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United States v. Babichenko

United States District Court, D. Idaho

September 25, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
GENNADY BABICHENKO, Defendant.

          MEMORANDUM DECISION AND ORDER

          Edward J. Lodge United States District Judge.

         INTRODUCTION

         Pending before the Court in the above-entitled matter is the Defendant's appeal from the Court's August 28, 2018 Detention Order (Dkt. 94) issued by Chief United States Magistrate Judge Ronald E. Bush. (Dkt. 98.) The Court has reviewed the record in this case including but not limited to: (1) the parties' briefs; (2) the transcript of the August 28, 2018 detention hearing before Judge Bush (Dkt. 114); (3) the August 28, 2018 Order of Detention Pending Trial; and (4) the pre-trial services report prepared by the United States Probation Office. In addition, the undersigned held a hearing on September 20, 2018 in which the Government and Defendant added to their proffers and made additional arguments. (Dkt. 123). As explained more fully below and following a de novo review of the record before Judge Bush and as supplemented at the September 20, 2018 hearing, the Court affirms Judge Bush's Order of Detention (Dkt. 94).

         FACTUAL AND PROCEDURAL HISTORY

         On August 15, 2018, the grand jury returned a thirty-four count Indictment charging ten different Defendants, including Gennady Babichenko, with a range of crimes alleged to constitute a counterfeit trafficking conspiracy. (Dkt. 1.) Gennady Babichenko is charged with three counts including: (1) conspiracy to commit wire fraud; (2) conspiracy to traffic in counterfeit goods; and (3) conspiracy to launder money. (Id.)

         On August 23, 2018, the Government filed a Motion for Detention and Gennady Babichenko was arraigned on the charges against him. (Dkts. 29, 66.) In addition, Judge Bush set the matter for a detention hearing. (Dkt. 66.)

         On August 28, 2018, the United States Probation Office issued a pretrial service report and Judge Bush held a detention hearing. (Dkts. 88, 113.) At that hearing, the Court heard from defense witness, Sandra Schroeder; admitted certain evidence in the record, Exhibits 1-4; and heard both proffer and argument from counsel. (Id.) Ultimately, Judge Bush issued the Order of Detention Pending Trial (Dkt. 94) that is the subject of this appeal.

         Judge Bush considered the factors set forth in 18 U.S.C. § 3142(g) in light of the information presented at the detention hearing and concluded the Defendant must be detained pending trial because the Government proved by a preponderance of the evidence that no condition or set of conditions of release would reasonably assure the defendant's appearance as required. (Dkt. 94, p. 2.) The reasons Judge Bush cited in favor of detention included: (1) the weight of the evidence against the defendant is strong; (2) he would be subject to a lengthy period of incarceration if convicted; and (3) he has significant family or other ties outside the United States. (Id. at pp. 2-3.) In addition, Judge Bush made the following findings in support of detention:

• Extensive transfers of significant sums of money from the United States to Brazil to entities alleged to be controlled by Defendant and family members.
• Proffer that Defendant has legal resident status in Brazil.
• Statements from persons who know Defendant that Defendant has expressed an intention to move to Brazil.

(Id. at p. 3.)

         On September 6, 2018, Defendant filed the instant appeal from the detention order. (Dkt. 98.) On September 20, 2018, the Court held a hearing on the detention order appeal. (Dkts. ...


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