United States District Court, N.D. California.
OAKLAND DIVISION ORDER DENYING REQUEST FOR BAIL PENDING APPEAL
YVONNE GONZALEZ ROGERS, District Judge.
Pending before this Court is defendant Saleem M. Khan's Motion for Bail Pending Appeal. (Dkt. 66.) The Court sentenced Mr. Khan on March 13, 2014 to a 21-month custodial sentence after he entered an "open" guilty plea to one count of bank fraud in violation of Title 18 U.S.C § 1344 and one count of making false statements to a financial institution in violation of Title 18 U.S.C § 1014. The Court allowed Mr. Khan to self-surrender on June 23, 2014. On June 18, 2014, five days before his surrender date, the defendant filed the instant motion for bail pending appeal. The Court extended the surrender date one week to provide the Court with sufficient opportunity to analyze the last-minute request. On June 23, 2014, the Government filed an opposition to the motion and on June 25, 2014, defendant filed a reply, including his declaration. (Dkts. 69, 71, 72.)
For the reasons set forth below, the Court DENIES the motion and provides this written Order pursuant to Federal Rule of Appellate Procedure 9.
A comprehensive factual background is set forth in the Presentence Investigation Report ("PSR" at Dkt. 36) to which no one filed an objection. (PSR at 17.) The Court finds these facts to be undisputed. The PSR provides in pertinent part:
....On September 2, 2005, Khan obtained a home equity line of credit from E-Loan regarding [an] Appian Way residence in the amount of $345, 000 ("HELOC" or "HELOC loan"). On October 3, 2005, a deed of trust securing the HELOC was filed with the Alameda County Recorder's Office with respect to the Appian Way residence. (¶ 8.)
On October 25, 2005, E-Loan sold the HELOC loan to E-Trade. Thereafter, E-Trade utilized PNC to service the HELOC loan. As of January 2010, Khan's outstanding principal balance on the HELOC was approximately $344, 850.... (¶ 9.)
Beginning no later than July 2010, and continuing to approximately March 2011, Khan knowingly devised and executed a scheme to defraud PNC and E-Trade in order to obtain more than $299, 850 in funds owed on the HELOC secured by the Appian Way residence and the deed of trust securing the HELOC.... (¶ 10.)
In furtherance of the scheme, after about January 2010, Khan stopped making payments on the HELOC loan. On July 13, 2010, Khan falsely stated in a telephone call with a PNC representative that the reason that he had defaulted on payments on the HELOC loan was that he had been laid off from his job for 14 months. On October 29, 2010, the HELOC loan was charged off by PNC, with E-Trade's concurrence, and referred to PNC's recovery department, which operated as a division of PNC known as CLC Consumer Services. Thereafter, Khan told a default specialist in PNC's recovery department that he was in financial hardship and wanted to settle the loan. (¶ 11.)
...On January 13, 2011, in response to a request from the PNC default specialist, Khan sent an e-mail from the Northern District of California to the default specialist in Pennsylvania, which included attached documents supporting his offer to settle the HELOC for $45, 000. These documents included (a) a so-called hardship letter in which Khan falsely stated that he had lost his job at the end of 2007 and was not able to secure a stable job until July 2010; (b) altered pay statements falsely indicating that Khan was employed by AB Star Group, from which he purportedly received a bi-weekly net salary of approximately $1, 900; and (c) an income and expense statement falsely listing a monthly income of $4, 117. Khan involved his nephew, Kamran Khan, in altering Khan's pay statements reporting that Khan was employed by AB Star Group. (¶ 11.)
In truth, at the time of his January 13, 2011 e-mail, Khan had been nearly continuously employed since July 1995. Further, in December 2008, Khan began working as a consultant for Kaiser Permanente. On July 29, 2009, Khan was hired as a full-time employee of Kaiser Permanente, with a bi-weekly net salary of approximately $3, 190 in January 2011. At no time was Khan ever an employee of AB Star Group. Moreover, between April 2010 and January 2011, Khan earned more than $870, 000 by buying and selling options and by conducting other transactions through brokerage accounts, which income was not disclosed in the income and expense sheet that Khan submitted to PNC on January 13, 2011. (¶ 12.)
In advance of sentencing, the defendant provided Probation with a written statement admitting in pertinent part as follows: "I illegally settled my HELOC with the bank to benefit myself in the amount of $299, 850." (¶ 18.) As set forth above, the scheme began in approximately January 2010 when Mr. Khan stopped making ...