Friday, July 6, 2001
Page 3
Ninth Circuit Upholds Ruling That Returning Fugitive Can’t Get Back Bond
Panel Says Defendant Who Agreed to Plea Bargain, Then Asked for Money Back, Was Guilty of ‘Chutzpah’
By a MetNews Staff Writer
A dual citizen who fled to Israel rather than face trial for defrauding Nevada and New Jersey casinos isn’t entitled to have his bond refunded, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In an opinion laced with Yiddish idioms, Judge Sidney Thomas concluded that a district judge didn’t abuse his discretion in denying Dror Sar-Avi’s motion to remit bond forfeiture under Rule 46(e)(4) of the Federal Rules of Criminal Procedure.
“It is fortuitous that ‘Yiddish is quickly supplanting Latin as the spice in American legal argot,’ ” Thomas wrote—citing “Lawsuit, Shmawsuit”— a 1993 Yale Law Journal by colleague Alex Kozinski and former Kozinski law clerk, now UCLA law professor, Eugene Volokh—“otherwise we might be bereft of a satisfactory description of defendant’s argument in this case.”
Thomas branded Sar-Avi’s contentions “chutzpah”—unmitigated gall. He detailed “[t]he whole magillah”—a long story—of how Sar-Avi found himself in the Ninth Circuit.
Sar-Avi, the appellate jurist recounted, opened a number of phony bank accounts in order to obtain credit from the casinos. After he “lost his borrowed chips,” the judge explained, he withdrew his money from the accounts and caused over $58,000 in markers to bounce.
“Perhaps rightly perceiving that the casinos would not take kindly to his charade,
Sar-Avi took the money and ran to Israel, making full use of his dual American-Israeli citizenship,” Thomas recounted. He eventually returned to give a deposition in a civil suit he had filed against an insurance company, only to find he had been indicted on four counts of wire fraud.
Sar-Avi posted $10,000 of a $100,000 bond, pledging the rest. He later entered a guilty plea, but returned to Israel—which does not extradite its citizens—rather than face sentencing.
In 1998, after a six-year absence, Sar-Avi agreed to return and enter a new plea agreement covering the original case plus a bail-jumping charge. As part of that agreement, he paid the $90,000 outstanding on his bail forfeiture, but a year later he moved to get the money back.
Prosecutors vigorously opposed the motion. “After negotiating two plea agreements with Sar-Avi and pursuing him for a decade,” Thomas explained, “the government naturally thinks that the idea that Sar-Avi has preserved any rights to challenge his bond forfeiture is pure mishegas”—craziness.
But however galling the contention, Thomas wrote, there was nothing in the plea agreement that barred Sar-Avi from raising it. While Sar-Avi agreed to pay the forfeiture, the jurist reasoned, he did not waive his right to move to remit or to appeal the denial of such a motion.
The government could have asked him to waive his right to file a Rule 46(e) motion, Thomas elaborated, but it didn’t. But while Sar-Avi had the right to file his motion, Thomas went on to say, the district judge had the right to deny it.
In deciding a Rule 46(e) motion, Thomas explained, the district judge must weigh all relevant factors, including the willfulness of the non-appearance and “the cost, inconvenience and prejudice suffered by the government” as the result of the defendant absconding.
U..S. District Judge Howard McKibben of the District of Nevada properly relied on those factors in denying the motion, Thomas concluded.
The appellate jurist rejected the argument that Sar-Avi’s medical condition, described by the defendant as a “near fatal” heart attack, rendered his flight involuntary. Sar-Avi failed to support his claim that he suffered a heart attack or show that he couldn’t obtain quality medical care in this country, Thomas said, and didn’t raise the issue until years after he left.
Thomas also concluded that the delays in resolving the case and obtaining restitution for the victims were sufficient inconvenience to support denial of the motion.
The judge, who noted that “when the term ‘chutzpah’ is used in judicial opinions, it is almost always synonymous with the losing party,” wrote:
“A defendant who jumps bail, flees the country, and obtains a favorable plea bargain based on his promise of immediate payment should not, as a matter of law, expect a refund for the asking.”
Thomas, who doesn’t list a religious affiliation in his biography, was joined in his opinion by. Judges A. Wallace Tashima—who doesn’t list one either—and Diarmuid F. O’Scannlain, a Roman Catholic.
The case is United States v. Sar-Avi, 00-10077
Copyright 2001, Metropolitan News Company