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IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA
)
)
v.
)
CR. NO. 21-CR-523 (TNM)
)
ELIAS ELDABBAGH
)
OPPOSTITON TO GOVERNMENT MOTION TO REVOCATION HEARING
Elias Eldabbagh, by and through counsel, respectfully submits the following Opposition
to the government's motion to revoke the defendant's conditions of release. For the reasons stated
below, the defendant requests that the Court deny the government's motion.
Background
Mr. Eldabbagh was arrested in connection with this case on August 20, 2021. He was
arrested without incident at his home, and subsequently released into the Home Confinement
Section of the High Intensity Supervision Program. He has remained inside his residence for the
pendency of this case, except for the Thanksgiving holiday when the Court permitted him to
travel to Northern Virginia to spend the holiday with his partner's mother. Mr. Eldabbagh has not
missed a single court appearance. He has reported to the Pre-trial Services Agency as directed.
His movements are being monitored by GPS technology. And he has not possessed any firearms.
The violation of pre-trial release alleged in the government's motion occurred more than four
months ago. Since that time, Mr. Eldabbagh has been in compliance with his conditions of
pre-trial release.
Argument
It is a well established principle that criminal defendants should not suffer imprisonment
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on a charge for which they have yet to be convicted. See Stack v. Boyle, 342 U.S. 1 (1951). In
1984, Congress enacted the Bail Reform Act to solidify this principle and to ensure that pretrial
detention is utilized in only the rare cases in which community safety and flight are serious
concerns. In passing the Act, Congress surely did not intend to authorize the wholesale pretrial
incarceration of all persons accused of criminal offenses. Rather, Congress intended to reserve
pretrial detention for only Aa small but identifiable group of particularly dangerous [persons] as to
whom neither the imposition of stringent release conditions nor the prospect of revocation of
release can reasonably assure the safety of the community or other persons.@ S. Rep. No. 225,
98th Cong., 1st Sess. 6-7, reprinted in U.S. Code Cong. & Ad. News 3189. When
implementing the provisions of the Bail Reform Act, courts have recognized that the Act clearly
favors release over pretrial detention. See United States v. Orta, 760 F.2d 887, 890-892 (8th
Cir. 1985); United States v. Miller, 625 F. Supp. 513, 516-17 (D.Kan. 1985); see also United
States v. Salerno, 481 U.S. 751, 755 (1987) (AIn our society liberty is the norm and detention
prior to trial or without trial is a carefully limited exception@).
The Bail Reform Act requires courts to release defendants who are pending trial on
personal recognizance or on an unsecured appearance bond Aunless the judicial officer
determines that such release will not reasonably assure the appearance of the person as required
or will endanger the safety of any other person or the community.@ 18 U.S.C. ' 3142(b). Even
if a court determines that personal recognizance or an unsecured appearance bond will not assure
a defendant=s appearance in court or protect the safety of the community, the court is not
permitted to order the pretrial detention of a defendant without further inquiry. When personal
recognizance or an unsecured appearance bond are not sufficient, the court must consider
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imposing an alternative condition, or combination of conditions, that will assure the defendant=s
appearance in court and the safety of the community. See 18 U.S.C. ' 3142(c).0F1 Examples of
alternative conditions courts may consider imposing include employment or educational
requirements, travel restrictions, stay away orders, a specified curfew, or a condition that the
defendant refrain from the use of any controlled substance. See 18 U.S.C. ' 3142(c)(1)(B).
1When imposing an alternative condition, or combination of conditions, the court must
select the Aleast restrictive@ condition(s). See 18 U.S.C. ' 3142(c)(1)(B).
Defendants who are charged with certain specified offenses are subject to a rebuttable
presumption that no condition, or combination of conditions, can assure the defendant=s
appearance or ensure the safety of the community. 18 U.S.C. ' 3142(e). If this Court finds
probable cause that the Defendant committed an offense covered by this section of the statute,
there is a rebuttable presumption Athat no condition or combination of conditions will reasonably
assure [the defendant=s] appearance . . . and the safety of the community.@ 18 U.S.C. '
3142(e)(3). In the event this Court finds the rebuttable presumption applicable to Mr.
Eldabbagh case, the presumption merely Aimposes a burden of production on the defendant to
offer contrary credible evidence.@ United States v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985).
Significantly, this burden of production Ais not a heavy one to meet.@ United States v.
Dominquez, 783 F.2d 792, 707 (7th Cir. 1986). In order to rebut the presumption, a defendant
must merely produce some evidence Ato suggest@ that he is neither dangerous nor likely to flee if
released. United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990); see also United
States v. Miller, 625 F.Supp. 513, 519 (D. Kan. 1985) (describing the burden as one merely
requiring a defendant Ato offer some credible evidence contrary to the statutory presumption@).
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When evaluating factors which are relevant in determining whether Mr. Eldabbagh
should remain on pre-trial release, it is clear that Mr. Eldabbagh is not part of the limited group
of people for whom the Bail Reform Act contemplates being detained pending trial. As set
forth herein, it is also clear that Mr. Eldabbagh is able to successfully rebut any presumption that
there are no conditions that may reasonably assure the safety of the community.
1.
Community Safety
Mr. Eldabbagh=s history and characteristics strongly negate any concerns about
community safety.1F2 Mr. Eldabbagh is just 30 years old. Mr. Eldabbagh has a limited prior
criminal record. The allegations against Mr. Eldabbagh in the instant case involve only
allegations of wire fraud and identity theft. There is no claim that Mr. Eldabbagh engaged in any
violent behavior towards any potential witness in this case. Moreover, there is no evidence that
Mr. Eldabbagh is the leader (or even a member) of a large criminal enterprise. To be clear, Mr.
Eldabbagh does not suggest that the instant charges are not serious. However, an individual like
Mr. Eldabbagh is not the type of defendant congress had in mind when it enacted 18 U.S.C. 3142
'' et seg. See, United States v. Alatishe, 768 F.2d 364, 370 n. 13 (D.C. Cir. 1985)(quoting S.
Rep. No. 225, 98th Cong., 1st Sess. 20 (1983), U.S. Code Cong. Admin. News 1984, p.
3202)(APersons charged with major drug felonies [and leaders of large criminal enterprises] are
often in the business of importing or distributing dangerous drugs, and thus, because of the nature
of the criminal activity with which they are charged, they pose a significant risk of pretrial
recidivism. Furthermore, the Committee received testimony that flight to avoid prosecution is
2The type of factors the court should consider when assessing a defendant=s history and
characteristics include criminal history, whether the defendant is under court supervision, family
ties, length of residence in the community, and employment record. See 18 U.S.C. ' 3142(g)(3).
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particularly high among persons charged with major drug offenses. Because of the extremely
lucrative nature of drug trafficking, and the fact that drug traffickers often have established
substantial ties outside the United States from whence most dangerous drugs are imported into
the country, these persons have both the resources and the foreign contacts to escape to other
countries with relative ease in order to avoid prosecution for offenses punishable by lengthy
prison sentences.@)
There may be instances in which a defendant=s history and alleged conduct in the charged
offense support pretrial release, but the need to protect a particular individual, or individuals,
from harm from the defendant warrant pretrial detention. This concern is certainly not present in
Mr. Eldabbagh=s case. Mr. Eldabbagh has not threatened anyone, he has no intention to threaten
or harm anyone, and no reasonable claim can be made that there is any individual in the
community against whom Mr. Eldabbagh would retaliate or harm while on release. Hence, in
addition to posing no danger to the community in general, Mr. Eldabbagh is not a danger to the
safety of any other individual person.
2.
Flight Risk
There is no evidence that Mr. Eldabbagh has ever missed a court date. In the instant case,
the Court granted Mr. Eldabbagh's request to temporarily leave his residence to spend the
Thanksgiving holiday in northern Virginia, and Mr. Eldabbagh scrupulously complied with the
Court's order. In nearly five months of Home Confinement with GPS monitoring, there has not
been a single instance of non-compliance by Mr. Eldabbagh. He has faithfully called the Pre-trial
Services Agency when directed to do so. And he has not accessed the internet, except to
communicate with his attorney.
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For the reasons discussed in this motion, and pursuant to 18 U.S.C. ' 3142(b), Mr.
Eldabbagh requests that the Court deny the government's motion and allow Mr. Eldabbagh to
remain in the APermanent Home Confinement@ section of High Intensity Supervision Program
(HISP). Mr. Eldabbagh submits that his continued release into the APermanent Home
Confinement@ section of the High Intensity Supervision Program is sufficient for assuring the
safety of the community and Mr. Eldabbagh's appearance in court, and complies with the Bail
Reform Act=s directive that only the Aleast restrictive@ conditions of pre-trial release be imposed
in this case.
WHEREFORE, for these reasons and any such reasons that shall appear to the Court, the
defendant, Ryan Jaselskis, respectfully requests that his motion be granted.
Respectfully Submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
/S/
DAVID W. BOS
Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
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