United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendant Moussa Sy's
Motion for Setting of Bond [Dkt. 106]. For the reasons that
follow, the Court will deny Defendant's Motion.
11, 2017, Defendant Moussa Sy was indicted on charges of Wire
and Bank Fraud Conspiracy in violation of 18 U.S.C. §
1349, Access Device Fraud Conspiracy in violation of 18
U.S.C. § 1029(b)(2), Aiding and Abetting Production of a
Counterfeit Access Device in violation of 18 U.S.C. §
1029(a)(1) and 2(a), and Aggravated Identity Theft in
violation of 18 U.S.C. § 1028(A) and 2(a). Defendant,
along with his co-conspirators, allegedly stole credit card
payment information, known as "Track 2"
data, and encoded it onto gift cards, which were then used to
make fraudulent purchases in the Eastern District of Virginia
8, 2017, Defendant pled guilty to Counts 1 and 8 of the
Superseding Indictment - Wire and Bank Fraud Conspiracy and
Aggravated Identity Theft respectively. Defendant's
sentencing is presently scheduled to take place on Thursday,
September 14, 2017, at 10:00 a.m. The Court notes that
Defendant has indicated that he may move to withdraw his
guilty plea, but he has yet to do so.
is not a United States citizen and was, until recently,
subject to an U.S. Immigration and Customs Enforcement (ICE)
detainer. Accordingly, Defendant did not initially contest
his detention pending trial, and Defendant has remained in
custody throughout these proceedings. ICE has since revoked
August 14, 2017, Defendant filed the present Motion for the
Setting of a Bond [Dkt. 106].
to 18 U.S.C. § 3143(a), the Court "shall order that
a person who has been found guilty of an offense and who is
awaiting imposition or execution of sentence ... be detained,
unless the judicial officer finds by clear and convincing
evidence that the person is not likely to flee or pose a
danger to the safety of any other person or the community if
released." After conviction, "[t]he presumption is
in favor of detention, and it is the defendant's burden
to prove by clear and convincing evidence that he is not
likely to flee or pose a danger to the community."
Gov't of Virgin Islands v. Clark, 7 63 F.Supp.
1321, 1323 (D.V.I. 1991), aff'd, 989 F.2d 487
(3d Cir. 1993) . In the context of the Bail Reform Act,
"clear and convincing evidence" has been
interpreted by courts to mean "something more than
'preponderance of the evidence, ' and something less
than 'beyond a reasonable doubt.'" United
States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985).
Among other things, Courts consider the factors enumerated in
18 U.S.C. § 3142(g) governing pretrial release, see
United States v. Majors, 932 F.Supp. 853, 855 (E.D. Tex.
1996), which include: (1) the nature and the circumstances of
the offense charged; (2) Defendant's history and
characteristics; and (3) the nature and seriousness of the
danger to any person or the community that would be posed by
contends that he should be released pending appeal because he
has significant family ties to the area, his sister has
agreed to serve as his custodian, and the offense to which he
pled guilty did not involve violence or drugs. He claims that
these facts demonstrate he does not pose a flight risk or a
danger to the community, and that any danger can be mitigated
by imposing certain restrictive conditions of release.
Court cannot agree. Defendant faces a substantial period of
incarceration - one of the offenses to which Defendant pled
guilty carries a mandatory two-year minimum sentence,
see 18 U.S.C. § 1028A - and Defendant may
additionally face deportation proceedings. There is a strong
incentive for Defendant to flee. More importantly, Defendant
has long exhibited a pattern of failing to appear for court.
As Defendant himself acknowledges, Defendant "has
numerous citations for failure to appear relative to his
previous arrests." Mot. [Dkt. 106] at 3. Indeed, it
appears that Defendant has failed to appear in court when
ordered to do so literally dozens of times, and has been
arrested for that reason on numerous occasions. In light of
the above, Defendant has not shown that he is unlikely to
while Defendant's offense was not a violent crime or one
involving narcotics, the Court has already observed in
denying bail to one of Defendant's coconspirators that it
was a serious offense that resulted in significant losses to
victims. Defendant has pled guilty to that crime, and has
been charged with committing similar offenses in the past.
light of the above, Defendant has failed to demonstrate that
he poses no threat to ...