Pre-Trial Detention Appropriate for a Person Charged with Arson

Arson is a Serious and Violent Crime

Covid-19 No Reason to Allow Bail to Arsonist

Imad Dawara (Dawara) is currently detained pending trial on ten counts arising out of his alleged participation in setting a building on fire as part of an insurance fraud scheme. He now moves for bail arguing he is neither dangerous nor a flight risk. He also argues in light of the circumstances created by the ongoing novel coronavirus 2019 (COVID-19) pandemic, he should be released because he has underlying health conditions making him a high risk for severe illness. Also, because legal visits are suspended during the COVID-19 pandemic, Dawara argues his release is necessary in preparation of his defense and the restrictions violate his Sixth Amendment right to counsel which can only be remedied by his release.

In United States Of America v. Imad Dawara, Criminal Action No. 19-414-1, United States District Court For The Eastern District Of Pennsylvania (May 12, 2020) the USDC Magistrate Judge refused bail and he appealed to the district judge.

BACKGROUND

On February 18, 2018  Dawara and his brother allegedly conspired to and did set fire to the building at 239-41 Chestnut Street in Philadelphia, Pennsylvania. The fire was initiated in the basement of the building where the brothers’ business was housed. After the fire, the brothers attempted to collect on their business’s insurance policy. Dawara and his brother were then indicted with ten counts arising out of the incident.

After a long investigation, Dawara was arrested and the Government moved for pretrial detention. United States Magistrate Judge Timothy R. Rice held a hearing and granted the Government’s motion finding Dawara was both a danger to the community and a flight risk. Dawara has been detained since at the Federal Detention Center in Philadelphia, Pennsylvania (FDC Philadelphia). Dawara and his brother are scheduled for trial beginning September 14, 2020.

Dawara and his brother, by separate indictment, were also charged with conspiracy to defraud the United States for their alleged conduct in evading assessment of their income tax liabilities from 2015 through 2017. The Government again moved for pretrial detention. On April 22, 2020, United States Magistrate Judge Jacob P. Hart granted the motion.

Due to COVID-19, a novel and highly contagious respiratory virus, Pennsylvania (and the world) has confronted a rapidly changing public health crisis that has reached the scale of a global pandemic.

In light of the precautions necessary to prevent the virus’s spread, COVID-19 poses a unique challenge to the prison system. The Bureau of Prisons (BOP) has implemented several protocols to protect the health and safety of the inmates, staff, and general public from the spread of the virus. The BOP’s efforts include quarantining new inmates at the facility until they are cleared, screening inmates by health services prior to placement, suspending visits, and significantly decreasing the traffic of individuals entering the facilities.

Due to the need to mitigate the risk of exposure created by external visitors, the BOP and FDC Philadelphia suspended all legal visits on March 13, 2020. Although COVID-19 appears to be spreading in the community, as of May 11, 2020, there are no positive cases of COVID-19 among inmates at FDC Philadelphia. Also, no inmate has presented any known symptoms of COVID-19 nor has any inmate required testing.

Dawara argued he was neither a danger to the community nor a flight risk under the Bail Reform Act. He then argues he should be released because he suffers from chronic kidney stones making him a high risk for severe illness should he contract COVID-19 and because his release is necessary in preparation of his defense. Finally, Dawara argues his pretrial detention violates his Sixth Amendment right to counsel because he cannot meet with his attorney during the pandemic and the violation can only be remedied by his release.

The Court held a video conference hearing on May 4, 2020.

DISCUSSION

Under the Bail Reform Act, a court may order a defendant detained pending trial only if, after a hearing, the court finds “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other persons and the community.” 18 U.S.C. § 3142(e)(1).

The USDC concluded that the Government met its burden to show by a preponderance of the evidence that Dawara is a flight risk and by clear and convincing evidence that Dawara is a danger to the community.

The charged offenses are serious. Based on the Indictment, there is probable cause to believe Dawara has committed conspiracy to commit arson, conspiracy to use fire to commit a federal felony, malicious damage by means of fire of a building used in interstate commerce, wire fraud and mail fraud, and/or aided and abetted the commission of these offenses. If convicted, Dawara faces a mandatory minimum of 17 years’ imprisonment with the maximum sentence being 180 years’ imprisonment. By conspiring to set and setting the fire in the early morning hours, Dawara and his brother put several lives in danger because the building housed private residences in addition to the businesses and commercial space.

The Government has proffered substantial circumstantial evidence.  Dawara has international ties and should he flee, the Government would be without recourse to have him returned to the United States. Although Dawara immigrated from Syria nearly 20 years ago, he recently returned to Syria just before his arrest. Upon his arrest, he even maintained his Syrian citizenship, despite his current position that he has no connections with Syria.

Although Dawara does not have a criminal history or a history of avoiding prosecution, the Government’s proffered evidence shows Dawara has a history of engaging in fraudulent and deceitful behavior, some allegedly amounting to criminal conduct which has led to his prosecution in this case and the tax fraud case. Dawara’s alleged conduct was not only part of an insurance fraud scheme, but also put many lives in danger. As a result of the fire, at least one firefighter was injured and several private-owned pets were killed.

The court concluded that the Government has met its burden to show by a preponderance of the evidence that Dawara is a flight risk and by clear and convincing evidence that he is a danger to the community and there is no compelling reason, including the existence of COVID-19, warranting Dawara’s release.

ZALMA OPINION

Arson for profit – especially in a structure occupied by innocent people – is the most evil form of insurance fraud. When committed by a wealthy person with citizenship in a foreign country like Syria, the chance that he will escape the jurisdiction is strong. The act of arson putting at risk innocent residents of the structure and injuring a firefighter made it clear that the defendant should not be granted bail.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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