Letter from Mark C. Orlowski to the Honorable Leda Dunn Wettre, U.S.M.J., in opposition… — USA v. ENCARNACION (Dkt. 21)

Summary

Letter dated June 13, 2023 from Assistant United States Attorney Mark C. Orlowski to the Honorable Leda Dunn Wettre, United States Magistrate Judge, in United States v. Arlen Encarnacion, opposing Encarnacion's application to modify bail conditions. The letter states that Encarnacion seeks to retrieve a passport to travel to the Bahamas for a family vacation, and that the application should be denied because there has been no change in circumstances and Encarnacion remains a flight risk. It recites bail conditions including a $250,000 unsecured bond and a restriction of travel to New Jersey unless approved by Pretrial Services. It states that Encarnacion was charged with submitting 14 separate fraudulent loan applications resulting in the misappropriation of over $1.6 million in COVID relief funds.

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U.S. Department of Justice 
 
 
 
United States Attorney 
 
 
District of New Jersey 
 
 
Civil Division 
 
_____________________________________________________________________________________________________________________ 
 
PHILIP R. SELLINGER  
970 Broad Street, Suite 700            
main: (973) 645-2700  
UNITED STATES ATTORNEY 
Newark, NJ 07102    
direct: (973) 645-2760 
 
mark.orlowski@usdoj.gov    
                                                                           
Mark C. Orlowski 
Assistant United States Attorney 
 
 
 
 
 
 
 
June 13, 2023 
Via ECF 
The Honorable Leda Dunn Wettre 
United States Magistrate Judge 
District of New Jersey 
Martin Luther King, Jr. Building 
and U.S. Courthouse 
50 Walnut Street 
Newark, NJ 07101 
 
 
 
Re: 
United States v. Arlen Encarnacion 
 
 
 
Mag. No. 21-13425 (LDW)  
 
Dear Judge Wettre:  
 
Please accept this letter in opposition to defendant Arlen Encarnacion’s 
(“Encarnacion”) application to modify his bail conditions. Encarnacion seeks to 
presumably vacation in the Bahamas on a Royal Caribbean cruise. The Court should 
deny Encarnacion’s application for the same reasons it prohibited him from foreign 
travel in the first place; namely, the risk that he will flee prosecution and remain 
abroad. Nothing has changed since Encarnacion’s initial appearance. He remains a 
flight risk and he provides no compelling justification for this Court to revisit prior 
decisions. The application should thus be denied.   
 
Background 
 
Encarnacion was arrested on December 16, 2021 pursuant to a Criminal 
Complaint charging him with eleven counts of bank fraud, in violation of 18 U.S.C. 
§ 1344(2) and § 2, three counts of wire fraud, each in violation of 18 U.S.C. § 1343 and 
§ 2, and two counts of money laundering, each in violation of 18 U.S.C. § 1957 and 
§ 2.  See Docket Entry (“DE”) 1.  During Encarnacion’s initial appearance, Your Honor 
set bail conditions, including a $250,000 unsecured bond; restricting travel to New 
Jersey unless approved by Pretrial Services; surrendering of all passports and travel 
Case 3:23-cr-00794-GC     Document 21     Filed 06/13/23     Page 1 of 3 PageID: 71

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documents; and refraining from contact with co-defendants Kent Encarnacion and 
Jacquelyn Pena, except in the presence of counsel.  See DE 4, 7, and 8.   
 
On or about June 2, 2023, counsel for Encarnacion submitted the instant 
application to modify Encarnacion’s bail conditions by seeking permission for him 
retrieve his passport to travel outside the United States to the Bahamas for a family 
vacation.   
 
The Request to Travel to the Bahamas Should Be Denied 
 
Encarnacion’s application should be denied because there has been no change 
in circumstances. He is still a flight risk and allowing him to vacation in another 
country where he could evade prosecution is unwarranted. 
 
Pursuant to 18 U.S.C. § 3142(c), conditions for bail must “reasonably assure 
the appearance” of the defendant. In making this determination, the Court must take 
into account, among other things, the nature of the offense, the weight of the evidence 
against the defendant, the defendant’s community ties and his length of residence in 
the community, and his financial resources. 18 U.S.C. § 3142(g); see also United 
States v. Vargas, 2013 WL 3223419 (D.N.J. 2013). When requesting that an 
individual be detained prior to trial, the Government’s burden differs depending on 
whether the individual is a risk of flight or danger to the community. United States 
v. Himler, 797 F.2d 156, 160-61 (3d Cir. 1986). To demonstrate risk of flight, the 
preponderance of the evidence standard is applied, whereas detention based on safety 
to the community must be clear and convincing. Id.  
 
After considering these factors, this Court imposed release conditions on 
Encarnacion at his initial appearance that it found were appropriate and necessary 
to “reasonably assure [his] appearance.” Prohibiting his foreign travel and requiring 
the surrender of his passport and travel documents was a key condition that 
addressed Encarnacion’s significant risk of flight.  
 
Though not styled that way, Encarnacion seeks reconsideration of that prior 
ruling. Local Crim. R. 1.1; L. Civ. R. 7.1(i). To warrant reconsideration, Encarnacion 
must show that: (1) there has been an intervening change in the controlling law; (2) 
evidence not previously available has become available; or (3) it is necessary to correct 
a clear error of law or to prevent manifest injustice. See North River Ins. Co. v. CIGNA 
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995).  In his application, Encarnacion 
demonstrates none of these. Rather, he merely indicates a desire to take a cruise this 
summer without providing justification for a departure from the Court’s prior ruling.  
 
Case 3:23-cr-00794-GC     Document 21     Filed 06/13/23     Page 2 of 3 PageID: 72

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Encarnacion has not made any arguments that merit reconsideration of the 
Court’s prior determination that he is a flight risk who should not be permitted to 
leave the country.  Encarnacion was charged with 16 criminal counts, and he 
potentially faces several years’ incarceration relating to his conduct.  The offenses 
with which he is charged constitute serious criminal conduct that he could evade 
without the travel restrictions imposed by the Court.  There has been no change in 
circumstance that mitigates the potential for flight by Encarnacion, and the Court 
should thus decline to reconsider its determination and leave the travel restriction in 
place.   
 
Even if the Court were to reevaluate the § 3142(g) factors anew, they continue 
to show that restricted Encarnacion’s travel to New Jersey are necessary to ensure 
his appearance.  First, the nature and circumstances of his crime are serious.  
Encarnacion was charged with submitting 14 separate fraudulent loan applications 
which resulted in the misappropriation of over $1.6 million in COVID relief funds. 
Second, the evidence against Encarnacion is strong.  The loan applications and bank 
records obtained during the investigation support the charges and provide 
incontrovertible evidence of Encarnacion’s conduct.   The weight of the evidence, 
along with the strong possibility of Encarnacion’s incarceration following his 
conviction weigh against permitting him to travel to a foreign country using his 
passport, from where he could theoretically travel to any country in the world to evade 
justice.  Third, Encarnacion has at least some financial means to sustain himself 
while abroad, should he choose not to return to the United States. 
 
In sum, there has been no change in circumstance to justify altering 
Encarnacion’s bail status so he can vacation in a foreign country with his girlfriend 
and his family.  He still faces serious charges that may result in significant 
punishment should he plead guilty or be convicted.  Accordingly, the Court should 
deny Encarnacion’s application.  
 
   
 
 
 
 
 
Respectfully submitted, 
 
 
 
 
 
 
 
 
PHILIP R. SELLINGER 
 
 
 
 
 
 
 
United States Attorney 
 
 
By: 
   s/ Mark C. Orlowski  
 
 
 
 
 
 
 
 
 
 
MARK C. ORLOWSKI 
 
 
 
 
 
 
      
Assistant United States Attorney 
 
cc:  Lorraine Gauli-Rufo, Esq. (via ECF and e-mail) 
Case 3:23-cr-00794-GC     Document 21     Filed 06/13/23     Page 3 of 3 PageID: 73

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