UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Criminal No. 15-mj-139 (GMH) ) HANAN AL SHARAF, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Defendant Hanan Al Sharaf is charged in a one-count criminal complaint with conspiracy

to commit money laundering, in violation of

(h). Complaint [Dkt. 1] at 1. On

March 9, 2015, the undersigned held a pretrial detention hearing following which the defendant

was released on a $100,000 cash bond and placed into home confinement in the High Intensity

Supervision Program (“HISP”). The Court issued an order further detailing the conditions of the

defendant’s release. See Release Order [Dkt. 5]. Since the detention hearing, the United States

and defendant appear to have substantially cooperated with one another in recommending

additional conditions of release that will ensure the defendant’s appearance at future court

proceedings without undue deprivation of her liberty. The defendant has filed several unopposed

motions to modify the conditions of her release, all of which have been granted. See Orders

Modifying Conditions of Release of April 1, 2015 [Dkt. 20], May 18, 2015 [Dkt. 23], and June 5,

2015 [Dkt. 29].

On June 1, 2015, the United States again moved to modify the condition of defendant’s

release to restrict Ms. Al Sharaf from “transferring, conveying, or moving within the United

States or removing from the United States, without court permission, any property valued at

more than $500, or funds cumulatively valued at more than $1,000 except to pay for legal expenses or ordinary and necessary living expenses.” Motion to Modify Conditions of Relief

[Dkt. 27] (“Motion”) at 2. In support of its motion, the United States argues that “[t]his

modification would protect assets from being dissipated or concealed so that they are available to

be used in an effort to make victims whole as required by the Mandatory Victim Restitution Act,

enumerated at

, and the Crime Victims’ Rights Act, enumerated at

.”

Since the motion was filed, the parties have reached a partial agreement concerning

the motion’s resolution. See Defendant’s Opposition to Gov’ts Motion to Modify Conditions of

Release [Dkt. 32] (“Opp.”) at 2. First, the defendant has agreed not to transfer funds valued at

more than $1,000 except to pay for legal expenses or ordinary and necessary living expenses.

See

Second, the defendant has agreed to permit a government agent to search shipping boxes

containing household furnishing that she wishes to ship back to Kuwait 1 to ensure that no cash is

being concealed inside. See

Accordingly, given the parties’ agreement, the government’s

motion is denied as moot with respect to its request for further restriction on the transfer of

defendant’s funds and for inspection of the defendant’s property before it is shipped to Kuwait.

However, one request remains in dispute between the parties, i.e., the government’s

request that the defendant be prohibited from shipping her two automobiles back to Kuwait, or, if

the defendant is permitted to ship the cars, that the defendant post, in an escrow account, the

dollar equivalent value of the cars to be accessed in the event of a conviction and order of

restitution.

. The United States has valued the two cars at a total of $47,725.

.

The defendant opposes the government’s request, and states that she does not have the money

necessary to post the escrow the government demands.

. For the reasons detailed

below, this remaining request will be denied.

1 The defendant’s family resides in Kuwait. Opp. at 2.

2 In setting conditions of release for a criminal defendant pending trial, the Bail Reform

Act requires the judicial officer to consider whether any Court-ordered conditions will

reasonably ensure the safety of the community and the appearance of the defendant at future

proceedings.

(c). This Court is aware of no authority, in this Circuit or

elsewhere, that would permit the Court to restrain the defendant’s property under the Bail

Reform Act for reasons other than protecting the community or ensuring the defendant’s

appearance in Court. The government in its motion does not argue otherwise. Rather, it seeks to

support its request under the Mandatory Victim Restitution Act (“MVRA”),

,

and the Crime Victims’ Rights Act (“CVRA”),

, both of which concern the

rights of victims to restitution in criminal cases. However neither statute expressly grants the

Court the authority to restrain the defendant’s assets prior to a criminal conviction. See

;

. Given the defendant’s presumption of innocence, the Court is

wary of assuming the authority to further restrain her property pending trial in the absence of an

express statutory grant to do so, especially in light of the fact that Congress has provided such an

express grant to restrain assets prior to conviction in other contexts. For instance, Congress has

expressly provided the Court the authority to grant a pretrial restraining order or injunction of a

defendant’s property where it is subject to criminal forfeiture. See

(e). 2

There is no allegation in the present case that the defendant’s two vehicles are subject to

criminal forfeiture. Forfeitable property is “any property, real or personal, involved in [the

charged] offense, or any property traceable to such property.”

(a). Moreover,

the Supreme Court has held that pretrial restraining orders on a criminal defendant’s property in

2 The forfeiture provision corresponding to the charge the defendant faces,

, specifically incorporates some of the forfeiture provisions found in

, including subsection 853(e) which allows the United States to seek a pre-conviction protective order over the defendant’s assets.

(a)(1), (b)(1).

3 the forfeiture context are permissible only where there is probable cause to believe that (1) the

defendant committed an offense permitting forfeiture, and (2) the assets in dispute are traceable

or otherwise sufficiently related to the crime charged. See Kaley v. U.S.,

(2014). Had the United States been seeking to restrain the defendant’s cars under the forfeiture

statute, its claim would clearly fail the second prong of the Supreme Court’s test – the

government does not allege that the defendant’s cars are derived from, or in any way connected

to, the defendant’s alleged criminal activity. Indeed, it is undisputed that that the two cars were

purchased before the criminal activity described in the complaint is alleged to have begun. The

Court thus does not believe that the defendant’s property can be further restrained, pre-

conviction, under the CVRA and MVRA, where neither statute expressly provides that

authority, 3 and, even were such authority to exist, it does not believe that the government’s

burden would be lower under the CVRA and MVRA than its burden under the forfeiture statute.

Aside from the lack of authority for the government’s request, the Court has additional

concerns. First, the Court is troubled by the government’s delay in making this request. The

United States did not seek to restrain the defendant’s property from the outset, thereby permitting

the defendant to convert whatever ill-begotten assets she may have had if that was indeed her

intent. Second, the requested restraint on defendant’s property may be onerous for the

3 The government’s papers cite to a single, unpublished case for the proposition that the CVRA authorizes the Court to impose conditions of release in order to protect the restitution interests of victims. See U.S. v. Gallion, No. 07- CR-39,

, at *5 (E.D. Ky. Sept. 19, 2007). In Gallion, the District Court required the defendants to produce certain financial records prior to setting conditions of release, citing the need to determine appropriate bond as well as the duty to ensure crime victims’ right to restitution.

But the conditions imposed in Gallion are distinguishable from the government’s instant request. The Gallion court only required disclosure of certain financial information; the court did not order any actual restraint on the defendants’ property. Additionally, the Gallion court was careful to note that requiring the production of financial information for the purpose of determining conditions of pretrial release has been held not to violate a defendant’s Fifth Amendment right against self-incrimination. See

at *6 (citing U.S. v. Rechnitzer, No. 05-CR-368,

, at *5-6 (N.D.N.Y. Feb. 28, 2007)). For these reasons, the Court does not read Gallion as persuasive authority for the proposition that it may restrain the defendant’s assets prior to a criminal conviction.

4 defendant. Further proceedings in this case may be delayed until May 19, 2016, while the

United States waits for the State of Kuwait to respond to their legal assistance request for

evidence. See May 20, 2015, Order [Dkt. 26] (granting an exclusion of time, not to exceed one

year, from calculation under the Speedy Trial Act, pursuant to

(h)(8)). Third,

the United States has not identified anywhere near the amount of assets necessary to satisfy the

restitution needs of the victim 4 in this case. The complaint alleges approximately $2 million in

embezzled funds while the amount recoverable on the cars totals less than $50,000. The

government’s request strikes the Court as unduly burdensome on the defendant where the benefit

to the victim that may result from restraint of the property would be minimal.

Finally, the defendant is presumed to be innocent until the United States proves her guilt

beyond a reasonable doubt. See Coffin v. U.S.,

(1895). As reflected in this

Court’s ruling at the preliminary hearing, although the United States has established probable

cause justifying the charges against the defendant, its case against the defendant, at present, is

not without difficulty or beyond challenge by the defense. Accordingly, the undersigned is

unwilling, at this time, to restrain the defendant’s property where the property is undisputedly not

derived from, nor in any way connected to, the defendant’s alleged criminal activity.

An Order accompanies this Memorandum Opinion. Digitally signed by G. Michael Harvey DN: cn=G. Michael Harvey, o, ou, [email protected] s.gov, c=US Date: 2015.07.13 14:46:35 -04'00' Adobe Acrobat version: 11.0.10 Date: July 13, 2015 ______________________________ G. Michael Harvey United States Magistrate Judge

4 The victim in this case is the Government of Kuwait, whose funds the defendant is accused of embezzling. See Affidavit in Support of Complaint [Dkt. 1-1] at ¶ 6.

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