UNITED STATES оf America, Plaintiff-Appellee, v. Jack KACHKAR, Defendant-Appellant.
No. 17-10050
United States Court of Appeals, Eleventh Circuit.
June 21, 2017
Non-Argument Calendar
Sowmya Bharathi, Ayana Nneka Harris, Michael Caruso, Federal Public Defender,
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
A federal grand jury has indicted Jack Kachkar on nine counts of wire fraud affecting a financial institution based on his alleged scheme to defraud a bank using his company, Inyx. After the indictment agаinst him was filed, the government filed a motion requesting that he be detained pending trial because he was a flight risk. The magistrate judge held a hearing on that motion, denied it, and ordered Kachkar‘s release, conditioned uрon him satisfying a $1 million corporate surety bond and a $1 million personal surety bond with two cosigners. The magistrate judge also ordered Kachkar to submit to home confinement and electronic monitoring, surrender his travel dоcuments, and sign extradition agreements relating to extradition from Canada and Russia. At the end of that hearing, the government did not object to the magistrate judge‘s order.
Twenty-seven days later, the government filed a motion rеquesting that the district court vacate the magistrate judge‘s order and detain Kachkar pending trial. The district court held a hearing on that motion. It found that the evidence of Kachkar‘s guilt was strong; that virtually all of the over $100 milliоn in fraudulent funds that Kachkar received were unaccounted for, with a “significant portion of those funds [having gone] to foreign bank accounts“; and that when Kachkar was arrested law enforcement found bank cards frоm Russian banks. The court also noted that Kachkar was born in Syria and was a Canadian citizen. It emphasized that, while Kachkar is a lawful permanent United States resident, he has “significant ties and [has traveled] to foreign countries, including countries for which the United States does not have an extradition treaty.” Considering those factors, along with the lengthy sentence Kachkar faces if he is convicted of the charged crimes, the district cоurt found that he has a “strong incentive” to flee. It also concluded that no condition or combination of conditions of release could ensure his appearance at trial, and it ordered that Kachkar be detained pending trial. This is Kachkar‘s appeal of that order.
District court orders granting pretrial detention under the Bail Reform Act of 1984 “present mixed questions of law and fact subject to plenary review on appeal.”1 United States v. Quartermaine, 913 F.2d 910, 915 (11th Cir. 1990). “Purely factual findings, however, will not be disturbed unless they are clearly erroneous” such that the “reviewing court is left with the definite and firm conviction that a mistake has been committed.” Id. (quotation marks omitted).
Thе Bail Reform Act governs the court‘s power to detain defendants pending trial.
At the hearing, the court must take certain factors into account when determining whether “thеre are conditions of release that will reasonably assure the appearance of the person” at trial, such as:
- the nature and circumstances of the offense charged, including whether the offеnse is a crime of violence, a violation of section 1591 [sex trafficking of children or by force, fraud, or coercion], a Federal crime of terrorism, or involves a minor victim or a controlled substance, firеarm, explosive, or destructive device;
- the weight of the evidence against the person; [and]
- the history and characteristics of the person, including—
- the person‘s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past cоnduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings....
Kachkar contends that the district court erred in finding that the evidence of his guilt was strong. At the detention hearing the government proffered that two former Inyx employees will testify аt trial that Kachkar instructed them to create fake invoices that he then submitted to a bank that had given Inyx a loan based on collateral in the form of accounts receivable. Based on those fraudulent invoices, the bank continued issuing loans to Inyx. Kachkar argued at the detention hearing that those two witnesses had recently sworn that Kachkar had never instructed them to engage in any fraud.
But the government‘s argument was not that the employees knew that the invoices they had prepared were being fraudulently used to receive more money from the lending bank. Instead it claimed that the employees will testify that Kachkar had told them to create the invoices, not that he told them that the invoices were fake or that he was planning to use them to convince the bank to lend Inyx more money. And the government at the detention hearing explained thаt it had evidence showing not only that Kachkar instructed Inyx employees to create those invoices, but also showing that Kachkar had (1) misled the bank into believing that other banks were willing to pay off the loan if it continued to lend Inyx money, and (2) altered documents that he provided to the bank to make them appear as if he had the collateral to pay off the loans. For that reason, the district court did not clearly err in finding that the evidence of Kachkar‘s guilt was strong.
Kachkar also contends that the district court erred by using as evidence of
Finally, Kachkar contends that the district court failed to mention certain facts when it made its oral and written findings, including his personal and family ties to Florida, his poоr physical health, the complexity of the case and his need to help his lawyers prepare a defense, and the fact that he had not fled despite knowing since 2012 about the criminal investigation and civil chаrges against him based on the fraud.
Kachkar‘s personal and family ties to Florida, however, were addressed during the detention hearing, and the district court found that while Kachkar had some ties to the United States, his travels to Russiа and Libya, which do not have extradition treaties with the United States, and his possession of Russian bank cards and a Russian bank account showed that Kachkar also had “significant ties and travel to foreign countries.” It did not err in сoncluding that his “significant ties and travel to foreign countries” weighed in favor of a finding that he was a flight risk.
As for Kachkar‘s poor physical health, his health issues require that he receive diabetic medication and treatmеnt for his hemochromatosis, which, if not properly treated, can result in higher than normal iron levels. Kachkar contends that the federal detention center cannot properly treat his health issues, as shown by his higher thаn normal glucose and iron levels. But Kachkar does not explain why those conditions showed that he was not a flight risk. And as for the complexity of Kachkar‘s case, the district court in its detainment order provided that Kaсhkar, while detained, “be afforded reasonable opportunity for private consultations with his counsel.”
The district court also did not ignore the fact that Kachkar did not flee after he learned in that he was being invеstigated for the wire fraud crimes and that civil claims had been asserted against him based on his alleged fraud. During the detention hearing Kachkar argued that the fact that he had not yet fled the United States weighed against prеtrial detention, and the district court asked questions in an attempt to clarify some details of his argument. The district court did not ignore Kachkar‘s argument on this issue, it simply disagreed that his failure to flee while under investigation meant that he would not flee after having been indicted.
The district court‘s factual findings as to the nature and circumstances of the offenses charged, the weight of the evidence against Kachkar, and Kachkar‘s history and chаracteristics were not clearly erroneous. And the district court did not err in finding by a preponderance of the evidence that pretrial detainment was warranted because Kachkar presented a sеrious risk of flight and no condition or combination of conditions of release would reasonably assure his appearance at trial.2
AFFIRMED.
PER CURIAM