Order — United States v. Freitekh (Dkt. 127, W.D.N.C.)

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An order in United States v. Izzat Freitekh, et al., Docket No. 3:20-CR-00435-FDW-DCK, in the U.S. District Court for the Western District of North Carolina, filed May 4, 2022 as Document 127. It rules on Tarik Freitekh's Supplemental Motion for Bond Pending Sentencing (Doc. No. 118), Izzat Freitekh's Motion for Acquittal or to Set Aside the Jury Verdicts (Doc. No. 122), and Tarik's motion seeking the same relief and adopting Izzat's motion (Doc. No. 123). The court grants Doc. No. 123 only to the extent it adopts Izzat's motion and otherwise denies all three. The order recounts that the jury returned its verdict on March 17, 2022, that the government then moved for detention, and that a bond hearing took place on April 13, 2022. It denies the Rule 29 motions for acquittal and the Rule 33 motions to set aside the verdicts.

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UNITED STATES DISTRICT COURT
                        WESTERN DISTRICT OF NORTH CAROLINA
                                CHARLOTTE DIVISION
                          DOCKET NO. 3:20-CR-00435-FDW-DCK


 UNITED STATES OF AMERICA,                        )
                                                  )
                Plaintiff,                        )
                                                  )
         vs.                                      )                       ORDER
                                                  )
 IZZAT FREITEKH, et al.,                          )
                                                  )
                Defendants.                       )
                                                  )


       THIS MATTER is before the Court on the following motions: (1) Defendant Tarik Freitekh’s

(“Tarik”) Supplemental Motion for Bond Pending Sentencing, (Doc. No. 118); (2) Defendant

Izzat Freitekh’s (“Izzat”) Motion for Acquittal or to Set Aside the Jury Verdicts, (Doc. No. 122);

and (3) Tarik’s Motion for Acquittal or to Set Aside the Jury Verdicts and to Adopt Co-Defendant

Izzat Freitekh’s Motion for Judgment of Acquittal or to Set Aside the Jury Verdicts, (Doc. No.

123). On April 13, 2022, the Court held a hearing on Tarik’s Supplemental Motion for Bond. The

Motions for Acquittal have been fully briefed. Accordingly, the motions are ripe for review. As

a preliminary matter, the Court GRANTS Tarik’s Motion for Judgment of Acquittal, (Doc. No.

123), solely to the extent it seeks to adopt Izzat’s Motion. For the reasons set forth below, however,

the Court otherwise DENIES Defendants’ motions.

                                  I.      MOTION FOR BOND

       On March 17, 2022, immediately following the return of the jury’s verdict, the Government

moved for detention of Defendants. After hearing the parties’ arguments, the Court found Tarik

failed to meet his burden of establishing by clear and convincing evidence that he was not likely

to flee or pose a danger to the safety of any other person or the community. See 18 U.S.C. §

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3143(a)(1). Accordingly, Tarik was remanded into the custody of the U.S. Marshals on March 17,

2022. Thereafter, on March 18, 2022, Tarik filed his Supplemental Motion for Bond Pending

Sentencing, (Doc. No. 118), wherein Tarik, through his Counsel, appears to seek reconsideration

of the Court’s previous ruling because, inter alia, “[t]he Court’s oral order of detention was based

upon flight risk which [Tarik’s Counsel] was not, [on March 17, 2022], fully prepared to address.”

(Doc. No. 118, p. 2). On April 14, 2022, the Court held a second bond review hearing. At the

hearing, Tarik, through his Counsel, reasserted his belief of eligibility for release pending

sentencing, relying primarily on a proposal of a third-party custodian to be paid by Tarik and his

family. For the reasons set forth below and at the March and April hearings, the Court again finds

Tarik has failed to present clear and convincing evidence that he is not likely to flee or pose a

danger to the community if released.

       Rule 46 of the Federal Rules of Criminal Procedure conditions a convicted person’s

eligibility for release pending sentencing or appeal on 18 U.S.C. § 3143. This statute is a product

of the Bail Reform Act of 1984. Under 18 U.S.C. § 3143(a)(1), the sentencing judge “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 ….” The statute creates a presumption against release pending sentencing and casts the

burden upon defendants to justify release on bail following conviction. See U.S. v. Jinwright, No.

3:09-cr-00067, 2010 WL 2926084 (W.D.N.C. July 23, 2010); U.S. v. Rankin, 289 F. Supp. 3d

846, 848 (S.D. Ohio 2017) (citing U.S. v. Vance, 851 F.2d 166, 168-70 (6th Cir. 1988)). Moreover,

it is well settled that even if a defendant proffers sufficient evidence tending to rebut this

presumption, “the presumption does not disappear entirely, but remains a factor to be considered



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among those weighed by the district court.” U.S. v. Risley, No. 1:17-cr-147, 2017 WL 2365240,

at *2 (M.D.N.C. May 31, 2017) (listing authorities).

         As set forth above, the Court previously found Tarik had not presented clear and

convincing evidence that he was not likely to flee. Nothing in Tarik’s Supplemental Motion, (Doc.

No. 118), and none of the evidence presented at the April hearing warrants alteration of the Court’s

conclusion or establishes that Tarik is not likely to flee and does not pose a danger to the

community. Although Tarik has some family that resides in Charlotte, North Carolina, including

Izzat, his father and co-defendant in this case, Tarik provided no evidence that he has established

a community within or has substantial ties to Charlotte. Instead, the evidence presented shows

that Tarik permanently resided and has a driver’s license in the State of California, and that he and

his wife resided in Waxhaw, North Carolina, at his parent’s home, for approximately eighteen

months prior to trial, only after the Indictment was entered. Tarik’s compliance with his pretrial

conditions, which he again argues shows he is not likely to flee, fails to address a material change

in circumstances – Tarik has now been convicted and is no longer entitled to a presumption of

innocence. Tarik also reasserted he previously surrendered his passport and has seldomly, if at all,

travelled internationally in the last ten years. Given the extent with which Tarik was willing to go

to avoid criminal conviction, including money laundering, falsifying documents, and concealing

material facts, his arguments are insufficient to rebut the presumption of detention after

conviction.1


1
  The Court also notes, as it did during the April hearing, several sources on the Internet list Tarik’s purported net
worth to be substantial. Indeed, the Charlotte Observer reported a Google search for “Tarik Freitekh” “mentions his
reported $300 million net worth, a lineup of fancy cars, and photos of him shoulder to shoulder with Justin Bieber
and Sofia Vergara. There even appears to be a pet tiger.” Michael Gordon, From pix with Bieber to a Charlotte
courtroom: Father, son charged with COVID fraud, Charlotte Observer, (Dec. 18, 2020), at 2. Although the Court
does not generally rely on information set out in the media during detention hearings, here the Charlotte Observer is
merely reporting the contents of a Google search of Tarik and is, therefore, not the declarant of the statements. This
is yet another example of Tarik’s failure to show by clear and convincing evidence that he is not a risk of flight
because the Internet appears to show he certainly has the resources to flee.

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          Furthermore, with respect to Tarik’s improper proposal to pay for a third-party custodian

to monitor him pending sentencing, the Government argues, and the Court agrees, that several

other courts have considered and rejected similar proposed conditions, finding these conditions an

inappropriate means to foster inequity impermissible under the Bail Reform Act. See U.S. v.

Boustani, 932 F.3d 79, 82 (2d Cir. 2019); U.S. v. Bothra, No. 19-1953, 2019 WL 8883664, at *2

(6th Cir. Nov. 5, 2019); U.S. v. Tajideen, No. 17-46, 2018 WL 1342475, at *6 (D.D.C. Mar. 15,

2018); U.S. v. Zarrab, No. 15-867, 2016 WL 3681423, at *13 (S.D.N.Y. June 16, 2016). In

Boustani, the Second Circuit explained:

          We now expressly hold that the Bail Reform Act does not permit a two-tiered bail
          system in which defendants of lesser means are detained pending trial while
          wealthy defendants are released to self-funded private jails. It is a fundamental
          principle of fairness that the law protects the interests of rich and poor criminals in
          equal scale, and its hand extends as far to each. To interpret the Bail Reform Act
          as requiring district courts to permit wealthy defendants to employ privately funded
          armed guards where an otherwise similarly situated defendant without means
          would be detained would violate this core principle. Such a two-tiered system
          would foster inequity and unequal treatment in favor of a very small cohort of
          criminal defendants who are extremely wealthy.

Boustani, 932 F.3d at 82. Finding the Second Circuit’s analysis and conclusion of similarly

proposed conditions persuasive, the Court finds inappropriate the third-party custodian conditions

proposed here, particularly in light of Tarik’s conviction and the Court’s finding of risk of flight

and threat of economic harm to the community, as set forth below. Moreover, the Court notes the

third-party custodian conditions, as proposed, do not sufficiently overcome the presumption of

detention set forth under Section 3143 because the proposed conditions, including one daily check-

in at a random time and access to remote monitoring, do not eliminate the Court’s concerns of

flight.

          In addition, during the April hearing, the Government argued the crimes Tarik was

convicted of, including fraud, money laundering, and falsifying and concealing material facts,

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establish he poses a threat to the safety of the community if released. This Court has previously

found that 18 U.S.C. 3143(a) encompasses the pecuniary safety of the community. See Jinwright,

2010 WL 2926084, at *4. The elaborate scheme, including conspiracy, fraud, and the fabrication

of documents in an attempt to obstruct justice, Tarik was convicted of certainly support a finding

that Tarik is an economic threat to this community. Because Tarik failed to address this issue, he

failed to meet his burden of showing by clear and convincing evidence that he does not pose a

danger to the community. Accordingly, Tarik has not met his burden to establish either that he is

not likely to flee or pose a danger to the safety of any other person or the community. See 18

U.S.C. § 3143(a). The Court, therefore, declines to alter its previous ruling finding detainment

necessary and appropriate and DENIES Tarik’s Supplemental Motion for Bond Pending

Sentencing.

                            II.     MOTIONS FOR ACQUITTAL

       After a jury returns a guilty verdict, “the court may set aside the verdict and enter an

acquittal.” Fed. R. Crim. P. 29(c)(2). “Reversing a conviction due to insufficient evidence is

reserved for the rare case where the prosecution’s failure is clear.” U.S. v. Mangum, 539 F. Supp.

3d 515, 525 (E.D.N.C. 2020) (quoting U.S. v. Beidler, 110 F.2d 1064, 1067 (4th Cir. 1997)

(quoting Burks v. U.S., 437 U.S. 1, 17 (1978))) (internal quotations omitted). When considering

a motion under Rule 29, a jury’s verdict “must be sustained if there is substantial evidence, taking

the view most favorable to the Government, to support it.” U.S. v. Mayberry, 341 F. App’x 859,

861 (4th Cir. 2009) (citation omitted). Substantial evidence exists and the court must sustain the

jury’s verdict if any rational trier of fact could have found the essential elements of the crime

charged beyond a reasonable doubt. U.S. v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir. 2011)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original) (citation omitted);



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U.S. v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).               “Furthermore, this court cannot make its own

credibility determinations but must assume that the jury resolved all contradictions in testimony in

favor of the Government.” Penniegraft, 641 F.3d at 572. Thus, a defendant who challenges the

sufficiency of the evidence “bears a heavy burden.” Mangum, 539 F. Supp. 3d at 525 (quoting

Beidler, 110 F.3d at 1067).

         The crux of Izzat and Tarik’s Rule 29 motions is an insufficiency of evidence to support

each of their convictions. See (Doc. Nos. 122, 123). In addition, Defendants assert an alleged

inconsistency of the verdicts and certain evidence admitted to the jury and relied upon by the

Government at trial establish the necessity for the Court to set aside the verdict and enter an

acquittal. Id. Finally, Tarik argues, “the alleged falsification charged as Count 9 was shown to be

neither false, knowing, nor material.” (Doc. No. 123, p. 8). Having reviewed the evidence in the

light most favorable to the verdict, the Court agrees with the Government and finds a rational trier

of fact could certainly have found the essential elements of the crimes Defendants were convicted

of beyond a reasonable doubt. See Penniegraft, 641 F.3d at 571-72; (Doc. Nos. 124, 125). Further,

no inconsistency in the verdicts exists and, even if such inconsistency existed, “[i]t is well

established that an acquittal of the [defendant’s] alleged co-conspirator does not necessitate that

the [defendant’s] conviction be vacated.” 2, 3 U.S. v. Darby, 455 F. App’x 329, 2011 WL 5925316,

at *4 (4th Cir. 2011) (citing U.S. v. Powell, 469 U.S. 57, 65 (1984). Such is this case here,


2
  As the Government asserts, the Court polled the jury, and each juror confirmed his or her assent to the verdict. See
U.S. v. Cherry, 720 F.3d 161, 167 (4th Cir. 2013) (“The purpose of a jury poll is to give each juror an opportunity,
before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned, to
ensure that a unanimous verdict has in fact been reached and that no juror has been coerced or induced to agree to a
verdict to which he has not fully assented.”)
3
  The Court further notes Defendants failed to raise any purported inconsistency in the jury verdict to the attention of
the Court or request the jury conduct further deliberations to clarify the verdict prior to the release of the jury.
Accordingly, Defendants have waived their right to seek a new trial based on this purported inconsistency. See
Vigilant Ins. Co. of New York v. McKenney's Inc., 524 F. App'x 909, 911 n.2 (4th Cir. 2013) (citing White v.
Celotex Corp., 878 F.2d 144, 146 (4th Cir. 1989); Fed. R. Civ. P. 49(b)).


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particularly where the evidence presented at trial identified, at a minimum, two additional co-

conspirators – Iman Freitekh and Haya Freitekh – with whom the jury reasonably could have

concluded Tarik conspired. In addition, the BMW photographs were admitted to the jury and

relied upon by the Government at trial in accordance with the Federal Rules of Evidence after

Tarik, during cross-examination of Khalid Ghatashe from Wells Auto Group, created the

misimpression that the vehicle was purchased by and for Iman Freitekh. See Fed. Rs. Evid. 401,

403. Therefore, in contrast to Tarik’s assertions, this evidence was not relied upon “to create in

the jury’s mind the impression that Tarik Freitekh was a high-roller who must have been

benefitting from ill-gotten PPP loans.” (Doc. No. 123, p. 5). Moreover, to the extent Tarik

contends the Government “failed to make its case that Tarik Freitekh violated 18 U.S.C. §

1001(a)(1) as alleged in Count 9,” (Doc. No. 123, p. 8), the Court respectfully disagrees and

reiterates its agreement with the Government’s briefing and its finding that substantial evidence

supports Tarik’s conviction on Count 9. Because substantial evidence supports the convictions,

the Court denies Defendants’ Rule 29 motions.

                   III.    MOTIONS TO SET ASIDE JURY VERDICTS

       Under Rule 33, “the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). When a Rule 33 motion attacks the weight of the

evidence, the district court is not required to view the evidence in a light most favorable to the

government and, instead, may evaluate the credibility of witnesses. U.S. v. Arrington, 757 F.2d

1484, 1486 (4th Cir. 1985). The Fourth Circuit has explained: “A new trial may be appropriate

when the jury’s verdict is inapposite to the weight of the evidence and it would be unjust to enter

judgment on that basis.” U.S. v. Crane, 260 F. App’x 572, 573 (4th Cir. 2008) (citing Tibbs v.

Fla., 457 U.S. 31, 38 n.11, 44 n.20 (1982)). Accordingly, “a trial court should exercise its



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discretion to award a new trial sparingly, and a jury verdict is not to be overturned except in the

rare circumstances when the evidence weighs heavily against it.” U.S. v. Smith, 451 F.3d 209,

216 (4th Cir. 2006) (citation and internal quotations omitted). In other words, a new trial should

be granted only when the evidence tilts so heavily against guilt that the jury’s verdict amounts to

a miscarriage of justice. U.S. v. Shipp, 409 F.2d 33, 36-37 (4th Cir. 1969).

       Defendants Rule 33 arguments echo their Rule 29 argument and include assertions that a

new trial is warranted because of insufficient evidence, because the willful blindness standard was

not supported by the evidence, and for the purported violations of the attorney-client privilege and

confrontation clauses. See (Doc. Nos. 118, 123, 126). Based on the evidence presented at trial,

the Court again agrees with the Government and finds this case does not present one of the rare

circumstances where the evidence tilts so heavily against guilt as to warrant a new trial. See Smith,

451 F.3d at 216; Shipp, 409 F.2d at 36-37; see also (Doc. Nos. 124, 125). Despite Izzat’s

contentions otherwise, ample evidence exists in the record the jury reasonably could have used to

support a finding that Izzat willfully closed his eyes to wrongful conduct. Accordingly, the willful

blindness instruction was appropriate. See U.S. v. Hale, 857 F.3d 158, 168 (4th Cir. 2017) (“it is

appropriate to instruct the jury on willful blindness when the defendant claims lack of guilty

knowledge in the face of evidence supporting an inference of deliberate ignorance.”) (citation and

internal quotations omitted). Lastly, to the extent Defendants again assert the purported violations

of the attorney-client privilege and confrontation clause relating to the subpoenas issued to

Defendants’ former attorneys entitle Defendants to a new trial, (Doc. No. 122, pp. 6-7), the Court

disagrees for the same reasons set forth in its oral ruling on February 24, 2022 – primarily that any

such privilege was waived upon the voluntary provision of the relevant documents to the




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Government4 and Defendants failed to raise a valid confrontation clause issue.                           The court

accordingly denies Defendants’ Rule 33 Motions.

                                              IV.      CONCLUSION

         IT IS THEREFORE ORDERED that Defendant Tarik Freitekh’s Supplemental Motion for

Bond Pending Sentencing, (Doc. No. 118), is DENIED; Defendant Izzat Freitekh’s Motion for

Acquittal or to Set Aside the Jury Verdicts, (Doc. No. 122), is DENIED; and Defendant Tarik

Freitekh’s Motion for Acquittal or to Set Aside the Jury Verdicts, (Doc. No. 123), is GRANTED

IN PART, to the extent it seeks to adopt Izzat’s Motion for Judgment of Acquittal or to Set Aside

the Jury Verdicts, and is otherwise DENIED.

         IT IS SO ORDERED.




                                              Signed: May 3, 2022




4
 See In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981) (“when an attorney freely and voluntarily discloses the
contents of otherwise protected work product to someone with interests adverse to his or those of the client,
knowingly increasing the possibility than an opponent will obtain and use the material, he may be deemed to have
waived work product protection…. In other words, to effect a forfeiture of work product protection by waiver,
disclosure must occur in circumstances in which the attorney cannot reasonably expect to limit the future use of the
otherwise protected material.”)

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