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Beshara_reply to Gov's Motion for Reconsideration of Self-surrender

Beshara_reply to Gov's Motion for Reconsideration of Self-surrender

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Published by: catatoniatoday on Jan 13, 2012
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01/13/2012

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IN THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF VIRGINIAAlexandria DivisionUNITED STATES OF AMERICA ::v. :: Case No: 1:11-CR-447-001: Hon. Anthony J. TrengaHANA AMAL BESHARA : Hearing: Jan. 13, 2012:Defendant :REPLY TO GOVERNMENT’SMOTION FOR RECONSIDERATION OF SELF-SURRENDER 
COMES NOW, the Defendant, HANA AMAL BESHARA, by and through counsel, inreply to the government’s Motion for Reconsideration of Self-Surrender (filed Jan. 9, 2012, Dkt.#101) [hereinafter 
Govt Motion
]. There is no legal basis for reconsideration of the Court’s rulingthat Ms. Beshara continue on release pending her designation to a BOP institution. Werespectfully submit that the government’s motion be denied.Hana Beshara has already met her burden of establishing that she “is not likely to flee or  pose a danger to the safety of any other person or the community if released.”
See
18 U.S.C.§3145(a); Fed. R. Crim. Pro. 46(c). Thus, her release is mandated by statute.
See
18 U.S.C.§3145(a) (“If the judicial officer makes such a finding, such judicial officer 
 shall 
order therelease of the person.”) (emphasis added).The government cites nothing that warrants reconsideration. Reviewing NinjaVideo’sFacebook page, and a related internet forum, the government finds a woman who is letting off some steam in her online community. In fact, in Ms. Beshara’s post-sentencing musings, she
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writes (in admittedly colorful language that is fairly common on the internet) to reassure friendsand supporters that she will be able to handle serving the twenty-two month sentence.
Govt 
 
Motion
, Exhibit
 
2
.
She jokes about maybe losing some weight, picking up a degree, earning pennies making license plates.
 Id.
Reflecting on her actual sentence, she notes that it would benatural to resent the judge that had imposed jail time on her, but she recognizes that she receiveda relatively lenient sentence.
 Id.
These are not the writings of a defendant who is “likely to flee.”Ms. Beshara was writing about serving her sentence, she was retrospective about how it easilycould have been worse, how she could have received more jail time. She is preparing to go to jail, not to run from it.The government does not dispute that Ms. Beshara is not a flight risk. Instead, they present two unpersuasive arguments. First, the government argues that Ms. Beshara poses adanger to the community due to internet postings that the government claims “suggest she mayengage in physical violence with her future fellow inmates.”
Govt Motion
at 2. As an initialmatter, this is simply not a basis for reconsideration as it is not evidence that Ms. Beshara poses a“danger to the safety of any other person or the community if released.”
See
18 U.S.C. §3145(a).The government’s position amounts to the bizarre argument that Ms. Beshara should beincarcerated sooner because she will present a danger to “future fellow inmates” onceincarcerated.
Govt Motion
at 2.Moreover, the postings the government refers to are simply the online bluster of someonewho has never spent a moment incarcerated. For example, the government notes Ms. Beshara’s posting that she will “run” her “cell block.”
 Id.
at 3. Ms. Beshara won’t even be on a cell block.She is clearly joking, as she jokes about having to make license plates. In fact, subsequent to the
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 posts the government complains about, Ms. Beshara writes, “Nah but seriously guys, this is a sadand tragic situation and I want us to smile and laugh and stay together.”
See Govt Mtn
, Exhibit 3,top of page 3.The government’s other argument is that Ms. Beshara’s postings “demonstrate a clear lack of remorse” regarding illegal conduct.
 Id.
at 2. Notably, in its motion, the government refersto these internet postings as “actions” and “conduct.”
 Id.
at 2. They are not. There is a muchmore accurate term: speech. The prosecution is not happy that Ms. Beshara is not as remorsefulas they would like her to be. However, Ms. Beshara’s exercise of her First Amendment right toexpress her displeasure at being sent to jail is not a basis for reconsideration of self-surrender.Copyright infringement is against the law and Ms. Beshara pled guilty. Expressing some anger that she is going to prison for her conduct is speech that is protected by the Constitution.
See
 U.S. Const.
 Amend. I.
The cases cited by the prosecution are inapposite as they deal with release pendingappeal, pursuant to 18 U.S.C. §3143(b), not release pending execution of sentence, pursuant to18 U.S.C. §3143(a). The government’s lead citation itself notes “the heavier burden imposed by18 U.S.C. § 3143(b) compared to release pending sentencing under § 3143(a).”
See United Statesv. Nicolo,
706 F. Supp. 2d 330, 332 (W.D.N.Y. 2010) (cited by the prosecution,
Govt Motion
at2). This is because subsection (b), regarding release pending appeal, requires a showing by thedefendant that the appeal raises a “substantial question of law or fact” likely to result in relief. 18U.S.C. §3143(b). This was the primary basis on which Defendant Nicolo was denied his motionto for release pending appeal.
See Nicolo,
706 F. Supp. 2d at 336. No such burden exists in theinstant case as it does not involve release pending appeal.
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