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

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
PETER G. ROGAN,
Defendant.

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No. 08 CR 415
Judge Harry D. Leinenweber

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

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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.
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
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.
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.

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)

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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