United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: DEFENDANT
GENNADYBABITCHENKO'S MOTION TO REOPEN DETENTION HEARING
E. Bush Chief U.S. Magistrate Judge.
before the Court is Defendant Gennady Babitchenko's
("Gennady") Motion to Reopen Detention Hearing
(Dkt. 218). Having carefully considered the record,
participated in oral argument, and otherwise being fully
advised, the Court enters the following Memorandum Decision
FACTUAL AND PROCEDURAL BACKGROUND
After Gennady's indictment for trafficking and money
laundering in mid-August, the Court heard the
Government's Motion for Detention on August 28, 2018.
undersigned found that no set of conditions could reasonably
assure Gennady's and the other co-defendants'
appearance at trial and detained them as a flight risk under
the Bail Reform Act, 18 U.S.C. § 3143(b). (Dkt. 94).
Among other things, the Court relied on proffer showing
Gennady transferred significant sums of money from the U.S.
to Brazil, has traveled on multiple occasions to Brazil, has
legal residency status in Brazil, and had said to others that
he intended to move to Brazil. Id.
September 2018, Gennady filed an appeal from the detention
order before U.S. District Judge Edward J. Lodge. (Dkt. 98).
A hearing was conducted, with additional proffer and
argument. (Dkt. 124). On September 25, 2018, Judge Lodge
issued a Memorandum Decision and Order denying Gennady's
appeal, keeping intact this Court's prior detention
order. (Dkt. 128).
October 22, 2018, the Government filed a Motion for
Complex-Case Designation Pursuant to 18 U.S.C. §
3161(h)(7)(ii) and Trial Continuance (requesting that trial
be reset from October 23, 2018 to October 1, 2019). (Dkt.
134). Although the Government represented in its motion that
no defendants objected to a trial continuance, Gennady
subsequently did file an objection as to (1) the length of
the continuance (seeking instead only a 90-day continuance),
and (2) the Government's complex-case designation
efforts. (Dkt. 135).That same day, Judge Lodge granted a 90-day
continuance and reset the trial date for January 22, 2019.
November 27, 2018, new counsel was appointed to represent
Gennady pursuant to the Criminal Justice Act, after prior
counsel moved to withdraw. (Dkt. 156).
November 30, 2018, U.S. District Judge B. Lynn Winmill
granted the Government's request for complex-case
designation, "[g]iven the obvious complexity" of
the case, but denied the Government's request for a
one-year continuance. (Dkt. 157). Instead, Judge Winmill
reset the trial date for June 3, 2019. Id.
December 6, 2018, Gennady filed a Motion to Continue Jury
Trial or Alternatively, to Withdraw and for Substitution of
Counsel, requesting a one-month trial continuance from June
3, 2019 to July 29, 2019, (Dkt. 159). On December 11, 2018,
Judge Winmill granted the motion and reset the trial date for
July 29, 2019. (Dkts. 161, 162).
January 28, 2019, Gennady filed a Motion for Release Pending
Trial, arguing his continued detention violated the Due
Process Clause of the Fifth Amendment of the Constitution of
the United States. (Dkt. 164). On January 30, 2019, Judge
Winmill denied the motion. (Dkt. 166).
January 31, 2019, Gennady appealed the denial of his motion
for release. (Dkt. 167). On March 22, 2019, the Ninth Circuit
affirmed, stating in relevant part: "[P]retrial
detention in this case has not been excessively prolonged and
does not violate due process under the circumstances of this
case" and "contentions that anticipated future
delays will render [Gennady's] detention unconstitutional
are not yet ripe." (Dkt. 192).
May 15, 2019, the grand jury issued a Superseding Indictment
which brought additional charges against Gennady (conspiracy
to commit wire fraud, conspiracy to traffic in counterfeit
goods, money laundering conspiracy, and money laundering) and
correspondingly expanded the scope of the criminal forfeiture
allegations. (Dkt. 210).
May 30, 2019, Gennady filed the at-issue Motion to Reopen
Detention Hearing pursuant to 18 U.S.C. § 3142(f)(2), in
which he contended that new information had surfaced that was
unknown to him at the time of his initial hearing. (Dkt.
218). Among other things, he contended the Government
provided incorrect information in its proffer regarding
Gennady's alleged plan to move to Brazil. Id. He
further stated he is not a flight risk and there are
conditions or a combination of conditions that would assure
his appearance for further court proceedings. Id.
Though acknowledging the Court was previously persuaded by a
preponderance of the evidence that there was no set of
conditions that would assure his appearance at future
proceedings, Gennady argued that such a conclusion is
undercut by the newly-discovered information - namely, that
the Government erroneously represented to the Court that he
had told others that he intended to move to Brazil.
Id. Gennady further offers to surrender his U.S.
passport and Brazilian residency card to alleviate any flight
risk concerns. Id.
During a June 6, 2019 status conference with Judge Winmill,
Gennady and other co-defendants asked for a trial continuance
to October 2020, citing their need to investigate this
alleged massive conspiracy, which would include: (1)
international evidence and witnesses, (2) defense experts,
and (3) culling through the huge amount of electronic
discovery and physical evidence. (Dkt. 231). On July 19,
2019, Judge Winmill agreed to reset the trial date for
October 5, 2020, but continued to stress the need to
expeditiously proceed to trial and informed the parties that
the trial may be reset again, but on an earlier date. (Dkt.
June 28, 2019, the Court held a hearing on the Motion to
Reopen Detention. (Dkt. 256). The Court made certain
assessments of the record following the evidence, proffer,
and argument, and also informed the parties that the Court
was concerned about the due process implications of pretrial
detention in this case, given the lengthy period of detention
which had already occurred and the even longer period of
detention which would occur with an October 2020 trial
July 8, 2019, the Court requested a written memorandum from
each party (1) identifying the expected trial date (the
parties were not in agreement as to the expected trial date
at the time of the hearing (see supra))- and (2)
offering argument on whether the detention to date or
continued detention through October of 2020 would violate
Fifth Amendment Due Process Clause protections for Gennady.
ALLEGED CHANGES IN CIRCUMSTANCES SINCE THE INITIAL
Gennady's June 28, 2019 hearing on the Motion to Reopen
Detention, new information was provided by the Government
including additional proffer, stating:
. After being approached by federal investigators, Igor
Babichenko - a brother of Gennady who resides in Florida and
has been connected with the financial transfers and
Gennady's businesses here in Idaho - traveled with family
to Brazil earlier this summer and did not return as
scheduled. (Dkt. 268 at p. 36).
. Three people (aside from the person central to the
Government's proffer during the initial detention hearing
in September 2018) indicated the extended Babichenko family
planned to move to Brazil, but the Government said there was
no specific information as to whether that specifically
included Gennady. Id. at p. 30.
. The Government also offered new evidence (Exhibits 6 -21)
of emails, financial statements, and labels for iPhones
containing identical IMEI numbers. Id.
the same hearing, Gennady provided what his counsel contended
was "new" information supporting reconsideration of
the prior detention order:
. The proffer the Government relied upon regarding
Gennady's intention to move to Brazil during the initial
detention hearing in September 2018 was inaccurate and
misleading. Id. at p. 57.
. Other co-defendants currently out on pretrial release have
abided by their release agreement and have not ...