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United States v. Rechnitzer

February 28, 2007

UNITED STATES OF AMERICA
v.
PHILIP RECHNITZER; RONALD PERSAUD; ESTHER PERSAUD; INDRANIE PERSAUD; AND SHAWN PERSAUD, DEFENDANTS.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Following her arrest on December 4, 2006, defendant Esther Persaud ("Persaud") was released on various conditions pending trial. Those conditions included requirements that Persaud report information concerning her employment and finances to the Pretrial Services Office.*fn1 On advice of counsel, Persaud declined to do so, Pretrial Services moved to revoke or modify the conditions of her release, and Persaud asserted that her Fifth Amendment privilege against self-incrimination protected her against disclosure of the requested information. The Court then directed the parties to submit legal briefs on Persaud's claim, which they have now done. Docket Nos. 59, 64, 67. For the reasons which follow, Persaud's assertion of her Fifth Amendment privilege is overruled and she is directed to disclose the information requested by Pretrial Services.

I. Background

On November 29, 2006, a grand jury returned a second superseding indictment in the above-captioned case charging Persaud and four others in twelve counts with conspiracy, fraud, and money laundering in violation of 18 U.S.C. §§ 2, 371, 1341, 1343, and 1956(h). Docket No. 43. The indictment also alleges that certain property of the defendants is subject to forfeiture. The indictment charges that between October 2003 and December 2005, the defendants falsely representing themselves as bank executives to solicit advance fee payments from various individuals and entities in return for commercial funding. The indictment alleges that the defendants obtained over $500,000 in this fashion which they converted to their own use. Id.

Persaud was arrested on December 4, 2006, pleaded not guilty, and was released on certain conditions. As relevant here, those conditions included supervision by Pretrial Services and the following additional conditions:

(e) Maintain or actively seek employment. . . .

(I) You shall provide the probation officer with access to any requested financial information.

(ii) You shall not open additional lines of credit without the approval of the probation officer.

(iii) The Court finds there is a reasonably foreseeable risk that you may engage in criminal conduct similar or related to the present offense. Therefore, the Court orders that if deemed necessary by the probation office or Court, you may be directed to notify your employer of risks that may be occasioned by your criminal record, personal history or characteristics, and the Court further authorizes the probation officer to confirm your compliance with this notification requirement.

Conditions of Release (Docket No. 46) at 2.

Probation Officer Joanne M. DeFreest ("DeFreest") was assigned to supervise Persaud. Persaud met with DeFreest for the first time on December 11, 2006 at which DeFreest questioned Persaud about her employment status and directed her to complete Form 48 entitled "Net Worth Statement." Docket No. 59, Ex. C. Form 48 consists of a one- page instruction sheet, eight pages of specific requests for information and documentation on assets and liabilities, five pages of instructions and requests for information and documentation on monthly cash flow, and four pages containing a certification, request for self-employment records, a consent for Probation Office access to financial records and credit reports, and a statement of rights under the Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401 et seq. Id. The information and communications required from Persaud thus fell into three categories: her consent for Pretrial Services to obtain credit reports, oral information on Persaud's employment, and a written summary of Persaud's net worth.

On advice of counsel, Persaud declined to answer the employment questions, complete Form 48, or provide the requested documents. DeFreest then moved to revoke or modify the conditions of Persaud's release pursuant to 18 U.S.C. § 3148(b) and a summons was issued to Persaud. Docket No. 57. Persaud appeared before the undersigned on this motion on January 16, 2007 and asserted her Fifth Amendment privilege against providing the requested information and documents. Persaud's release on the conditions previously set was continued pending resolution of her claim of privilege.

II. ...


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