rogan's memo for release

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION UNITED STATES OF AMERICA, )

) Plaintiff, )

) v. ) No. 08 CR 415

) Judge Harry D. Leinenweber PETER G. ROGAN, )

) Defendant. )

DEFENDANT=S MEMORANDUM IN

SUPPORT OF HIS RELEASE PENDING TRIAL

Defendant, PETER G. ROGAN, by and through his attorneys, BREEN &

PUGH, respectfully moves this Court, pursuant to 18 U.S.C. ' 3142, for release on

his own recognizance.

LEGAL STANDARD

The Bail Reform Act of 1984 favors a defendants release over pretrial

detention. United States v. Barnett, 986 F. Supp. 385, 392 (W.D. La. 1997). The Act

requires a defendants pretrial release under the least restrictive condition or

combination of conditions that will reasonably assure the appearance of the person

as required and the safety of the community. Id. The Act provides a court with

four options with respect to release or detention: (1) release on personal

recognizance; (2) release on conditions; (3) temporary detention to permit revocation

of conditional release; and (4) detention. 18 U.S.C. 3142(a) (West 2015).

Because the Act favors release under the least restrictive conditions, a court

shall order the pretrial release of a defendant on personal recognizance, or upon the

Case: 1:08-cr-00415 Document #: 82 Filed: 06/30/15 Page 1 of 11 PageID #:486

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execution of an unsecured appearance bond, unless the court determines that such

release will not reasonably assure the appearance of the defendant as required. 18

U.S.C. 3142(b) (West 2015). Only after there is a determination that release on the

least restrictive level will not reasonably assure the appearance of a defendant does

the court consider release on conditions. Barnett, 986 F. Supp. At 392. In

determining what conditions will assure the appearance of a defendant, the Bail

Reform Act directs courts to consider: (1) the nature and circumstances of the

offense charged; (2) the weight if the evidence against the defendant; (3) the history

and characteristics of the defendant; and (4) the nature and seriousness of the

danger to the community posed by the defendants release. 18 U.S.C. 3142(g) (West

2015).

The court may only deny a defendants release where there are no conditions

that will reasonably assure the defendants appearance. United States v.

Hammond, 204 F. Supp. 2d 1157, 1161 (E.D. Wis. 2002). Only in rare

circumstances should release be denied, and doubts regarding the propriety of

release should be resolved in favor of release. Id; United States v. You, 08 CR 181,

2008 WL 2755067, at *2 (N.D. Ill. July 14, 2008); United States v. Ali, 05 CR 936,

2005 WL 3115876, at *2 (N.D. Ill. Nov. 18, 2005). The wide range of conditions

available to the court ensures that very few defendants are subject to pretrial

detention. Barnett, F. Supp. At 392. Therefore, in some cases, release will be

mandated despite the fact that it will endanger an individual or the community, or

present a probability of non-appearance. Id. The government must prove by a


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preponderance of the evidence that a defendant poses an unacceptable risk of flight

before the court orders the defendant detained. United States v. Jones, 804 F. Supp.

1081, 1088 (S.D. Ind. 1992).

ARGUMENT

The government claims that Mr. Rogan is a serious flight risk whose

appearance at trial can only be assured through pretrial detention. Specifically, the

government argues that in 2006, after a civil judgement was entered against him,

Mr. Rogan fled the United States for Canada and has remained there ever since.

Further, the government points to instances it claims Mr. Rogan willfully

disregarded court orders. It concludes that Mr. Rogan would be unable or unwilling

to comply with court orders upon his release in this matter. Mr. Rogans move to

Canada and his alleged failure to comply with court orders are the basis of the

governments argument that Mr. Rogan poses a substantial risk of flight and must

be detained pending trial.

Despite the labels used by the government to describe his move to Canada,

Mr. Rogan did so openly and in a manner consistent with Canadian immigration

laws. The governments attempt to label Mr. Rogan as a fugitive fleeing from his

legal responsibilities is a misstatement. Moreover, the very argument the

government now advances in support of Mr. Rogans detention was twice rejected by

Canadian judicial authorities.

I. The Government Actively Sought Mr. Rogans Removal from Canada In October 2006, Mr. Rogan and his wife moved from the United States to


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Canada. They moved to Canada openly and legally, entering Canada on a visitors

visa, hiring immigration counsel, and thoroughly abiding by the terms of their

visas. In January 2007, Mr. Rogan and his wife applied for permanent residency in

Canada. In addition to hiring immigration counsel, Mr. Rogan hired Canadian

counsel to assist him in the governments enforcement of its civil judgement. The

United States government was aware of Mr. Rogans move to Canada, where he was

living, and was able to correspond with Mr. Rogan and his Canadian counsel.

As early as January 2007, the United States began seeking the assistance of

Canadian authorities in an attempt to force Mr. Rogan to move back to the United

States.1

The United States and the Canadian authorities began discussing ways in

which Canada could have Mr. Rogan removed and sent back to the Untied States.

The Canadian authorities inquired into the timeframe it would take the United

States to charge Mr. Rogan with contempt and have a warrant issued for his arrest.

Canadian authorities indicated they were reviewing what if any allegations they

had that were sufficient to have Mr. Rogan deemed inadmissible and removed from

Canada. The United States began working on getting an arrest warrant issued for

Mr. Rogan, as well as moving forward on other matters in the court system to add

fuel to the fire. Indeed, a Canadian immigration entry stated that the FBI and

USDOJ were seeking a warrant for Mr. Rogans failure to appear but needed to

establish a track record of non-appearance, which was taking some time.

1 Mr. Rogans counsel is in possession of exhibits which support the factual claims made herein and can provide those exhibits to the Court upon request.


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The United States Consulate sent a request to the Royal Canadian Mounted

Police (RCMP) asking the RCMP to conduct an investigation to locate Mr. Rogan,

and determine if he was in violation of Canadian immigration laws and whether or

not he could be removed to the United States or if extradition proceedings would be

necessary. Locating Mr. Rogan was hardly difficult in that at all time Mr. Rogan

resided at the same apartment in Canada.2

Officials from Canada and the United States discussed the requirements and

procedure for referring Mr. Rogan to an admissibility proceeding and seeking his

detention. Canadian officials explained that Mr. Rogan would need to be charged

with an act that is an offense in the United States and Canada, and that evidence,

such as police reports, a warrant, or an indictment would be required. Canadian

officials further explained the process for individuals referred for admissibility

hearings and a detention review, including the possible outcomes regarding

detention or conditional release. An official from the United States inquired as to

whether charges of perjury or obstruction were sufficient to initiate an admissibility

hearing against Mr. Rogan, and Canadian officials responded such charges would

be sufficient.

On May 23, 2008, a criminal complaint charging Mr. Rogan with obstruction

of justice was signed and a warrant was issued for Mr. Rogans arrest. The FBI

provided Canadian authorities with a copy of the complaint, affidavit, and arrest

warrant. Additionally, the State Department revoked Mr. Rogans passport and the

2 In 2014, Mr. Rogan did change apartments but in accordance with his Canadian bond requirements, Mr. Rogan informed the Canadian authorities of his change of address.


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FBI coordinated with Canadian authorities to have personnel from the United

States serve Mr. Rogan with the revocation when he was arrested in Canada.

On May 26, 2008, while returning to Canada from China, Canadian

authorities arrested Mr. Rogan and began admissibility proceedings seeking his

removal to the United States. As part of the admissibility proceedings, the Minister

of Public Safety sought the detention of Mr. Rogan on the grounds he was unlikely

to appear for his admissibility hearing. Member Shaw-Dyck, of the Immigration

and Refugee Board of Canada, rejected the Minister of Public Safetys arguments

and released Mr. Rogan on conditions.

In addition to admissibility proceedings, in March 2013, the United States

began extradition proceedings in Canada in further efforts to have Mr. Rogan

returned to the United States.3 A warrant was issued for Mr. Rogans arrest as a

result of the extradition request, and Mr. Rogan was subsequently arrested on April

11, 2013. As part of the extradition proceedings, Canadian authorities again sought

Mr. Rogans detention arguing that Mr. Rogan had an extensive record of failing to

comply with court orders, had moved extensive amounts of money to Canada to

defeat collection efforts, and remained in Canada for the sole purpose of avoiding

the jurisdiction of the U.S. Courts. After two days of evidence and arguments, Mr.

Justice Davies of the Supreme Court of British Columbia rejected the arguments set

forth in support of Mr. Rogans detention and, like Member Shaw-Dyck, released

Mr. Rogan on conditions.

3 The United States also commenced extradition proceedings in May 2008 but subsequently withdrew its extradition request in June 2008.


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II. Mr. Rogan Does Not Present a Substantial Risk of Flight The issue before this Court is whether there is any set of conditions that will

reasonably assure Mr. Rogans appearance in this matter. Mr. Rogan has already

demonstrated his willingness to appear in court as required and obey any conditions

of release set by the court. Mr. Rogan was subject to two separate bonds while

living in Canada and abided by the conditions of those bonds. On June 3, 2008 Mr.

Rogan was released from custody pending his admissibility hearing and was

required, among other things, to report to a Canadian Border Services Agency

(CBSA) officer on the second Thursday of every month, and provide the CBSA

with his address and appear in person to advise the CBSA of a change of address

prior to the change being made. On April 18, 2013, Mr. Rogan was released from

custody on conditions in relation to the extradition proceedings and was required,

among other things, to remain in British Columbia unless otherwise ordered by the

court, report to a bail supervisor on the second Thursday of every month, and

provide the bail supervisor with his address and inform the bail supervisor of any

change of address.

Notably, none of the Canadian bonds releasing Mr. Rogan required him to

post security as a condition of release. Rather, the bonds imposed minimal

conditions, which required Mr. Rogan to remain in British Columbia, report

monthly to each agency, and keep each agency informed as to his address. No

violation was ever filed accusing Mr. Rogan of violating any of his bond conditions,

or for failing to appear in court. There is no reason that this Court should find that


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Mr. Rogan would fail to appear in court or disobey any condition required of him for

his release. Mr. Rogan waived extradition and voluntarily came back to the United

States knowing that the government would seek his detention pending trial in this

matter. In order for Mr. Rogan to return to the United States after waiving

extradition, the United States had to issue travel documentation as the government

had revoked his passport. To argue now that Mr. Rogan will fail to appear when

required simply ignores that Mr. Rogan has consistently obeyed every condition of

bond imposed upon him, and has now voluntarily returned to the United States.

The governments submission in support of detention lists instances in which

the government claims Mr. Rogan has violated court orders, and argues that based

on his alleged willful disobedience of those orders, Mr. Rogan appearance cannot be

reasonably assured. The government points to certain instances in 2008 in which

Mr. Rogan was ordered to personally appear in court but failed to do so. However,

this argument ignores certain facts. The government, in actively seeking Mr.

Rogans removal from Canada, caused Mr. Rogans inability to travel in that he had

no passport and was subject to bond conditions. The government now wishes to use

this as evidence to support detention.

After criminally charging Mr. Rogan, and using that charge to seek his

removal from Canada, the government created a situation whereby Mr. Rogan could

not have simply returned to the United States and appear in court. First, Mr.

Rogan was released on bond subject to certain conditions, which Mr. Rogan believes

prohibited him from leaving British Columbia. Second, the government revoked


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Mr. Rogans passport leaving him without travel documents. Third, even if

returning to the United States was as simple as booking a flight to Chicago, the

manner and circumstances in which the government secured the criminal complaint

and warrant for his arrest alarmed Mr. Rogan, as it appeared the government was

using the criminal justice system in an effort to enforce a civil judgement.

Mr. Rogan, at all times following his application for permanent residency,

had the advice of Canadian counsel. Mr. Rogan was exercising his rights, first in

the immigration court and later in the extradition court. Mr. Rogans counsel, as

well as the Canadian judges, were suspicious of the manner in which the United

States was using the criminal justice system to enforce a civil judgement.4

Given the circumstances, the government cannot now complain that Mr.

Rogan failed to appear. Mr. Rogan was not free to merely return to Chicago for a

court appearance. Moreover, based on his concerns over the criminal complaint and

his return to the U.S., Mr. Rogan had the right to contest his removal in the

Canadian courts.

More importantly, a result of the governments actions in seeking Mr.

Rogans removal from Canada, Mr. Rogan does not possess the means to flee the

jurisdiction of this Court. Mr. Rogan has no passport or other travel documents

that could be used to escape to another country, and he would most certainly be

denied entry to another country because of the pending charges against him. If

released, Mr. Rogan would have no option but to remain in the United States.

4 Mr. Rogans counsel is in possession of transcripts reflecting the Canadian judges concerns and can provide those to the Court upon request.


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As of June 30, 2015, the government has provided Mr. Rogans counsel with

nineteen CDs containing over twenty-thousand pages of discovery, not including the

public filings in both United States v. Rogan, 02 CV 3310, and Dexia v. Rogan, 02

CV 8288, and ninety-two boxes of documents seized from Mr. Rogans office. Mr.

Rogans assistance is crucial in reviewing the discovery and locating relevant

documents. Mr. Rogans ability to review the discovery and assist counsel would be

greatly diminished if he was to be detained pending trial.

WHEREFORE, Defendant Peter G. Rogan, respectfully requests this

Honorable Court release him on his own recognizance pending trial, or in the

alternative, release him on the least restrictive conditions the Court determines

would reasonably assure his appearance.

Respectfully submitted,

/s/ Thomas M. Breen

Thomas M. Breen Todd S. Pugh Jonathan M. Brayman Robert W. Stanley BREEN & PUGH 53 W. Jackson Blvd., Suite 1460 Chicago, Illinois 60604 (312) 360-1001 (t) (312) 362-9907 (f)


CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that the following document:

DEFENDANT=S MEMORANDUM IN SUPPORT OF HIS RELEASE PENDING TRIAL

was served on June 30, 2015, in accordance with Federal Rule of Criminal Procedure 49, Federal Rule of Civil Procedure 5, Local Rule 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district courts system as to ECF filers. By: /s/ Thomas M. Breen THOMAS M. BREEN


rogan's memo for release

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