Opinion
Case No. 22-CR-0348-GKF-1
2023-11-22
UNITED STATES of America, Plaintiff, v. Navin KHANNA, a/k/a Lovin, a/k/a Logan, Defendant.
Danbee Kim, Government Attorney, DOJ-Crm, Organized Crime and Gang Unit, Washington, DC, David Nasar, Government Attorney, DOJ-USAO, Tulsa, OK, Reagan Vincent Reininger, Joel-lyn Alicia McCormick, Government Attorneys, United States Attorney's Office, Tulsa, OK, for Plaintiff. Justin Andrew Lollman, GableGotwals, Tulsa, OK, for Defendant.
Danbee Kim, Government Attorney, DOJ-Crm, Organized Crime and Gang Unit, Washington, DC, David Nasar, Government Attorney, DOJ-USAO, Tulsa, OK, Reagan Vincent Reininger, Joel-lyn Alicia McCormick, Government Attorneys, United States Attorney's Office, Tulsa, OK, for Plaintiff.
Justin Andrew Lollman, GableGotwals, Tulsa, OK, for Defendant.
ORDER
GREGORY Y. FRIZZELL, UNITED STATES DISTRICT JUDGE.
This matter comes before the court on the Expedited Motion to Lift Stay of Release Order [Doc. 243] of defendant Navin Khanna. For the reasons set forth below, the motion is granted. I. Background/Procedural History
On October 4, 2022, a grand jury returned an Indictment in this District charging defendants Navin Khanna a/k/a "Lovin," a/k/a "Logan"; Adam G. Sharkey; Robert Gary Sharkey; Benjamin Robert Mansour; Tyler James Curtis a/k/a "Ty"; Reiss Nicole Biby; Martynas Macerauskas a/k/a "Marty"; Kristina McKay Macerauskas; Parker Star Weavel; Shane Allen Minnick; Ryan David LaRue; Brian Pate Thomas; and Michael Anthony Rhoden, a/k/a "Big Mike" with one count of Conspiracy pursuant to 18 U.S.C. §§ 371 and 2. [Doc. 2]. Additionally, Mr. Khanna is charged with one count of Sale and Receipt of Stolen Goods pursuant to 18 U.S.C. §§ 2315 and 2; one count of Conspiracy to Commit Money Laundering pursuant to 18 U.S.C. § 1956(h); and five counts of Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity pursuant to 18 U.S.C. § 1957(a). [Id.]. The charges relate to an alleged conspiracy to steal catalytic converters from private vehicles then sell the converters to "core buying businesses," including DG Auto, a business allegedly owned and operated by Mr. Khanna.
Mr. Khanna was arrested on the Indictment in New Jersey. There, U.S. Magistrate Judge Edward S. Kiel conducted a detention hearing and, on November 16, 2022, ordered Mr. Khanna released on conditions. That same day, the government filed the Motion for Stay and for Revocation of Release Order [Doc. 107], seeking a stay of Magistrate Judge Kiel's release order. The undersigned granted the stay pending further order of this court. [Doc. 108]. The government took no further action related to Mr. Khanna in this matter.
On November 21, 2023, the court independently obtained and reviewed a copy of Magistrate Judge Kiel's release order, as well as the Pretrial Services Report prepared by the U.S. Probation Office for the District of New Jersey.
However, Mr. Khanna is also charged in Eastern District of California Case No. 22-CR-213-KJM. Mr. Khanna was also initially ordered released on conditions in that case but, on November 3, 2022, the government filed a motion to revoke the release order. Judge Mueller stayed Mr. Khanna's release and ordered the U.S. Marshals to "promptly transport" him to the Eastern District of California.
In a February 23, 2023 Order, U.S. District Judge Kimberly J. Mueller granted the government's motion to revoke and ordered Mr. Khanna detained pending trial. Judge Mueller cited evidence that over $26 million in DG Auto's funds were unaccounted for to conclude the government had met its burden to show by a preponderance of the evidence that no combination of conditions could reasonably assure Mr. Khanna's appearance as required.
For ease of reference, the court refers to Eastern District of California Case No. 22-CR-213-KJM, United States v. Khanna, et al., as "the California Case." The court takes judicial notice of the filings in that case and has reviewed same. See St. Louis Baptist Temple, Inc. v. Fed. Dep. Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (internal citation omitted) ("[A] court may, sua sponte, take judicial notice of its own records and preceding records if called to the court's attention by the parties.... Further, it has been held that federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.").
On August 31, 2023, Mr. Khanna sought reconsideration of Judge Mueller's February 23 Order based on a forensic audit of DG Auto's business finances that accounted for all but $104,624 of DG Auto's funds. Judge Mueller held a hearing on October 30, 2023 and, on November 6, 2023, granted
Mr. Khanna's motion. Specifically, Judge Mueller ordered that Mr. Khanna be released on a $500,000.00 bond, secured by all available equity in the property owned by Kamaljit and Jaswinder Badwal in Malden, Massachusetts. The court advised the parties that the Release Order would not be signed until the property was posted. To date, the Release Order has not issued.
The court has listened to the audio of the October 30, 2023 hearing.
On November 7, 2023, in this matter, the government advised the court of Judge Mueller's release order in the California case, and requested that Magistrate Judge Kiel's release order remain stayed until the parties could be heard in this court on the government's Motion for Revocation of Release Order. [Doc. 236]. The court granted the government's request and stayed Magistrate Judge Kiel's release order until December 7, 2023 to permit sufficient time for Mr. Khanna to appear in this district and for the parties to be heard on the government's motion. [Doc. 237]. The court set the motion for revocation for hearing on December 7, 2023 at 1:30 p.m. [Id.].
Due to the court's schedule, the hearing was subsequently reset to December 4, 2023 at 1:30 p.m. [Doc. 238].
To date, Mr. Khanna has not appeared in this district. However, on November 20, 2023, the Federal Public Defender for the Northern District of Oklahoma advised the court that Mr. Khanna had requested appointment of counsel and furnished a financial affidavit. [Doc. 239]. That same day, U.S. Magistrate Judge Jodi F. Jayne appointed CJA panel member Justin Lollman to represent Mr. Khanna in this case. [Doc. 240].
On November 21, 2023, Mr. Lollman, on behalf of Mr. Khanna, filed the Expedited Motion to Lift Stay of Release Order [Doc. 243], asking the court to vacate its order staying Magistrate Judge Kiel's release order. The government filed a response in opposition. [Doc. 246]. Thus, the motion is ripe for the court's determination.
II. Analysis
To determine whether a stay is warranted pending appeal, the court should consider whether "(1) [the party seeking the stay] is likely to prevail on the merits on appeal; (2) [the party seeking the stay] will be irreparably harmed in the absence of a stay; (3) other parties will not be substantially harmed by the entry of a stay; and (4) the public interest favors a stay." United States v. Tolliver, No. 10-CR-141-JHP, 2012 WL 3263620, at *1 (N.D. Okla. Aug. 9, 2012); see also United States v. Taylor, No. 21-CR-392-RCL, 2021 WL 2439231, at *1 n.1 (D.D.C. June 15, 2021). The court considers the first and second factors together, then separately considers the third and fourth factors.
A. Likelihood the Government Will Prevail on the Merits and Irreparable Harm in the Absence of a Stay
Mr. Khanna primarily argues that the government is unlikely to prevail on the merits, as its arguments are barred by collateral estoppel (issue preclusion). See [Doc. 243, p. 4]. However, the court need not consider the potential applicability of issue preclusion because the government is otherwise unlikely to prevail on the merits of the motion to revoke. That is, based on the court's review of the Pretrial Services Report prepared in the District of New Jersey, the filings and audio in the California case, and the motions and briefs in this matter, it is unlikely the government will
satisfy its burden to justify Mr. Khanna's continued pretrial detention.
"Under the Bail Reform Act, a defendant may be detained pending trial only if a judicial officer finds 'that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.'" United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003) (quoting 18 U.S.C. § 3142(e)). To determine whether there are conditions of release that will reasonably assure defendant's appearance as required and the safety of any other person and the community, the court must take into account the available information concerning the following:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) 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, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
18 U.S.C. § 3142(g). The government must prove risk of flight by a preponderance of the evidence, and danger to any other person or the community by clear and convincing evidence. Cisneros, 328 F.3d at 616 (citing 18 U.S.C. § 3142(f)).
Based on the nature of the charges against Mr. Khanna, the rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community is inapplicable. See 18 U.S.C. § 3142(e).
The government sought pretrial detention of Mr. Khanna based on both the need to assure Mr. Khanna's appearance as required and the safety of any person and the community. [Doc. 105].
Looking first to whether Mr. Khanna's release poses a danger to any person or the community, Mr. Khanna is not accused of a violent crime, nor does he have a history of violence. Further, although the court acknowledges that "the safety concern expressed in § 3142(e) is broader than merely the danger of physical harm from violence ... [and] 'refers to the danger that the defendant might engage in criminal activity to the detriment of the community,'" United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989), the government has proffered nothing that indicates that Mr. Khanna will continue to engage in criminal activity. In fact, the nature of these proceedings belies any such contention as all of Mr. Khanna's co-defendants have been arrested and are released on conditions pending trial. The
government has not sought to revoke any co-defendant's release based on ongoing criminal activity. Nor is there any indication that Mr. Khanna has continued the criminal conduct underlying the California Case. In fact, Judge Mueller recognized that the "government was unable to point to any evidence that defendants' alleged catalytic converter operation is ongoing." USA v. Khanna, No. 22-CR-00213-KJFM, [Doc. 149, p. 6]. Thus, the government has not demonstrated by clear and convincing evidence that Mr. Khanna poses a danger to any other person or the community.
Turning to Mr. Khanna's risk of flight, defendant is charged in a nationwide conspiracy to traffic in stolen catalytic converters, which allegedly resulted in millions of dollars in profits. Mr. Khanna faces up to twenty years in prison if convicted on certain counts. For these reasons, the court concludes Mr. Khanna is charged with a serious offense. However, the government offers little information regarding the weight of the evidence against Mr. Khanna.
Instead, the court gives significant weight to Mr. Khanna's personal history and characteristics. Although born in India, Mr. Khanna has resided in the United States for over twenty years and is a United States citizen. Mr. Khanna has close familial ties to the United States, as his wife, child, parents, and brother reside in New Jersey. The government points to Mr. Khanna's past travel, but law enforcement has seized Mr. Khanna's passport, hindering his ability to travel. Further, when released following his initial arrest in New Jersey, Mr. Khanna did not flee but, instead, appeared as required.
The government's assertion that Mr. Khanna may "no longer pledg[e] allegiance to the United States" [Doc. 246, p. 4], is entirely speculative. Further, regardless of Mr. Khanna's citizenship, alienage alone is insufficient to establish risk of flight. See Hung v. United States, 439 U.S. 1326, 99 S.Ct. 16, 58 L.Ed.2d 33 (1978).
The United States argues that the significant liquid assets of Mr. Khanna and DG Auto—most of which allegedly resulted from the charged crimes—render Mr. Khanna a flight-risk. However, the court has reviewed the evidence submitted in the California Case and concurs with Judge Mueller that DG Auto's funds are accounted for and in the government's custody. Likewise, Mr. Khanna's personal assets have been seized. To that end, on November 20, 2023, Mr. Khanna submitted a Financial Affidavit in this matter, based upon which the Magistrate Judge concluded that Mr. Khanna is without sufficient funds to hire an attorney. [Doc. 240]. Thus, based on the most recent information, Mr. Khanna no longer has access to significant liquid assets but, instead, has limited financial resources. Accordingly, Mr. Khanna lacks the means to flee and the court is persuaded that conditions of release could be crafted to ensure his appearance as required.
In its motion to revoke, the government asserted that agents were not certain that they had seized all of Mr. Khanna's accounts. [Doc. 107, p. 8]. However, the government makes no such claim in its response to Mr. Khanna's motion to lift the stay. Given the passage of time and the significant investigation performed in this case and the California Case since the filing of the motion to revoke, the court concludes that the government's claim that Mr. Khanna may have undiscovered assets is stale.
The court takes judicial notice of the related civil forfeiture matter currently pending before the undersigned. See United States v. 2017 Four Winns H180 Boat, et al., Case No. 23-CV-00223-GKF-SH (N.D. Okla.).
Based on the foregoing, it is unlikely that the government will satisfy its burden
to demonstrate by a preponderance of the evidence that no conditions of release will ensure Mr. Khanna's appearance as required. Therefore, the government is unlikely to succeed on the merits of its motion to revoke release order, and the first factor weighs against continued imposition of the stay.
For the same reasons, the second factor—whether the government will be irreparably harmed if the stay is revoked —weighs against continued imposition of the stay. Because it is unlikely that the government will prevail and justify Mr. Khanna's continued pretrial detention, the court is not persuaded that the government will suffer irreparable harm if Mr. Khanna is released on conditions.
For these reasons, the first and second factors weigh heavily in favor of lifting the stay.
B. Harm to Other Parties by Entry of Stay
Unlike the government, Mr. Khanna will suffer substantial harm through the continued imposition of the stay of release order. As recognized by other courts, "loss of liberty for the time of pretrial detention is 'irretrievable' regardless of the outcome at trial." Page v. King, 932 F.3d 898, 904 (9th Cir. 2019). It is fundamental that an individual has a "strong interest in liberty." United States v. Salerno, 481 U.S. 739, 750, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Mr. Khanna has been detained pending trial in this case, as well as the California Case, for over a year. Based on new evidence and information, Judge Mueller has determined that pretrial detention is no longer warranted in the California Case. And, despite this court giving it every opportunity, the government has not provided any information or evidence to suggest that continued detention is warranted. Thus, further detention would result in substantial harm to Mr. Khanna and the third factor weighs against continued imposition of the stay and in favor of revocation.
C. Public Interest
Finally, the public interest does not favor continuation of the stay. Rather, as recognized by the U.S. Supreme Court, "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Salerno, 481 U.S. at 755, 107 S.Ct. 2095. Given the improbability that the government will satisfy its burden to show that Mr. Khanna falls within a "carefully limited exception," the public interest weighs in favor of revocation of the stay.
III. Conclusion
WHEREFORE, the Expedited Motion to Life Stay of Release Order [Doc. 243] of defendant Navin Khanna is granted.
IT IS FURTHER ORDERED that defendant Navin Khanna shall be released pending trial pursuant to the conditions of release imposed on November 16, 2022 by U.S. Magistrate Judge Edward S. Kiel.
IT IS FURTHER ORDERED that the hearing on the Motion for Revocation of Release Order [Doc. 107] of plaintiff United States of America is continued to Thursday, December 14, 2023 at 2:00 p.m.
IT IS FURTHER ORDERED that the November 29, 2023 response deadline to the motion to revoke is stricken. Rather, on or before November 29, 2023, the government may file a supplemental brief in support of the Motion for Revocation of Release Order. Defendant Navin Khanna may file a response to the supplemental brief on or before December 6, 2023. IT IS SO ORDERED this 22nd day of November, 2023.