Case 1:24-mj-01113-JJM Document 10 Filed 05/16/24 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK
_______________________________________________

UNITED STATES OF AMERICA

v. 24-MJ-1113

LINIAN SONG,

Defendant.
_______________________________________________

GOVERNMENT’S RESPONSE TO DEFENDANTS’

MOTION TO REOPEN THE DETENTION HEARING

THE UNITED STATES OF AMERICA, by and through its attorney, Trini E. Ross,

United States Attorney for the Western District of New York, and the undersigned Assistant

United States Attorney, hereby submits this response to the defendant, LINIAN SONG’s

motion to reopen the detention hearing (Doc. 8). For the reasons set forth below, the new

information proffered is insufficient and the defendant should remain detained pending trial.

BACKGROUND

On April 22, 2024, this Court authorized an arrest warrant and criminal complaint

charging the defendant with violation of Title 18, United States Code, Section 1952(a)(3) and

1952(b)(1). Doc. 1. The defendant was arrested and made her initial appearance before this

Court on April 24, 2024. See Doc. 5, Minute Entry 04/24/2024.

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The government moved for detention pursuant to Title 18, United States Code,

Section 3142(f)(2)(A) and (f)(2)(B). Id. The Court provisionally appointed counsel and set a

detention hearing for April 26, 2024. Id.

After appointing defense counsel, the Court held a detention hearing on April 26,

2024. Doc. 7, Minute Entry 04/26/2024. The parties proceeded by proffer. Id. The

government moved based upon a serious risk of flight pursuant to 18 U.S.C. § 3142(f)(2)(A)

and serous risk that the defendant would attempt to intimidate prospective witnesses pursuant

to 18 U.S.C. § 3142(f)(2)(B). Id. The defendant sought release. Id. The Court ordered the

defendant be detained, finding that no conditions or combination of conditions to reasonably

assure the defendant’s appearance in court. Id. The Court did, however, indicate that it

would permit the defendant to reapply with a more detailed release plan, including a secured

bond. Id.

On May 10, 2024, the defendant filed the instant motion to reopen the detention

hearing under 18 U.S.C. § 3142(f)(2). Doc. 8.

DISCUSSION

The Bail Reform Act allows the government to seek pretrial detention in cases in which

there is a “serious risk that [the defendant] will flee.” 18 U.S.C. § 3142(f)(2)(A). In such

cases, a “court is instructed to order the pre-trial detention of a defendant if, after a hearing,

the judge ‘finds that no condition or combination of conditions will reasonably assure the

appearance of the person as required.’” United States v. Mattis, 963 F.3d 285, 290 (2d Cir.

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2020) (quoting 18 U.S.C. § 3142(e)(1)). The Bail Reform Act also allows a court to reopen a

detention hearing only when “information exists that was not known to the movant at the

time of the hearing and that has a material bearing on the issue whether there are conditions

of release that will reasonably assure the appearance of [the defendant] as required.” 18

U.S.C. § 3142(f)(2).

The defendant now proffers that she has secured a place to live during the pendency

of the case. Doc. 8 ¶3. Defense counsel does not provide the address; instead, he indicates

that the defendant would reside with Leo Chen, a nephew of a family friend. Id. The

defendant proffers no other conditions, bond, or surety that would secure her appearance.

In moving for detention pursuant to 18 U.S.C. §3142(f)(2)(A), the government is not

required to prove that the defendant had tangible plans to flee. The burden is that the

government show by a preponderance of the evidence that the defendant poses an actual risk

of flight. See United States v. Berrios–Berrios, 791 F.2d 246, 250 (2d Cir. 1986). Once it satisfies

this burden, the government must demonstrate by a preponderance of the evidence that no

condition or combination of conditions could be imposed on the defendant that would

reasonably assure her presence in court. See United States v. Shakur, 817 F.2d 189, 195 (2d Cir.

1987) (“The burden of proof is on the government to prove the absence of such conditions by

a preponderance of the evidence.”); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir.

1985).

The defendant’s proposed living arrangement is insufficient, and she still poses a

significant risk of flight. Beyond the illicit massage businesses in the Lockport, New York,

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and Rochester, New York areas operated by the defendant, she has no ties to the Western

District of New York. Indeed, law enforcement’s investigation, which included the use of

court authorized electronic monitoring of the defendant’s vehicle, revealed that the defendant

frequently travelled to the New York City area. See, e.g., Doc. 1 ¶ 27. The majority of the

defendant’s family is in China, and even now that she is in the United States, the defendant

regularly associates with Chinese nationals who lack legal status in the United States. See

United States v. Sabhnani, 493 F.3d 63, 76–77 (2d Cir. 2007) (because naturalized United States

citizen defendants had “maintained strong family ties to their native countries as well as

personal and professional ties” to other countries, “flight would impose no insurmountable

personal or professional hardship on defendants”).

Most compelling, the defendant is a Chinese national with no legal status in the United

States. There is no extradition treaty currently in force between the United States and

People’s Republic of China. While her Chinese passport was seized during the execution of

a search warrant, the defendant is readily able to apply for and receive a new passport at any

Chinese consulate. Simply put, there is nothing the Court could do to stop the defendant, or

an associate, from requesting a new Chinese passport, either in the defendant’s true name or

in a false name. Once she has a new Chinese passport, the defendant could easily flee the

United States undetected. This is not a far-flung possibility. The Chinese consulate offers

passport services. See http://newyork.china-consulate.gov.cn/eng/xbwz/lsqz/ (last visited

May 16, 2024). In short, the availability of a place to live does not alter the actual and serious

risk of flight here.

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Moreover, the 18 U.S.C. § 3142(g) factors continue to weigh heavily in favor of

detention. The weight of the evidence remains strong. The criminal complaint is supported

by the detailed affidavit of Federal Bureau of Investigation Special Agent Justis W. Nelson,

which contains only a portion of the evidence developed during the investigation. See Doc.

1. The defendant is charged with essentially running a ring of illicit massage businesses that

employed multiple women to provide commercial sex acts, in violation of New York Penal

Law § 230.00 (prostitution). The defendant recruited both employees and commercial sex

buyers using online and newsprint advertisements. Her employees – many of whom also lack

legal status in the United States – lived at the spas and were dependent on the defendant for

transportation. During the execution of search warrants at both locations operated by the

defendant, law enforcement seized large sums of U.S. currency, electronic devices, containers

with hidden compartments that contained condoms, ledgers, and other evidence tying the

defendant to each location, and various evidence indicative of commercial sexual activity.

Where, “as here, the evidence against a defendant is strong, it follows that the defendant faces

an elevated risk of conviction (and of the attendant punishment), and therefore may present

an elevated risk of flight.” United States v. Zhang, 55 F.4th 141, 151 (2d Cir. 2022).

Similarly, the defendant’s history and characteristics weigh in favor of detention.

Notwithstanding her proposed living arrangement — the address for which has yet to be

provided or inspected by U.S. Probation — defendant’s bail proposal does not account for

her substantial actual risk of flight.1 She does not propose any electronic or GPS monitoring.

Nor does she offer any bond or surety as the Court clearly contemplated during the April 26,

1
For many of these reasons, U.S. Probation continues to recommend detention.

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2024, detention hearing. See Doc. 7, Minute Entry 04/26/2024 (the Court ruling that it would

“allow defendant to reapply with a more detailed release plan including a secured bond”).

Moreover, any monitoring of the defendant’s cell phone and electronic devices is unrealistic

given she communicates in Mandarin and could easily do so in an effort to evade monitoring.

CONCLUSION

For the reasons stated above, as well as those stated at the April 26, 2024, detention

hearing, the Court should order that the defendant remain detained pending trial.

DATED: Buffalo, New York, May 16, 2024.

TRINI E. ROSS
United States Attorney

BY: s/MAEVE E. HUGGINS

Assistant United States Attorney
United States Attorney's Office
Western District of New York
138 Delaware Avenue
Buffalo, New York 14202
(716) 843-5872
[email protected]

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK
___________________________________
24-MJ-1113-JJM
UNITED STATES OF AMERICA,

v. REPLY AFFIRMATION
IN SUPPORT ON MOTION
LINIAN SONG, TO REOPEN DETENION HEARING

Defendant.
___________________________________

JOHN J. MORRISSEY, affirms under penalty of perjury that:

1. I am an Assistant Federal Public Defender for the Western District of New York

and was assigned to represent the above-named defendant, Linian Song. I make this affirmation

in support of Ms. Song’s for reconsideration of detention under 18 U.S.C. § 3142(f)(2).

2. Ms. Song has a place to live in Buffalo 1, no prior convictions, and a history of

complying with bond conditions. As stated at the detention hearing, she would submit to location

monitoring and home detention. She would comply with a condition that she actively seek and

maintain employment, and she has job skills outside of her previous massage business. Under

these circumstances, the government has not met its burden to show that Ms. Song poses an

actual risk of flight, and that no combination of conditions could reasonably assure her

appearance in court.

1
Counsel forgot to send Ms. Song’s address to the government and probation when the motion to
reopen the detention hearing was filed. That was an oversight. Upon reading the government’s
response, counsel sent that address. Should the government or probation wish to make further
argument based on that information, counsel has no objection.
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3. While the government points to Ms. Song’s ties to China, those ties do not justify

keeping her in jail. The government claims that Ms. Song associates with Chinese nationals

lacking legal status and cites United States v Sabhnani for the proposition that maintaining strong

personal family ties to native countries and personal and professional ties to other countries mean

that flight would not be a hardship for defendants. Dkt. 10 at 4, citing United States v. Sabhnani,

493 F.3d 63, 76–77 (2d Cir. 2007).

4. But Sabhnani’s does not justify detention for two reasons. First, it addresses

radically different facts. There, the accused faced more serious charges (Guideline Range from

210-262 months) and had “vast financial resources and their personal and professional contacts

in numerous foreign countries.” Id. at 66-67. Those resources and ties included a $3 million

apartment, $3-5 million dollars in security holdings, approximately $500,000 of jewelry,

corporate bank accounts that had received $17+ million dollars in transfers from countries with

no extradition treaties, and businesses ties (manufacturing and sales markets) outside of the

United States. Id. at 66-67, 77.

5. The passage from which the government quotes explicitly linked the defendants’

wealth and business ties to their risk of flight:

A third factor makes the argument for detention particularly

compelling: flight would impose no insurmountable personal or
professional hardship on defendants. Although they are naturalized
United States citizens who have resided in this country for more
than a quarter century, defendants have, not surprisingly,
maintained strong family ties to their native countries as well as
personal and professional ties to various locations in Europe and
the Middle East. Defendants could, with relatively little disruption,
continue to operate their highly lucrative business from any
number of overseas locations. Indeed, a significant part of their
manufacturing operations and their primary consumer markets are
already located outside the United States. Id. at 76-77.

6. Ms. Song has no comparable ties or wealth.

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7. And second, despite the defendants’ ties, the Sabhnani court still found that there

was a set of conditions that could reasonably assure the defendants’ appearance in court. Id. at

78. Given Ms. Song’s weaker ties and smaller resources, the Court should do the same here.

8. The government’s concern about Ms. Song obtaining a new passport also do not

merit keeping Ms. Song in jail. Dkt. 10 at 4. There is nothing to suggest that this is an actual risk

for Ms. Song. Presumably, Ms. Song could have done this the other time she faced criminal

charges; that case began before any travel restrictions related to the COVID pandemic. But Ms.

Song did not flee.

9. While the government argues that it does not need to show a tangible plan to flee,

the absence of such a plan confirms that conditions of release, not detention, are the least

restrictive means to address the government’s concerns. Dkt. 10 at 3. The court can order as a

condition of release that Ms. Song remain in the district and not try to obtain any new

documents. The government can obtain an order preventing Ms. Song from voluntarily departing

the country. 8 C.F.R. § 215.2(a)-(b); 8 C.F.R. § 215.3(g).

10. The government’s concern that Ms. Song may obtain a passport not in her name

illustrates the disconnect between their argument and the Bail Reform Act. Dkt 10 at 4. The

statute requires release if there are conditions that can reasonably assure Ms. Song’s appearance.

18 U.S.C. § 3142(b). By arguing that detention is necessary because Ms. Song—a woman with

no criminal history or history of flight—could theoretically disregard the Court’s order and

fraudulently obtain a Chinese passport, the government asks the Court to detain unless there are

conditions that can address every contingency and completely assure Ms. Song’s appearance.

11. Lastly, Ms. Song recognizes that this Court previously said it would likely require

a secured bond. Ms. Song respectfully requests that the Court reconsider that requirement. Ms.

Song cannot afford to post a monetary condition of release, as it would result in her detention. 18

U.S.C. § 3142(c)(B)(2).
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WHEREFORE, Ms. Song respectfully requests that the Court grant her motion to

reopen the detention hearing.

DATED: Buffalo, New York, May 20, 2024

Respectfully submitted,

/s/ John J. Morrissey

John J. Morrissey
Assistant Federal Public Defender
Federal Public Defender’s Office
300 Pearl Street, Suite 200
Buffalo, New York 14202
(716) 551-3341, (716) 551-3346 (Fax)
[email protected]
Counsel for Defendant

TO: Maeve E. Huggins

Assistant United States Attorney
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