United States v. Rahmat Abd Hir ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10500
Plaintiff-Appellee,
v.  D.C. No.
CR-07-00501-JF
RAHMAT ABD HIR,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Argued and Submitted
January 22, 2008—Pasadena, California
Filed February 15, 2008
Before: Alfred T. Goodwin, Stephen Reinhardt, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Reinhardt
1591
1594 UNITED STATES v. ABD HIR
COUNSEL
Barry J. Portman, Esq., Nicholas P. Humy, Esq., Cynthia C.
Lie, Esq., and Mara K. Goodman, Esq., Federal Public
Defender, San Jose, California, for the defendant-appellant.
Scott N. Schools, Esq., John T. Gibbs, Esq., Joanna Baltes,
Esq., and Jonathan D. Schmidt, Esq., United States Depart-
ment of Justice, Washington D.C., for the plaintiff-appellee.
UNITED STATES v. ABD HIR 1595
OPINION
REINHARDT, Circuit Judge:
Defendant, Rahmat Abd Hir, is charged with two counts of
conspiring to provide and providing material support to terror-
ists, in violation of 18 U.S.C. § 2339A; thirteen counts of con-
tributing goods and services to a specially designated global
terrorist, in violation of 50 U.S.C. § 1705(b); and one count
of making a material false statement, in violation of 18 U.S.C.
§ 1001. He appeals the district court’s pretrial detention order
denying bail. We have jurisdiction pursuant to 18 U.S.C.
§ 3145(c) and 28 U.S.C. § 1291, and we affirm.
I. Factual and Procedural Background
Abd Hir is a forty-three-year-old American citizen. Born in
Malaysia, where many of his immediate family members con-
tinue to reside, Abd Hir moved to the United States approxi-
mately twenty years ago and has lived in the San Francisco
Bay Area for the past ten years. Abd Hir and his wife, also a
United States citizen, have four young children, all of whom
were born in this country. Aside from the current charges,
Abd Hir has no criminal record and no history of substance
abuse.
The charges in this case arise out of Abd Hir’s contacts
with his brother, Zulkifli Abd Hir (“Zulkifli”). Zulkifli is an
acknowledged member of the Moro Islamic Liberation Front
(“MILF”), a secessionist force operating in the southern Phil-
ippines, and an alleged high-ranking member of Jemaah
Islamiyah, an al-Qaeda affiliated foreign terrorist organization
that operates in Indonesia, the Philippines, and Malaysia.
Jemaah Islamiyah is suspected of carrying out numerous
deadly attacks in Southeast Asia, among them, the 2002
bombing of a nightclub in Bali that killed over 200 people and
the 2004 bombing of the Australian embassy in Jakarta that
killed three people and left more than 100 wounded. On Sep-
1596 UNITED STATES v. ABD HIR
tember 5, 2003, the United States Office of Foreign Assets
Control designated Zulkifli a “Specially Designated Global
Terrorist,” thereby making it illegal to contribute funds,
goods, or services to his benefit. See Alphabetical List of
Blocked Persons, Specially Designated Nationals, Specially
Designated Terrorists, Specially Designated Global Terrorists,
Foreign Terrorist Organizations, and Specially Designated
Narcotics Traffickers, 69 Fed. Reg. 30,362, 30,466 (May 27,
2004).
Between June 2006 and August 2007, Abd Hir and his
brother were in regular email contact. Their communications
clearly show that Abd Hir knew that Zulkifli was wanted by
the United States government for terrorist activities. On two
occasions, Abd Hir sent emails to his brother with links to
newspaper articles alleging that Zulkifli was a high-ranking
member of Jemaah Islamiyah, including one that offered a
five-million dollar reward for information leading to his cap-
ture. Their correspondence also makes plain that Abd Hir
knew of Zulkifli’s violent activities in the Philippines. During
their email exchange, Zulkifli informed Abd Hir of attacks
that he and his allies planned to carry out, sometimes advising
Abd Hir to “check out” the next day’s papers for news of the
operation.
Despite this knowledge, Abd Hir consistently responded to
Zulkifli’s requests for money and supplies. During this time,
Abd Hir sent over $10,000 to his brother using various bank
accounts in the Philippines. He also sent packages, often
using false names and return addresses, which included sup-
plies ranging from candy and underwear to accessories for
guns, backpacks, knives, and publications about firearms. On
several occasions, Abd Hir sent his brother hand-held two-
way radios. The government alleges that some of these radios
were then used to make Improvised Explosive Devices
(“IEDs”) which were detonated in a bombing in the Philip-
pines that left five dead and twenty-nine injured.
UNITED STATES v. ABD HIR 1597
On August 1, 2007, the grand jury returned its sixteen-
count indictment. The following day, Abd Hir was arrested
and search warrants were executed at his home, office, and at
a commercial storage facility that he rented. The items recov-
ered during these searches included multiple firearms, ammu-
nition, and military manuals on sniper training, guerilla
warfare, and improvised munitions. The searches also turned
up jihadist literature as well as old photographs of Abd Hir in
a face mask and sunglasses posing with several assault rifles
while seated on a couch with a small child.
Abd Hir’s first two detention hearings were held before a
magistrate judge. See 18 U.S.C. § 3142(e) (2006) (permitting
pretrial detention only “[i]f, after a hearing . . . , the judicial
officer finds that no condition or combination of conditions
will reasonably assure the appearance of the person as
required and the safety of any other person and the communi-
ty”). With respect to flight risk, the magistrate judge con-
cluded that any risk that Abd Hir might flee could be
addressed through the imposition of conditions of release,
including the posting of $600,000 real property as a surety
against flight. With respect to dangerousness, the magistrate
judge found that Abd Hir did not pose a danger to any person
or the community within the Northern District of California.
Accordingly, the magistrate judge ordered Abd Hir released
pending trial. The government moved for a stay pending its
appeal of the release order to the district judge.
The district judge heard argument shortly afterwards. He
adopted, in part, the magistrate judge’s flight risk determina-
tion and rejected his dangerousness determination. With
respect to flight risk, the district judge agreed that any such
risk could be addressed through conditions of release but con-
cluded that the amount of the bond set by the magistrate judge
was not sufficiently high. With respect to dangerousness, the
district judge found that 18 U.S.C. § 3142(e) does not require
a showing that the defendant poses a danger to a person or a
community within the court’s jurisdiction; he then concluded
1598 UNITED STATES v. ABD HIR
that Abd Hir posed a danger to a community outside of the
United States. Although he did not identify the community, it
was quite obviously the Philippines.
The district judge requested supplemental briefing on the
question of whether any condition or combination of condi-
tions of release would reasonably assure the safety of others
and of the community at issue here. After an additional oral
argument and a review of the supplemental briefing, including
a list of proposed release conditions, he concluded that no
conditions of release would reasonably assure the safety of
the community. Abd Hir was ordered detained pending trial.
Abd Hir appeals the district judge’s pretrial detention order
on three grounds. First, he argues that the district court erred
as a matter of law in interpreting the Bail Reform Act to per-
mit pretrial detention of an individual who poses a danger
only to a community outside of the United States. Second,
Abd Hir contends that even if the Bail Reform Act’s defini-
tion of community encompasses foreign countries, the district
court erred in finding that he poses such a danger. Third, he
disputes the district court’s determination that no condition or
combination of conditions would reasonably assure the safety
of the community.1
II. Legal Framework
[1] The Bail Reform Act governs the detention of a defen-
dant pending trial. 18 U.S.C. § 3142 (2006). The Act man-
dates the release of a person pending trial unless the court
“finds that no condition or combination of conditions will rea-
sonably assure the appearance of the person as required and
1
Perhaps because it makes a similar argument with respect to danger-
ousness, the government does not appeal the district court’s finding that
although Abd Hir poses a flight risk, a combination of conditions of
release together with a sufficient bond would reasonably assure his
appearance in court.
UNITED STATES v. ABD HIR 1599
the safety of any other person and the community.” 18 U.S.C.
§ 3142(e). Where, as here, there is probable cause to believe
that the defendant has committed an offense identified as a
“[f]ederal crime of terrorism” under 18 U.S.C.
§ 2332b(g)(5)(B) for which a maximum term of imprisonment
of ten years or more is prescribed, there is a rebuttable pre-
sumption that “no condition or combination of conditions will
reasonably assure the appearance of the person as required
and the safety of the community.” 18 U.S.C. § 3142(e).2
Although the presumption shifts a burden of production to the
defendant, the burden of persuasion remains with the govern-
ment. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.
1991). A finding that a defendant is a danger to any other per-
son or the community must be supported by “clear and con-
vincing evidence.” 18 U.S.C. § 3142(f)(2)(B).
If a defendant proffers evidence to rebut the presumption of
dangerousness, the court considers four factors in determining
whether the pretrial detention standard is met: (1) the nature
and circumstances of the offense charged, including whether
the offense is a federal crime of terrorism; (2) the weight of
the evidence against the person; (3) the history and character-
istics of the person, including the person’s character, physical
and mental condition, family and community ties, employ-
ment, financial resources, past criminal conduct, and history
relating to drug or alcohol abuse; and (4) the nature and seri-
ousness of the danger to any person or the community that
would be posed by the defendant’s release. 18 U.S.C.
§ 3142(g). See United States v. Winsor, 785 F.2d 755, 757
(9th Cir. 1986); United States v. Motamedi, 767 F.2d 1403,
1407 (9th Cir. 1985). The presumption is not erased when a
defendant proffers evidence to rebut it; rather the presumption
“remains in the case as an evidentiary finding militating
2
Abd Hir is charged with providing material support to a terrorist under
18 U.S.C. § 2339A, an offense identified as a “[f]ederal crime of terror-
ism” under 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of fif-
teen years in prison is prescribed.
1600 UNITED STATES v. ABD HIR
against release, to be weighed along with other evidence rele-
vant to factors listed in § 3142(g).” United States v. Domin-
guez, 783 F.2d 702, 707 (7th Cir. 1986).
In reviewing a district court’s pretrial detention order, we
must be careful to ensure that the “order is consistent with the
defendant’s constitutional and statutory rights.” United States
v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990). See also
Motamedi, 767 F.2d at 1405 (explaining that “[t]he Fifth and
Eighth Amendments’ prohibitions of deprivation of liberty
without due process and of excessive bail require careful
review of pretrial detention orders to ensure that the statutory
mandate has been respected”). We review the district court’s
interpretation of the term “community” in the Bail Reform
Act de novo. See United States v. Horvath, 492 F.3d 1075,
1077 (9th Cir. 2007). The district court’s factual findings con-
cerning the danger that Abd Hir poses to the community are
reviewed under a “deferential, clearly erroneous standard.”
Townsend, 897 F.2d at 994. However, in a release determina-
tion, “the conclusions based on such factual findings present
a mixed question of fact and law and require the exercise of
sound judgment as to the values underlying the legal princi-
ples.” Id. Accordingly, the question of whether the district
court’s factual determinations justify the pretrial detention
order is reviewed de novo. Id. See also Marino v. Vasquez,
812 F.2d 499, 509 (9th Cir. 1987).
III. Discussion
A.
The district judge concluded that “a finding of dangerous-
ness [under 18 U.S.C. § 3142(e)] does not necessarily require
a showing of danger to persons or to the community within
a limited geographic area.” Abd Hir disagrees, arguing that
the district court erred as a matter of law in determining that
he could be detained pending trial on the ground that he posed
a danger not to the local or national community, but to a com-
UNITED STATES v. ABD HIR 1601
munity outside of the United States.3 Whether the Bail
Reform Act permits the pretrial detention of individuals who
pose a danger only to a foreign “community” is a question of
first impression.
[2] The statutory language itself provides little in the way
of an answer. Section 3142(e) does not define the term “com-
munity.” Nor do dictionaries provide us with any assistance;
their definitions of the term range from “[a] neighborhood,
vicinity, or locality,” BLACK’S LAW DICTIONARY 273 (7th ed.
1999), to “[a] society or group of people with similar rights
or interests,” id., and “society, in general; the public,”
WEBSTER’S NEW WORLD DICTIONARY 282 (3d ed. 1988). See,
e.g., San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d
1024, 1034 (9th Cir. 2004) (“When a statute does not define
a term, a court should construe that term in accordance with
its ‘ordinary, contemporary, common meaning.’ ”) (quoting
A-Z Int’l v. Phillips, 323 F.3d 1141, 1146 (9th Cir. 2003)).
Rather, the term “community” is amorphous; thus, we are
required to look beyond the plain text of the statute in our
attempt to determine its meaning for purposes of Section
3142(e) of the Bail Reform Act.
3
The district judge’s determination was explicitly based on the danger
that Abd Hir posed to the community, rather than to any person outside
of the United States. He found, and we agree, that “there is no evidence
that [Abd Hir] has threatened or poses a danger to any specific individu-
al[,]” as is required for a determination that an individual poses a danger
to “any other person” under 18 U.S.C. § 3142(e). See S. REP. NO. 98-225,
at 12 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3195 (explaining
that “[t]he reference to safety of any other person [in § 3142] is intended
to cover the situation in which the safety of a particular identifiable indi-
vidual . . . is of concern”). Although the question of whether “any other
person” may be located outside of the United States is not before us, we
note that at least one court has concluded that whether “the defendant will
. . . pose a danger . . . to other persons, whether here or abroad” is a
proper consideration in assessing an individual’s dangerousness under the
Bail Reform Act. United States v. Mazloum, No. 3:06CR719, 2007 WL
2778731, at *5 (N.D. Ohio Sept. 4, 2007) (emphasis added).
1602 UNITED STATES v. ABD HIR
The judges below, and the parties before us, offer several
possible resolutions to our query. We address each in turn.
We first reject the magistrate judge’s view that the term
“community” in Section 3142(e) of the Bail Reform Act is
limited to a geographic location within the court’s jurisdic-
tion. Limiting the definition of community to the jurisdiction
in which the crime occurred, in this case the Northern District
of California, would lead to arbitrary and absurd results. We
refuse to direct a court assessing the dangerousness of a
defendant charged with the armed robbery of a bank in Los
Angeles that it may not take into account the risk that the
defendant, if released before trial, would rob a bank in San
Diego or Bakersfield. Similarly, requiring a court in the East-
ern District of New York, which includes one part of New
York City, to ignore the threat posed by an alleged narcotics
dealer to the community in the state’s Southern District,
which covers another part of that city, would not only be
illogical but irresponsible. It would likewise be absurd to hold
that a court in Florida must ignore the danger that an individ-
ual accused of defrauding susceptible persons in that state
may pose to residents of Oregon.
Nor would it make sense to conclude, as Abd Hir argues,
that the relevant community must be a community located
within the geographic bounds of the United States.4 Where, as
4
For this argument, Abd Hir relies on our decision in Townsend, 897
F.2d at 995. In that case, we considered the meaning of the term “commu-
nity” for purposes of determining what “community ties” may be consid-
ered under § 3142(g) of the Act in assessing whether a defendant poses a
flight risk. Id. We concluded that “ ‘community’ in [§ 3142(g)] embraces
both the community in which the charges are brought and also a commu-
nity in the United States to which the defendant has ties.” Id. Abd Hir
argues that, following Townsend, we should define “community” to
extend only to a place within the United States. We disagree. The scope
of analysis permitted in determining a defendant’s community ties for pur-
poses of assessing the likelihood of flight risk has no bearing on the
“safety of the community” analysis for purposes of assessing likelihood of
dangerousness. See, e.g., S. REP. NO. 98-225, at 24, as reprinted in 1984
UNITED STATES v. ABD HIR 1603
here, a defendant is charged with an offense that had a signifi-
cant adverse effect on a community abroad, we see no justifi-
cation for preventing a court, for bail purposes, from
considering the continuing risk to that community that might
be posed by the defendant’s pre-trial release.
[3] For the purpose of resolving the case before us, we need
not adopt a general rule governing the scope—geographic or
otherwise—of the term “community” in Section 3142(e) of
the Bail Reform Act. We need decide only whether a court
making a bail determination may consider the threat that a
defendant poses to a foreign community in a case in which the
defendant has been charged with an offense under American
law, the effect of which occurs abroad. Along with the district
judge, we conclude that it may. Any other interpretation
would lead to an incongruous result: a court would be able to
try a defendant under the laws of the United States for a crime
the effects of which are felt abroad, but be unable to detain
the defendant who committed the crime despite clear and con-
vincing evidence that he continues to pose a danger to the
same foreign community.
U.S.C.C.A.N. at 3207 (noting that “with respect to the factor of commu-
nity ties . . . this factor . . . has no correlation with the question of the
safety of the community”). Therefore, Townsend’s conclusion as to the
meaning of the term “community” in § 3142(g) does not affect our result
here.
In the alternative, Abd Hir argues that danger to a community outside
of the United States should only be considered to the extent that the poten-
tial threat is directed at American citizens. We find this argument to be
both impracticable and unpersuasive. Defining the term “community” to
include Americans abroad, but not those of other nationalities, would
place courts in the untenable position of having to predict the nationalities
of the victims to whom a defendant might pose a danger if he is released.
Such an inquiry would likely be futile given the widespread presence of
American tourists, business travelers, expatriates, and military personnel
across the globe. It also raises disturbing questions about the relative value
of the lives of Americans and non-Americans. We cannot imagine that the
statute requires courts to make such determinations and refuse to interpret
§ 3142(e) in a manner that demands that we do.
1604 UNITED STATES v. ABD HIR
[4] Here, Abd Hir is charged with providing material sup-
port in order to further the commission of terrorist activities
in the Philippines. Although the threat in this case is posed to
a foreign community, it is an offense that is punishable under
the laws of the United States. Because the district court has
the authority to try Abd Hir under American law for a crime
that allegedly resulted in grave harm to residents of the Philip-
pines, we find no justification for preventing it from consider-
ing the continuing threat that Abd Hir would pose to that
community if he were released pending trial. We hold that,
under these circumstances, a court required to make a danger-
ousness determination under Section 3142(e) may consider
whether the defendant would pose a danger to a foreign com-
munity. Accordingly, we find no error in the district judge’s
decision to consider the danger that Abd Hir would pose to
the Philippines if released pending trial.5
Our holding comports with the history and purpose of the
Bail Reform Act of 1984 (“1984 Act”). The predecessor of
the 1984 Act, the Bail Reform Act of 1966 (“1966 Act”),
allowed judges making pretrial detention determinations to
consider only whether the offense committed was punishable
5
The decision of at least one district court is in accord with our own. In
United States v. Al-Arian, 280 F. Supp. 2d 1345 (M.D. Fla. 2003), four
defendants were charged with conspiracy to provide material support to a
designated terrorist organization, the Palestinian Islamic Jihad (“PIJ”). Id.
at 1350. The court found that two of the four defendants posed a “danger
to the community” and that it could not “fashion any conditions that will
reasonably conform their behavior.” Id. at 1357. The precise “community”
at risk was not specified but the court’s discussion reveals that the PIJ
engaged in acts of violence abroad, explaining that the organization “ad-
vocates the destruction of Israel, the elimination of Western influence, par-
ticularly from the United States, in the region, and the creation of an
Islamist state.” Id. at 1348 (noting that “[t]he PIJ killed over a hundred in
Israel and the occupied territories during the period referenced in the
indictment. It maimed many more. The roll call of dead and wounded
included Americans.”). The Al-Arian court, then, also considered the dan-
ger that defendants might pose to a community abroad, although it hap-
pened to include some Americans.
UNITED STATES v. ABD HIR 1605
by death or whether the accused posed a flight risk; it did not
allow judges to consider the dangerousness of a defendant
when making a bail determination. Pub. L. No. 89-465, 80
Stat. 214, 214 (1966). The current statute, the Bail Reform
Act of 1984, was enacted, in large part, to address growing
concern that dangerous defendants were committing crimes
while released on bail. In passing the 1984 Act, Congress crit-
icized the earlier statute for “fail[ing] to grant the courts . . .
the authority to deny release to those defendants who pose an
especially grave risk to the safety of the community.” S. REP.
NO. 98-225, at 5 (1983), as reprinted in 1984 U.S.C.C.A.N.
3182, 3188. Congress explained that the “broad base of sup-
port for giving judges the authority to weigh risks to commu-
nity safety in pretrial release decisions is a reflection of the
deep public concern, which the Committee shares, about the
growing problem of crimes committed by persons on release.”
Id.
Congress, then, enacted the Bail Reform Act of 1984 with
the explicit purpose of ensuring that courts would consider the
danger posed by releasing a defendant on bail. Our holding
accomplishes just that: it enables the court to consider the
nature of the crime with which a defendant is charged and the
danger that if he were released he would commit similar
crimes again.
[5] In sum, we conclude that a court making a pretrial
release determination under Section 3142(e) of the Bail
Reform Act may, at least under the circumstances present
here, consider the danger that a defendant poses to a foreign
community. Where a defendant is charged with committing a
crime under United States law that had a substantial harmful
effect on a community overseas, we hold that a court should
consider the danger that would be posed to that community if
the defendant were released pending trial.
B.
Having concluded that the district judge properly consid-
ered harm to a foreign community in making his dangerous-
1606 UNITED STATES v. ABD HIR
ness determination, we turn to Abd Hir’s second ground for
appeal. Abd Hir next argues that the district court erred in
finding that he posed a danger to the community despite the
fact that he had no prior criminal or violent history. We dis-
agree.
[6] The district judge made extensive, well-reasoned find-
ings with respect to each of the four statutory factors set forth
in 18 U.S.C. § 3142(g). Although we “make an independent
examination of the facts, the findings, and the record to deter-
mine whether the pretrial detention order” is proper, in this
case, we have no difficulty in agreeing with the district
judge’s conclusion that Abd Hir poses a danger to the com-
munity. Motamedi, 767 F.2d at 1405. Three of the four statu-
tory factors weigh strongly in favor of this conclusion. First,
“the nature and circumstances of the offense[s] charged,” are
extremely serious. 18 U.S.C. § 3142(g)(1) (specifically
requiring the court to consider whether the offense is “a Fed-
eral crime of terrorism”). The indictment alleges that Abd Hir,
acting with full knowledge of Zulkifli’s designation as a Spe-
cially Designated Global Terrorist and of the nature of his
violent activities, sent both money and supplies to his brother
in support of those activities. If convicted, Abd Hir faces up
to 298 years in prison.
[7] Second, “the weight of the evidence against” Abd Hir
is considerable. 18 U.S.C. § 3142(g)(2). We recognize that
“the weight of the evidence is the least important of the vari-
ous factors.” Motamedi, 767 F.2d at 1408 (explaining that
“the statute neither requires nor permits a pretrial determina-
tion that a person is guilty”). Nevertheless, the statute requires
that we consider the evidence “in terms of the likelihood that
[Abd Hir] . . . will pose a danger.” Id. We conclude that the
weight of the evidence clearly and convincingly establishes
such a likelihood. The evidence that we consider in arriving
at this conclusion includes email correspondence between the
brothers which tends to establish Abd Hir’s knowledge of his
brother’s ties to a terrorist organization, the nature of Zulki-
UNITED STATES v. ABD HIR 1607
fli’s activities in the Philippines, and Abd Hir’s willingness to
send money and material support in furtherance of those
activities; Abd Hir’s admissions to the FBI that he knew that
his brother was a wanted terrorist and that he regularly
exchanged emails with his brother in which Zulkifli sought
money and supplies for his activities;6 and a large cache of
firearms and ammunition found in searches of Abd Hir’s resi-
dence and rented storage facility, as well as military manuals
on sniper training, guerilla warfare, and improvised munitions.7
The second statutory factor, then, also weighs in favor of a
finding of dangerousness.
[8] Third, “the nature and seriousness of the danger to . . .
the community that would be posed by [Abd Hir’s] release”
is significant. 18 U.S.C. § 3142(g)(4). As we have previously
indicated, given the nature of the charges, we consider the
danger that Abd Hir poses to the community, at home or
abroad, that would likely be at risk if he were released. In this
case, that community is the Philippines. We conclude that the
evidence proffered by the government clearly and convinc-
6
The parties dispute whether Abd Hir admitted to the FBI, during its
eight hour interrogation, that he knew that at least some of the two-way
radios he sent to his brother were intended for use as IEDs. The record of
the interrogation that is before us is susceptible to differing interpretations.
However, even assuming that Abd Hir made no such admission, there is
strong evidence contained in the brothers’ email correspondence that Abd
Hir knew that the radios were used to make bombs.
7
The searches also uncovered jihadist literature as well as photographs
of Abd Hir in a face mask and sunglasses posing with several assault rifles
while seated on a couch with a small child. We agree with the district
judge that these two pieces of evidence should be given “little weight” in
assessing Abd Hir’s dangerousness. The government concedes that it is
unsure whether the jihadist literature actually belongs to Abd Hir; also, our
Constitution affords individuals the right to read such materials free of
intrusion or penalty. In this case, given all the circumstances, we do not
believe that the possession of the literature is probative as to Abd Hir’s
state of mind or his attitude toward terrorism. The photographs are alleg-
edly nine years old and therefore are of limited value in determining Abd
Hir’s current propensity for violence.
1608 UNITED STATES v. ABD HIR
ingly establishes Abd Hir’s willingness to send money and
supplies to his brother, knowing that these materials will be
used in support of violent activities that pose a serious danger
to the Philippines, including the indiscriminate bombing of
civilians. We therefore conclude that this factor also weighs
in favor of a finding of dangerousness.
The remaining statutory factor weighs against a finding of
dangerousness. Abd Hir’s “history and characteristics” reflect
that he was a law-abiding citizen prior to his alleged commis-
sion of the charged offenses and that he maintains significant
ties to his local community. 18 U.S.C. § 3142(g)(3). Although
Abd Hir was born in Malaysia, and many of his family mem-
bers still reside there, he has lived and worked in the United
States for approximately twenty years. He holds undergradu-
ate and graduate degrees from Arizona State University, is
married to a United States citizen, is the father of four chil-
dren all of whom were born in the United States, and was sup-
ported at his court appearances by friends and family
members, several of whom were willing to act as sureties for
his release. Abd Hir has never before been charged with a
crime, nor does he have any history of violence or substance
abuse.
[9] We have given these positive personal attributes serious
consideration. We are not persuaded, however, that they over-
come the strength of the factors pointing to Abd Hir’s danger-
ousness. See, e.g., Rodriguez, 950 F.2d at 89 (explaining that
“[a]lthough a prior record of violence eases the government’s
burden of showing dangerousness, it is not essential”).8 We
8
Although each case requires a fact-specific inquiry into the potential
danger posed by the individual defendant, we note that at least two district
courts reached similar conclusions in cases in which defendants with no
criminal history and strong community ties were accused of crimes involv-
ing terrorism. See United States v. Goba, 240 F. Supp. 2d 242, 257-58
(W.D.N.Y. 2003) (finding that “each individual defendant’s background
is significantly outweighed by the . . . danger to the community that each
UNITED STATES v. ABD HIR 1609
conclude that Abd Hir’s history as a law-abiding citizen and
his significant ties to the local community do not outweigh the
extremely serious nature of the offenses with which he is
charged, including his willingness to provide dangerous mate-
rials for use against civilians, while attempting to disguise his
role in the affair, the weight of the evidence against him, and
the nature and gravity of the danger that would be posed by
his release. The district judge’s finding of dangerousness is
well-supported and we affirm its determination.
C.
Our inquiry is not yet complete. Even where a defendant
poses a danger, he must still be released if there is a “condi-
tion or combination of conditions [that] will reasonably assure
. . . the safety of any other person and the community.” 18
U.S.C. § 3142(e).9 In the present case, Abd Hir and the Office
of Pretrial Services propose an extensive list of release condi-
tions. The district judge concluded that neither the proposed
conditions, nor any other combination of conditions, would
reasonably assure the safety of the community. We agree.
The release conditions proposed by Abd Hir and Pretrial
Services include: (1) a ban on the possession of any firearms
poses as a result of . . . his attendance and training at al-Qaeda’s al-Farooq
terrorist training camp”); Al-Arian, 280 F. Supp. 2d at 1355-57 (describing
defendants charged with various violent crimes and providing material
support to a designated terrorist organization as “models of civic involve-
ment in their respective communities” but nevertheless concluding that
two of four defendants “pose a danger to the community”).
9
We note that the Bail Reform Act contemplates only that a court be
able to “reasonably assure,” rather than guarantee, the safety of the com-
munity. See United States v. Tortora, 922 F.2d 880, 884 (1st Cir. 1990)
(“Undoubtedly, the safety of the community can be reasonably assured
without being absolutely guaranteed . . . . Requiring that release conditions
guarantee the community’s safety would fly in the teeth of Congress’s
clear intent that only a limited number of defendants be subject to pretrial
detention.”) (emphasis in original).
1610 UNITED STATES v. ABD HIR
or ammunition, (2) a ban on communication with Zulkifli or
anyone else in the Philippines, without the permission of Pre-
trial Services, and the provision of a copy of Abd Hir’s tele-
phone bill upon request, (3) a ban on communication with any
Specially Designated Global Terrorist, (4) monitoring of Abd
Hir by means of global positioning satellite, (5) a ban on the
use of the Internet outside of work or for non work-related pur-
poses,10 (6) a requirement that Abd Hir report to Pretrial Ser-
vices once a week, (7) a ban on the sending of money
overseas without the permission of Pretrial Services, (8) a ban
on the sending of packages overseas without the permission
of Pretrial Services, and on the use of any false names or
addresses, and (9) the surrender of all passports and travel
documents not already seized by the Government.
Although these proposed conditions of release are strict,
they contain one critical flaw. In order to be effective, they
depend on Abd Hir’s good faith compliance. See Tortora, 922
F.2d at 886 (concluding that a similarly extensive set of
release conditions contained “an Achilles’ heel . . . virtually
all of them hinge on the defendant’s good faith compliance”).
In Tortora, the First Circuit considered what conditions, if
any, would mitigate the danger posed by the release of an
alleged member of a prominent Mafia family, charged with
several violations of the Racketeer Influenced and Corrupt
Organizations (“RICO”) statute. Id. at 882. In that case, the
district court ordered Tortora’s release under a strict set of
release conditions similar to those proposed by Abd Hir,
including restrictions on his communications with any person
not approved by counsel, monitoring of his home phone
through a pen register, and twenty-four hour house arrest,
except for visits to doctors and lawyers, when he would be
required to wear an electronic bracelet. Id. Despite this elabo-
rate set of conditions, the First Circuit reversed, reasoning that
10
At oral argument, counsel informed the court that Abd Hir is no lon-
ger employed. As a result, under the proposed conditions, Abd Hir would
not be permitted to access the Internet under any circumstances.
UNITED STATES v. ABD HIR 1611
“the conditions as a whole are flawed in that their success
depends largely on the defendant’s good faith—or lack of it.
They can be too easily circumvented or manipulated.” Id. at
887.11
[10] As in Tortora, the effectiveness of the proposed
release conditions, or any conditions that might be imposed,
necessarily depends on Abd Hir’s good faith compliance. This
is particularly the case because of the nature of the crimes
with which Abd Hir is charged: crimes that involve communi-
cations and that are therefore not readily susceptible to effec-
tive monitoring. For example, a representative from the Office
of Pretrial Services conceded that it would not be feasible to
monitor all of Abd Hir’s telephone calls, his use of a laptop
brought into his home, and any activity taking place through
unknown bank accounts that could be accessed by a phone
call or a computer. At oral argument, the government con-
tended that under the proposed conditions, it would not be
possible to detect whether Abd Hir asked a family member or
friend to send money or a package to his brother. In short, the
conditions here, as in Tortora, may be “easily circumvented
or manipulated.” Id.
The question then is whether Abd Hir would comply in
good faith with the proposed, or any other, conditions of
release. We conclude that there is an unacceptably high risk
that he would not.12 The evidence before us clearly and con-
11
The First Circuit pointed to several examples of how such manipula-
tion might occur, many of which are applicable in Abd Hir’s case as well.
The court explained that electronic monitoring does not prevent a defen-
dant from committing crimes within the monitoring radius, that there is no
reasonable way to assure that a defendant would not make impermissible
stops or detours on his way to places permitted under the restrictions, and
that phone monitoring could be evaded by use of cellular and pay phones.
Id. at 887.
12
In reaching this conclusion, we note that, in this respect, the present
case is quite distinguishable from Tortora, where the defendant had a long
history of violent criminal activity. 922 F.2d at 887 (explaining that “little
1612 UNITED STATES v. ABD HIR
vincingly points to Abd Hir’s willingness to provide material
assistance to his brother with full knowledge of Zulkifli’s
alleged terrorist affiliations and violent activities in the Philip-
pines. It defies common sense to believe that Abd Hir did not
know that his provision of money and supplies to his brother
under these circumstances was illegal. See, e.g., Al-Arian, 280
F. Supp. 2d at 1357 (relying on defendants’ “tenacious[ ] loy-
al[ty]” and provision of support to a terrorist organization
despite knowledge of the organization’s illegal activities in
concluding that the court “cannot fashion any conditions that
will reasonably conform their behavior”). Indeed, Abd Hir’s
alleged use of false names and addresses when sending pack-
ages and his use of multiple bank accounts for money trans-
fers tend to show that he knew that what he was doing was
wrong. See id. at 1352 (explaining that Al-Arian “avoided
using his home telephone, instructed others to be careful, or
used coded terms to conceal the subjects of conversations” in
order to hide his involvement with a terrorist organization).
On this record, it is difficult to imagine that Abd Hir did not
know the seriousness of his offenses and the gravity of their
consequences—both in terms of the harm that was being done
to others and the penalties that he faced for his involvement.
Nevertheless, Abd Hir persisted.
[11] Given the strength of this evidence, coupled with the
statutory presumption that no conditions of release will rea-
sonably assure the safety of the community where a defendant
is charged with a federal crime of terrorism, we agree with the
district judge that there is an unacceptably high risk that Abd
about the defendant or his history suggests that good faith will be forth-
coming. If past is prologue, then promises to hew the straight and narrow
will mean next to nothing to this defendant”). Abd Hir, by contrast, has
no criminal history. Nevertheless, as we discuss supra, his demonstrated
commitment to providing aid to his brother, knowing of Zulkifli’s terrorist
designation and violent activities, and the risk that he himself was taking,
leads us to conclude that despite his otherwise law abiding history, Abd
Hir cannot be expected to comply in good faith with release conditions.
UNITED STATES v. ABD HIR 1613
Hir would not comply in good faith with the proposed condi-
tions, or any other combination of release conditions, imposed
upon him.13 Accordingly, we conclude that “no condition or
combination of conditions will reasonably assure . . . the
safety of . . . the community.” 18 U.S.C. § 3142(e).
IV. Conclusion
The sensitive and serious nature of the offenses with which
Abd Hir is charged require our most careful and objective
review. As the district judge explained,
There is a delicate balance between doing what is
necessary to protect a democratic society from ter-
rorism and protecting the individual rights that make
that society democratic. A criminal defendant does
not lose or suffer a diminution of his . . . constitu-
tional rights merely because he . . . is accused of pro-
viding material assistance to terrorists; in every case
. . . there must be an individualized, fact-specific
inquiry.
Having performed that inquiry here, we conclude that there is
clear and convincing evidence that Abd Hir poses a grave
danger to the Philippines (if not to other communities in
Southeast Asia) and that “no condition or combination of con-
ditions will reasonably assure . . . the safety of . . . the com-
munity.” 18 U.S.C. § 3142(e). We therefore affirm the district
court’s pretrial detention order.
13
Abd Hir argues that if the proposed conditions are insufficient to rea-
sonably assure the safety of the community, the court should attempt to
fashion appropriate conditions. This argument fails to recognize that any
set of conditions, short of creating a “replica detention facilit[y],” would
necessarily hinge on Abd Hir’s good faith compliance. Goba, 240 F. Supp.
2d at 258 (concluding that “[h]ere, defending against the danger that each
of these four men present would require institution of four replica deten-
tion facilities, a measure not required by the caselaw”).
1614 UNITED STATES v. ABD HIR
AFFIRMED.