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United States v. Saleh

United States District Court, N.D. Alabama, Southern Division

February 11, 2015



T. MICHAEL PUTNAM, Magistrate Judge.

The court is taking the unusual step of entering this Memorandum Opinion to explain why it has decided to set conditions of release for the defendant in this cause and to clearly explicate those conditions.

The defendant, Sufyan Hezam Saleh, is a native of Yemen, but a naturalized citizen of the United States. He came to the United States with his step-father and mother at the age of fourteen, and was raised in Oakland, California. In 2007, he moved for only a few months to Memphis, Tennessee, before settling in Birmingham, where he has made his home since. He is presently charged in a four-count indictment with two counts of filing materially false tax returns for tax years 2009 and 2010, one count of acquiring food stamps contrary to the statutes and regulations regulating food stamps, [1] and one count of knowingly redeeming food stamps in a manner contrary to the statutes and regulations regulating food stamps.[2] On the latter count, the indictment alleges that defendant fraudulently redeemed approximately $1, 125, 772.77 in food stamp benefits in 2010 and 2011.

The government has moved for detention of the defendant pursuant to 18 U.S.C. § 3142, arguing that he is a flight risk due to his family connections to Yemen. It has offered information through the testimony of a pretrial services officer that the defendant has traveled to Yemen on several occasions since 2008 to visit family, and on some of which occasions he has carried large sums of cash. On a few occasions, immigration authorities were not aware he had left the country, only to discover it upon his return from Yemen. Defendant acknowledges that he has a wife and three children currently living in Yemen, although he says that he has applied for them to immigrate to the United States. There is information that his step-father and mother, though U.S. citizens, have returned to and are living in Yemen. Most concerning is testimony by the pretrial services officer that the immigration authorities have reported to her that from 2002 to 2012, the defendant has regularly sent large sums of money to Yemen. It was reported that he has sent an average of $30, 000 every seven to ten days, which, if true, would be more than $10 million over the last ten years. Specific transactions involving transfers to Yemen actually reported, however, include only the following:

Date Amounts May 2, 2007 $20, 000 May 18, 2007 $30, 000 May 24, 2007 $30, 000 February 22, 2008 $60, 000 April 30, 2010 $40, 000 TOTAL $180, 000

Defendant proffered that these payments were made in part as dowry paid to his wife's father and in part as support for his wife and children.

In opposition to the government's motion, the defendant has proffered that he is a U.S. citizen and that he has family and businesses here in the Northern District. He volunteered that he owns several pieces of real estate worth a total of about $500, 000 and that he has $85, 000 in the bank. He lives with a sister and her two children in a residence on Valley Avenue in Homewood owned by his brother-in-law, whose wife is another of defendant's sisters. The sister and two children with whom he resides are also U.S. citizens. Defendant supports himself with rental income from two properties as well as running a retail store in Sylacauga.

No presumption favoring detention applies to this case. Indeed, 18 U.S.C. § 3142(f)(2) requires proof of detention by clear and convincing evidence. Whether the defendant should be detained depends upon a balancing of the factors identified in § 3142(g), which states:

(g) Factors to be considered.B The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning-
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, ...

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