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United States v. Alghaithi

United States District Court, D. Arizona

April 12, 2019

United States of America, Plaintiff,
v.
Abdulkader Naji Alghaithi, Defendant.

          REPORT AND RECOMMENDATION

          Honorable Lynnette C. Kimmins, United States Magistrate Judge.

         Pending before the Court is the matter of Return of Property Held for Forfeiture in Defendant Alghaithi's criminal case. (Docs. 270, 275.) The matter has been referred to this Court by District Judge Jennifer G. Zipps for hearing and a Report and Recommendation pursuant to LRCrim 57.6.

         This matter was originally set for a hearing on February 5, 2019, but was continued to allow witness Zakiriea Abdulkader Alghaithi to consult with his attorney and to permit defense counsel to obtain the services of a personal Arabic Interpreter. Evidence and argument were heard on March 21, 2019. (Doc. 297.) This matter was submitted following argument at the conclusion of the hearing. The Magistrate Judge recommends that the District Court release $37, 000 to Zakiriea Abdulkader Alghaithi and retain the remaining funds pending further proceedings.

         I. FACTUAL BACKGROUND

         Defendant was indicted with the felony offenses of conspiracy to commit with intent to distribute controlled substances (Counts 1 and 3), possession with intent to distribute controlled substances (Count 2), and conspiracy to commit mail fraud (Count 4). (Docs. 3, 40, 53.) The superseding indictment alleged forfeiture of any property constituting or derived from proceeds of the offenses or intended to be used to commit the offenses, to include but not limited to real property at 3975 East Agate Knoll Drive, Tucson, AZ (Agate Knoll residence) and $87, 597 in U.S. currency seized during execution of a search warrant at the Agate Knoll residence. (Docs. 40, 53.)

         Defendant was arrested on July 27, 2016, and appeared for his initial appearance on July 28, 2016. (Docs. 13, 22.) At his initial appearance, after reviewing Defendant's financial affidavit, and pursuant to 18 U.S.C. § 3006A, Magistrate Judge Bruce G. Macdonald found that Defendant qualified for a court appointed attorney.

         On November 1, 2018, a jury convicted Defendant of Counts 1, 2, and 3 of the superseding indictment and found him not guilty of Count 4 (mail fraud). (Doc. 250.) The jury was retained to determine the forfeiture of Defendant's Agate Knoll residence, the $87, 597 in U.S. currency, and a 2015 Chevrolet Spark. The jury found only the Agate Knoll residence and vehicle forfeitable, determining that the residence and vehicle were not derived from any proceeds but were used or intended to be used in the commission of the crimes. (Doc. 258.)[1]

         On December 17, 2018, Defendant lodged a proposed order for return of the $87, 597 to Defendant. (Doc. 271.) The government filed a response to the lodged proposed order on January 8, 2019. (Doc 275.) After this matter was referred by District Judge Zipps, the Court ordered the parties to file briefing concerning Defendant's finances and whether the $87, 579 seized, but not proven forfeitable, is available for reimbursement to the CJA fund for Defendant's attorney's fees. (Docs. 277, 280, 281.)

         At the March 21 hearing, both Defendant and his son, Zakiriea Alghaithi, testified that $37, 000 of the money seized from the Agate Knoll residence was Zakiriea's money. Zakiriea made a formal claim to DEA on October 12, 2016, for said funds. (RT 3/21/19 at 12-15, 19, 64; Exs. 31-32.)[2] This testimony was not refuted by the government. Additionally, Defendant and Zakiriea testified that the Agate Knoll residence is a four-bedroom, three-bath home occupied by Defendant, his wife (Hebah, age 46) and two minor children, Zakiriea (age 29, owner of Royal Hookah Lounge), his wife and minor child, and Defendant's son Jibreel (age 25, currently attending school and not working). (RT at 11-12, 16-17, 24-25; PSR at 20.)[3] Defendant indicated that he supports his wife and minor children, as well as his brother Adel's wife and children who reside in Tucson while Adel is studying English in New York. (RT at 24-25, 33; PSR at 19.) Defendant's wife is a legal permanent resident having been born in Yemen along with her minor children. (PSR at 20.) Defendant and his wife are culturally traditional such that she is not seen in public, is unable to drive, and does not work or speak English. (RT at 23, 31; PSR at 20.)

         Defendant claimed that, of the remaining $50, 579 seized from the Agate Knoll residence, approximately $30, 000 was his wife's money, leaving $20, 579 attributable to Defendant. (RT at 19, 55-56.) Defendant did not explain how or why this money would be only his wife's and not deemed community property. In fact, Defendant testified that he, after discussions with his wife, intended to use the $30, 000 for business purposes but later decided he would use the money to purchase the residence at 6943 S. Copper Run Avenue. (RT at 55-56.)

         The PSR reported Defendant's Financial Condition as follows:

Assets

Residence

3975 E. Agate Knoll Drive

$200, 000.00

Vehicle

2015 Dodge (Jibreel-son)

12, 000.00

Vehicle

2013 Honda (Adel-brother)

10, 000.00

Checking Acct.

Commerce Bank

2, 000.00

Checking Acct.

Vantage West Credit Union

5, 000.00

Checking Acct.

Pima Fed Credit Union

11, 000.00

Checking Acct.

Tucson Fed Credit Union

2, 000.00

Vehicle

2007 Toyota Camry (Defendant)

2, 500.00

Other Residence

6943 S. Copper Run Ave

157, 000.00

Other Asset Type

Vantage West C.U. card

10, 000.00

Total Assets

$411, 500.00

Liabilities

Mortgage

6943 S. Copper Run Ave

$102, 479.00

Total Liabilities

$102, 479.00

Total Net Worth

$309, 021.00

Monthly Income

Salary

Chihuahua Market

$ 2, 058.00

Total Monthly Income

$ 2, 058.00


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