{"id":"court_2cir_26-361_emergency_stay","court":"2Cir","case_no":"","doc_number":null,"sub_number":null,"doc_type":"DOC","filed_date":null,"title":"2Cir ECF 26-361_emergency_stay","summary_zh":"紧急停止量刑动议——美国诉 Ho Wan Kwok(郭文贵/Guo Wengui/Miles Guo)案第二巡回上诉法院 26-361 号案 ECF/DktEntry 18.1/18.2(2026年4月18日提交)。Pro se 请愿人 Tony 请求上诉法院在其强制令请愿(即 DktEntry 7)审结前,暂缓 SDNY 原定2026年4月27日进行的量刑,理由是量刑照常进行将实质剥夺其 CVRA 权利,并主张政府损失计算方法存在系统性缺陷——包括资金经多层中间账户转移、部分'受害人'因在中国被拘押而无法参与核实、以及跨实体混同资金未做去重处理。","summary_en":"Emergency motion to stay sentencing — filed in United States v. Ho Wan Kwok (Miles Guo / Guo Wengui), Second Circuit No. 26-361, ECF/DktEntry 18.1/18.2 (filed April 18, 2026). Pro se petitioner Tony asks the Second Circuit to stay the SDNY sentencing then scheduled for April 27, 2026, pending resolution of his mandamus petition (Dkt. 7), arguing that proceeding would effectively extinguish his CVRA rights and that the government's loss-calculation methodology is systemically flawed — citing multi-layer intermediary fund routing, a victim pool partly inaccessible due to detentions in China, and failure to de-duplicate commingled transfers across entities.","body_en":"Form T-1080 (rev.12-13)\nUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT\nThurgood Marshall U.S. Courthouse   40 Foley Square, New York, NY 10007 Telephone: 212-857-8500\nMOTION INFORMATION STATEMENT\nDocket Number(s): ________________________________________        _______________Caption [use short title]_____________________\nMotion for: ______________________________________________\n________________________________________________________\n________________________________________________________\nSet forth below precise, complete statement of relief sought:\n________________________________________________________\n________________________________________________________\n________________________________________________________\n________________________________________________________\n________________________________________________________\n________________________________________________________\nMOVING PARTY:_______________________________________ OPPOSING PARTY:____________________________________________\n___Plaintiff\n    ___Defendant\n___Appellant/Petitioner     ___Appellee/Respondent\nMOVING ATTORNEY:___________________________________ OPPOSING ATTORNEY:________________________________________\n________________________________________________________  _______________________________________________________________\n________________________________________________________ _______________________________________________________________\n________________________________________________________ _______________________________________________________________\nCourt- Judge/ Agency appealed from: _________________________________________________________________________________________\nPlease check appropriate boxes:\n   FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND\n     INJUCTIONS PENDING APPEAL:\n\nIs oral argument on motion requested?\n ___Yes  ___No (requests for oral argument will not necessarily be granted)\nHas argument date of appeal been set?\n  ___ Yes ___No  If yes, enter date:_______________________________________________________\nSignature of Moving Attorney:\n_________________________________ Date:__________________  Service by: ___CM/ECF   ___Other [Attach proof of service]\n[name of attorney, with firm, address, phone number and e-mail]\nHas this request for relief been made below?                   ___Yes  ___No\nHas this relief been previously sought in this court?\n ___Yes  ___No\nRequested return date and explanation of emergency:     ________________\n_____________________________________________________________\n_____________________________________________________________\n_____________________________________________________________\n_____________________________________________________________\nHas movant notified opposing counsel (required by Local Rule 27.1):\n___Yes   ___No (explain):__________________________\n\n_______________________________________________\nOpposing counsel’s position on motion:\n___Unopposed ___Opposed ___Don’t Know\n\nDoes opposing counsel intend to file a response:\n___Yes    ___No    ___Don’t Know\n26-361\nEMERGENCY MOTION FOR A TEMPORARY STAY\n OF SENTENCING PENDING RESOLUTION OF PETITION FOR WRIT OF MANDAMUS\nPlease see in the motion\nTony\nUnited States District Court, Southern District of New York\nTony\nNathan Rehn\n26 Federal Plaza, 37th Floor, New York, NY 10278\n(212)-637-2354\nUnited States District Court, Southern District of New York, Hon. Analisa Torres, U.S. District Judge\nSentencing  date is April 27, 2026, therefore before the sentencing date\nApril 15, 2026\nIn Re: Tony\nto prevent irreparable harm.\nCase: 26-361, 04/18/2026, DktEntry: 18.1, Page 1 of 1\nSIGN\n\n---\n\nUNITED STATES COURT OF APPEALS FOR THE SECOND\nCIRCUIT\nIn Re: Tony\nSDNY: 1:23-cr-00118-AT\nSecond Circuit: 26-361\nEMERGENCY MOTION TO STAY SENTENCING PENDING\nMANDAMUS REVIEW, OR IN THE ALTERNATIVE, FOR\nRECORD PRESERVATION\nI, Tony, appearing pro se, respectfully move this Court to stay the sentencing in SDNY\nCase No. 1:23-cr-00118-AT, currently scheduled for April 27, 2026, pending resolution\nof my petition for a writ of mandamus.\n\nThe issues presented do not merely affect the precision of loss calculation; they\nrender the entire loss determination structurally unreliable and legally insufficient\nfor sentencing purposes. Proceeding to sentencing on such a record would violate\nbasic due process requirements that sentencing be based on reliable and verified\ninformation.\n\nI. Background:\n\nAccording to my original mandamus, funds remitted to G-series entities and subsequently\nfrozen by the United States have, in multiple instances, been characterized by Chinese\nauthorities as conduct constituting “funding criminal activities that endanger national\nsecurity”, creating a direct cross-sovereign inconsistency in the treatment of the same\ntransactions. At the same time, certain individuals identified as “victims” in the U.S.\nproceedings have reportedly been detained in China and are unable to appear or\nassert claims, raising concerns regarding the completeness and adversarial balance\nof the record before the Court. The record further shows that numerous investors\nfollowed a substantially identical remittance pathway, reflecting a broader, systemic\npattern rather than isolated conduct. In addition, official Chinese materials classify these\nmatters as national-security cases subject to “centralized handling” (集中处置)—a\nprocess of coordinated, higher-level governmental control rather than ordinary case-by-\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 1 of 9\n\n---\n\ncase adjudication—underscoring the need for careful scrutiny to ensure that victim\ndeterminations and forfeiture assessments are based on a complete and independently\nverifiable record.\nII. A STAY IS NECESSARY TO PRESERVE APPELLATE RIGHTS\nAND PREVENT IRREPARABLE HARM\nAbsent a stay, the harm is immediate and irreversible:\n\nA. Extinguishment of CVRA Rights at Sentencing\nMy rights under the Crime Victims’ Rights Act will be effectively extinguished. The\nright to be reasonably heard at sentencing is inherently time-sensitive and can only be\nexercised prior to the imposition of sentence. Once sentencing has occurred, that right\ncannot be restored. The mandamus petition does not seek to alter substantive outcomes,\nbut to ensure that the record on which sentencing is based is procedurally complete. If\nsentencing proceeds before mandamus review, the very right at issue—the right to have\nsubmissions docketed and considered—will be rendered meaningless.\n\nB. Irreparable Harm from Systemic Methodological Defects in Loss Attribution\n1. Intermediary-Mediated Flow Structure (See my original Mandamus, SDNY 817,\npage 9)\n\nAs reflected in the record, funds originating from Chinese investors were not\ntransferred directly to downstream entities, but instead moved through a structured\nintermediary process. Specifically, investor funds were first deposited into\npersonal accounts and then routed through foreign-trade company accounts for\ncurrency conversion before being transmitted to accounts associated with the\nHimalaya Alliance network. Once received, those funds were further redistributed\nthrough additional layers of designated accounts under organizational control. This\nmulti-layered routing structure was not isolated, but appears to follow a uniform\nand systemically replicated pattern across transactions.\n\n2. Victim Pool Contamination and Inaccessibility (Frozen / Detained Claimants)\n\nA further structural issue arises from the effective inaccessibility of a subset of\nputative victims due to foreign enforcement actions, detention, or coercive\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 2 of 9\n\n---\n\nmeasures affecting their ability to assert claims or participate in verification\nprocesses. Where individuals within the alleged victim pool are unavailable to\nconfirm, reject, or clarify their claimed losses, the resulting dataset becomes\npartially non-adversarial and structurally incomplete. This affects not only\nindividual claim validity, but also the integrity of aggregate loss calculations that\ndepend on victim confirmation for allocation and reconciliation.\n\nAccordingly, the absence of a fully participatory victim verification process\nintroduces systematic distortion risk in both (i) the scope of recognized losses and\n(ii) the allocation of funds among claimants.\n\n3. Failure to De-duplicate Across Commingled and Multi-Layer Transfers\n\nThe Government’s methodology does not appear to implement a rigorous de-\nduplication framework capable of distinguishing between: initial capital\ncontributions, intra-entity transfers, intermediary pass-through movements, partial\nredemptions or reallocations, and overlapping accounting classifications across\nentities or accounts. Given the documented intermediary structure and\ncommingling at intermediary layer and downstream accounts, the same economic\nvalue may be reflected multiple times across different segments of the\ntransactional record. Without a trace-level reconciliation model, aggregated\ninflow figures risk overstating net pecuniary harm by failing to eliminate\ninternal movement redundancies. This creates a material risk that the nominal\nloss figure reflects gross flow aggregation rather than net, non-duplicative victim\nloss.\n\n4. Cross-Jurisdictional Legal Classification Conflict and Unvalidated Loss\nAttribution Model\n\nThe record also reflects materially inconsistent legal characterizations of the same\nfinancial flows across jurisdictions, including divergent sovereign determinations\nregarding the legal nature of the underlying transactions. While such foreign\nclassifications are not dispositive in U.S. sentencing, their existence underscores\nthat the underlying dataset has not been subjected to a unified legal classification\nframework capable of consistently distinguishing lawful investment flows,\ndisputed funds, and alleged criminal proceeds. Critically, the Government’s loss\nmodel does not appear to have explicitly tested whether the same funds can be\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 3 of 9\n\n---\n\nconsistently classified as “actual loss” under U.S.S.G. §2B1.1 across competing\ninterpretive frameworks, nor does it resolve whether portions of the aggregated\ninflows should be treated as non-loss, disputed, or legally ambiguous funds.\nInstead, the model proceeds from aggregated financial movement data to a\nconclusion of loss magnitude without a documented intermediate step validating\nclassification stability under the governing legal standard.\n\n5. Systemic Replication Through “Centralized Handling” (集中处置)\n\nThe record further reflects that the intermediary-mediated routing structure and\nvictim pool issue, as well as Cross-Jurisdictional issue described above are not\nlimited to isolated transactions, but is consistent with a broader pattern identified\nin Chinese enforcement and administrative characterization as “centralized\nhandling” (集中处置). Therefore, the government has not produced a loss\nestimate; it has produced an unverified aggregation of financial flows that\ncannot, as a matter of law or methodology, be translated into “actual loss”\nunder U.S.S.G. §2B1.1.\n6. Fatico Hearing Insufficiency in Addressing Structural Defects\n\nNotably, defense counsel has requested a Fatico hearing (SDNY Dkt. 822) to\naddress disputed sentencing issues. While such a hearing may be appropriate for\nresolving discrete factual disputes through testimony and evidentiary presentation,\nit is not capable of curing the structural defects identified here. A Fatico hearing\npresumes that disputed facts can be resolved through adversarial testing of\nevidence—such as witness credibility, document authenticity, or competing\nfactual narratives. However, the issues presented in this case are not limited to\ndiscrete factual disagreements, but instead concern systemic methodological\ndeficiencies in the construction of the loss figure itself.\n\nAccordingly, even if a Fatico hearing were conducted, it would not address the\nthreshold issue presented here: whether the Government’s loss estimate is derived\nfrom a sufficiently reliable and methodologically valid foundation as required\nunder U.S.S.G. § 6A1.3 and Fed. R. Crim. P. 32.\n\n7. Conclusion: Structural Defects Render Loss Determination Irreparably Unreliable\n\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 4 of 9\n\n---\n\nTaken together, the foregoing defects demonstrate that the Government’s loss\ncalculation rests on a structurally unstable and methodologically unverified\nfoundation. The underlying dataset is non-adversarial, non-deduplicated, and\nclassification-unstable. As a result, any resulting figure is not merely imprecise—it\nraises serious questions as to whether it can qualify as a ‘reasonable estimate’\nunder U.S.S.G. §2B1.1. The intermediary-mediated and systemically replicated\ntransaction structure (“centralized handling”), combined with victim\ninaccessibility, absence of de-duplication controls, and unresolved cross-\njurisdictional classification conflicts, prevents reliable separation of investor-\noriginated funds, intermediary transfers, and downstream allocations.\n\nAlthough the Government invokes a “reasonable estimate” standard (SDNY Dkt.\n833), such a determination must still satisfy the reliability requirements of\nU.S.S.G. § 6A1.3 and Fed. R. Crim. P. 32. Those requirements cannot be met here\nbecause the underlying dataset is non-adversarial, commingled, and\nmethodologically unvalidated. While a Fatico hearing may resolve discrete factual\ndisputes, it cannot cure systemic methodological defects where the issue is the\nabsence of a reliable framework for loss attribution itself.\n\nAccordingly, once the current loss model is adopted at sentencing, it becomes the\nbinding factual predicate for restitution and forfeiture, and would significantly\nconstrain meaningful appellate review or any subsequent effort to revise or\ndisplace that determination, as doing so would require disturbing the finality\nframework of the judgment. Critically, this transformation occurs not after\nresolution of the mandamus issues, but in the absence of any adjudication\naddressing their merits. In that posture, the Court is not merely deferring\nreview—it is allowing the contested methodology itself to be transformed into\nbinding fact. Proceeding to sentencing under these circumstances would\ntherefore effectively moot the mandamus relief by eliminating the Court’s\nability to provide meaningful post-adoption correction, because the\nchallenged framework would already have been incorporated into the\noperative judgment.\n\nIn the absence of a stay, the mandamus petition would be rendered effectively\nunreviewable in a meaningful sense, because the challenged methodology would\nhave already been crystallized into binding sentencing findings without prior\nadjudication of the issues currently before this Court.\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 5 of 9\n\n---\n\nIII. Likelihood of Success\nLikelihood of Success on the Merits:\n\nThe mandamus petition presents a substantial likelihood of success because the district\ncourt failed to docket and consider material evidence directly bearing on: victim\nidentification, loss calculation, and ownership of funds. This is not a routine evidentiary\ndispute. It is a record-formation failure that directly affects the legal validity of any\nsentencing determination.\n1: Incomplete Record Material exhibits (including Exhibit D) were never docketed. A\nsentencing based on an incomplete record is inherently unreliable.\n\n2: Unverified Victim Pool The Government relies on a broad victim population that:\ncannot be independently verified, includes individuals unable to appear, and lacks\ndisclosed methodology.  An unverified victim pool cannot support a reliable loss\ncalculation under U.S.S.G. §2B1.1.\n\n3: Cross-Border Legal Conflict: The same funds are: treated as “criminal proceeds\nendangering national security” by Chinese authorities, and as “victim losses” in this\nproceeding.  A loss calculation built on legally contradictory characterizations of the\nsame funds is structurally unreliable.\nIV. Impact on public interest\n\nPublic interest strongly favors a stay. This case presents a replicable risk that sentencing\nmay proceed on unverified and internally inconsistent records, thereby normalizing\nadjudication based on evidentiary frameworks that have not been subjected to adversarial\ntesting.\nV. Balance of equities\n\nThe choice is between a short delay and a potentially flawed sentencing—equity strongly\nfavors preserving the status quo to prevent irreversible incorporation of disputed facts\ninto the sentencing record. These issues cannot be dismissed as harmless. Loss amount\nand victim identification are central drivers of the applicable sentencing range.\nStructural unreliability in these determinations necessarily undermines the integrity\nof the sentencing framework as a whole.\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 6 of 9\n\n---\n\nVI. RECORD PRESERVATION (CRITICAL FACTUAL\nFOUNDATION)\nTo preserve issues for review, Petitioner identifies the following material facts that were\nnot fully incorporated into the sentencing record:\nA. CCP Interference with Witnesses (Ya Li Testimony on SDNY Dkt. 415, p.\n141)\n\n1: Trial testimony confirms that Chinese authorities contacted a government\nwitness’s family and issued warnings related to “national security”\n2: This directly corroborates evidence I submitted regarding state pressure on\nparticipants\nThis evidence bears on credibility of witnesses, voluntariness of complaints,\nintegrity of the evidentiary record.\nB. Evidence of Systematic Coerced or Falsified Complaints\n\n1:Defense submissions acknowledge that some complaints were coerced or state-\ninfluenced (SDNY Dkt. 822, p 58)\n\n2: Key declarants did not appear for cross-examination (25-2726 Dkt. 34, 40)\n\n3: First-hand exculpatory explanations (including livestream disclosures) were never\nentered into the trial record (25-2726 Dkt. 40 page 21)\nThis creates a record where: accusations are included, but countervailing first-\nhand evidence is structurally absent.\nC. Cross-Border Legal Conflict Over the Same Funds\nMy evidence demonstrates:\n1: The same funds are treated by a foreign sovereign as national-security-related\ncriminal funds\n2: While in this proceeding they are treated as victim losses\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 7 of 9\n\n---\n\nThis unresolved conflict creates ambiguity in ownership, uncertainty in victim\nstatus , instability in loss calculation. A loss figure derived from legally\nconflicting characterizations cannot be considered reliable.\nD. Impact on Government Theory and Expert Testimony\nFBI agent Kimberly Espinoza  (SDNY Dkt. 425 p. 129)  and government  experts\nPaul Hinton (SDNY Dkt. 441)  relied on a simplified “money-in/money-out” fraud\nmodel.\nMy evidence introduces:\n1: Coercion\n2: Political pressure\n3: Alternative explanations for fund flows\n4: Unverified sources of funds and judicial conflicts\nHad this evidence been included: expert conclusions may have been limited or\nundermined, the reliability of the Government’s model would be materially\naffected\nE. Core Structural Defect\nTaken together:\n1: Missing evidence\n2: Untested victim pool\n3: Cross-border legal conflict\n4: Unchallenged expert assumptions\ncreate a single structural problem:\nThe sentencing record is structurally unreliable and incapable of supporting a\nlawful sentencing determination.\n\nThe above issues are preserved for appellate review and are not presented as\nresolved findings of fact.\nVI. Relief requested\n\nAbsent resolution of these issues, proceeding to sentencing would risk imposing\npunishment based on a record that is incomplete, internally inconsistent, and legally\nunreliable. This harm is irreparable because it would be extremely difficult to\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 8 of 9\n\n---\n\nreconstruct on appeal. Once sentencing is imposed, appellate review will be confined\nto a record that never incorporated my submissions. A brief stay is therefore\nnecessary to prevent irreparable harm and to preserve the integrity of the judicial\nprocess.\nI respectfully request that the Second Circuit issue an immediate stay of all sentencing\nproceedings in the United States District Court for the Southern District of New York,\nCase No. 1:23‑CR‑118‑1 (AT), until my pending mandamus petition before this Court is\nfully adjudicated.\n\nI declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing\nstatements are true and correct to the best of my knowledge, information, and\nbelief.\nRespectfully submitted,\nTony\nApril 15, 2026\n\nCase: 26-361, 04/18/2026, DktEntry: 18.2, Page 9 of 9\n\n---\n\nCertificate of Service\nIn re: Tony, Petitioner\nUnited States Court of Appeals for the Second Circuit\nCase No: 26-361\nSDNY Case: United States v. Kwok, et al., 1:23-CR-118-1 (AT)\nI, Ryan Bai, hereby certify as follows:\nOn April 16, 2026, I submitted true and correct copy of the following document:\nEMERGENCY MOTION TO STAY SENTENCING PENDING\nMANDAMUS REVIEW, OR IN THE ALTERNATIVE, FOR RECORD\nPRESERVATION\nwas served on the following party\nNathan Rehn\nUnited States Attorney’s Office for the Southern District of New York\n26 Federal Plaza, 37th Floor\nNew York, NY 10278\nExecuted on April 16, 2026.\nRespectfully submitted,\nTony\nCase: 26-361, 04/18/2026, DktEntry: 18.3, Page 1 of 1","body_zh":null,"key_entities":[],"ecf_references":[],"word_count":2769,"status":"published","published_at":null,"created_at":null,"updated_at":"2026-07-07 13:44:16"}