Professional Documents
Culture Documents
United States v. Muhtorov, 10th Cir. (2017)
United States v. Muhtorov, 10th Cir. (2017)
United States v. Muhtorov, 10th Cir. (2017)
Plaintiff - Appellant,
v. No. 17-1220
(D.C. No. 1:12-CR-00033-JLK-1)
JAMSHID MUHTOROV, (D. Colo.)
Defendant - Appellee.
_________________________________
The defendant, Jamshid Muhtorov, is a refugee from Uzbekistan who has been
2339B. He has been detained pending trial since his arrest in 2012. At Muhtorovs
request, the district court recently continued his trial until March 12, 2018, so it can
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Muhtorov has filed three motions for pretrial releasein 2012, 2015, and
2017. The district court denied his first two motions, but on June 23, 2017, it issued
an order allowing his release (the June 23 order), subject to home detention with an
ankle bracelet and various other conditions. The government now challenges the
June 23 order, which we have stayed pending resolution of this appeal. Exercising
I. Background
A. Facts
The government became aware of him through his year-long e-mail communications
with an administrator of the IJUs official website. The IJU has been designated as a
foreign terrorist organization since 2005. It is an ally of Al-Qaeda and the Taliban
purchasing portable satellite equipment and sending $300 in cash, which he had
allegiance, to the IJU and said he would do whatever is necessary for them or
whatever they asked of him, even to the point of death. Id. at 903. Muhtorov also
2
discussed martyrdom with Jumaev, and the men said they would meet in heaven. Id.
at 920. Additionally, in e-mail and phone conversations, they talked about joining
the wedding (a common code word for the jihadist movement, martyrdom
operations, or an armed struggle) and referenced the wedding house, and the
wedding gift (which typically refers to financial support). The men also discussed
Istanbul, Turkey. He had purchased a one-way ticket. At the time of his arrest, he
had almost $3,000 in cash, two new iPhones in their original packaging, and a new
iPad in the same condition. His own phone contained videos showing combat against
A grand jury indicted Muhtorov for conspiracy and attempt to provide material
trial since his arrest for the past five and one-half years. The delay in proceeding to
evidence obtained under FISA and other extensive pretrial motions; threats to a key
that witnesss testimony; issues stemming from the severance of the trials; and the
3
B. Procedural History
the magistrate judge, which centered on testimony by an FBI agent. The magistrate
judge denied the motion for release after concluding (1) by a preponderance of the
assure Muhtorovs appearance at future court proceedings; and (2) by clear and
convincing evidence, that Muhtorov presents a risk to other persons and the
Muhtorov next sought pretrial release in July 2015 through a motion for
reconsideration of bail based on the extraordinary length of pretrial detention and the
due process implications thereof. By then, Muhtorov had been in custody for three
and one-half years, though his motion acknowledged the lack of any speedy trial
issues and conceded the pretrial process had taken a long time due to the cases
complexity. The government objected that Muhtorov could not reopen the detention
hearing because he had not presented any new information that was not known to him
at the time of the detention hearing and that has a material bearing on whether there
are conditions of release that will reasonably assure his appearance and the safety of
other persons and the community, as required by 18 U.S.C. 3142(f). The district
court denied the second motion for release after concluding that Muhtorov presents a
bona fide, serious flight risk. App., Vol. 3 at 475. It cited [t]he serious nature
of the charges; the severity of the penalties for conviction (15 years per count,
4
with a possibility the sentences could run consecutively for a total of 60 years);1 the
fact he was apprehended while in the process of leaving the country and destined for
the Middle East carrying money and electronic equipment capable of being used by a
terrorist organization; and the threat of violence implicit in these acts. Id. And it
opined that the trial delays were occasioned, to some degree, by the complexity of the
That brings us to the third motion for pretrial release and the June 23 order
granting it. That motion was precipitated by a continuance of Jumaevs trial, which
spurred Muhtorov to request his own continuance so as to proceed second and call
The actual factual basis for the nature of the alleged crimes and the flight
and danger risk Muhtorov poses, App., Vol. 9 at 1934, is now based on
more than one FBI agents testimony. Three evidentiary hearings show the
governments case may be weaker and Muhtorovs defenses stronger, so
[t]here is reason to believe . . . that Mr. Muhtorov has been invested with a
sense of a direction and a reason to stay and see the trial of his case
through. Id. at 1934-35.
1
Since the time of Muhtorovs indictment, the maximum prison term listed in
2339B has since been amended from 15 years to 20 years.
5
Ultimately, the district court found that a combination of conditions for release
can be crafted that will assure [Muhtorovs] attendance at [trial] and protect the safety
June 26, 2017. Restrictions include GPS ankle monitoring and a 24-hour lockdown at
Muhtorovs home, though he may leave his home for three approved exceptions:
(1) religious purposes (i.e., weekly mosque services); (2) meetings with his attorneys;
and (3) medical appointments. In addition, Muhtorov has surrendered his passport
and cannot have access to internet-capable devices that allow access to social media.
The government filed this appeal and sought an emergency stay of the release
The Bail Reform Act sets out the framework for evaluating whether pretrial
conditions will reasonably assure the appearance of the person as required and the
safety of any other person and the community. Id. 3142(e)(1). To make such a
finding, the judicial officer must hold a detention hearing per 18 U.S.C. 3142(f). The
factors relevant to considering whether there are release conditions that can ensure
the defendants appearance and the safety of the community are: (1) the nature and
terrorism; (2) the weight of the evidence; (3) the defendants history and
6
characteristics; and (4) the nature and seriousness of the danger the defendant would
of the person as required and the safety of the community. Id. 3142(e)(3)(C).2 It is
Muhtorovs burden to rebut the presumption. United States v. Stricklin, 932 F.2d
1353, 1355 (10th Cir. 1991) (per curiam) (The defendants burden of production is not
heavy, but some evidence must be produced.). However, the burden of persuasion
regarding risk-of-flight and danger to the community always remains with the
preponderance of the evidence, and it must prove dangerousness to any other person
328 F.3d 610, 616 (10th Cir. 2003) (citations omitted). Having twice found the
government met this burden, the district court changed course in the June 23 order.
presents mixed questions of law and fact; however, we review the underlying
findings of historical fact for clear error. Id. at 613. A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court, on review of the
entire record, is left with the definite and firm conviction that a mistake has been
2
A rebuttable presumption arises under this provision where the defendant
faces charges for certain offenses listed in 18 U.S.C. 2332(g)(5)(B) that carry
sentences of ten years. Muhtorovs alleged crimea violation of 18 U.S.C.
2339Bis among the designated offenses.
7
committed. United States v. Gilgert, 314 F.3d 506, 515 (10th Cir. 2002) (brackets
and internal quotation marks omitted). We review the district courts findings with
significant deference, cognizant that our role is not to re-weigh the evidence.
Id. at 515-16.
III. Discussion
The government faults the district court for not addressing the presumption of
detention and not mak[ing] a specific finding that the defendant has rebutted the
Stricklin, 932 F.2d at 1355 (citing United States v. Cook, 880 F.2d 1158, 1162
(10th Cir. 1989)). But the district court did not need to use a set of magic words
significant[] in Stricklin that there was no finding that defendant was successful in
emphasized that the government made a strong evidentiary showing while noting
that the defendant offered no documentary evidence and the district court made no
Likewise, in Cook, we found error when the district court completely skipped over
8
Here, by contrast, it is clear the district court was aware of, and guided by, the
rebuttable presumption. This was the third motion for pretrial release, and the parties
and court discussed the presumption in detail with respect to all three motions;
indeed, it played a role in Muhtorovs continuing detention. And the district court
explicitly referenced the presumption at the outset of the June 23 order. See App.,
Vol. 9 at 1929. It also operated within the framework of the presumption when it
made detailed findings on the ways in which the circumstances had changed since its
the communitys safety. For these reasons, we reject the governments argument that
the district court did not give any weight to the rebuttable presumption or make
Next, we turn to the governments argument that the district court did not
The first factor is the nature and circumstances of the offense charged,
violation of 18 U.S.C. 2339B, which is a federal crime of terrorism. This factor has
9
remained constant: The district court repeatedly recognized the serious nature of the
He expressed his willingness to support the IJU in multiple e-mails and phone
conversations and was arrested while attempting to board a one-way flight to Turkey,
in possession of cash and electronic equipment. He resigned from his job shortly
before the trip. And he told his daughter in the preceding months that he might not
see her again on earth, but he would see her in heaven if she was a good Muslim girl.
The second factorthe weight of the evidence against the person, 18 U.S.C.
3142(g)(2)was the primary focus of the June 23 order. The district courts
The district court noted the governments dismissal of the last two counts of
the indictment. It then reassessed the strength of the evidence against Muhtorov
based on new or changed information gleaned from three hearings: (1) a January
translations of the evidence and its linguists; (2) a February 2017 James hearing that
claims; and (3) a March 2017 Daubert hearing from which it can be inferred that the
IJUs administrator did not take Muhtorov seriously and that Muhtorov left for
Turkey without a definitive plan with anyone from the IJU. Ultimately, the district
10
court concluded that the evidence against Muhtorov is not as strong as it seemed to
To support its revised assessment, the district court also cited expert
testimony that may undermine the governments theory that the madrassa that
Muhtorov planned to attend was a known conduit to the IJU. It focused on the fact
that Muhtorovs oath to the IJU was made but not accepted. And it observed that
topics other than terrorism or plans to support it. App., Vol. 9 at 1936. Pointing to
all of these purported deficiencies, the district court concluded that the evidence now
suggest[s] Mr. Muhtorovs bark was more serious than his bite, id. Even so, the
district court expressed concern[s] about witness intimidation and the actions of
Mrs. Muhtorov and others having previously attempted to contact potential witnesses.
Id. at 1935. It also acknowledged the government may have thwarted an actual plan to
The third factor is the history and characteristics of the person. 18 U.S.C.
community, community ties, past conduct, history relating to drug or alcohol abuse,
3142(g)(3)(A). It also takes into account whether the defendant was being punished
11
The district court generally referenced Muhtorovs work history as a
commercial truck driver. App., Vol. 9 at 1936. It also described his family and
community ties as substantial, focusing on his relationship with his wife. Id. The
district court stated that his wife has lived and worked in the community for ten
years, as Muhtorov did for five years without incident before his arrest. Id. And it
noted that his wife has visited him during his detention, the couple now has a third
child born during his incarceration, and thus [t]heir familial relationship has
deepened. Id.
The fourth factor is the nature and seriousness of the danger to any person or
community because of the nature of his charges. See id. 3142(e). This
The district courts reassessment of this factor is closely tied to its revised
appraisal of the second factor. It suggests that since the evidence against Muhtorov
is not as strong as the district court originally appraised it to be, Muhtorov may not
be as dangerous either.
12
5. Analysis
We discern no clear error in the individual factual findings listed above. But
reviewing the overall release decision de novo, we disagree with the district courts
It does not appear that the district courts release decision turned on its
assessment of the first and third factors. Its findings on those factors deviated from
its earlier findings in minor respects only. The bulk of the June 23 order was devoted
to the district courts analysis of the second and fourth factors, which seems to be the
impetus for the release order. The district court changed its position as to the
propriety of release based largely on its revised assessment of the strength of the
governments evidence against Muhtorov, which in turn affected its opinion as to the
danger Muhtorov presents to the community and the likelihood he will appear for
First, the district court cited newly exposed weaknesses in the governments
translations and linguists as a new development that undermines the strength of the
governments case even though any implications are unclear. Testimony at the
January 2017 suppression hearing revealed that one of the governments translators
listed his Interagency Language Roundtable test score for Uzbek as a 2 plus on his
resume when it was actually a 2. A level-two score may not be ideal for
almost all of the language that occurs in regular life is at a level 2, including
routine day-to-day conversation. App., Vol. 8 at 1525. The court did not identify
13
what material inculpatory statements, if any, depend on the translators interpreting
skills. At least some of the post-arrest statements can be proven without his
addresses he used to communicate with the IJU and the websites he visited.
Second, the district court concluded that testimony from the James and
co-defendants conspiracy. App., Vol. 9 at 1934, 1936. This focus on the IJUs
attempt to provide material support to terrorists. Even assuming the testimony from
these hearings weakens the governments evidence that Muhtorov actually provided
material support to the IJU, it does not impact the conspiracy and attempt
components of the offense. Likewise, any purported disinterest from the IJU does
Third, for the same reasons, we reject the district courts conclusion that
Muhtorov is less dangerous because the IJU had not accepted him and he had not
formulated a concrete plan to serve the IJU before his attempted departure. Here,
too, the significant concern of our dangerousness inquiry is Muhtorovs alleged intent
to further IJUs terrorism and the concrete, affirmative steps that he took in
manifesting his intent. Nor does the timing of his statement to his daughter, which
Muhtorov emphasizes took place months before his arrest, alter our conclusion. The
14
implications of that statement still evince a substantial risk of community danger in
light of his ongoing communications with the IJU and Jumaev at the time.
Simply put, the evidence does not support the district courts assessment that
Muhtorov no longer poses a danger or presents a flight risk that cannot be minimized
by strict release conditions. Muhtorov has professed that he is willing to fight and
die for his cause, and he took affirmative steps to further that goal. The contents of
his phone reflect Islamic extremist tendencies. And the government alleges that his
brother, Hurshid Muhtorov, fought in Syria for the Islamic State in the recent past and
would be a flight risk, even with the release conditions imposed by the district court.
And it has shown by clear and convincing evidence that the conditions of release,
though restrictive, would not reasonably assure the safety of the community.
IV. Conclusion
The temporary stay of the June 23 order, which was granted on July 7, 2017, is
now lifted. For the reasons set forth above, we reverse the district courts release
order dated June 23, 2017. Muhtorov shall be detained pending trial.
15