Case 2:10-cr-00822-DGC Document 202 Filed 11/22/11 Page 1 of 5

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ANN BIRM INGHAM SCHEEL Acting United States Attorney District of Arizona KEVIN M . RAPP Assistant U.S. Attorney Arizona State Bar No. 014249 Kevin.Rapp@usdoj.gov M ONICA B. KLAPPER Assistant U.S. Attorney Arizona State Bar No.013755 Monica.Klapper@usdoj.gov Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CR-10-00822-PHX-DGC

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United States of America, Plaintiff, v. Eitan Maximov, Defendant. Pursuant to 18 U.S.C. 3143(a) and 8 U.S.C. 1226(c)(1)(B), the United States requests this Court to detain Defendant pending the imposition of sentence. Because Defendant has been convicted of the charged offenses, detention is presumed under 18 U.S.C. 3143(a). Additionally, because Defendant is a lawful resident alien convicted of an aggravated felony, he is conclusively presumed to be deportable under 8 U.S.C. 1228(c) and detention is mandatory for immigration purposes under 8 U.S.C. 1226(c)(1)(B). This request is based on the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Detention pending sentencing is statutorily presumed and is appropriate in this case. A jury has found Defendant guilty of one count of conspiracy to commit bank or wire fraud, a class B felony, and wire fraud, a class C felony. Under 18 U.S.C. 3143(a), absent clear and UNITED STATES MEMORANDUM REGARDING DETENTION OF DEFENDANT PENDING SENTENCING

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1 convincing evidence that Defendant is not likely to flee or pose a danger to the community, 2 detention is mandatory as follows: 3 4 5 [T]he judicial officer 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 . . . .

6 (Emphasis added.) 7 Although the Ninth Circuit Court of Appeals has not thoroughly addressed this provision,

8 other circuit courts have done so and hold that there is no constitutional right to bail pending 9 sentencing and, further, that the law disfavors release pending sentencing. E.g., United States v. 10 Abuhamra, 389 F.3d 309, 317 (2nd Cir. 2004). Thus, the burden on the defendant to demonstrate 11 lack of flight risk and risk of harm is plainly substantial. Id. at 316-320. This is because the 12 government has 13 14 15 16 Id. at 320. 17 Defendant cannot meet a burden of clear and convincing evidence in this case, and 18 therefore should be detained. As set forth below, Defendants circumstances and the potentially 19 lengthy prison sentence he faces support detention. 20 A. 21 22 The same factors that existed when this Court affirmed pre-trial detention still exist to support post-trial detention pending the imposition of sentence. a strong and obvious countervailing interest in detaining defendants who have been found guilty beyond a reasonable doubt of serious crimes; such detention providing public safety by removing a presumptively dangerous person from the community; it also encourages general respect for the law by signaling that a guilty person will not be able to avoid or delay imposition and service of the sentence prescribed by law.

When Defendant challenged his detention on a $500,000 bond after the first indictment,

23 this Court aptly summarized Defendants flight risk as follows: 24 25 26 27 28 2 A number of factors in Defendants life suggest that he is a flight risk. These include the serious charges pending against him, the weight of the evidence described by the Government, the fact that Defendant faces a lengthy prison sentence if convicted, the fact that Defendant likely will be deported if convicted, Defendants Israeli citizenship, and the lack of any property ownership or financial ties to the United States. Although Defendant has sons in Arizona, his relationship with them appears to have been sporadic. Both parties admit that Defendant experienced an acrimonious divorce with his Arizona-based wife. Although some

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factors suggest that Defendant is not a flight risk, including the fact that he returned to the United States knowing that a criminal investigation was underway, a preponderance of the evidence suggests that there is a risk of flight and that a substantial bond is needed to ensure Defendants appearance at trial. (CR 08-0836-PHX-DGC, Dkt. 62.) This Court affirmed the bond imposed, and Defendant

4 remained in custody. Many of the same circumstances continue to exist and, because Defendant 5 now stands convicted of class B and C felonies, are even more compelling. 6 Defendants sons and their mother now reside in Isreal, giving Defendant even less incentive to 7 remain in the United States. 8 B. 9 10 Defendants incentive to flee has increased because he is facing a lengthy term of incarceration. Moreover,

The length of a potential sentence is generally accepted as an indicator of flight risk.

11 Abuhamra, 389 F.3d at 309. Under the U.S. Sentencing Guidelines, Defendant potentially faces 12 168 to 210 months imprisonment, which equates to 14 to 17.5 years imprisonment, as follows: 13 14 15 16 17 18 19 20 Base offense level under 2B1.1(a): Amount of loss under 2B1.1(b)(1) ($2.5M to $7M): Use of sophisticated means under 2B1.1(b)(9): 7 +18 +2

$1M derived from financial institutions 2B1.1(b)(14): + 2 Leadership role 3B1.1(a): Obstruction of justice 3C1.1: TOTAL +4 +2 35 (168-210 months)

Thus, although Defendant has spent almost 2 years in pre-trial custody, he faces a lengthy

21 additional term of imprisonment. The preliminary loss amount is set forth in the chart attached 22 as Exhibit A. That amount will increase when this Court factors in the losses to the neighborhoods 23 from the foreclosures caused by Defendants criminal conduct. The United States expects to 24 present this Court with an expert evaluation on the impact of the foreclosures involved in 25 Defendants scheme on the neighborhoods in which the houses are located. 26 The factors set forth in 18 U.S.C. 3553 likewise support a lengthy term of imprisonment.

27 The evidence presented at trial revealed that Defendant engaged in a variety of blatantly fraudulent 28 3

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1 activities to obtain real property and cash in the United States: he lied on a multitude of residential 2 loan applications, he deceived mortgage lenders into providing cash back to his fictitious 3 company, and he used straw buyers to create the appearance of legitimate sales. He obtained 4 almost $1M in about a year, was on the verge of obtaining another $650,000 when the fraud was 5 discovered, and had at least one other multi-million dollar property in his sights. Preliminary 6 calculations put the actual and intended loss at approximately $6.5M. 7 At the very same time Defendant was draining the cash out of the properties he obtained,

8 he was claiming under oath that he had little to no income for purposes of spousal maintenance 9 and child support. Evidence also revealed that, shortly thereafter, Defendant lied on his

10 application for United States citizenship. Thus, the fraudulent and deceptive nature of the offenses 11 reflect on the seriousness of the criminal conduct, the poor character of Defendant and the need 12 to protect society from further harm. 13 In this district, lengthy prison sentences are imposed on non-cooperating defendants

14 convicted of mortgage fraud schemes involved in this case. The chart attached as Exhibit B which 15 summarizes the sentences imposed in recent mortgage fraud cases in this district. It includes, for 16 example, a 64-month term of imprisonment following a guilty plea for Jeffrey Crandall, a leader 17 of a mortgage fraud scheme that resulted in a $1.6M loss. (CR 08-00255-PHX-GMS.) It also 18 includes a 200-month term of imprisonment for Mario Bernadel, a leader of a mortgage fraud 19 scheme who was convicted after a trial, with a loss of $9.5M and a criminal history category II. 20 (CR 08-00256-PHX-SMM.) 21 II. 22 The law presumes that Defendant, a lawful resident alien, will be removed from the United 23 States because of his criminal convictions. A lawful resident alien who is convicted of an 24 aggravated felony is conclusively presumed to be deportable and is not subject to having 25 removal proceedings cancelled by the United States. 8 U.S.C. 1228(c), 1229b(a)(3). Under 26 8 U.S.C. 1101(a)(43)(M)(i), an aggravated felony is defined to include an offense that . . . 27 involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. Wire fraud, 28 4 Defendant also faces deportation as a lawful resident alien convicted of an aggravated felony and must be detained accordingly.

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1 mail fraud and bank fraud fall within the definition of aggravated felony. See, e.g., Nijhawan v. 2 Holder, 557 U.S. 29, 33-38 (2009) (affirming finding of aggravated felony for alien convicted of 3 mail, wire and bank fraud). Accordingly, detention of an lawful resident alien convicted of an 4 aggravated felony is mandatory under 8 U.S.C. 1226(c)(1)(B): The Attorney General shall take 5 into custody any alien who . . . is deportable by reason of having committed [an aggravated 6 felony]. (Emphasis added.) 7 8 9 10 s/ Monica B. Klapper 11 12 13 Certificate of Service: 14 I hereby certify that on November 22, 2011, I electronically transmitted the attached document to the Clerks office using the CM/ECF System to the following registrant: Patricia Gitre, attorney 15 for Defendant Eitan Maximov. 16 17 18 19 20 21 22 23 24 25 26 27 28 5 KEVIN M. RAPP MONICA B. KLAPPER Assistant U.S. Attorneys ANN BIRMINGHAM SCHEEL Acting United States Attorney District of Arizona Respectfully submitted this 22 nd day of November, 2011.