United States v. Freitekh

UNITED STATES OF AMERICA, Plaintiff, v. IZZAT FREITEKH, et al ., Defendants.

No. 3:20-CR-00435-FDW-DCK

United States District Court, W.D. North Carolina, Charlotte Division

May 3, 2022

ORDER

FRANK D. WHITNEY, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on the following motions: (1) Defendant Tarik Freitekh's (“Tarik”) Supplemental Motion for Bond Pending Sentencing, (Doc. No. 118); (2) Defendant Izzat Freitekh's (“Izzat”) Motion for Acquittal or to Set Aside the Jury Verdicts, (Doc No. 122); and (3) Tarik's Motion for Acquittal or to Set Aside the Jury Verdicts and to Adopt Co-Defendant Izzat Freitekh's Motion for Judgment of Acquittal or to Set Aside the Jury Verdicts, (Doc. No. 123). On April 13, 2022 the Court held a hearing on Tarik's Supplemental Motion for Bond. The Motions for Acquittal have been fully briefed. Accordingly, the motions are ripe for review. As a preliminary matter, the Court GRANTS Tarik's Motion for Judgment of Acquittal, (Doc. No. 123), solely to the extent it seeks to adopt Izzat's Motion. For the reasons set forth below, however, the Court otherwise DENIES Defendants' motions.

I. MOTION FOR BOND

On March 17, 2022, immediately following the return of the jury's verdict, the Government moved for detention of Defendants. After hearing the parties' arguments, the Court found Tarik failed to meet his burden of establishing by clear and convincing evidence that he was not likely to flee or pose a danger to the safety of any other person or the community. See 18 U.S.C. § 3143(a)(1).

Accordingly, Tarik was remanded into the custody of the U.S. Marshals on March 17, 2022. Thereafter, on March 18, 2022, Tarik filed his Supplemental Motion for Bond Pending Sentencing, (Doc. No. 118), wherein Tarik, through his Counsel, appears to seek reconsideration of the Court's previous ruling because, inter alia, “[t]he Court's oral order of detention was based upon flight risk which [Tarik's Counsel] was not, [on March 17, 2022], fully prepared to address.” (Doc. No. 118, p. 2). On April 14, 2022, the Court held a second bond review hearing. At the hearing, Tarik, through his Counsel, reasserted his belief of eligibility for release pending sentencing, relying primarily on a proposal of a third-party custodian to be paid by Tarik and his family. For the reasons set forth below and at the March and April hearings, the Court again finds Tarik has failed to present clear and convincing evidence that he is not likely to flee or pose a danger to the community if released.

Rule 46 of the Federal Rules of Criminal Procedure conditions a convicted person's eligibility for release pending sentencing or appeal on 18 U.S.C. § 3143. This statute is a product of the Bail Reform Act of 1984. Under 18 U.S.C. § 3143(a)(1), the sentencing judge “shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence ... be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released ..” The statute creates a presumption against release pending sentencing and casts the burden upon defendants to justify release on bail following conviction. See U.S. v. Jinwright, No. 3:09-cr-00067, 2010 WL 2926084 (W.D. N.C. July 23, 2010); U.S. v. Rankin, 289 F.Supp.3d 846, 848 (S.D. Ohio 2017) (citing U.S. v. Vance, 851 F.2d 166, 168-70 (6th Cir. 1988)). Moreover, it is well settled that even if a defendant proffers sufficient evidence tending to rebut this presumption, “the presumption does not disappear entirely, but remains a factor to be considered among those weighed by the district court.” U.S. v. Risley, No. 1:17-cr-147, 2017 WL 2365240, at *2 (M.D. N.C. May 31, 2017) (listing authorities).

As set forth above, the Court previously found Tarik had not presented clear and convincing evidence that he was not likely to flee. Nothing in Tarik's Supplemental Motion, (Doc. No. 118), and none of the evidence presented at the April hearing warrants alteration of the Court's conclusion or establishes that Tarik is not likely to flee and does not pose a danger to the community. Although Tarik has some family that resides in Charlotte, North Carolina, including Izzat, his father and co-defendant in this case, Tarik provided no evidence that he has established a community within or has substantial ties to Charlotte. Instead, the evidence presented shows that Tarik permanently resided and has a driver's license in the State of California, and that he and his wife resided in Waxhaw, North Carolina, at his parent's home, for approximately eighteen months prior to trial, only after the Indictment was entered. Tarik's compliance with his pretrial conditions, which he again argues shows he is not likely to flee, fails to address a material change in circumstances - Tarik has now been convicted and is no longer entitled to a presumption of innocence. Tarik also reasserted he previously surrendered his passport and has seldomly, if at all, travelled internationally in the last ten years. Given the extent with which Tarik was willing to go to avoid criminal conviction, including money laundering, falsifying documents, and concealing material facts, his arguments are insufficient to rebut the presumption of detention after conviction.^[1] Furthermore, with respect to Tarik's improper proposal to pay for a third-party custodian to monitor him pending sentencing, the Government argues, and the Court agrees, that several other courts have considered and rejected similar proposed conditions, finding these conditions an inappropriate means to foster inequity impermissible under the Bail Reform Act. See U.S. v. Boustani, 932 F.3d 79, 82 (2d Cir. 2019); U.S. v. Bothra, No. 19-1953, 2019 WL 8883664, at *2 (6th Cir. Nov. 5, 2019); U.S. v. Tajideen, No. 17-46, 2018 WL 1342475, at *6 (D.D.C. Mar. 15, 2018); U.S. v. Zarrab, No. 15-867, 2016 WL 3681423, at *13 (S.D.N.Y. June 16, 2016). In Boustani, the Second Circuit explained:

We now expressly hold that the Bail Reform Act does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails. It is a fundamental principle of fairness that the law protects the interests of rich and poor criminals in equal scale, and its hand extends as far to each. To interpret the Bail Reform Act as requiring district courts to permit wealthy defendants to employ privately funded armed guards where an otherwise similarly situated defendant without means would be detained would violate this core principle. Such a two-tiered system would foster inequity and unequal treatment in favor of a very small cohort of criminal defendants who are extremely wealthy.

Boustani, 932 F.3d at 82. Finding the Second Circuit's analysis and conclusion of similarly proposed conditions persuasive, the Court finds inappropriate the third-party custodian conditions proposed here, particularly in light of Tarik's conviction and the Court's finding of risk of flight and threat of economic harm to the community, as set forth below. Moreover, the Court notes the third-party custodian conditions, as proposed, do not sufficiently overcome the presumption of detention set forth under Section 3143 because the proposed conditions, including one daily checkin at a random time and access to remote monitoring, do not eliminate the Court's concerns of flight.

In addition, during the April hearing, the Government argued the crimes Tarik was convicted of, including fraud, money laundering, and falsifying and concealing material facts, establish he poses a threat to the safety of the community if released. This Court has previously found that 18 U.S.C. 3143(a) encompasses the pecuniary safety of the community. See Jinwright, 2010 WL 2926084, at *4. The elaborate scheme, including conspiracy, fraud, and the fabrication of documents in an attempt to obstruct justice, Tarik was convicted of certainly support a finding that Tarik is an economic threat to this community. Because Tarik failed to address this issue, he failed to meet his burden of showing by clear and convincing evidence that he does not pose a danger to the community. Accordingly, Tarik has not met his burden to establish either that he is not likely to flee or pose a danger to the safety of any other person or the community. See 18 U.S.C. § 3143(a). The Court, therefore, declines to alter its previous ruling finding detainment necessary and appropriate and DENIES Tarik's Supplemental Motion for Bond Pending Sentencing.

II. MOTIONS FOR ACQUITTAL

After a jury returns a guilty verdict, “the court may set aside the verdict and enter an acquittal.” Fed. R. Crim. P 29(c)(2). “Reversing a conviction due to insufficient evidence is reserved for the rare case where the prosecution's failure is clear.” U.S. v. Mangum, 539 F.Supp.3d 515, 525 (E.D. N.C. 2020) (quoting U.S. v. Beidler, 110 F.2d 1064, 1067 (4th Cir. 1997) (quoting Burks v. U.S., 437 U.S. 1, 17 (1978))) (internal quotations omitted). When considering a motion under Rule 29, a jury's verdict “must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” U.S. v. Mayberry, 341 Fed.Appx. 859, 861 (4th Cir. 2009) (citation omitted). Substantial evidence exists and the court must sustain the jury's verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. U.S. v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original) (citation omitted); U.S. v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)...