United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: DEFENDANT PAVEL
BABICHENKO'S MOTION TO REOPEN DETENTION HEARING (DKT.
E. BUSH, CHIEF U.S. MAGISTRATE JUDGE
before the Court is Defendant Pavel Babichenko's
(“Pavel”) Motion to Reopen Detention Hearing
(Dkt. 252). 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 Pavel's indictment for trafficking and money
laundering in mid-August, the Court heard the
Government's Motion for Detention on August 31, 2018.
undersigned found that no set of conditions could reasonably
assure Pavel's and the other co-defendants'
appearance at trial and detained them as a risk of flight
under the Bail Reform Act, 18 U.S.C. § 3143(b). (Dkt.
97). Among other things, the Court relied on proffer showing
Pavel's extensive money transfers from the U.S. to Brazil
to entities alleged to be controlled by Pavel and other
co-defendants; his legal resident status in Brazil, and
statements alleged to have been made by him to others that he
is seeking to obtain Brazilian citizenship; his repeated
travel to Brazil over a period of many years; his alleged
direct involvement in the sale of bulk counterfeit goods,
with Pavel openly making statements describing the goods as
counterfeit; and the large volume of alleged counterfeit
goods in Pavel's possession or control. Id.
September 7, 2018, Pavel filed an appeal from the detention
order before U.S. District Judge Edward J. Lodge. (Dkt. 99).
A hearing was conducted, with additional proffer and
argument. (Dkt. 123). On September 25, 2018, Judge Lodge
issued a Memorandum Decision and Order denying Pavel's
appeal, keeping intact this Court's prior detention
order. (Dkt. 127). Pavel did not appeal.
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, co-defendant Gennady
Babitchenko (“Gennady”) filed 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. (Dkt. 136).
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, Pavel filed a Motion for Release Pending
Trial. He contended that his continued detention violated the
Due Process Close of the Fifth Amendment of the Constitution
of the United States (Dkt. 165). The motion was based on -
indeed expressly relied on - a similar motion filed by
Gennady. Id. (citing Dkt. 164)). On January 30,
2019, Judge Winmill denied the motion. (Dkt. 166).
February 2, 2019, Pavel appealed the denial of his motion for
release. (Dkt. 169). 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 [Pavel's] detention unconstitutional
are not yet ripe.” (Dkt. 192).
May 15, 2019, the grand jury issued a Superseding Indictment
which brought additional charges against Pavel (conspiracy to
commit wire fraud, conspiracy to traffic in counterfeit
goods, trafficking in counterfeit goods, money laundering
conspiracy, and money laundering) and expanded the scope of
the criminal forfeiture allegations. (Dkt. 210).
May 30, 2019, Gennady filed a Motion to Reopen Detention
Hearing pursuant to 18 U.S.C. § 3142(f)(2). He contended
that new information had surfaced that was unknown to him at
the time of his initial hearing. (Dkt. 218). On June 4, 2019,
Pavel moved to join in that motion, claiming that
“[m]any of the same issues the defense would like to
present have been argued in the co-defendant's memorandum
in support of the motion to reopen detention.” (Dkt.
227) (citing Dkt. 218)). The next day, Judge Winmill denied
the motion, without prejudice. (Dkt. 229).
During a June 6, 2019 status conference with Judge Winmill,
Pavel and other co-defendants asked for a trial continuance
to October 2020. They cited 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 25, 2019, Pavel filed the at-issue Motion to Reopen
Detention Hearing. (Dkt. 252). He made various arguments,
including: (1) the Government's initial proffer regarding
statements made during undercover purchases were taken out of
context, mischaracterizing the nature of his statements and
actions; (2) the Government's initial proffer regarding
errors on certain packaging was incomplete, without
considering Pavel's status as a cell phone wholesaler
(purchasing items at auction from the manufacturer but
others would package for sale or sell to other
distributors) and, thus, his lack of knowledge about such
mistakes; (3) the Government's initial proffer regarding
checks from an unidentified Philippine bank account
originated from a legitimate businesses that has since gone
out of business; and (4) the evidence of wire transfers to
Brazil and China initially proffered by the Government to
reflect that Pavel was a flight risk were legitimate
investments and business expenses. Id. Pavel further
offers that “[h]e will show up for court, ”
owing, in part, to the presence of his extended family in
Idaho and his strong ties to the community, and that,
separately, “[t]here are incredible tools available and
skilled people who can ensure [his] appearance.”
Id. On July 5, 2019, the Government responded,
arguing that Pavel has failed to demonstrate new and material
information as required under § 3142(f) to warrant the
reopening. (Dkt. 262).
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 (see supra)); and (2) offering argument
on whether the detention to date or continued detention
through October 2020 would violate Fifth Amendment Due
Process Clause protections for Pavel. (Dkt. 264).
July 30, 2019, the Court held a hearing on the Motion to
Reopen Detention Hearing. 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 combined with the even longer period of
detention which would occur with an October 2020 trial
ALLEGED CHANGES IN CIRCUMSTANCES SINCE THE INITIAL
July 19, 2019, as requested by the Court on July 8, 2019,
each party filed a memorandum (1) identifying the expected
trial date; and (2) offering argument on the due process
concerns raised by Pavel's detention to date and/or
continued detention through October 2020. (Dkts. 283, 284).
Government relies on three factors to determine if a due
process violation exists: (1) the non-speculative length of
expected confinement; (2) the extent to which the Government
(the prosecution and/or the court system) bears
responsibility for pretrial delay; and (3) the strength of
the evidence indicating a risk of flight, a threat to the
trial process, and/or a danger to the community.” (Dkt.
283) (citing United States v. Aileman, 165 F.R.D.
571, 581 (N.D. Cal. 1996)). With this standard in mind, the
• The actual trial date is uncertain, as both the
Government and Court aspire to conduct the trial before
October 2020. Regardless, lengthier detentions have been
found not to violate due process in other complex cases.
• The complexities of the case are due to Pavel's
and other co-defendants' actions as their conduct (moving
large volume of counterfeit products, creating hundreds of
business entities to evade detection, opening hundreds of
bank accounts, conducting thousands of wire transfers to
obfuscate the source of the funds - involving dozens of
coconspirators spread across three continents) was directly
responsible for the necessary, complex, and lengthy
investigations that have produced voluminous physical and
electronic evidence contributing to corresponding pretrial
• Pavel and other co-defendants sought lengthy
continuances, not the Government.
• Pavel continues to be a flight risk. Financial
activity suggests Pavel has plans to relocate to Brazil and
is facing serious criminal liability. Pavel is also a risk of
flight after his brother Igor fled to Brazil at the end of
June 2019, after being approached by the FBI.
Pavel relies on a variety of factors to determine if a due
process violation exists, including: (1) the length of
detention; (2) who bears responsibility for the delay; (3)
the gravity of the charges against him; and (4) the strength
of the evidence underlying detention. (Dkt. 284) (citing
United States v. Rodriguez, 2012 WL 6690197, at *1
(W.D.N.Y. 2012); United States v. Omar, 157
F.Supp.3d 707, 715 (M.D. Tenn. 2016); United States v.
Gelfuso, 838 F.2d 358, 359 (9th Cir. 1988)).
Pavel also raises a Sixth Amendment concern. (Dkt. 284). With
this standard in mind, Pavel argued:
• By the time trial commences, he will have spent
twenty-six months in custody, longer than any court has ever
upheld against a due process challenge based on flight risk
• Lengthy pretrial detentions are constitutional only
under extraordinary circumstances (dangerous international
terrorism threats and/or incorrigibly violent criminal
defendants) - none of which applies here.
• His lengthy pretrial detention represents a due
process violation for someone with no prior criminal history,
who poses no danger, and for whom the evidence of flight risk
is a circumstantial opportunity for flight only.
• Because of the Government's approach to
prosecuting this case and the lack of organized discovery,
the Government bears the responsibility for the delay.
Instead of attempting to cogently organize its evidence, the
Government has instead “buried him in paper, providing
him piecemeal with an amount of data that represents millions