Court: District Court, E.D. New York; April 26, 2013; Federal District Court
On February 26, 2013, Magistrate Judge Azrack determined that Defendant Mohammad Ajmal Choudhry posed a danger to the community and a flight risk, resulting in an order for his detention pending trial. Defendant remains in custody. On April 3, 2013, his attorney, Joshua L. Dratel, submitted a 21-page letter seeking a renewed bail hearing, which included 23 exhibits. The government, represented by Assistant U.S. Attorney Amanda Hector, opposed this request in a letter dated April 8, 2013. Dratel responded on April 19, 2013, presenting further arguments. On April 22, 2013, per an agreement between the parties, Dratel provided transcripts of recorded calls related to one of the charges against Choudhry. A bail hearing was conducted the same day, during which both parties made additional submissions.
The Court reviewed all submissions, the February 26 detention hearing transcript, the Pre-Trial Services Agency reports, the complaint, and arguments from the April 22 hearing. Ultimately, the Court denied the bail application in its entirety. The applicable law, as outlined in the Bail Reform Act of 1984, allows for the detention of a defendant if no conditions can assure their appearance or the safety of others. The Court must independently assess the magistrate's decision, considering the nature of the charges, evidence weight, the defendant's history, and any potential danger posed by release, including uncharged conduct.
The Government is required to establish a finding of dangerousness with clear and convincing evidence and a finding of risk of flight by a preponderance of the evidence during detention hearings. Evidence can include proffers and hearsay, as the Federal Rules of Evidence do not apply. Consequently, a defendant can be detained before trial without the full range of constitutional protections typically afforded in judicial proceedings. Detention is deemed regulatory rather than punitive, which means it does not necessitate proof beyond a reasonable doubt, nor does it involve Sixth Amendment jury rights or the defendant's right to confront witnesses. However, due process concerns dictate that the power to detain must be exercised carefully, justified by the danger posed by the defendant's actions.
In evaluating pretrial detention, the court must assess the nature and circumstances of the charged offenses, particularly whether they qualify as crimes of violence under 18 U.S.C. § 3142(g)(1). The term "crime of violence" is broadly defined to include offenses involving the use, attempted use, or threat of physical force, and felonies presenting a substantial risk of such force being used during the commission of the crime. The Second Circuit has interpreted this definition as extending beyond traditional notions of violent crime, particularly in clause (B), which encompasses offenses with a mere possibility of force being used. Five criteria define this broader category: the offense must be a felony, involve a risk of physical force against persons or property, that risk must stem from the nature of the offense, it must occur during the offense, and the risk must be substantial. The determination of "substantial" risk is nuanced, requiring reference to legislative histories to align with the Bail Reform Act's intent of allowing judges to assess community safety when making pretrial release decisions.
The indictment charges the Defendant with two counts: one for making a false statement in a Petition for an Alien Relative, violating 18 U.S.C. 1546(a) (visa fraud), and another for communicating a threat in interstate commerce, violating 18 U.S.C. 875(c) (transmitting threats). The second charge alleges that the Defendant knowingly transmitted threats against John Doe and his family. The indictment emphasizes that the communicated threat qualifies as a "true threat" required for prosecution, carrying a substantial risk of violence, which classifies it as a “crime of violence” under the Bail Reform Act.
The Government asserts that the evidence against the Defendant is overwhelming. For the visa fraud charge, it cites multiple admissions from the Defendant regarding the filing of the visa petition, which was mailed from the Defendant’s Brooklyn address and signed by his daughter, Amina Ajmal, who was in Pakistan at the time. For the threat charge, the Government refers to recorded conversations between the Defendant and Ms. Ajmal, where the Defendant explicitly threatened to kill Ms. Ajmal’s cousin, Shujat Abbas, and his family unless she returned home. Specific examples of these threats include declarations of intent to kill and harm the family if Ms. Ajmal did not comply. The conversations reveal a pattern of intimidation and explicit threats communicated by the Defendant.
On February 25, 2013, following statements made by Defendant, Shujat Abbas’ family members, Mohammad Asghar and his daughter Mahida, were murdered in Pakistan, with another relative injured. Eyewitness Rukhsana Kausar testified that Defendant's brother, Muhammad Akmal Choudhry, was seen at the scene holding a gun and desecrating the bodies, asserting that the murders were ordered by Defendant. Kausar filed a police report through the U.S. Consulate, leading to an arrest warrant issued for Defendant by the Government of Pakistan. On the day of the murders, Defendant was recorded denying involvement but made threatening statements about intending to kill the entire family.
Defendant does not dispute making these threats but seeks to discredit the Pakistani police report, which is the primary evidence against him, by presenting evidence that some named assailants have confirmed alibis supported by affidavits. Four individuals alleged to be involved in the murders have independent alibis: Ehsan Ullah was working in a law office, Javed Iqbal was at a construction site, Shahid Iqbal was working at a nearby tube well, and Mazhar Iqbal's alibi was confirmed by a brick business owner.
Defendant also questions the credibility of Kausar's testimony, noting her lack of sources for her claims and inconsistencies in her escape narrative. Additionally, he references a conflicting account from Zabir Abbas, another survivor, who stated the attack was by unknown men rather than the accused. Although Defendant claims Abbas reported this to Pakistani law enforcement, he has not submitted the account to the Court, providing instead two affidavits from Abbas stating that the four men with alibis did not participate in the incident, nor did Muhammad Akmal.
The affidavits presented do not support the account of the incident claimed by Defendant’s counsel regarding Zabir Abbas, nor is there any corroborating evidence in the record. Ms. Kausar reported that the assailants acted in retaliation against Mr. Asghar for filing a criminal case against them. The Defendant disputes the credibility of this charge, asserting it was fabricated by Mr. Asghar’s son, Shujat Abbas, without citing supporting authority. The Defendant cites a sworn affidavit from neighbor Muhammad Hussain, who allegedly heard that Shujat Abbas, not the accused, fired at his sister. Additionally, Mr. Asghar's initiation of an injunction against a neighbor over property disputes is noted. The Defendant argues that Ms. Kausar's statement regarding the assailants' motives lacks credibility, thereby undermining the police report's reliability.
The Court finds that the evidence against Defendant Choudhry strongly supports pretrial detention, citing multiple transcribed conversations in which he threatens to kill individuals in Pakistan, satisfying the elements of 18 U.S.C. 875(c). This unchallenged evidence of explicit threats is sufficient to justify pretrial detention. Furthermore, the Government provides undisputed evidence that several of Shujat Abbas’ family members, whom Choudhry threatened, were killed shortly after those threats, suggesting a non-coincidental connection. A police report from Pakistani law enforcement, obtained through the U.S. Consulate, implicates Choudhry in the murders, while the Defendant's attempts to discredit this report are not convincing. Notably, Zabir Abbas's conflicting account lacks evidentiary support, and despite the Defendant's challenges to Ms. Kausar's knowledge, the Court finds no reason to doubt her credibility. The familiarity between Choudhry and Kausar further diminishes the likelihood of mistaken identity and supports the accuracy of her report.
Ms. Kausar’s foot escape is deemed credible and does not impair her truthfulness. The defendant’s arguments do not effectively challenge the police report's credibility. While some evidence regarding the assailants' motives is presented, it does not contradict Ms. Kausar’s firsthand account of the murders or eliminate the possibility of multiple motives. The lack of alibi affidavits for the six remaining assailants is noted. An arrest warrant issued by the Government of Pakistan for the defendant related to a crime on the same date as the murders suggests sufficient evidence to charge him, although it does not prove guilt.
In assessing the defendant's history, the court considers factors including character, mental condition, family ties, employment history, and community connections, as outlined in 18 U.S.C. 3142(g)(3). Positive traits such as good character and strong community ties may indicate a lower flight risk, while frequent travel and weak ties suggest higher risk. The defendant, originally from Pakistan, has lived in the U.S. since 1990 and has been a taxi driver for 17 years. He has no financial assets and has filed for bankruptcy. Before his arrest, he lived with family in Brooklyn and has no criminal record. He has received numerous letters of support attesting to his character and community involvement. Despite strong ties to the U.S., he also maintains significant connections to Pakistan.
Defendant is a citizen of Pakistan, holding a Pakistani passport and having visited Pakistan as recently as November 2012. He has significant familial ties in Pakistan, including a brother, sister, two daughters, and numerous cousins. His brother, Afzal Choudhry, has held a political position, and Defendant maintains connections with local leaders. He has a financial interest in family assets in Pakistan, which he claims are vulnerable to theft and damage, necessitating a family member's return to secure them.
Defendant suffers from multiple medical conditions, including diabetes and depression, for which he takes daily medications, but these have not hindered his ability to travel. The Court finds that he poses a significant flight risk due to serious felony charges, including visa fraud and transmitting threats, with substantial evidence against him. He has admitted to filing a visa petition connected to his daughter, who may testify against him. Recorded phone calls reveal explicit threats made by Defendant, coinciding with violent incidents involving family members.
Although Defendant argues that potential sentencing under the guidelines would discourage flight, the Court is not bound by these guidelines and recognizes the risk of further charges from ongoing investigations into serious allegations against him in Pakistan. While he has ties to the Brooklyn community, these are outweighed by his strong connections to Pakistan, including citizenship, family, and recent travel, indicating a significant risk of flight.
Defendant, a foreign citizen with substantial connections to Pakistan, including a child residing there, is deemed a flight risk due to his financial assets being located in Pakistan. The court references established precedent indicating that such overseas assets contribute to flight risk. The nature of the charges against Defendant, which involve transmitting threats classified as a "crime of violence" under the Bail Reform Act, is serious. The Government presents compelling and uncontested evidence of Defendant's ongoing risk to community safety, highlighting his explicit threats to kill the family of Shujat Abbas until he locates Amina Ajmal, the key witness against him. Recordings of Defendant reveal his unwavering intention to carry out these threats, regardless of potential incarceration. The court finds clear and convincing evidence of Defendant's danger to the community and obstruction of justice risk. Furthermore, the court acknowledges the admissibility of evidence related to dangerousness beyond the indictment, solidifying the assessment of Defendant’s involvement in the February 25, 2013 murders in Pakistan. The court concludes that the threat posed by Defendant extends to communities outside the U.S., aligning with judicial interpretations of the term "community" in bail considerations.
Ms. Ajmal alleges that the Defendant coerced her into an arranged marriage under the threat of death, and directed relatives in Pakistan to hold her against her will. This situation has led to threats against Shujat Abbas, who assisted Ms. Ajmal in her escape. The Court emphasizes that it will not tolerate any actions that may execute or further these threats.
Despite the Defendant's classification as a flight risk and a danger to the community, the Government must prove that no release conditions can ensure his court appearance and community safety, as per 18 U.S.C. 3142(e). The Defendant has offered family assets for bail and expressed willingness to comply with any conditions, including electronic monitoring. However, the Court finds that such measures would not adequately protect the community, especially given the Defendant's ability to command others, as evidenced by alleged orchestrations of murders from afar in Pakistan.
Even with restrictions like home detention and limited visitors, the Court concludes it cannot ensure the Defendant would not direct family members to carry out threats against Ms. Ajmal’s relatives. Therefore, the Court orders the Defendant to remain in detention pending trial. Additionally, there is a correction regarding the date of a relevant conversation, with minor transcription differences noted, which do not affect the overall substance of the threats made.
The Court relies on the public record for its opinion. It notes discrepancies in the spelling of Mr. Asghar's name, choosing the spelling from the Pakistani police report, despite defense counsel referring to him as Mr. Ashgar. The affiant in Ms. Kausar's report is identified as "Zabir Abbas," but the Defendant indicates that he signed affidavits as "Zamir (Zameer) Abbas," with both names referring to the same individual and a member of Shujat Abbas’s family, a point not contested by the Government. The Court expresses concern over the Defendant's inconsistency regarding the number of children residing with him in the U.S. He initially claimed to live with five children to the Pre-Trial Services Agency, yet during a bail hearing on February 26, 2013, he stated that only three children live in the U.S. This is corroborated by affidavits from two daughters living in Pakistan, confirming the latter number.
