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Case 1:19-cr-00490-RMB Document 11 Filed 07/12/19 Page 9 of 14

Honorable Richard M. Berman
United States District Judge
July 12, 2019
Page 9

armed private guards attempting to stop the defendant, potentially by force—rather than the defendant being in the environment of a federal facility—also greatly magnifies the danger of the defendant’s flight to the public. See United States v. Boustani, 356 F. Supp. 3d 246, 257 (E.D.N.Y. 2019). “This is why, as the Government correctly notes, federal prisoners should be detained in facilities run by trained personnel from federal correctional facilities.” Id. at 258 (citing Sabhnani, 493 F.3d at 74 n.13 (“To the extent [armed private guards] implies an expectation that deadly force may need to be used to assure defendant[’s] presence at trial … [s]uch a conclusion would, in fact, demand a defendant’s detention”)).

The Second Circuit has held it is not legal error “for a district court to decline to accept,” as “a substitute for detention,” a defendant hiring private security guards to monitor him. United States v. Banki, 369 Fed. App’x 152, 153-54 (2d Cir. 2010). In the same decision, the Second Circuit noted that it was “troubled” by the possibility of “allow[ing] wealthy defendants to buy their way out by constructing a private jail.” (internal quotation marks omitted)). Id.; accord, e.g., United States v. Cilins, No. 13 Cr. 315 (WHP), 2013 WL 3802012, at *3 (S.D.N.Y. July 19, 2013) (“‘it is contrary to underlying principles of detention and release on bail that individuals otherwise ineligible for release should be able to buy their way out by constructing a private jail, policed by security guards not trained or ultimately accountable to the Government, even if carefully selected’” (quoting Borodin v. Ashcroft, 136 F. Supp. 2d 125, 134 (E.D.N.Y. 2001))); Valerio, 9 F. Supp. 3d at 293-94 (E.D.N.Y. 2014) (“There is nothing in the Bail Reform Act that would suggest that a defendant (or even, hypothetically, a group of defendants with private funding) has a statutory right to replicate or construct a private jail in a home or some other location.”).

The defendant’s payment of his guards also raises the conflict of interest inherent in having the defendant having extraordinary influence over a private security company tasked with guarding him, leaving the company’s incentives entirely aligned with the defendant. See, e.g., Boustani, 356 F. Supp. 3d at 257 (in finding that private armed guards would not reasonably assure the appearance of a defendant, noting a “clear conflict of interest—private prison guards paid by an inmate” and noting that in a recent S.D.N.Y. case involving private security guards the defendant “was outside of his apartment virtually all day, every weekday; was visited by a masseuse for a total of 160 hours in a 30-day period; and went on an unauthorized visit to a restaurant in Chinatown with his private guards in tow”); see also United States v. Tajideen, 17 Cr. 046, 2018 WL 1342475, at *5-6 (D.D.C. Mar. 15, 2018) (finding Zarrab “particularly instructive” and further noting: “While the Court has no reason to believe that the individuals selected for the defendant’s security detail would intentionally violate federal law and assist the defendant in fleeing the Court’s jurisdiction, it nonetheless is mindful of the power of money and its potential to corrupt or undermine laudable objectives. And although these realities cannot control the Court’s ruling, they also cannot be absolutely discounted or ignored.”).

Finally, in Zarrab this Court found that “the Defendant’s privately funded armed guard proposal is unreasonable because it helps to foster inequity and unequal treatment in favor of a very small cohort of criminal defendants who are extremely wealthy, such as Mr. Zarrab.” 2016 WL 3681423, at *13; see also Boustani, 356 F. Supp. 3d at 258 (“although this Defendant has vast financial resources to construct his own ‘private prison,’ the Court is not convinced ‘disparate treatment based on wealth is permissible under the Bail Reform Act’”) (quoting United States v.

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