Detention Order — United States v. Harun

Record facts

U.S. District Court, Southern District of Georgia, Dublin Division · No. 1:22-mj-00051-BKE · Doc. 25 · 2022-07-21 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT 
 
FOR THE SOUTHERN DISTRICT OF GEORGIA 
 
DUBLIN DIVISION 
 
UNITED STATES OF AMERICA         
      ) 
 
 
 
 
 
 
      ) 
 
 
v. 
 
 
 
      )  
MJ 122-051 
 
 
 
 
 
 
      ) 
GLADYS HARUN  
 
 
      ) 
         _________ 
 
         O R D E R 
         _________ 
  
In consideration of the testimony and evidence, as well as the oral arguments, presented 
at the detention hearing held on July 8, 2022, and for the reasons explained below, the Court 
grants the government’s oral motion for detention. 
I. 
FACTUAL BACKGROUND 
A. 
Alleged Offense Conduct 
The indictment, returned on July 13, 2022, charges Defendant with one count of wire 
fraud and alleges she illegally obtained $299,913 in Payroll Protection Plan (“PPP”) loan 
proceeds, disbursed pursuant to the Coronavirus Aid, Relief, and Economic Security Act 
(“CARES Act”), by misrepresenting the average monthly payroll of her business, Embrace 
Africa d/b/a Jackson Hewitt Tax (“Embrace Africa”).  United States v. Harun, CR 322-009 
doc. no. 1 (S.D. Ga. July 13, 2022); doc. no. 19-1, ¶ 16. 1  A complaint was the operative 
charging document at the time of the detention hearing on July 8, 2022.  (Doc. no. 3.)  At the 
hearing, IRS Special Agent (“SA”) Brian Jack elaborated the factual allegations in the 
 
1Unless otherwise noted, citations are to the docket entries in MJ 122-051.  The Court will, 
as necessary, identify filings in the indicted case with the preface CR 322-009. 
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complaint affidavit (Court’s recording system, For the Record (“FTR”), 10:47.03-11:21.14), 
and U.S. Secret Service SA Brian Truax testified as a rebuttal witness concerning his review 
of Defendant’s financial transactions, (FTR 12:03.35-:08.19).2  Defendant also testified after 
knowingly waiving her right to remain silent. (Transcript (“Tr.”), Doc. no. 24, pp. 4:4-33:9.) 
Defendant submitted a PPP loan application to Wells Fargo on April 17, 2020, for 
Embrace Africa that reported 36 employees and an average monthly payroll of $18,413.  (Doc. 
no. 19-2, Gov’t Ex. 2.)  Wells Fargo approved the loan and disbursed $46,033 to Defendant.  
(Doc. no. 19-1, Compl. Aff. ¶ 19, Gov’t Ex. 1.)  In April 2021, Defendant submitted a PPP 
loan application to Truist Bank representing herself as an independent contractor with an 
average monthly payroll of $8,288.  (Compl. Aff. ¶ 20.)  Truist Bank approved the loan, and 
Defendant received $20,710.  (Id.)  That same month, on April 9, 2021, Defendant submitted 
a PPP loan application to Wells Fargo reporting Embrace Africa had 59 employees and an 
average monthly payroll of $158,830.  (Compl. Aff. ¶ 21; doc. no. 19-3, Gov’t Ex. 3.)  Wells 
Fargo rejected the application and expressed concern that tax documents supporting the loan 
application appeared to be altered.  (Compl. Aff. ¶ 22.)  Undeterred, on June 17, 2021, 
Defendant submitted a PPP loan application to Lendistry that reported Embrace Africa had 22 
employees and an average monthly payroll of $119,965.20.  (Id. ¶ 23; doc. no. 19-7, Gov’t Ex. 
7.)  Lendistry approved the application, and Defendant received $299,913.  (Compl. Aff. ¶ 23.)   
IRS tax returns that Defendant purportedly submitted in support of the CARES Act 
loan applications contain numerous abnormalities indicative of fraud such as mismatched 
fonts, odd spacing, and numbers that appear to be removed by white-out and typed over.  (Doc. 
 
2The Court cites to FTR for the witness testimonies of SA Brian Jack and SA Brian Truax.  
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nos. 19-4, 19-5, 19-6, 19-8, 19-9, Gov’t Exs. 4-6, 8-9.)  When asked by investigating agents 
to provide proof of Embrace Africa’s average monthly payroll, Defendant submitted 
documents showing $8,429 for 2019 and $9,304 for 2020, sums significantly lower than what 
she represented on her loan applications.  (Compl. Aff. ¶ 25.)   
B. 
Pretrial Services Report 
Defendant was born in Kenya, Africa in 1979, moved to the United States in 2005, and 
became a naturalized United States citizen in 2011.  CR 322-009, doc. no. 10, p. 1. (S.D. Ga. 
July 18, 2022). She has lived in Georgia since 2005, first in Marietta and then moving to 
Eastman in 2011 and Byron in 2019.  (Id.)  In 2005, Defendant married Harum Mwaura in 
Kenya, and they have six children.  (Id. at 2.)  Mr. Mwaura left Defendant in July 2021, and 
Defendant has filed for divorce.  (Id.)  Defendant’s father lives in Kenya, as do her two brothers 
and four sisters, and Defendant travels to Kenya to visit them on an annual basis.  (Id. at 1-2.)  
Defendant began working as a self-employed tax preparer in 2014, and Defendant claims 
current annual income of approximately $800,000 as the owner of twelve Jackson Hewitt 
franchises.  (Id. at 2-3.)  Defendant has no prior criminal history.  (Id. at 3.)  She reported no 
history of mental health issues.  (Id. at 3.) 
C. 
Plans for Unauthorized Trip to Kenya 
 
On May 2, 2022, federal agents interviewed Defendant and informed her she was the 
target of a federal investigation concerning CARES Act fraud.  (Tr. 24:6, 27:4-7.)  On direct 
examination, Defendant admitted that, as a result of this interview, her defense attorney 
instructed her, and she agreed, to not make plans to leave the country without first informing 
her defense attorney and obtaining permission from the U.S. Attorney’s Office.  (Id. at 13:5-
21.)  Her defense attorney told her “not to make any plans to go out of the country without 
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talking to [him] first.”  (Id. at 13:5-16.)  She further testified on direct examination that she 
was in full compliance with that request and did not have any current plans to leave the country.  
(Id. at 13:22-14:8.)  On cross examination, however, Defendant admitted (1) she had, in fact, 
been making plans to leave the country in July; and (2) she was not surprised to hear that her 
divorce attorney had emailed Mr. Mwaura’s divorce attorney in June to say Defendant would 
be unavailable for any court proceedings in the divorce case from July 6 to August 6 because 
Defendant would be out of the country.  (Id. at 15:10-17:11.)   
SA Truax testified that Defendant made a cash withdrawal from her Wells Fargo Bank 
account in the amount of $100,000 on May 2, 2022, the same date of her interview with federal 
agents when she learned for the first time she was a target.  (FTR 12:06.48-:07.35.)  Defendant 
admitted making this cash withdrawal, although she could not recall the exact timing, but 
claimed the purpose was to send money to a school in Kenya for a “feeding program,” and she 
withdrew cash because an international wire directly from Wells Fargo would take too long.  
(Tr. 24:12-26:2.)  To save time, she withdrew the cash from the Wells Fargo account, deposited 
it with Truist Bank, and wired it to Africa.  (Id.)  Defendant testified she routinely withdraws 
money in this same manner and for the same purpose, explaining, “[I]t’s part of what I do 
every day . . . .”  (Id. at 25:21-22.)  Defendant submitted no evidence of the alleged cash deposit 
and wire transfer to Kenya.  SA Truax testified he has reviewed Defendant’s bank records, 
including her transactions with Truist Bank and Blue Sky Bank, and found no other large cash 
withdrawals or any international wire transfers.  (FTR 12:07.35-:08.19.)  
 
 
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D. 
Deception of Court Officials 
 
During her post-arrest interview, Defendant informed the probation officer she has 
owned her tax business for more than six years, and her current income from that business is 
approximately $800,000 per year, which the probation officer divided by twelve to report a 
monthly income of $66,666.67.  CR 322-009, doc. no. 10, p. 2.  Also during this interview, 
Defendant reported no history of mental health issues or treatment.  Id. at 3.  However, just 
last year on August 29, 2021, Plaintiff signed and filed a motion seeking court-appointed 
counsel in a civil case in the Middle District of Georgia.  Therein, she claimed to be 
unemployed and completely unable to work due to recurring migraines and a psychological 
illness.  (Def.’s Mtn. Requesting Appt. of Counsel, doc. no. 19-13, p. 2, Gov’t Ex. 13.)  She 
also claimed to be financially destitute, stating, “I have a mental incapacity and have no money 
to hire an attorney.”  (Id. at 1.)  Just above her signature, Plaintiff included the following 
sentence:  “I declare that my answers to the foregoing are true and correct.”  (Id. at 2.)  In 
further support of her civil motion, Defendant attached an affidavit from psychiatrist Thomas 
Hewitt Sachy, M.D., claiming Plaintiff had received continuous treatment for PTSD and major 
depressive disorder since June 2014 and thus lacked the mental capacity to pursue her legal 
claims without the assistance of legal counsel.  (Id. at 3.)   
On cross examination, Defendant testified she had no recollection of discussing her 
income with the probation officer, admitted her monthly income is nowhere near $66,000, and 
attempted to persuade the Court that she really is destitute despite owning twelve tax 
franchises.  (Tr. 29:12-30:23.)  She testified “Jackson Hewitt supports Embrace Africa,” and 
“the money that we raise there is for nonprofit purposes mostly.”  (Id. at 29:7-8.)  However, 
the tax franchises bear no indicia of being a nonprofit or supportive of a charity or causes to 
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benefit Africa.  (Id. at 29:18-25.)  She did not explain the inconsistencies concerning her mental 
health and treatment as attested to in the Middle District but contradicted in the instant 
proceedings. 
E. 
Intimidation of Potential Witness 
During the course of the investigation, SA Jack interviewed other individuals involved 
in the case.  (FTR 11:18.06-.14.)  During and after the interviews, Defendant contacted some of 
the individuals.  (FTR 11:18.16-.21.)  One witness claimed to receive “multiple text messages 
and a voicemail” from Defendant.  (FTR 11:18.40-.50.)  The witness was “concerned” by the 
nature of the text messages and allowed SA Jack to photograph the text messages. (Id. at 
11:19:20-11:19:30.)  Two text messages provide as follows: 
May 17 
I left u a long voice-mail.  Did u know I was called by GBI and dfcs and 
had to record a statement defending you.  I never shared this with you 
but they called me asked me all sorts of questions about your capability 
and character as a mother when your kids were molested. I stood twice 
to defend and put a good word on you.  I am not begging that u do the 
same but this is a test to show if you are really a true friend.  
May 20 
 
Kindly don’t talk to them people anymore.  They are enticing u for infor.  
You are a subject of investigation too. You know whom am talking about 
reported that me and you were making up w2s en filing fraudulent returns 
among other lies. Tell them u need a lawyer they will leave u alone. Be 
smart. I don’t mean u harm but don’t take yourself to the slaughter house. 
I have a company lawyer handling that if u need reach out to him for 
protection let me know.   
(Doc. no. 19-12, pp. 1-2.) 
 
II. 
DISCUSSION 
The Bail Reform Act of 1984 (“Act”) mandates the pretrial release of a defendant unless 
the government carries its burden of proving there is no bond condition or combination of 
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conditions that would “reasonably assure” the defendant’s appearance in court or the safety of 
the community.  18 U.S.C. § 3142(c), (f).  There is no statutory presumption of detention 
arising from the nature of the charge against Defendant.  See id. § 3142(e)(2).  The 
government’s burden with respect to dangerousness is by clear and convincing evidence and 
the government’s burden as to appearance in court is by a preponderance of the evidence.  
United States v. Quartermaine, 913 F.2d 910, 917 (11th Cir. 1990); 18 U.S.C. § 3142(f)(2).  
“The rules concerning admissibility of evidence in criminal trials do not apply to the 
presentation and consideration of information at the [detention] hearing.”  18 U.S.C. § 
3142(f)(2). 
The Act specifies the factors considered in determining whether there are conditions to 
reasonably assure safety and appearance as (1) the nature and circumstances of the offense 
charged, including whether it is a crime of violence or terrorism, or involves a minor victim, 
controlled substance, firearm, or explosive device; (2) the weight of the evidence; (3) the 
history and characteristics of the person; and (4) the nature and seriousness of the danger to 
any person or the community posed by the defendant’s release.  Id. § 3142(g)(1)-(4).  These 
factors weigh in favor of detention, as explained below. 
A. 
Nature and Circumstances of the Offense and Weight of the Evidence 
The nature and circumstances of the charged offense do not weigh in favor of detention.  
For the purposes of this detention analysis only, the evidence against Defendant is strong as 
exemplified by the complaint affidavit, agent testimony at the detention hearing, and 
supporting government exhibits.     
 
 
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B. 
Defendant’s History and Characteristics 
When considering the history and characteristics of a person in the context of 
determining pretrial detention, courts consider the person’s character, physical and mental 
condition, family ties, employment, financial resources, length of residence in the community, 
community ties, past conduct, history relating to drug or alcohol abuse, criminal history, record 
concerning appearance at court proceedings, and whether at the time of the current offense or 
arrest the person was on a conditional release.  See 18 U.S.C. § 3142(g)(3).   
Here, characteristics weighing in favor of Defendant’s pretrial release are her physical 
condition, family ties to the community because of her six children, employment, clean 
criminal history, and the absence of any indication she abuses drugs or alcohol.  Substantially 
outweighing these positive characteristics, however, is Defendant’s character.  Rarely does the 
Court encounter a person less credible than Defendant.  As recounted in the factual 
background, Defendant lied in a filing attested to as true in the Middle District of Georgia, lied 
to the probation officer in this case, and provided testimony at the detention hearing that was 
full of inconsistencies, obfuscations, and implausible scenarios concerning her employment 
status, summer travel plans, the cash withdrawal on May 2, 2022, an alleged but unverified 
wire transfer overseas, and the financial status and nature of her tax business.  In light of her 
character, it would be foolhardy to trust that Defendant would abide by the conditions of 
release and provide truthful answers to inquiries by her supervising officer. 
C. 
Nature and Seriousness of Danger to the Community    
As the Eleventh Circuit has explained, “[t]he term ‘dangerousness,’ as used in the Bail 
Reform Act of 1984, has a much broader construction than might be commonly understood in 
everyday parlance.”   United States v. King, 849 F.2d 485, 487 n.2 (11th Cir. 1988).  Indeed, 
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the Act broadly references the safety of any person and the safety of the community at large.  
While the primary focus of the former is the risk of physical violence toward a particular person 
such as a victim or witness, the latter refers to any risk a defendant may pose to the well-being 
of a community.  Id.  Examples include the potential corruption of a union or the obvious perils 
drug trafficking poses to a community.  Id.   
If Defendant truly owns twelve Jackson Hewitt tax franchises, she poses a serious and 
immediate threat to (1) taxpayers who entrust her company to maintain highly sensitive 
personal and financial information; and (2) the public coffers that are so easily manipulated by 
submission of fraudulent tax returns.  She also poses a danger to potential witnesses, as 
evidenced by the intimidating text messages allegedly sent to one witness.   
D. 
Risk of Flight 
By far, the most important factor weighing in favor of detention is risk of flight. 
Defendant is a native of Kenya and regularly makes return trips there to see her father and all 
of her siblings.  She admits withdrawing $100,000 in cash soon after learning in May she was 
the target of a federal investigation, and SA Truax determined from bank records this transfer 
occurred on the very day of the interview.  She further admits making plans to visit Kenya in 
July without informing her defense attorney and seeking permission from the U.S. Attorney’s 
Office, despite her understanding that it was important for her to do so.  Her attempts to explain 
away these events are unpersuasive and not credible.  These troubling facts compel the 
conclusion that Defendant is a significant flight risk, especially when paired with undeniable 
evidence that Defendant cannot be trusted to tell the truth.   
 
 
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III. 
CONCLUSION 
For the above reasons, the Court finds (1) by clear and convincing evidence that there 
is no bond condition or combination of conditions that would reasonably assure the safety of 
the community; and (2) by a preponderance of the evidence that no bond condition or 
combination of conditions will reasonably assure Defendant’s appearance in court.  
 
Accordingly, Defendant is committed to the custody of the Attorney General or his 
designated representative for confinement in a corrections facility separate, to the extent 
practicable, from persons awaiting or serving sentences or being held in custody pending 
appeal.  Defendant shall be afforded a reasonable opportunity for private consultation with 
defense counsel.  On order of a court of the United States or on request of any attorney for the 
government, the person in charge of the corrections facility shall deliver Defendant to the 
United States Marshal for the purpose of an appearance in connection with a court proceeding. 
SO ORDERED this 21st day of July, 2022, at Augusta, Georgia. 
 
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