Reply Mtn Reconsid
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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. 1, 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 fairly common on the internet) to reassure friends andsupporters that she will be able to handle serving the 22 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 be natural to resent the judgethat had imposed jail time on her, but she recognizes that she received a relatively lenientsentence.
Id.
These are not the writings of a defendant who is “likely to flee.” Ms. Beshara waswriting about serving her sentence, she was retrospective about how it easily could have beenworse, how she could have received more jail time. She is preparing to go to jail, not to run fromit.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 theonline bluster of someone who has never spent a moment incarcerated. For example, thegovernment 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 makelicense plates, and the government’s attempt to suggest otherwise is unpersuasive.
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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.The facts are completely distinguishable on other bases as well. Nicolo was tried andconvicted of fraud and money laundering.
Id.
at 331. He never accepted responsibility for hisactions and the trial court felt that his refusal to ever accept responsibility was an indication that
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