Go Directly to Jail, Do Not Pass Go: Chutzpah: Convicted of Insurance Fraud Appeals to Avoid Going to Jail.

AuthorZalma, Barry
PositionON MY RADAR

Tarek Abou-Khatwa appealed his conviction of a complex, multi-year insurance fraud scheme. He previously asked the court to delay the start of his incarceration pending the outcome of that appeal. On January 31, 2022, the court denied his request, explaining that Defendant's appeal did not present a "close question" as to each count on which he was sentenced to prison.

In United States Of America v. Tarek Abou-Khatwa, Criminal No. 18-cr-67 (TSC), United States District Court, District of Columbia (February 4, 2022) Tarek's multiple appeals in an attempt to avoid was again brought to the USDC.

Defendant filed an "Emergency Motion" with the USDC stating his intent to lodge a second appeal, this time challenging the courts January 31 Order, and he requested that his self-surrender date be postponed pending the outcome of that new appeal.

Defendant's conviction is presumed valid and he bears the burden of rebutting that presumption. In his previous motion, Defendant failed to rebut that presumption because he did not present a "substantial question of law" as to each count of his conviction for which he faces imprisonment. Accordingly, the court held Defendant's self-surrender date in place.

Defendant, undeterred by his losses in the USDC, now argues that his self-surrender date should be delayed while he appeals that decision. He contended that his current self-surrender date is not "sufficient to allow time for briefing before both the district court and the court of appeals, as the parties originally intended." He claims that additional time is necessary for "a motion to the D.C. Circuit appealing this Court's order denying release pending appeal [to be] decided by that Court." He also argues that refusal to grant further delay would "frustrat[e] his appeal rights under Section 3145(c) and Rule 9(b)."

The court disagreed that emergency action is necessary to avoid "frustrating his appeal rights under Section 3145(c) and Rule 9(b)."

ANALYSIS

First, 18 U.S.C. [section] 3145(c) pertains to appeals of detention orders, not release from custody, and so it is inapplicable. Second, nothing in the court's January 31, 2022, Order restricts Defendant's ability to seek relief from the Court of Appeals. The court, aware that the timeline for Defendant to both appeal this court's January 31 Order and receive a decision on that appeal before his February 10 self-surrender date, is truncated. However, Defendant-not the court-bears responsibility for that...

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