United States v. Amar

300 F.Supp.3d 287

UNITED STATES of America,

v.Harry Meir Mimoun AMAR, Defendant

Case No. 16–cr–163–1 (CKK)

United States District Court, District of Columbia.

Filed January 16, 2018

Diane G. Lucas, David B. Kent, Michael John Marando, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Mark Henry Lynch, Covington & Burling LLP, Washington, DC, Alan Vinegrad, Pro Hac Vice, Jordan S. Joachim, Pro Hac Vice, Covington & Burling LLP, New York, NY, for Harry Meir Mimoun Amar.

ORDER

COLLEEN KOLLAR–KOTELLY, United States District Judge

This matter comes before the Court on Defendant Harry Meir Mimoun Amar's [44] Motion for Pretrial Release. A federal grand jury in the District of Columbia has returned an Indictment charging Defendant Amar and three other individuals with Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349. Defendant was arrested last year in Israel by Israeli law enforcement. He is a dual citizen of Israel and Morocco. After fighting against his extradition for seven months, Defendant conceded to extradition and was brought to this country. On November 16, 2017, the United States Department of Homeland Security ("DHS") served a detainer for the Defendant, noting Defendant's status as a removable alien and that the DHS would assume custody of Defendant if he is released by law enforcement.

Defendant initially consented to detention without prejudice before Magistrate Judge G. Michael Harvey, but has now moved to be released pending his trial pursuant to 18 U.S.C. § 3142. Defendant argues that he does not pose a serious risk of flight, has no prior criminal record, has consented to extradition, has roots in the United States, and has a strong potential defense in this case and thus an incentive to appear before the Court. Defendant represents that he is prepared to sign a bond of $2,000,000 and abide by conditions of release including home confinement, electronic monitoring, regular reporting to Pretrial Services, and a consent to being extradited (again, if necessary) from Israel. The Court held a hearing on Defendant's motion on January 5, 2018.¹

The Bail Reform Act provides that a defendant may be detained if the district court finds by clear and convincing evidence "that no condition or combination of conditions will reasonably assure the safety of any other person and the community ...." 18 U.S.C. § 3142(f). Further, a defendant may be detained under the Act if the district court finds by a preponderance of the evidence "that no combination of conditions—either those set out in the Bail Reform Act itself or any others that the magistrate or judge might find useful—can ‘reasonably’ assure that the defendant will appear for trial." United States v. Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996) (per curiam). The district court examines the following factors in making its determination on pretrial release: (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).

The Court finds by a preponderance of the evidence that Defendant poses a serious risk of flight and no combination of conditions will reasonably assure that Defendant will appear for trial if released.² The Court's conclusion is based primarily on three factors. First, although not a crime involving violence or drugs, the offense Defendant is charged with is a very serious one, involving a sophisticated fraud, the falsification of documents, use of false identities, and international safe houses. Defendant and three other alleged co-conspirators are charged with operating a cyberfraud scheme known as a "business email compromise" or "BEC" scheme. According to the Superseding Indictment, Defendant and his alleged co-conspirators would send fraudulent e-mails to mid-level employees at companies, pretending to be high-ranking officials of those companies. Defendants would, allegedly, convince the employees they contacted to move massive sums of money into bank accounts that the Defendants controlled. The charges in the Superseding Indictment involve the alleged defrauding of several companies of over $10 million Euros.

The Court understands that Defendant disputes his role in some of the acts described in the Superseding Indictment, but this argument does not convince the Court that release is appropriate. As an initial matter, given that Defendant is alleged to have engaged in a conspiracy, he may very well be held responsible for all of the acts taken in furtherance of the charged conspiracy, regardless of his direct involvement.

Moreover, it is not as though the role the Superseding Indictment describes Defendant as having played in the conspiracy was a minor one. According to the Government, in addition to personally engaging in the BEC scheme, Defendant also masterminded that scheme, providing a template for this type of fraud to his co-conspirators. Regardless, even if limited to the acts Defendant is directly tied to in the Superseding Indictment, Defendant is still being charged with fraud of over $1 million Euro. Similarly, although the Court understands that Defendant disputes the application of the sentencing guidelines to his role in the alleged conspiracy, if convicted, Defendant could potentially be sentenced to a lengthy prison term. The statutory maximum period of incarceration is twenty years.³ The seriousness of the charged offense makes it more likely that Defendant would attempt to flee prosecution.

Second, based on the proffer of the Government at this early stage, the evidence against Defendant—including the testimony of as many as five Government cooperators that Defendant taught them how to conduct the alleged fraud, corroborating testimony from the victims of the fraud, and recorded conversations—appears significant. The Court understands that Defendant disputes this evidence, but at this point the Court is persuaded that the Government has considerable evidence against Defendant. This too makes Defendant more of a flight risk.⁴

Third, the history and characteristics of the Defendant himself suggest that he is a flight risk and that no conditions will reasonably ensure his presence at trial. Defendant is, allegedly, the mastermind of an international cyber fraud scheme. Specifically, as described above, Defendant is charged with conspiring in a sophisticated multinational scheme of deception that involved evading law enforcement and establishing safe houses in various different countries (including Bulgaria, the country in which overt acts Defendant specifically, allegedly, committed occurred). Defendant allegedly speaks a number of different languages, which would increase the number of possible destinations to which he could flee. Based on the Superseding Indictment and the representations of the Government, Defendant may also have access to funds overseas.

Defendant is also not a citizen of the United States. One of the countries of which Defendant is a citizen—Morocco—has no extradition treaty with the United States, providing Defendant with a plausible destination to which to flee. Defendant has considerable ties to Morocco, including that his brother and parents live there. Although Defendant argues that if he fled to Morocco he could be prosecuted in that country for his alleged crimes, the Court finds this possibility highly speculative and not a convincing assurance that Defendant would not attempt to flee to that country.

Defendant is also a citizen of Israel. Defendant offers to make certain assurances that he would consent to extradition if he fled to Israel, but the Court's consideration of those assurances is colored by the fact that the last time he was in Israel Defendant fought his extradition for nearly seven months, and consented only after receiving two adverse court rulings. As Defendant concedes, it is also not clear whether the consent to extradition Defendant offers to sign would actually be enforceable in Israel. The Government represents that the United States Department of Justice, Office of International Affairs, is unaware of any country that would consider an anticipatory waiver of extradition as binding in its extradition proceeding. See Gov.'s Sur–Reply, ECF No. 48, at 5.

Not only is Defendant not a citizen of the United States—which does not automatically disqualify an individual for pretrial release—Defendant's connection to this country is quite weak. He has no legal status at all here and, unlike in many cases cited in Defendant's briefs, he has not been living or working in this country. The Court is aware of no business, property or other similar types of connections Defendant has with the United States. The only real connection Defendant appears to have to this country is that some of his relatives are apparently living here. But even these familial connections do not appear to be particularly strong. The family members that reside in the United States are, like Defendant, not U.S. citizens. They are permanent resident aliens or are here on a student visa. The Court understands that these individuals are Defendant's siblings, but Defendant does not represent that he visits them frequently or otherwise has close connections with them that would meaningfully connect Defendant himself to the United States. Moreover, although Defendant has siblings in this country, Defendant's wife and children reside in Israel.

At the...