2:13-cr-20772-GAD-DRG Doc # 149 Filed 12/09/14 Pg 1 of 6

Pg ID 1524

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

CRIMINAL NO. 13-20772

HONORABLE GERSHWIN A. DRAIN

v.
RASMIEH YOUSEF ODEH,
Defendant.
_______________________________/
MOTION OF THE UNITED STATES FOR HEARING
PURSUANT TO BAIL REFORM ACT TO DETERMINE THE
SOURCE OF CASH TO BE OFFERED AS COLLATERAL TO
SECURE A BOND, AND BRIEF IN SUPPORT THEREOF
NOW COMES the United States, pursuant to 18 U.S.C. 3142(c)(xi) and
3142(g)(4), and for its Motion to Determine the Source of Cash to be Offered as
Collateral to Secure a Bond, states:
1.

On December 8, 2014, this Court entered an order (Docket Entry 148,

Page ID 1519), releasing Defendant on bond with conditions. One condition of

release is that Defendant must post a $50,000 bond fully secured by cash. Id. at
4, Page ID 1522. Although the Courts order did not cite to it, the cash bond
provision must be pursuant to 18 U.S.C. 3142(c)(B)(xi), which permits the Court
to order that a defendant execute an agreement to forfeit upon failure to appear as
required, property of a sufficient value, including money, as is reasonably

2:13-cr-20772-GAD-DRG Doc # 149 Filed 12/09/14 Pg 2 of 6

Pg ID 1525

necessary to assure the appearance of the person as required, and shall provide the
court with proof of ownership and the value of the property along with information
regarding existing encumbrances as the judicial officer may require.
2.

Section 3142(g)(4) further provides in relevant part that In

considering the conditions of release described in subsection (c)(1)(B)(xi) . . . of

this section, the judicial officer . . . shall upon the motion of the Government,
conduct an inquiry into the source of the property to be designated for potential
forfeiture or offered as collateral to secure a bond, and shall decline to accept the
designation, or the use as collateral, of property that, because of its source, will
not reasonably assure the appearance of the person as required. (Emphasis
added.)
3.

Sections 3142(g)(4) and 18 U.S.C. 3142(c)(B)(xi) codify in part the

rule of United States v. Nebbia, 357 F.2d 303 (2d Cir.1966), which authorizes
courts to determine whether bond money is the product of criminal activity.
Nebbia is premised on the idea that in most cases, the potential loss of the fruits of
an alleged crime will not reasonably assure the appearance of the defendant at
trial. United States v. Sharma, 2012 WL 1902919 (E.D. Mi. 2009) (unpublished),
at 2-4. However, the Bail Reform Act is not limited to property which is fruits of
criminal activity, instead broadly requiring the Court to decline to accept the use
of collateral that because of its source will not reasonably assure the appearance of
~2~

2:13-cr-20772-GAD-DRG Doc # 149 Filed 12/09/14 Pg 3 of 6

Pg ID 1526

the person as required. Id. at 4. The underlying rationale of the Bail Reform Act
is the same as Nebbia: the prospect of losing property in which a defendant does
not have a sufficient stake may not reasonably assure that defendants appearance.
Thus, for example, If the bond were secured by the property of defendant's
relatives, or close friends, the court could, logically, conclude that the possibility of
financial harm to those individuals might motivate a defendant to appear.
Sharma, at 5 (citation omitted).
4.

In the present case, the government is not concerned about funds

being the product of criminal activity. Rather, it believes that the funds which
defendant Odeh is seeking to post are not her own or those of her relatives or close
friends, and therefore may not create a sufficient incentive, or perhaps any
incentive at all, for her to appear as ordered.
5.

Defendant is not planning to pledge her own property as collateral, but

rather is seeking to raise money from contributors for her release. See http://uspcn.
org/2014/12/08/rasmea-is-coming-home-to-be-released-on-50000-cash-bond/
(The defense committee is working now to secure the money for her release.
Please help us raise it by donating HERE now!); see also http://www.stopfbi.net
/2014/12/8/rasmea-coming-home-shes-be-released-50000-cash-bond (same).

~3~

2:13-cr-20772-GAD-DRG Doc # 149 Filed 12/09/14 Pg 4 of 6

6.

Pg ID 1527

It is difficult to see why money raised from large numbers of people

creates any incentive for Defendant Odeh to appear. It is likely that she would
suffer no personal loss by virtue of its forfeiture, and if money is raised from a
large enough number of people, none of them would suffer a significant loss either.
It is defendants burden to establish by clear and convincing evidence that she is
not a risk of flight. Clear and convincing in this context means that it is highly
probable that she would not be a risk of flight. See Commentary to Sixth Circuit
Pattern Jury Instruction 6.04 (adopting civil standard to define clear and
convincing.) Posting property which is not ones own, and which, by definition,
one cannot lose for failing to appear, is unlikely to meet that standard.
7.

In any event, it is not for either party to prove at this juncture what the

evidence might show regarding any posted property.

Rather, a hearing is

mandatory, 18 U.S.C. 3142(g)(4); Sharma at 2-3, and arguments about how the
likelihood of appearing is affected by posting property can only be made once the
evidence is adduced. After the Court has heard the evidence, it will be required to
decline to accept the use of collateral that because of its source will not
reasonably assure the appearance of the person as required[.]
8.

Because the Bail Reform makes the requested hearing necessary prior

to permitting a release, the filing of the instant motion ought to have the legal
effect of mandating a stay of the release order. However, in order to allow the
~4~

2:13-cr-20772-GAD-DRG Doc # 149 Filed 12/09/14 Pg 5 of 6

Pg ID 1528

United States Marshal Service and the Clerks office to be aware of the terms of
the instant motion, and to allow the Court to conveniently schedule a hearing if and
when defendant posts $50,000, the government asks that the Court enter a separate
order on the docket, staying the pending release in the event defendant posts the
money, until the Court can conduct the required hearing.
9.

Pursuant to Local Rule 7.1(a)(2)(B), the undersigned sought

concurrence of Michael Deutsch, which concurrence has not been received,

necessitating the filing of the instant motion and brief.
WHEREFORE, the government asks that the Court conduct the hearing
mandated by 18 U.S.C. 3142(g)(4), determine the source of any funds to be
pledged as collateral, and decline to accept the use of collateral that because of its
source will not reasonably assure the appearance of the person as required[.]
Respectfully submitted,
BARBARA L. MCQUADE
United States Attorney
/s/Jonathan Tukel
JONATHAN TUKEL (P41642)
Assistant United States Attorney
211 West Fort Street, Suite 2001
Detroit, MI 48226
(313) 226-9749
jonathan.tukel@usdoj.gov
Dated: December 9, 2014

~5~

/s/Mark J. Jebson
MARK J. JEBSON (P53457)
Special Assistant U.S. Attorney
211 W. Fort, Suite 2001
Detroit, MI 48226
(313) 226-9698
mark.jebson@dhs.gov

2:13-cr-20772-GAD-DRG Doc # 149 Filed 12/09/14 Pg 6 of 6

Pg ID 1529

CERTIFICATE OF SERVICE
I hereby certify that on December 9, 2014, I electronically filed the
foregoing with the Clerk of the Court using the ECF system, which will send
notification of such filing to all ECF filers.

s/Jonathan Tukel
JONATHAN TUKEL (P41642)
Assistant United States Attorney
211 W. Fort Street, Suite 2001
Detroit, MI 48226
Phone: (313) 226-9749
jonathan.tukel@usdoj.gov

~6~