Case 1:12-cr-00033-JLK Document 1448 Filed 06/23/17 USDC Colorado Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Criminal Action No. 12-cr-00033-JLK
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. JAMSHID MUHTOROV,
Defendant.

ORDER GRANTING DEFENDANT’S (THIRD) MOTION [Doc. 1418] FOR PRETRIAL
RELEASE ON CONDITIONS
_____________________________________________________________________________
Kane, J.
This matter is before me on Defendant Jamshid Muhtorov’s (Third) Motion for Pretrial
Release (Doc. 1418). The Motion was precipitated by the continuance of codefendant Bakhtiyor
Jumaev’s trial from March 2017 to January 2018. Because Mr. Muhtorov’s trial date remains
set for July 31, 2017, the effect of the continuance was to force Mr. Muhtorov to either abdicate
his previously-recognized right to proceed second to call Mr. Jumaev as a witness in his
defense, or face what would likely be an additional year of pretrial detention in order to
preserve it. Having already spent five and a half years in detention awaiting trial, Mr. Muhtorov
argues an additional year would surely cross the constitutional rubicon from administrative to
punitive.
Mr. Muhtorov’s situation is unprecedented in my experience, and has weighed heavily.
There is a presumption of flight risk and dangerousness that attaches to Mr. Muhtorov because
he is charged with conspiracy and attempt to provide material support to terrorism. See 18
U.S.C. §3142(e)(2). Given that no death or injury is alleged to have resulted from his efforts or
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actions, the maximum sentence he faces on the indicted charges is 15 years.1 Six years of
detention awaiting trial on these charges approaches the range of sentences imposed in other
cases.
I have given Mr. Muhtorov’s request long and careful consideration, and have weighed
the equities thusly:
Mr. Muhtorov’s Motion for Release on Conditions is made under the Bail Reform Act,
which permits the reopening of a detention hearing based on “new information” bearing on the
existence of conditions of release that will reasonably assure defendant’s appearance at trial and
the safety of other persons and the community. 18 U.S.C. §3142(f)(2). The Act also expressly
admonishes that nothing in its provisions “shall be construed as modifying or limiting the
presumption of innocence.” §3142(j). In the two years since Mr. Muhtorov’s detention was last
revisited, there have been substantial developments and new information that bear favorably on
the existence of the requisite conditions for release.
The period of detention he faces without a reopening under §3142(f)(2), moreover,
implicates the presumption of innocence to which he is entitled not only under the Constitution,
but under the Bail Reform Act itself. Under these circumstances, I decline to reconsider the
substantive due process question of whether Mr. Muhtorov’s pretrial detention has become
punitive, rather than administrative, and limit my ruling to the requisite factors under the Act.
My ruling severing Mr. Muhtorov’s trial from Mr. Jumaev’s, together with new information
gleaned from evidentiary hearings that only recently took place, supports the REOPENING of
                                                            
1

 Mr. Muhtorov is charged with conspiracy and attempt to provide material support to the Islamic Jihad Union in 
violation of 18 U.S.C. §2339b, which at the time of the indictment provided for imprisonment of “not more than 15 
years” unless the “death of any person results.” Section 2339b has since been amended to provide for a maximum 
sentence of 20 years. Mr. Muhtorov’s charges are premised on his alleged conspiracy to join the IJU, provide $300 
from Mr. Jumaev to the IJU, and to provide “communications equipment and services” to the IJU. See Second 
Superseding Indictment (Doc. 59). No deaths resulting from this conduct occurred or are alleged.  

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Mr. Muhtorov’s detention hearing under 18 U.S.C. §3142(f)(2), and his Motion for Release on
Conditions (Doc. 1418) is GRANTED for that purpose.
Discussion.
The Bail Reform Act permits the reopening of a detention hearing “if the judicial officer
finds that information exists that was not known to the movant at the time of the hearing and
that has a material bearing on the [question of] whether there are conditions of release that will
reasonably assure the appearance of such person as required and the safety of any other person
and the community.” 18 U.S.C. §3142(f)(2).
Mr. Muhtorov’s original detention hearing was held before a magistrate judge on
February 15, 2012, approximately one month after his arrest. In his Order denying Mr.
Muhtorov’s original motion for release on bond (Doc. 24), the magistrate considered a hastilyassembled pretrial services report, an affidavit and live testimony from FBI Special Agent Hale,
together with comments of counsel to conclude under 18 U.S.C. §3142(g) that Mr. Muhtorov
represented both a flight risk and a danger to the community. As support for the flight risk
determination, the magistrate cited: Mr. Muhtorov’s arrest leaving the country; his statement to
his young daughter that he “may not see her again on earth”; his “prior experience with the
incarceration, in Uzbekistan, of his sister”; and the fact ICE had Mr. Muhtorov under detainer
and “could, theoretically, remove [him] prior to his prosecution.” Findings of Fact and
Conclusions of Law (Doc. 24, pp. 3-6).
Support for the risk Mr. Muhtorov presented to the community was more tenuous, being
premised on the Bay’ah (oath of allegiance) Mr. Muhtorov allegedly made to the IJU and to
“jihad” generally, and the fact Mr. Muhtorov was arrested on his way to Turkey where “Turkish
authorities [had] seized weapons and detained extremists associated with the IJU.” Id. The oath,

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together with the fact he was “leaving behind his wife and children” with over $2800 despite
telling authorities he could “barely support” them, gave the magistrate judge “a grave concern
that, rather than go to jail in the United States,” Mr. Muhtorov “is at risk of choosing an
alternative that would present a risk to other persons or the community.” Id. No other facts
supporting Mr. Muhtorov’s dangerousness were offered or found. Notice was taken of the
memoranda and documents offered by Mr. Muhtorov to rebut the §3142(e)(2) presumption (see
Docs. 19-2, 19-3) but they were accorded no weight. Findings of Fact (Doc. 24) at pp. 1-2.
In July of 2015, more than three and a half years later, Mr. Muhtorov moved for
reconsideration of bail “based on the extraordinary length of pretrial detention.” (Doc. 783). I
denied that Motion in a written Order dated August 19, 2015 (Doc. 809), finding the sole basis
for the motion—the passage of time—to be “insufficient,” under the “circumstances of the
present case” to “justify the relief requested.” I cited the serious nature of the charges; the
severity of the penalties for conviction; the fact Mr. Muhtorov was apprehended while in the
process of leaving the country with money and “electronic equipment capable of being used by
a terrorist organization”; and the threat of violence implicit in these acts as outweighing any
liberty interest “Mr. Muhtorov might claim.” I also invoked the complexity of the case, the zeal
with which Mr. Muhtorov was being defended, and the “absence of any indication that Mr.
Muhtorov was being confined in order to punish him or thwart his exercise of his rights incident
to a fair trial” as indicia weighing against any reconsideration of his pretrial detention.
Now, nearly two years later, Mr. Muhtorov again moves for reconsideration. This time,
unlike in August 2015, there have been certain substantive events and evidentiary changes that
must be noted.


First, in November 2016, I granted Mr. Muhtorov’s motion to sever his trial from

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Mr. Jumaev’s under Bruton v. United States, 391 U.S. 123 (1968), recognizing
Mr. Muhtorov’s right under the Confrontation Clause of the Sixth Amendment to
call Mr. Jumaev as a witness in his defense. See Order (Doc. 1177). At that time,
Mr. Muhtorov’s trial date was moved from March 13, 2017 to July 31, 2017, so
that Mr. Jumaev could be tried as originally planned and then be called as a
witness in Mr. Muhtorov’s trial after jeopardy attached.


On March 1, 2017, after pressure by the court and adverse testimony by the
government’s expert witness, Dr. Guido Steinberg, the government voluntarily
dismissed Counts 5 and 6 of the then-operative Third Superseding Indictment.
Counts 5 and 6 had been added by the government in May of 2016 based on
evidence and translated conversations that had occurred in late 2011 and early
2012 and had been in the government’s custody since then. The counts greatly
expanded the discovery and number of translations defendants had to develop,
and the Counts’ dismissal 12 days before Mr. Jumaev’s trial was prejudicial in the
sense that it meant defendants had wasted a lot of time. On that ground and
others, Mr. Jumaev moved to dismiss the charges against him for Brady
violations. (Doc. 1292.)



On March 13, 2017, the date Mr. Jumaev’s trial was set to begin, I denied Mr.
Jumaev’s Motion to Dismiss and prepared for trial to commence. Before the
venire panel was called in, Mr. Jumaev asked for a brief recess to consider the
impact of my order, and when he returned, moved to continue the trial on grounds
that untranslated discovery materials disclosed in September 2016 were still so
great, and the government’s alleged Brady violations so prejudicial, that counsel

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could not effectively represent him in a trial commencing that day. I granted the
Motion, with the result that Mr. Muhtorov – who was not present in the courtroom
– had little chance to address the continuance or its impact on his speedy trial
rights or his previously recognized rights under Bruton.


An additional change, and one with significant impact on the detention question
before me under §3142(f)(2), is the actual factual basis we now have both for the
nature of the crimes with which Mr. Muhtorov is charged and the flight and
danger risks he poses. In 2015, as in 2012, there was little evidentiary basis for the
findings I was required to make regarding the dangers Mr. Muhtorov poses or his
flight risk. In fact, those findings were premised almost exclusively on Agent
Hale’s Affidavit attached to the original Information in January 2012 and his
testimony before Magistrate Judge Hegarty. Since my August 2015 Order
denying pretrial release, we have had several lengthy evidentiary hearings that
have marshalled many of the facts on which the government will rely to establish
Mr. Muhtorov’s guilt. The January 2017 suppression hearing demonstrated some
of the weakness in the government’s translations and its linguists, and the
February James hearing gave a thorough overview of the evidence the
government has to support its conspiracy claims against both defendants. Dr.
Steinberg’s March 2017 Daubert hearing testimony gave rise to additional
inferences that may be favorable to Mr. Muhtorov, including the fact that he was
not taken particularly seriously by the IJU sodliqar “Administrator” and that he
left for Turkey without ever hatching any plan with anyone from the IJU. There is
reason to believe, after previewing the government’s evidence and the strength of

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his defenses, that Mr. Muhtorov has been invested with a sense of direction and a
reason to stay and see the trial of his case through.
Mr. Muhtorov’s trial date is set for July 31, 2017, and both parties affirm that the trial can
commence on that date. Mr. Muhtorov’s pending motion comes almost two years after his last
and addresses the consequences for him of the events of March 13 and the fact that an exercise
of his Bruton right, which I have endorsed, means he is facing almost another year in pretrial
detention before his trial is complete. I have advised Mr. Muhtorov’s counsel that I would
permit a continuance so that the Mr. Jumaev can be called as a witness on his behalf, but they
assure me that Mr. Muhtorov cannot tolerate a further continuance unless his motion for pretrial
release is granted.
In light of the listed changes, I find that information exists today that was not known to
Mr. Muhtorov or the Court at the time of the original bond hearing and that information has a
material bearing on the issue of whether there are conditions of release that will reasonably
assure his appearance and the safety of the community. See 18 U.S.C. § 3142(f). I further find
that a combination of conditions for release can be crafted that will assure his attendance at a
trial to be held in early 2018 and protect the safety of the community. While I am concerned
about witness intimidation and the actions of Mrs. Muhtorov and others having previously
attempted to contact people they believed were witnesses against Mr. Muhtorov, I am satisfied
that Mr. Muhtorov can be made to understand the gravity of such actions and to comply with
conditions prohibiting that contact.
I make this determination in light of the information now available concerning—
(1) the nature and circumstances of the offense charged;
(2) the weight of the evidence against [Mr. Muhtorov];
(3) the history and characteristics of [Mr. Muhtorov]; and
(4) the nature and seriousness of the danger to any person or the community that would
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be posed by the [his] release.
18 U.S.C. § 3142(g). Among Mr. Muhtorov’s relevant history and characteristics are his family
and community ties, which are substantial, and his work history. §1342(g)(3)(A). His wife,
Nagiza, has lived and worked in the community now for ten years. Muhtorov himself lived and
worked in the community for 5 years without incident before his arrest. Throughout the time of
his detention, Nagiza has visited Mr. Muhtorov. Their third child has been born. Their familial
relationship has deepened.
Most significant in my view are the changes that have occurred as to factors (1) and (2)
of §3142(g), with substantial evidence having been presented since 2015 suggesting Mr.
Muhtorov’s bark was more serious than his bite. His oath of Bay’ah, for example, was made but
not accepted – a fact Dr. Steinberg explains is significant. Tr. (Doc. 1314) at 78-80. According to
the government, Mr. Muhtorov left for Turkey with plans to attend a madrassa, with no invitation
from or other plan or contact from anyone associated with the IJU. Dr. Steinberg’s testimony
again undermined the government’s theory, this time that the madrassa was a “known” conduit
to the IJU. See id.at 84-85. Evidence offered during the James hearing also undermined the
seriousness or depth of the conspiracy between the codefendants, with large majorities of their
conversations involving prattle and topics other than terrorism or plans to support it.
That is not to say that the government’s charges are without merit or that the words and
conduct of Jamshid Muhtorov are not serious or without consequence. To the contrary. The
government, by its actions in surveilling and apprehending Mr. Muhtorov, may have thwarted an
actual plan to provide smartphones and services to the IJU. The content of Mr. Muhtorov’s
conversations with Mr. Jumaev are abhorrent, the videos and pictures on his phone revolting. His
professed desire to join a movement that justifies the murder and maiming of all who dare to

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think differently than he does on matters of faith and religion deeply offend our values of
religious liberty, the sanctity of life, tolerance, justice, and the rule of law. Nor is there any doubt
that the men and women of our security services and intelligence communities act and have
acted with the utmost rigor and good faith. Mr. Muhtorov, however, has already spent more than
five years in detention before even being found guilty of acting, in any way, on his alleged
terrorist beliefs. And it is to this point that I briefly turn.
In United States v. Salerno, 481 U.S. 739, 763 (1987), Justice Rehnquist wrote for a
majority of the Supreme Court that the Bail Reform Act -- despite providing for the pretrial
detention of individuals presumed, under the most sacrosanct of our civil liberties, to be innocent
until proven guilty -- did not violate the Due Process Clause of the Fifth Amendment because
pretrial detention can be considered regulatory, and not punitive. Even the majority recognized
this exception was not without limits, and that pretrial detention could “not be excessive in light
of the perceived evil.” Id. at 754. In dissent, Justice Marshall wrote eloquently against the
majority’s holding, calling the elision of “punishment” as “regulation” to circumvent the
Constitution’s prohibition of its imposition a “mere[] exercise in obfuscation.” Id. at 760.
Justice Marshall quotes Williamson v. United States, 95 L.Ed. 1379, 1382 (1950)
(opinion in chambers), an opinion by Justice Jackson upon review of an application for bail
pending appeal by members of the American Communist Party convicted Under the Smith Act.
‘Grave public danger is said to result from what [the defendants] may be
expected to do, in addition to what they have done . . . . If I assume that
defendants are disposed to commit every opportune disloyal act helpful to
Communist countries, it is still difficult to reconcile with traditional American law
the jailing of persons by the courts because of anticipated but as yet uncommitted
crimes. Imprisonment to protect society from predicted but unconsummated
offenses is . . . unprecedented in this country and . . . fraught with danger of
excesses and injustice . . . .’
Salerno, 481 U.S. at 766. Justice Marshall concludes with the following admonition, which
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surely resonates under the facts and circumstances of this case:
Throughout the world today there are men, women, and children interned
indefinitely, awaiting trials which may never come or which may be a mockery of
the word, because their governments believe them to be ‘dangerous.’ Our
Constitution, whose construction began two centuries ago, can shelter us forever
from the evils of such unchecked power. Over 200 years it has slowly, through
our efforts, grown more durable, more expansive, and more just. But it cannot
protect us if we lack the courage, and the self-restraint, to protect ourselves.
Id. at 767. In this case, at this juncture, I elect to check this power. I find the weight of
evidence and the circumstances of this case have changed in a manner that justifies
finding Mr. Muhtorov can be released for the time necessary to vindicate his right to call
Mr. Jumaev in his defense at trial without presenting an unreasonable risk of flight or any
danger to the community or any other witness in this case.
Conclusion.
Cognitive dissonance is the state of mental discomfort one has when holding two or more
conflicting thoughts at the same time. So in this matter, compliance with the Bail Reform Act,
protection of the public and assurance of the accused’s presence for trial conflict with the
established presumption of innocence and the fundamental priority our system places on
freedom. To end the cognitive dissonance, some sort of transformational learning that
addresses biases must ensue so that while these values remain contrary, their accommodation
can be achieved through greater tolerance.
Experience is the means by which the organization of the recognized biases occurs and
thereby permits a change in view and opinion. It is a way out of the bubble of certainty and
into a full atmosphere containing balance and moderation. Based on the foregoing, I am
GRANTING Mr. Muhtorov’s Motion for Release on Conditions, but will ABATE my order for
his release so that the specific combination of conditions can be aired and determined with

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comment from all sides. I am setting a hearing to determine the contents of my release order
and the specific conditions with which Mr. Muhtorov is expected to abide.
Dated this 23d day of June, 2017.

John L. Kane
SENIOR U.S. DISTRICT JUDGE

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