United States v. Petrov , 604 F. App'x 66 ( 2015 )

15-981-cr
United States of America v. Petrov
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 19th day of May, two thousand fifteen.
4
5 PRESENT:
6 RALPH K. WINTER,
7 CHESTER J. STRAUB,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 __________________________________________
11
12 UNITED STATES OF AMERICA,
13
14 Appellee,
15
16 v. No. 15-981-cr
17
18 ILYA PETROV, AKA SOLDAT,
19
20 Defendant-Appellant,
21
22 SUREN GADAYEV,
23
24 Defendant.
25
26 __________________________________________
27
28 FOR APPELLEE: RUSSELL CAPONE, Assistant United States
29 Attorney, United States Attorney’s Office
1 for the Southern District of New York,
2 New York, NY.
3
4 FOR DEFENDANT-APPELLANT: ERIC M. CREIZMAN, Creizman PLLC,
5 New York, NY.
6
7 Appeal from an order of the United States District Court for the Southern District of
8 New York (Swain, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
10 ADJUDGED, AND DECREED that the February 25, 2015 order of the District Court is
11 AFFIRMED and Petrov’s motion for release pending trial is DENIED.
12 Defendant Ilya Petrov appeals a District Court order imposing pretrial detention and
13 moves for release pending trial. Petrov was arrested pursuant to a criminal complaint and
14 charged with conspiracy to commit extortion and extortion in violation of 18 U.S.C. § 1951;
15 he has been detained without bail since his arrest. We assume the parties’ familiarity with the
16 underlying facts, the procedural history of the case, and the issues on appeal, to which we
17 refer only as necessary to explain our decision.
18 After conducting a hearing, a judicial officer may order pretrial detention upon its
19 finding that “no condition or combination of conditions will reasonably assure the
20 appearance of the person as required and the safety of any other person and the
21 community.” 18 U.S.C. § 3142(e)(1). In making this determination, the judicial officer
22 considers the following factors: (1) “the nature and circumstances of the offense charged”;
23 (2) “the weight of the evidence against the person”; (3) “the history and characteristics of the
24 person”; and (4) “the nature and seriousness of the danger to any person or the community
25 that would be posed by the person’s release.” Id. § 3142(g). “[T]he government retains the
26 ultimate burden of persuasion by clear and convincing evidence that the defendant presents
27 a danger to the community.” United States v. English, 629 F.3d 311, 319 (2d Cir. 2011)
28 (internal quotation marks omitted). In such a pretrial detention hearing, the government
2
1 may proceed by proffer, see, e.g., United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995), and
2 the rules of evidence do not apply, see 18 U.S.C. § 3142(f).
3 “We review a district court’s findings as to the accused’s . . . potential danger to the
4 community for clear error.” English, 629 F.3d at 319. We will not reverse “unless on the
5 entire evidence we are left with the definite and firm conviction that a mistake has been
6 committed.” United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation
7 marks omitted). “Where there are two permissible views of the evidence, the factfinder’s
8 choice between them cannot be clearly erroneous.” English, 629 F.3d at 319 (internal
9 quotation marks omitted). We review legal questions de novo. See United States v. Abuhamra,
10 389 F.3d 309, 317 (2d Cir. 2004).
11 The District Court did not clearly err in finding that Petrov presents a danger to the
12 community. The government submitted clear and convincing evidence that Petrov
13 threatened the complainant and had previously threatened and orchestrated an assault on the
14 complainant’s cousin. The threats to the complainant were recorded, and the government
15 offered a series of text messages as evidence of the threats to the cousin. Further, Petrov
16 had already been the subject of two protective orders in connection with domestic disputes.
17 Under the circumstances, we see no clear error in the District Court’s determination that no
18 condition or combination of conditions, including Petrov’s proposed bail package, would
19 reasonably assure the safety of the complainant or the community. Petrov’s arguments to
20 the contrary before this Court—which ask us to hypothesize alternative factual findings and
21 second-guess those of the District Court—do not render the District Court’s view of the
22 evidence erroneous.
23 We are also unpersuaded by Petrov’s argument that the District Court erred as a
24 matter of law by failing adequately to consider possible combinations of conditions that
25 would permit pretrial release. In support, he cites United States v. Berrios-Berrios, 791 F.2d 246
26 (2d Cir. 1986), in which our Court remanded for the district court to articulate its reasons for
27 concluding that no viable alternatives to detention existed for the defendant. Id. at 251.
3
1 Petrov’s case is different: here, the District Court considered the alternative proposed bail
2 package and made an explicit finding that no conditions or combination thereof could
3 adequately protect the safety of the complainant and the community, reflecting its
4 consideration of the relevant factors under § 3142(g). Under these circumstances, we see no
5 reasonable basis to remand.
6 * * *
7 We have considered all of Petrov’s remaining arguments and find them to be without
8 merit. Accordingly, we AFFIRM the order of the District Court and DENY Petrov’s
9 motion for release pending trial.
10
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk of Court
4