Court: Court of Appeals for the D.C. Circuit; January 15, 2018; Federal Appellate Court
Defendant Harry Meir Mimoun Amar has filed a Motion for Pretrial Release while facing charges of Conspiracy to Commit Wire Fraud, as indicted by a federal grand jury in Washington, D.C. Amar, a dual citizen of Israel and Morocco, was arrested in Israel and extradited to the U.S. after a lengthy legal battle. The Department of Homeland Security has issued a detainer for him due to his status as a removable alien. Initially consenting to detention, Amar now seeks release, arguing he does not pose a flight risk, has no criminal history, and has strong ties to the U.S., alongside a potential defense.
He is willing to post a $2,000,000 bond and comply with conditions such as home confinement, electronic monitoring, and regular reporting to Pretrial Services. The Court, referencing the Bail Reform Act, must determine if any conditions could assure the safety of the community and ensure his appearance at trial.
The Court found by a preponderance of evidence that Amar poses a serious flight risk, primarily due to the serious nature of the charges, which involve sophisticated fraud techniques including document falsification and a cyber fraud scheme that allegedly defrauded companies of over €10 million. While Amar disputes his involvement in specific acts, the Court maintains that as part of a conspiracy, he could be held accountable for actions taken by co-conspirators. Thus, the Court ultimately denies his motion for pretrial release.
Defendant is described in the Superseding Indictment as a key player in a significant conspiracy involving a Business Email Compromise (BEC) scheme, where he not only participated but allegedly masterminded the fraud, providing a template to co-conspirators. He faces charges related to fraudulent activities exceeding €1 million. Despite his objections to the application of sentencing guidelines, a conviction could lead to a lengthy prison sentence of up to twenty years. The seriousness of the charges raises concerns about Defendant's potential flight risk.
The Government presents substantial evidence against Defendant, including testimonies from five cooperators who claim he taught them the fraudulent methods, corroborating statements from victims, and recorded communications. This evidence contributes to the perception of Defendant as a flight risk, supported by his history and characteristics. He is implicated in an international cyber fraud scheme that entails evading law enforcement and operating from various countries, including Bulgaria. His multilingual abilities and potential access to overseas funds further enhance his flight risk profile.
Defendant's citizenship status complicates matters; he is not a U.S. citizen and holds citizenship in Morocco, which lacks an extradition treaty with the U.S., and in Israel. His strong ties to Morocco, including family residing there, pose a plausible escape route. Although he claims he could be prosecuted in Morocco, the Court finds this argument speculative. His offer to consent to extradition if he flees to Israel is viewed with skepticism, given his previous resistance to extradition there. Additionally, his lack of legal status in the U.S. and weak connections to the country heighten concerns about his presence at trial. Overall, the combination of serious charges, substantial evidence, and Defendant's international ties substantiate the Court's view of him as a flight risk.
The Court finds no significant connections between the Defendant and the United States, noting that his only ties are weak familial relationships with non-citizen relatives in the country. The Defendant's immediate family resides in Israel, which diminishes the argument for strong connections to the U.S. During a hearing on the Defendant's pre-trial release, he suggested that the Government might prevent him from fleeing by adding his name to a database under 8 C.F.R. 215.2, allowing U.S. Customs and Border Protection (CBP) to detain him if he attempts to leave. This regulation relies on biographic information rather than biometric data, and the Court is skeptical about its effectiveness given the lack of biometric checkpoints and limited outbound controls at border crossings.
The Court shares the Government's concerns regarding the Defendant's potential flight risk, especially considering the nature of the charges against him, which involve fraud and deception. Although the Defendant offers a $2,000,000 bond, the Court lacks sufficient information about his financial situation to determine if this amount is substantial for him or his relatives. The proposed bond would be secured by properties not owned by the Defendant, leading the Court to question the adequacy of this arrangement in ensuring his compliance with release conditions. The Court notes case law indicating that typically, property used to secure a bond should belong to the Defendant, and it finds no evidence that the Defendant could not post a bond with his own assets. There is also insufficient information regarding his relationship with the siblings owning the properties offered as security, further complicating the assessment of the bond's effectiveness in mitigating flight risk.
GPS monitoring can effectively track a defendant's movements but would not prevent a determined individual like the Defendant from fleeing. There is a practical dispute regarding how this monitoring would operate during the Defendant’s courtesy supervision by Pretrial Services in New Jersey. If the Defendant leaves confinement after hours or on weekends, a monitoring company would first notify New Jersey Pretrial Services, which is staffed 24/7. They would then contact District of Columbia Pretrial Services, which lacks after-hours coverage, meaning any non-compliance would only be reported the next business day. This delay could allow a motivated individual to escape. The Court expresses concern about the Defendant's potential to flee, particularly given the serious nature of the charges involving deception and fraud. Factors influencing this conclusion include the Defendant's weak ties to the U.S., citizenship in a country without an extradition treaty, and a history of fighting extradition. Consequently, the Court finds that no combination of release conditions would ensure the Defendant's appearance at trial and denies the motion for pretrial release. The Court's decision is independent of the Government's statement regarding potential detention by DHS. While the Defendant cites cases suggesting it is legally problematic for DHS to detain a defendant under these circumstances, the Court does not need to resolve this issue, as its decision to detain the Defendant stands on other grounds. The Court has considered the Defendant's Supplemental Reply and notes that Pretrial Services also concluded that no conditions would reasonably assure the Defendant's appearance at trial. The Defendant's motion for supplemental reply is granted.
Germany is investigating the Defendant for additional frauds that are not part of the current charges and may pursue prosecution after the present case concludes. The Court refrains from making a definitive ruling on the Defendant's extraterritoriality defense due to insufficient legal briefing at this early stage. However, the Court is skeptical about the strength of this defense, as it does not eliminate the possibility of the Defendant fleeing prosecution. The Defendant has raised this defense in two separate Israeli courts, one of which decided to detain him pending extradition, and the other affirmed this decision, indicating that the courts were not convinced by his argument for release. The Court does not endorse or feel bound by the Israeli courts' findings. The Defendant has also mentioned the potential for the Government to issue an INTERPOL Green Notice, which could restrict his entry into Canada or Mexico; however, this raises practical concerns similar to those that lead the Court to doubt the reliability of using 8 C.F.R. 215.2 to prevent flight. Furthermore, the Defendant's claim that the Pretrial Services agency is prepared to notify the Court of any release condition violations does not alleviate the Court's concern, as any intervention to prevent flight would likely be slow.
