United States v. Abou-Khatwa

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Criminal No. 18-cr-67 (TSC) ) TAREK ABOU-KHATWA, ) ) Defendant. ) )

MEMORANDUM OPINION

Defendant Tarek Abou-Khatwa is appealing 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. ECF No. 205. 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. ECF No. 211. Undeterred, Defendant filed an “Emergency

Motion” with this court stating his intent to lodge a second appeal, this time challenging the

court’s January 31 Order, and he requested that his self-surrender date be postponed pending the

outcome of that new appeal. ECF No. 213. The court will—again—deny his request.

Defendant’s conviction is presumed valid, United States v. Perholtz, 836 F.2d 554, 556

(D.C. Cir. 1988), and he bears the burden of rebutting that presumption, United States v. Han,

No. CR 15-142 (JEB), 2018 WL 6573453, at *1 (D.D.C. Dec. 13, 2018). 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. ECF No. 211 at 5-6.

Accordingly, the court held Defendant’s self-surrender date in place. Id. at 6.

Page 1 of 3 Defendant now argues that his self-surrender date should be delayed while he appeals

that decision. He contends 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.”

ECF No. 213 at 4. 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.” Id.

He also argues that refusal to grant further delay would “frustrat[e] his appeal rights under

Section 3145(c) and Rule 9(b).” Id. at 3. Defendant’s arguments are unpersuasive.

The government points out that when it agreed to delay Defendant’s self-surrender date

from January 10 to February 10, 2022, to allow “briefing of a motion to release pending appeal

before the district court and court of appeals,” it did not contemplate additional delay for an

appeal. ECF No. 214 at 2. In other words, the government refutes—and the court rejects—

Plaintiff’s suggestion that both parties “originally intended” additional delay.

In addition, the court disagrees that emergency action is necessary to avoid “frustrating

his appeal rights under Section 3145(c) and Rule 9(b).” ECF No. 213 at 3. First, 18 U.S.C. §

3145(c) pertains to appeals of detention orders, not release from custody, and so it is inapplicable

here. Second, nothing in the court’s January 31, 2022, Order restricts Defendant’s ability to seek

relief from the Court of Appeals. The court is 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. But Defendant—not the court—bears responsibility for that

accelerated schedule. For instance, Defendant notified the court that he was appealing his

conviction on June 10, 2021, ECF No. 195, and filed his opening appellate brief on November 1,

2021. Defendant could have moved to delay his surrender date pending appeal at that point, but

instead waited until December 6, 2021. When Defendant did eventually file his motion, he

Page 2 of 3 requested only a one-month delay, from January 10 to February 10, 2022, which the court

granted. ECF No. 205; Min. Order (Dec. 9, 2021). And third, rather than immediately appeal

the court’s January 31 Order, Defendant waited two days to again move for relief in this court,

and then proposed an additional two-day briefing schedule. ECF No. 213. In short, Defendant’s

concerns about his ability to obtain relief from the Circuit are a product of his own doing.

Finally, in a footnote in his reply brief, Defendant requests that if the court denies the

present motion that he be permitted “a short postponement, e.g., two weeks, so that he may

appeal the Court’s disposition of the instant motion.” ECF No. 215 at 1 n.1. In other words,

Defendant would like three appeal tracks: one attacking the merits of his conviction, which is

now fully briefed and awaiting disposition from the Circuit; a second challenging the court’s

January 31 Order denying his request to delay his sentence pending the first appeal, which

Defendant reports “is being filed today,” ECF No. 215 at 1; and a third challenging this decision

to deny his request to delay his sentence pending resolution of the second appeal. Will

Defendant also seek a fourth appeal, challenging the court’s decision to deny the request to delay

his sentence pending resolution of his third appeal? Defendant is within his rights to do so, and

nothing in this court’s January 31 Order, or today’s decision, frustrates his ability to request

relief from the Circuit.

Accordingly, for reasons explained above, the court will deny Defendant’s latest request

to delay the start of his incarceration.

Date: February 4, 2022

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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