Document 122070000830

defendant cannot simultaneously pursue bail in both the Second Circuit and the district court. To allow her to seek relief in both venues runs counter to the principles of judicial economy underpinning the divestiture of jurisdiction upon the filing of a notice of appeal. See Rodgers, 101 F.3d at 251.1 The Court's lack of jurisdiction to grant the Third Bail Motion does not leave the defendant without a remedy. The defendant can withdraw her pending bail appeal to restore jurisdiction to this Court. Alternatively, the Court can follow the procedure set forth in Rule 37(a) of the Federal Rules of Criminal Procedure, which provides that if the defendant makes a timely motion for relief "that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." However, the defendant should not be permitted to simultaneously pursue bail in both this Court and the Second Circuit. III. The Court Should Not Reverse Its Prior Well-Reasoned and Thorough Bail Decisions Even if this Court had jurisdiction to grant the Third Bail Motion, the motion should be denied. This Court has already twice made the determination that the defendant poses a risk of flight. In particular, the Court has found, "the charges, which carry a presumption of detention, 1 While the Government has not identified a case addressing the precise issue with which the Court is confronted, several considerations support the Government's position that the Court does not presently have jurisdiction to grant the Third Bail Motion. In addition to the rule articulated by the Supreme Court in Griggs, in Ching v. United States, the Second Circuit found that while an appeal from the denial of a Section 2255 motion was pending, the district court could not rule on a motion to amend the Section 2255 motion. 298 F.3d 174, 180 n.5 (2d Cir. 2002) ("The district court could not rule on any motion affecting an aspect of the case that was before [the Second Circuit], including a motion to amend the motion, while that appeal was pending.") Here, too, while the defendant's appeal of the denial of the Second Bail Motion is pending, the Court should not grant the defendant's motion to reconsider that very same bail ruling. Rule 9 of the Federal Rules of Appellate Procedure, which governs release in a criminal case, also supports such a reading. Rule 9(b), which governs release after a judgment of conviction, provides that a "party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction." In United States v. Hochevar, 214 F.3d 342 (2d Cir. 2000), the Second Circuit found that Rule 9(b) contemplates going to the district court first for a bail ruling after a notice of appeal from the judgment of conviction is filed. Rule 9(a), which governs release before a judgment of conviction, does not say anything about going back to the district court for a new bail ruling after a notice of appeal from a prior bail ruling is filed. In addition, Rule 9(a)(2) provides that the court of appeals "must promptly determine" the pre-judgment bail appeal. Such promptness would not be necessary if defendants could go back to the district court with another bail motion while the bail appeal is pending. --- PAGE BREAK --- would be forced to wait years for the defendant's return. As the Government has repeatedly emphasized, the strong possibility that the defendant could successfully resist extradition only heightens the defendant's incentive to flee. (Dkt. No. 100 at 19-20). Indeed, in rejecting the defendant's offer in the Second Bail Motion to execute anticipatory extradition waivers, the Court noted, among other things, "the likelihood that any extradition would be a difficult and lengthy process." (Dec. Op. at 13). The Court further noted that the "likelihood that the Defendant would be able to frustrate any extradition requests—even if she were correct that she would be unable to stop extradition entirely—weighs strongly in favor of detention." (Id.). That statement remains true even if the face of the defendant's newest offer to renounce her foreign citizenship. As this Court previously found, the defendant has substantial international ties, familial and personal connections abroad, and owns at least one foreign property of significant value. (Dec. Op. at 10-11). The defendant's alleged willingness to renounce her foreign citizenship should not fundamentally alter the Court's conclusions. 2. The Court Should Reject the Defendant's Proposed Monitorship Condition Next, the defendant has offered to place a portion of her and her spouse's assets into a new account that "will be monitored by a retired federal District Court judge and former United States Attorney who will function as asset monitor and will have co-signing authority over the account." (Mot. at 2). This proposed condition—the details of which are vague—is insufficient to ensure that the defendant appears in Court. It first bears noting that the defendant's finances—and her candor with the Court about those finances—is not an issue of first impression. Significantly absent from the defendant's Motion is any attempt to address the Court's determination that the defendant's "lack of candor raises significant concerns as to whether the Court has now been provided a full and accurate picture of her finances and as to the Defendant's willingness to abide by any set of conditions of release." (Dec. Op. at 16). That is critical because the value of any proposed monitorship would depend entirely on the monitor having a completely accurate picture of the defendant's finances and access to all of her accounts and sources of wealth. Given the Court's concerns about the defendant's candor, the Court should hesitate before trusting the defendant to be transparent with a monitor under her employ. In any event, even if the Court were to accept the defendant's representations about her assets at face value, the defendant's proposal would leave the defendant with significant assets unrestrained. In particular, the defendant's proposal does not in any way restrain her $2 million townhouse in London, which she could live in or sell to support herself. Although the defendant asserts that the monitor would oversee any account into which the proceeds of the sale of the defendant's properties were deposited, the defendant does not explain how the monitor—or this Court—would have the authority to force the defendant to deposit foreign assets in a domestic account. As the Government has previously explained, the Government cannot realistically recover assets abroad. Accordingly, the defendant's proposal would leave her with access to at