Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Bao

United States District Court, N.D. Texas, Dallas Division

December 19, 2017

UNITED STATES OF AMERICA
v.
XU JIA BAO a.k.a FRED XU 3 Criminal Action

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay, United States District Judge.

         Before the court is the Motion to Revoke or Amend Magistrate Judge's Detention Order (Doc. 22), filed December 1, 2017, by Defendant Xu Jia Bao a/k/a Fred Xu (“Xu”). After careful review of the motion, the Government's response, filed December 8, 2017 (Doc. 28), record, and applicable law, the court denies the Motion to Revoke or Amend Magistrate Judge's Detention Order.

         I. Factual and Procedural Background

         Defendant Xu Jia Bao a/k/a Fred Xu (“Xu”) was arrested in Las Vegas, Nevada, on September 27, 2017, pursuant to a warrant issued from the Northern District of Texas. Following his initial appearance before a magistrate judge on September 28, 2017, Xu was ordered detained pending a detention hearing. On October 12, 2017, Xu appeared before United States Magistrate Judge Nancy J. Koppe in the District of Nevada for a detention hearing. Following the hearing, the magistrate judge denied his motion for pretrial release and ordered Xu detained and remanded to custody pending trial, finding him to be a flight risk and a danger to the community.

         On October 24, 2017, the grand jury returned an Indictment against Xu, his co-Defendants Li Ting Ting a/k/a Sunny Lee, Shanghai Waseta International Trade Company (a Chinese company that exported chemicals and purported dietary supplement ingredients to the United States) (“Waseta”), and Max Pharmatech, Inc. (a California corporation that sold and imported into the United States chemicals and purported dietary supplements). In the Indictment, Xu was charged with violations of 18 U.S.C. § 1343 (Wire Fraud) and 21 U.S.C. § 331(a) and § 331(a)(1) (Introduction of Misbranded Food into United States Commerce). The Indictment describes Xu's participation, as a principal of Waseta and in charge of its operations, in a fraudulent scheme to sell mislabeled dietary supplements containing hidden and risky stimulants to major retailers in the United States, knowing that the retailers did not allow the stimulants to be included in products they sold, as the stimulants were banned by the United States Food and Drug Administration (“FDA”).

         II. Motion to Revoke or Amend Magistrate Judge's Detention Order

         On December 1, 2017, Xu filed his motion, pursuant to 18 U.S.C. § 3145(a)(1), asking this court to revoke or amend the magistrate judge's detention order and direct that he be released pending trial in Dallas under any reasonable conditions of bond the court will impose. In support, Xu argues that:

In this case, the Magistrate Judge's order and ultimate determinations that (a) there is no condition or combination of conditions of bond that will secure Mr. Xu's attendance at trial and (b) Mr. Xu poses a danger to the community do not stand up to scrutiny. First, Mr. Xu's passport and visa have been confiscated; he is not able to secure passage out of the country without them. Second, Mr. Xu has ties to the community in the form of U.S. citizens with whom he may live pending trial. Third, Mr. Xu can produce United States citizens who are willing to act as sureties for his bond. Mr. Xu is willing to submit to electronic monitoring and daily or weekly reporting as well as any other reasonable conditions of bond the Court imposes. Finally, the offenses with which Mr. Xu have been charged - i.e., wire fraud and mislabeling dietary supplements - are offenses which the government will presumably argue that Mr. Xu committed, in part, in China and which in any event pose no ongoing threat to any persons in the United States, if they ever did. Finally, Mr. Xu is not able to continue any such alleged activities while he is in Dallas, Texas, and is willing to agree to any reasonable conditions of bond the Court will impose to guarantee same.

         Br. in Supp. Mot. to Revoke or Amend Magistrate Judge's Detention Order ¶ 13.

         In opposition, the Government argues that Xu's motion should be denied because the magistrate judge “correctly determined that Xu presents a risk of flight and that his conduct poses a risk to the public [and][, ] Xu offers no compelling reason for this Court to hold differently.” Gov't Resp. 1. The Government further contends:

No condition or combination of conditions will reasonably assure Xu's appearance in court or ensure the safety of the public. Xu is a foreign national who lives in a country from which extradition is not possible. He participated in a scheme to hide potentially dangerous stimulants in dietary supplements, he has a history of such conduct, he faces a potentially lengthy sentence, and the evidence against him-in the form of emails, written documents, and recorded statements-is overwhelming.

Id. at 3.

         A. Legal Standard

         “When the district court, pursuant to 18 U.S.C. § 3145(b), acts on a motion to revoke or amend a magistrate's pretrial detention order, the court acts de novo and makes an independent determination of the proper pretrial detention or conditions for release.” United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985) (citations omitted). “Under the Bail Reform Act [the “Act”], a defendant shall be released pending trial unless a judicial officer determines that release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989). “[T]he lack of reasonable assurance of either the defendant's appearance or the safety of others or the community is sufficient; both are not required.” Fortna, 769 F.2d at 249 (citations omitted). “[I]n determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, ” a court must consider: “(1) the nature and circumstances of the offense charged . . .; (2) the weight of the evidence against the person; (3) the history and characteristics of the person . . .; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.” 18 U.S.C. § 3142(g). “With respect to the quantum or character of proof, . . . the Act provides that the facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.