Order re: Motion for International Travel — United States v. Ester Ozkar (N.D. Cal., Dkt. 19, August 2, 2021)

Summary

An Order re: Motion for International Travel in United States of America v. Ester Ozkar, Case 3:21-cr-00144-CRB, Document 19, filed 08/02/21, in the U.S. District Court for the Northern District of California. The order addresses the defendant's motion (ECF No. 13) to travel to Turkey from August 15 to September 7, 2021, which the government opposes and the pretrial services officer does not oppose. The court discusses flight risk under 18 U.S.C. § 3143(a)(1) and states that the case is not clear that the defendant will return when supposed to or in time for sentencing. It orders that the request for international travel is denied, dated August 2, 2021, with a signature block naming Thomas S. Hixson, United States Magistrate Judge.

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“Order re: Motion for International Travel — United States v. Ester Ozkar (N.D. Cal., Dkt. 19, August 2, 2021).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-n-d-cal-no-3-21-cr-00144-dkt-19-n-d-cal-5cf6a82e15/, SHA-256 0cf9e356dae7b505a4394b7fd7990612dd706e6c39d01a3f6d748177308cfcb4.

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Case 3:21-cr-00144-CRB Document 19 Filed 08/02/21 Page 1 of 4

6 UNITED STATES DISTRICT COURT

7 NORTHERN DISTRICT OF CALIFORNIA

9 UNITED STATES OF AMERICA, Case No. 21-cr-00144-CRB-1 (TSH)
10 Plaintiff,
ORDER RE: MOTION FOR
11 v. INTERNATIONAL TRAVEL
12 ESTER OZKAR, Re: Dkt. No. 13

United States District Court
13 Defendant.

15 Defendant Ester Ozkar moves for an order to permit international travel. ECF No. 13. He

Northern District of California
16 states that he is a native of Turkey, where a large majority of his maternal and paternal family still
17 reside (though his mother and father are deceased). He moved to the United States in 1978 and
18 became a naturalized citizen in 1982. His wife, children and grandchildren all reside in the U.S.
19 Ozkar says that before the pandemic he visited family in Turkey at least once a year. He has been
20 unable to travel since 2019 because of COVID-19. He is now fully vaccinated and travel to
21 Turkey is permitted, save for the condition of pretrial release that he remain in the Northern
22 District of California.
23 By way of background, the government filed a superseding information against Ozkar on
24 May 12, 2021, and seven days later he was arraigned and pled guilty that same afternoon. At the
25 arraignment he was released without a bond or requiring a custodian. Ozkar is currently scheduled
26 to be sentenced in December 2021. The sentencing guidelines dictate a sentence of 21-27 months,
27 but the government has agreed to recommend a sentence below the guidelines range of 14 months.
28 Ozkar requests permission to travel to Turkey from August 15 to September 7, 2021. His pretrial
Case 3:21-cr-00144-CRB Document 19 Filed 08/02/21 Page 2 of 4

1 services officer does not object.

2 But the government does. The government observes that the standard for determining

3 conditions for a defendant pending sentencing is governed by 18 U.S.C. § 3143(a)(1),1 which

4 states that “the judicial officer shall order that a person who has been found guilty of an offense

5 and who is awaiting imposition or execution of sentence . . . be detained, unless the judicial officer

6 finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the

7 safety of any other person or the community if released under section 3142 (b) or (c),” meaning on

8 his own recognizance or on an unsecured appearance bond, or under other release conditions. The

9 burden of proving that the defendant will not flee and is not a danger is on the defendant. Fed. R.

10 Crim. Proc. 46(c).

11 The government argues that allowing Ozkar to travel to his country of origin and stay

12 where a large portion of his family lives encourages flight, especially given the government’s

United States District Court
13 understanding that he speaks Turkish fluently and has strong ties to the community in Turkey.

14 The risk of flight is particularly strong, the government asserts, given that Ozkar is likely facing a

15 custodial sentence in the U.S. The government also argues that international travel is risky during

Northern District of California
16 the pandemic, especially given the new COVID variants now spreading.

17 Ozkar retorts that he has never been a flight risk. He says he was under investigation and

18 was cooperating with the government since September 2020, knowing charges would be filed, and

19 he did not flee. Instead, he pled guilty immediately and paid more than $500,000 in restitution.

20 Ozkar says that his immediate family is here and he would not abandon them. As to COVID, he

21 again points out that he is fully vaccinated, and he says he will follow the advice of the

22 government to test and isolate as necessary.

23 Let’s think this through. Normally, risk of flight is the risk that a defendant will run away

24 and be difficult to find and bring back. Here, if Ozkar’s motion is granted, the odds that this will

25 happen are 100%. After all, his request is that he be given back his passport and allowed to travel

26 to Turkey, which is on the other side of the world and beyond the reach of U.S. law enforcement

28
1
The reference to subsection 3143(a)(2) in the government’s brief appears to be a typo, as the
brief correctly quotes from subsection (a)(1).
2
Case 3:21-cr-00144-CRB Document 19 Filed 08/02/21 Page 3 of 4

1 (except for possible extradition).

2 The flight risk in this context is the risk that Ozkar will not come back. And we have to

3 think about that risk carefully. Let’s assume Ozkar’s current intention is to return. He will then

4 go on a three-week reunion with many family members he has not seen in a long time. At the end

5 of that trip, he will pack his bags and go to the airport, and he must decide whether to board the

6 plane. He knows what lies on the other side of that plane ride: prison. Ozkar won’t be like a

7 regular criminal defendant present in the U.S. who figures that if he skips his sentencing or fails to

8 surrender, he will just be arrested by the U.S. Marshals, the FBI, or the police. If you’re in the

9 U.S., you can’t outrun law enforcement forever. By contrast, Ozkar will be able to turn around

10 and leave the airport, and nothing will happen to him. He can get up the next morning a free man.

11 And as he is standing in the airport, weighing his decision, he will know that. The temptation for

12 him not to get on that plane will be huge. How much temptation can a man be expected to bear?

United States District Court
13 The Court understands that Ozkar has ties to the community here as well. His adult

14 children and their children live here. His wife lives here as well, although counsel clarified at the

15 hearing that she plans to accompany him on the trip to Turkey, raising the risk that they could

Northern District of California
16 together decide not to return. Perhaps, as counsel suggests, overstaying his visa in Turkey would

17 eventually lead to problems (though it is amazing how long some people are able to overstay their

18 visa in the U.S.); and, perhaps, being away from his children and grandchildren for too long will

19 ultimately cause Ozkar to understand what he probably understands right now, which is that

20 serving his prison term is the only way to get back to his old life with his family. Still, the case is

21 not clear, and it is certainly not convincing, that Ozkar will return when he is supposed to or in

22 time for his sentencing. The Court does not see the benefit – and does not see the benefit to Ozkar

23 – of letting him leave his U.S. family situation that has been a source of stability during his

24 criminal case and handing him an effortless opportunity to flee. Once he is in Turkey, he can flee

25 simply by doing nothing. At some level, granting this request for international travel would be

26 unfair to Ozkar because it would mean putting a defendant who has done well on pretrial release

27 into a situation that seems almost to encourage him to do the wrong thing – which wouldn’t be

28 good for his sentence.
3
Case 3:21-cr-00144-CRB Document 19 Filed 08/02/21 Page 4 of 4

1 The defendant’s request for international travel is denied.

2 IT IS SO ORDERED.

4 Dated: August 2, 2021

5
THOMAS S. HIXSON
6 United States Magistrate Judge
7

United States District Court
13

Northern District of California
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