Opinion
CRIMINAL NO. 01-629-03
February 9, 2004
MEMORANDUM AND ORDER
After a careful review of the papers before this Court and a hearing on January 20, 2004 regarding Defendant Aktham Abuhouran's motion captioned, "Motion to Compel the Government to Comply with Plea Agreement," I find that the Government complied with the language of the guilty plea agreement ("plea agreement") allowing it to declare Defendant Aktham Abuhouran ("Defendant"), also known as Tony Houran, in partial breach of the plea agreement. For the foregoing reasons, Defendant's motion is DENIED.
As I am speaking primarily to the parties, I will dispense with a full recitation of the facts, but will address an overview of the facts pertinent to this instant motion. Between August 8 and August 12, 1997, Defendant, along with his brother, Adam, and wife, Izdehar attempted to steal $2.5 million dollars through a counterfeit check scheme and flee the country. Most of the banks they targeted for this scheme detected it as a scheme and did not wire the money as they requested, however, PNC Bank did wire $185,000.00 to a bank account in Defendant's name in Amman, Jordan. At issue is the condition contained in paragraph 8 of Defendant's plea agreement's requiring Defendant to take "all steps, within his power," to return this $185,000.00.
The Government and Defendant entered into the plea agreement pursuant to Federal Rule of Criminal Procedure 11(e)(1)(C), which permits assessing a specific sentence in the disposition of this case. Defendant's plea agreement reduced the charges against him from one count of conspiracy to commit fraud and obstruct justice, in violation of 18 U.S.C. § 371, and three counts of mail fraud, in violation of 18 U.S.C. § 1341, to one count of conspiracy. By virtue of Defendant's guilty plea to one count of conspiracy in violation of Section 371, the Government agreed to dismiss the other counts of the indictment and to cap his sentence at its statutory maximum of sixty months.
Defendant testified during the hearing that, under his plea agreement, Defendant agreed that if he employed his best efforts to return the money, the Government would recommend that Defendant's sentence run concurrently with another sentence he is serving in another financial fraud case, with the exception that twenty-four of those months run consecutively to the other sentence he is serving.
As set forth in paragraph 8 of the plea agreement:
The defendant agrees that, as a condition of this plea agreement, he is obligated to take all steps, within his power, to assure that $185,000 which was wired from PNC Bank to an account in the defendant's name at Arab Jordan Investment Bank on August 14, 1997 is returned to the custody of PNC Bank ("PNC") prior to the date of sentencing. . . .
Further, in paragraph 8, the agreement reads:
[I]f all of the money is not returned to PNC Bank prior to the date of sentencing, the Government may declare a partial breach of this plea agreement, and is relieved of its consent in this agreement to recommend that part of the 60-month sentence provided by this agreement run concurrently with the other federal sentence the defendant is serving.
"In determining whether the terms of the plea bargain have been violated, the court must determine whether the Government's conduct is consistent with the parties' reasonable understanding of the agreement."United States v. Wilder, 15 F.3d 1292, 1295 (3d Cir. 1994), quoting United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993). Defendant, who was represented by counsel at the time he signed the plea agreement, understood his plea agreement to mean that the Government was agreeing to charge him with one count of conspiracy and recommend the statutory maximum of sixty months for that count, only if the $185,000.00 was returned to PNC Bank or the Government honestly believed he did everything within his power to return PNC's money. Further, Defendant understood that if he fulfilled that condition, then the Government would make a sentencing recommendation that he serve only twenty-four of the sixty months consecutive to the other sentence he is currently serving. However, if Defendant did not do everything within his power to return the money to PNC Bank, then under the terms of the plea agreement the Government could declare a partial breach and recommend that a larger portion of Defendant's maximum sentence run consecutively.
Under the terms of the plea agreement, there is one way that Defendant can be relieved of his obligation to secure the return of the money. Paragraph eight of the plea agreement concludes that if Defendant proves to the Court's satisfaction that "the failure to return the money was entirely the result of actions of the Arab Jordan Investment Bank or the Government or judiciary of Jordan, without any influence or advice of the defendant, Nasim Hattar, Izdehar Abuhouran, or anyone acting on behalf of any of them," then the Government may not declare a partial breach of his plea agreement. This is the only situation under which Defendant could escape accountability for the disappearance of the money. As a result of Defendant's inaction, as explained herein, I am not satisfied that the money disappeared without his influence.
Had the Government honestly believed Defendant did all that was in his power to return the $185,000.00 to PNC Bank, then, under the terms of the plea agreement, it would have been required to recommend a twenty-four-month consecutive sentence for Defendant. The Government was properly within its discretion when it declared that Defendant's collective actions did not satisfy the plea agreement's requirement that he do all that was in his power to secure the return of PNC's $185,000.00.
After entering into the plea agreement, the Government notified Defendant by a letter in June of 2003 that, five years ago, in July 1998, his brother, Adam Houran, was alleged to be responsible for instituting, in the country of Jordan, a fraudulent lawsuit against Defendant and his wife, Izdehar, for an unpaid debt. A fraudulent settlement agreement for this 1998 lawsuit bore signatures that appeared to be Defendant's, his wife's and his brother Adam's, and resulted in the wrongful withdrawal of the $185,000.00, which was being held by a Jordanian court pending the outcome of an unrelated case between Defendant and PNC. At the time of his brother Adam's 1998 fraudulent lawsuit, Defendant, represented by his wife, Izdehar, and his father-in-law and uncle, Nasim Hattar, to whom Defendant had given his power of attorney, was in the midst of his own lawsuit to retrieve that same $185,000.00 to put towards the care of his wife and children.
At the hearing, Defendant testified that he first learned of Adam's alleged fraudulent lawsuit in June of 2003, and that he did not participate in the lawsuit's settlement agreement that resulted in the wrongful withdrawal of the $185,000.00. After examining the signatures on the settlement agreement, Defendant claimed that his and his wife's signatures were forgeries, but that Adam's signature might be authentic. Defendant agrees that if the Government's allegations against his brother Adam were true, then he was betrayed by his brother. Defendant never directly confronted his brother Adam with these allegations.
I find Defendant's testimony at the January 20, 2004 hearing to be untrustworthy. Defendant's testimony was laden with inconsistencies and his demeanor was evasive when questioned about his failure to directly confront his brother Adam about the missing $185,000.00. On cross-examination, Defendant testified that he did, in fact, ask his brother Adam about the missing money, but when later confronted by the Government with the fact that his telephone calls to his brother were monitored, Defendant contradicted his earlier testimony, admitting that he never directly asked his brother about the missing money.
If I were to take Defendant's representations throughout this matter as true, the end result is absurd. First, Defendant testified that he was betrayed by someone responsible for the fraudulent lawsuit and settlement agreement scheme because it caused the disappearance of PNC Bank's $185,000.00. The Government alleged as early as June 2003 that this someone was his brother Adam. As a result of this betrayal, Defendant was aware that he faced a longer sentence under his plea agreement. Second, the settlement agreement that triggered the illegal withdrawal of the money allegedly bears Defendant's wife's name and signature. Defendant testified that because this fraudulent settlement agreement contained a signature that appeared to be his wife's, his wife is in "serious trouble" and could face jail time in Jordan. If his wife were to be incarcerated, then his children would be without both their mother and father, a concern that Defendant has previously raised with the Court. Third, Defendant testified that he knew both he and his wife did not sign the settlement agreement, but that he could not say with certainty whether the signature on the document was his brother Adam's signature. It defies the human experience that Defendant made no telephone call to directly challenge his brother, learn the details regarding the disposition of the money, or demand that his brother return the money to PNC Bank, when the consequences of not doing so weigh heavily against the best interests of Defendant and his family. Accordingly, this Court will not compel the Government to honor a discretionary term of the plea agreement since the Government's refusal to honor that term was not made in bad faith, which conduct if indeed made in bad faith would have constituted a breach of the plea agreement by the Government. See United States v. Isaac, 141 F.3d 477, 484 (3d Cir. 1998).
Defendant's failure to directly ask his brother Adam questions concerning the whereabouts of this money is unreasonable and inexcusable under the terms of Defendant's plea agreement. Defendant assented to a provision in the plea agreement that required him to do all that was in his power to secure the return of the $185,000.00. I find Defendant's failure to directly question his brother to be a conspicuous violation of his plea agreement. I also find that the Government declared a partial breach in good faith, consistent with the Defendant's reasonable understanding of the terms of the plea agreement. Therefore, I find that the Government declared a partial breach consistent with the terms of the plea agreement. Defendant's Motion is DENIED.
Defendant's remaining requests for relief are, therefore, dismissed as moot.