.S.C. §3142(e). Second, if the Government meets its initial burden, the Court must determine whether no conditions or combination of conditions of release could reasonably assure the defendant will not flee or will not endanger others. See United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). In making that determination, the Court must consider the following factors: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person in the community that would be posed by the person’s release. See 18 U.S.C. §3142(g).The Government must support a finding of dangerousness by clear and convincing evidence, see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995), and a finding of risk of flight by a preponderance of the evidence, see United States v. Jackson, 823 F.2d 4, 5 (2d Cir. 1987); see also United States v. Abuhamra, 389 F.3d 309, 320 n.7 (2d Cir. 2004). Because the “rules concerning admissibility of evidence in criminal trials do not apply” to bail hearings, see 18 U.S.C. §3142(f)(2)(B), the parties may proceed by way of proffer, United States v. LaFontaine, 210 F.3d 125, 130-31 (2d Cir. 2000). As such, courts often base detention decisions on hearsay evidence.ANALYSISThe Government argues Defendant poses a serious flight risk such that no combination of conditions could reasonably assure his appearance in this proceeding. For the reasons discussed below, the Court agrees.I. The Government Has Demonstrated Defendant’s Risk of FlightBecause the Government does not argue Defendant’s release poses a danger to the community, the Court considers each of the 18 U.S.C. §3142(g) factors (the “bail factors”) in turn, other than 18 U.S.C. §3142(g) (danger posed by Defendant’s release). In this Court’s view, the bail factors support continued detention rather than release by a preponderance of the evidence.A. The Nature and Circumstances of the OffensesThe defense asserts federal fraud charges, though “serious,” are not the type of dangerous or obstructive criminal activity that demand long-term pretrial detention. According to the defense, “white-collar fraud defendants are almost always released on bail prior to trial, unless there is specific evidence that the defendant is willing to subvert the justice system or otherwise cannot be trusted to comply with the Court’s orders.” Def.’s Appeal at 8-9.According to the Government, Defendant and his employer, Privinvest, are at the center of a $2 billion fraud, bribery, and money laundering scheme. The Indictment alleges the $2 billion in loan funds went to Privinvest, and Defendant personally received $15 million for his role in the scheme. Indictment
