Defendant-Appellant Zhe Zhang was indicted for participating in a successful murder-for-hire scheme. And the district court ordered him detained pending trial noting, among other things. “[t]hat the charged crime was ‘extremely serious’ and the evidence against Zhang was strong.” 2022 WL 17419594 at *2.
The defendant didn’t, however, appeal the district court’s original decision denying pretrial release. He instead appealed the court’s subsequent decision denying his motion to “reopen” the detention hearing. Id. *3.
At the original detention hearing in the district court (on May 19, 2022), there was “a brief discussion of the possibility of capital punishment,” and the government couldn’t confirm whether it would seek the death penalty “because the matter was still pending with U.S. Department of Justice in Washington, D.C..” Id. at *2. “But the court noted its understanding that, as matter of policy, ‘this Justice Department was not pursuing the death penalty” in this case. Id.
About one month after the district court ordered Zhang detained (on June 29, 2022), the government told the court that it would not seek the death penalty. Id. And about three weeks after that, “[o]n July 22, 2022, Zhang filed a motion to reopen his detention hearing under 18 U.S.C. § 3142(f)[,]” arguing that the government’s decision not to seek death was “a material change in circumstances that justified reopening the detention decision. That fact, coupled with a newly proposed $5 million bond … now made pretrial release appropriate.” Id.
In a written decision issued “[o]n August 3, 2022, the district court … den[ied] Zhang’s motion to reopen his detention hearing and for pretrial release.” Id. at *3. First, the court found that the government’s decision not to seek the death penalty wasn’t “material information” because the court’s “‘original decision denying bail did not rely in any way on the potential for a capital sentence.’” Id. Second, the court relied on “its inherent powers” to decline to revisit its detention decision, concluding that “a review of the factors outlined in 18 U.S.C. § 3142(g) — the severity of the alleged offense, the strong weight of the evidence against Zhang, Zhang’s personal characteristics (including his ties to other countries and past criminal conduct), and the danger posed by Zhang’s release — indicated that Zhang was both a flight risk and a danger to the community.” Id.
“On August 12, 2022, Zhang filed a notice of interlocutory appeal of the district court’s August 3, 2022, Memorandum and Order.” Id. at *3.
1. The Second Circuit concludes that Appellant appealed, not the original detention order, but only the district court’s order declining to “reopen” the detention hearing. And the district court didn’t abuse its discretion by denying the motion to reopen the detention hearing based on the government’s official decision no to seek the death penalty.
The Second Circuit notes that in the usual case of a direct appeal from a district court’s denial of pretrial release, “we apply deferential review to a district court’s bail determination and will not reverse except for clear error” — a standard that applies not only to the factual predicates underlying the district court’s decision, “but also to its overall assessment, based on those predicate facts, as to the risk of flight or danger presented by a defendant’s release.” Zhang, 2022 WL 17419594 at *3 (citation omitted).
But the Circuit states that, here, “we are a step removed from the usual case. Zhang did not appeal the district court’s original detention determination, which was conveyed orally at the May 19, 2022, hearing. Instead, Zhang appeals only the district court’s later decision on August 3, 2022, denying his motion to reopen the detention hearing. That decision is reviewed for abuse of discretion.” Id. at *3.
Furthermore, the Circuit stated, “we emphasize that the Bail Reform Act states only that a hearing ‘may’ be reopened if new and material information is presented. 18 U.S.C. § 3142(f). The Act therefore leaves the decision to reopen a hearing to the sound discretion of the district court.” Id. at *4 (citation omitted). “Accordingly, even if Zhang’s arguments were otherwise correct, the district court could still decide, in its discretion, not to reopen the detention hearing.” Id.
The Circuit ultimately concluded that the district court didn’t abuse its discretion in declining to reopen Zhang’s detention hearing, under 18 U.S.C. § 3142(f). The government’s official decision not to pursue the death penalty — made after Zhang was ordered detained — wasn’t “material information” warranting reopening the detention hearing “because the district court had already assumed in its initial detention determination that capital punishment would not be sought.” Id. at *9; see id. *4-*5.
2. The Second Circuit rejects the principle, originated in the 9th Circuit and applied in several “district court opinions in this Circuit,” that the “weight of the evidence” is the “least important” of the bail factors of 18 U.S.C. § 3142(g) — because of the presumption innocence. The Second Circuit holds instead that the district court’s emphasis on the strength of the evidence against Zhang was proper and didn’t undermine the presumption of innocence, which is a trial right.
Zhang argued that the district court, in its analysis of the § 3142(g) factors, relied too heavily on the strength of the evidence that he committed the charged offense when it declined to exercise its inherent power to revisit its detention decision. Putting significant weight on that evidence, he argued, undermines the presumption of innocence to which a defendant is entitled. Zhang, 2022 WL 17419594 at *5, *8.
But the Circuit didn’t agree, reasoning that “[t]he presumption of innocence ‘is a doctrine that allocates the burden of proof in criminal trials; … it has no application to a determination of the rights of a pretrial detainee.’” Id. (ellipsis in Zhang opinion) (quoting Bell v. Wolfish, 441 U.S. 520, 533(1979)). According to the Circuit: “That is because pretrial detention is regulatory in nature, United States v. Salerno, 481 U.S. 739, 747–48 … (1987), and is assessed not to preemptively punish a defendant, but only to reasonably assure the safety of the community and the appearance of the defendant at court proceedings.” Zhang, id. *8.
The Circuit did note, however, that Section 3142(j) of the Bail Reform Act states: “Nothing in this section shall be construed as modifying or limiting the presumption of innocence.” Zhang, 2022 WL 17419594 at *8. But, according to the Second Circuit, “this does not mean that the presumption of innocence limits a district court’s ability to engage in factfinding as to pretrial detention” but “must be read only to emphasize that the outcome of pretrial detention hearings can have no bearing on the presumptions owed to a defendant in the ultimate determination of guilt at trial.” Id.
The Second Circuit also noted that the Ninth Circuit in United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985) “suggested that ‘the weight of the evidence is the least important of the various [§ 3142(g)] factors,’ lest a court make a ‘pretrial determination that the person is guilty.’” Zhang, 2022 WL 17419594 at *8 (brackets in Zhang opinion). It further noted that a number of “district court opinions in this Circuit” had cited Motamedi “for the proposition that the weight of the evidence is the least important factor.” Zhang, id. at *8, footnote.2. But the Zhang Court stated: “To the extent those cases could be read to suggest that the weight of the evidence is a generally less important factor in a detention decision, they are unpersuasive for the reasons explained in this opinion.” Id.
The Circuit ruled that, here, the district court’s “consideration of the strength of the evidence did not contravene the presumption of innocence to which the defendant was entitled at trial.” Zhang, id. at *9.