{"id":"court_sdny_101_0","court":"SDNY","case_no":"","doc_number":101,"sub_number":null,"doc_type":"DOC","filed_date":"2023-06-30","title":"SDNY ECF 101","summary_zh":null,"summary_en":null,"body_en":"UNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\nUNITED STATES OF AMERICA,\nCase No. 23-CR-118-AT\nv.\nYANPING WANG,\nDefendant.\nDEFENDANT YANPING WANG’S REPLY\nIN SUPPORT OF HER MOTION FOR AN ORDER REVOKING\nTHE MAGISTRATE JUDGE’S ORDER OF DETENTION\nDATED APRIL 21, 2023, AND AUTHORIZING PRETRIAL RELEASE\nPriya Chaudhry\nCHAUDHRYLAW PLLC\n147 West 25th Street, 12th Floor\nNew York, New York 10001\nTel: (212) 785-5550\nEmail: priya@chaudhrylaw.com\nAlex Lipman\nLIPMAN LAW PLLC\n147 West 25th Street, 12th Floor\nNew York, New York 10001\nTel: (212) 401-0070\nEmail: alexlipman@lipmanpllc.com\n\nTABLE OF CONTENTS\nTABLE OF AUTHORITIES ....................................................................................................... ii\nI. THE GOVERNMENT IGNORES AND THUS CONCEDES IMPORTANT LEGAL\nAND FACTUAL ISSUES AS TO FLIGHT RISK .......................................................... 4\nA. The Government Does Not Show that Ms. Wang Intends to Flee ..................... 4\nB. Ms. Wang Has Strong Communal Ties ................................................................ 7\nC. Ms. Wang Has Nowhere Else to Go ..................................................................... 8\nD. The Government Abandons Its Cryptocurrency Theory for Another Theory\nThat Is Equally Groundless .................................................................................. 9\nE. The Government Fails to Address the Case Law Supporting That Wealth\nand the Possibility of Non-Extradition Alone Do Not Justify Pretrial\nDetention ............................................................................................................... 11\nF. Ms. Wang Did Not Lie to Pretrial Services ....................................................... 11\nII. THE GOVERNMENT HAS FAILED TO SHOW THAT NO CONDITIONS EXIST\nTHAT WOULD REASONABLY ASSURE MS. WANG’S APPEARANCE .............. 12\nIII. THE GOVERNMENT SHOULD BE PRECLUDED FROM MAKING NEW\nALLEGATIONS OR ASSERTING NEW GROUNDS FOR DETENTION THAT IT\nDID NOT ASSERT BEFORE JUDGE PARKER AND JUDGE LEHRBURGER ... 13\nCONCLUSION ............................................................................................................................ 15\ni\n\nTABLE OF AUTHORITIES\nCases\nAT&T Corp. v. Syniverse Techs., Inc.,\nNo. 12-CV-1812-NRB, 2014 WL 4412392 (S.D.N.Y. Sept. 8, 2014) ................................. 5\nCurry Mgmt. Corp. v. JPMorgan Chase Bank, N.A.,\nNo. 22-CV-05006-CM, 2022 WL 17342495 (S.D.N.Y. Sept. 30, 2022) ............................. 5\nHung v. United States,\n439 U.S. 1326 (1978) ...................................................................................................... 4, 5\nUnited States v. Barnett,\n986 F. Supp. 385 (W.D. La. 1997) ................................................................................... 7, 8\nUnited States v. Berger,\nNo. 06-CR-130-NGG, 2006 U.S. Dist. LEXIS 55844 (E.D.N.Y. Aug. 9, 2006) .............. 14\nUnited States v. Byrd,\n969 F.2d 106 (5th Cir. 1992) ............................................................................................... 13\nUnited States v. Carriles,\n481 F. Supp. 2d 792 (W.D. Tex. 2007) ................................................................................ 7\nUnited States v. Kostadinov,\n572 F. Supp. 1547 (S.D.N.Y. 1983) ..................................................................................... 5\nUnited States v. Yaming Nina Qi Hanson,\n613 F. Supp. 2d 85 (D.D.C. 2009) ....................................................................................... 6\nStatutes\n18 U.S.C. § 3142(c)(2) .................................................................................................................. 13\n18 U.S.C. § 3142(f) ....................................................................................................................... 14\n18 U.S.C. § 3148 ............................................................................................................................. 5\nii\n\nYanping Wang is a typical white-collar defendant in the Southern District of New York—\nshe has no criminal history, faces charges with enormous alleged loss amounts (creating\nelephantine sentencing guidelines), and has no history of failing to appear in court or fleeing to\navoid capture. Pretrial detention is an extraordinary measure that cannot be deployed lightly and\nis not employed for other defendants situated similarly to Ms. Wang. The reality is that if Ms. Wang\nwas not connected to Mr. Miles Kwok and rather appeared as a lone defendant on the exact same\nallegations, she would very likely have been released on bail conditions that she could meet, like\nSam Bankman-Fried. It is, and has always been, the government’s burden to demonstrate by a\npreponderance of the evidence that Ms. Wang is enough of a flight risk to warrant detention and\nthat no set of conditions would reasonably assure her appearance. Unable to meet this burden, the\ngovernment has consistently attempted to shift the burden to Ms. Wang to demonstrate why she\nshould not be detained, including in its opposition. The government has failed to meet its burden.\nMs. Wang must be released on bail.\nThe government’s jejune opposition suffers from three fatal flaws: (1) it fails to\ndemonstrate by a preponderance of the evidence that Ms. Wang presents enough of a flight risk to\nwarrant detention; (2) it fails to establish why the current detention order is appropriate for\nMs. Wang and instead merely repeats its case for detention of Mr. Kwok (perhaps hoping the Court\nwould not notice that these are distinct defendants); and (3) it inappropriately throws into its\nopposition entirely new allegations and then misconstrues the law to argue that these new\nallegations would (on their own, or in addition to the current allegations) warrant detention. In\nessence, the government simply pays lip service to its burdens of proof, as evidenced by its utter\nfailure to address several issues that are central to whether those burdens have been satisfied.\n\nOne reason the government fails to meet its burden of showing that Ms. Wang is likely to\nflee is that it paints with too broad a brush, thereby overstating Ms. Wang’s alleged culpability in\nsupport of its assertion that the strength of its evidence favors detention. An important example of\nthis: the government positions its case as one in which all the companies mentioned in the\nindictment, as well as any other company associated with Mr. Kwok, were fraudulent, such that\nany work for any of these companies was in furtherance of the various frauds charged in the\nindictment. That is simply not so. Each of the relevant companies—G|Clubs, GTV, G|Fashion,\nHymalaya Exchange, Gettr, HCHK Technologies, and HCHK Properties—are or were real\ncompanies with real businesses and real employees. Consistent with that, the government admitted\nin a Brady letter sent to counsel on June 26, 2023, that,\nIt also cannot be disputed that these companies were used,\nat least in part, to advance the cause of the anti-CCP movement (as the government alleges, this is\nprecisely what incentivized the dissident community to invest) and that their products and services\nwere meant to advance the movement in some way—for example, supporting the maintenance of\nan online anti-CCP presence (HCHK Technologies), distributing anti-CCP content (GTV),\nfostering social interaction among members of the anti-CCP dissident movement (G|Clubs), and\ndesigning and selling fashionable clothes for the anti-CCP dissident movement participants, many\nof which bear anti-CCP slogans and symbols (G|Fashion). In fact, the real gravamen of the\ngovernment’s case is not that all these companies were not real or that all of the money raised was\ndiverted. Rather, the core of the allegations is that people other than Ms. Wang made false\nstatements in connection with raising the funds (Mr. William Je wrote the PPM (ECF No. 19 ¶ 13c)\n2\n\nand Mr. Kwok made public statements to his supporters (id. ¶ 13a)), and that some of the money\nraised for these companies from the dissident community was diverted for the personal use of\nMessrs. Kwok and Je (and their families) as well as invested in a manner inconsistent with the use-\nof-funds disclosures given to prospective investors. Put another way, the government’s allegation\nis not that these businesses were illegal per se, but that in connection with these legal businesses,\nthe defendants (mainly Messrs. Kwok and Je) committed discreet illegal acts.\nWhat this means is that Ms. Wang’s mere participation in a company’s business—for\nexample, by reviewing legitimate payroll and interviewing prospective employees—is not, in the\nabsence of evidence that the specific activity in question was directly related to fraudulent\nconduct—evidence of fraud. The government simply makes a logical leap (without sticking the\nlanding) that Ms. Wang’s participation in any activity related to any of these companies is by itself\nevidence of her involvement in the conspiracy and all the allegedly fraudulent conduct.\nConsidering all circumstances, this logical leap improperly shifts the burden to Ms. Wang to\ndisprove the government’s suppositions about her role.\nEqually as grave, instead of assessing the relevant issues, the government attempts to\nintroduce several new allegations and grounds for detention never previously raised. The\ngovernment should not be able to do so, as permitting the government to proceed in this manner\nis an afront to the procedural parameters set forth in the Bail Reform Act. But even if these\nstrategically delayed contentions were to be considered, they nevertheless fail to support detention.\nFor example, as we discuss below, Ms. Wang cannot be detained on the basis that she has engaged\nin “obstructive behavior” because the cases upon which the government relies are inapposite.\nUnlike those cases, Ms. Wang has in no way engaged in witness tampering or worse. But even on\nthe merits, the government’s proffer on this issue is weak, as we detail below.\n3\n\nIn addition, the government also fails to show that no conditions would reasonably assure\nMs. Wang’s appearance. While it is true that Ms. Wang requests this Court to set bail conditions\nless onerous than originally set, the government fails to address the adequacy of some of the\nconditions that Ms. Wang proposes. The government fails to explain why a secured $2 million\npersonal recognizance bond (representing Ms. Wang’s entire net worth) would be insufficient to\nreasonably assure Ms. Wang’s appearance. The government also does not even bother to offer its\nreasons for why in-home monitoring by a responsible person is insufficient to assure compliance\nwith home confinement, given that whoever monitors (and lives with Ms. Wang for that reason)\nwould be doing so on pain of being held in contempt, should the monitor fail to carry out her\nresponsibilities faithfully. Such failures should prevent the conclusion that the government has\ncarried its burden on this issue.\nI. THE GOVERNMENT IGNORES AND THUS CONCEDES IMPORTANT LEGAL\nAND FACTUAL ISSUES AS TO FLIGHT RISK\nA. The Government Does Not Show that Ms. Wang Intends to Flee\nWe raised the issue of evidence of a defendant’s intent to flee as being a necessary\ncomponent to whether the defendant presents sufficient flight risk to warrant detention, as\nnumerous courts have held. (ECF No. 81 at 9). Specifically, we explained with supporting case\nlaw that “evidence substantiating ‘an actual risk of flight,’” i.e., the required risk-of-flight showing\nin the Second Circuit, “must be something akin to evidence that the defendant possesses an intent\nto flee.” (Id.). We then argued that the government “failed to meet its burden with respect to an\nintent to flee because it offered very little by way of evidence, relying, instead, on supposition and\nconjecture.” (Id. at 10). Tellingly, the government stands silent on this issue, effectively conceding.\nTo be sure, holding that Ms. Wang is a flight risk would directly conflict with the cases we\ncited and would run afoul of the Supreme Court’s guidance in Hung v. United States, where the\n4\n\nSupreme Court assessed a similar issue of whether the district court had erred in revoking a\ndefendant’s bail after he was convicted. 439 U.S. 1326, 1326 (1978) (citing 18 U.S.C. § 3148).\nAssessing that issue, the Supreme Court reversed the appellate court, which had found no abuse\nof discretion in the district court’s decision to revoke the defendant’s bail because, among other\nreasons, the defendant supposedly posed a risk of flight. Id. at 1326–27. In assessing whether the\nappellate court’s conclusion that there was no set of conditions that would reasonably assure the\ndefendant’s appearance, the Supreme Court focused predominantly on what the evidence\nestablished with respect to the defendant’s state of mind—i.e., his “inclination” to flee. Id. at 1329\n(“But if these considerations suggest opportunities for flight, they hardly establish any inclination\non the part of applicant to flee. And other evidence supports the inference that he is not so\ninclined.”). See also United States v. Kostadinov, 572 F. Supp. 1547, 1551 (S.D.N.Y. 1983) (“Thus,\nin . . . Hung Justice Brennan noted that opportunities for flight alone are insufficient grounds for\ndenial of bail. There must also be a showing that, if released, defendant has an inclination to flee.”).\nConsistent with Hung, the Court should conclude here that the government has failed to show that\nMs. Wang has an intention to flee and, therefore, Ms. Wang is not a flight risk.\nThis conclusion is especially true here, given the government’s silence on the issue. By\nstaying silent, the government has conceded it, meaning that the Court should conclude that an\n“actual risk of flight” requires evidence akin to an intent to flee, as we have contended. See Curry\nMgmt. Corp. v. JPMorgan Chase Bank, N.A., No. 22-CV-05006-CM, 2022 WL 17342495, at *3\n(S.D.N.Y. Sept. 30, 2022) (“A party may be deemed to concede an argument by failing to address\nit in an opposition brief.”); AT&T Corp. v. Syniverse Techs., Inc., No. 12-CV-1812-NRB, 2014 WL\n4412392, at *7 (S.D.N.Y. Sept. 8, 2014) (factual issue was conceded through silence; collecting\nSDNY cases).\n5\n\nFurthermore, as the government failed to proffer evidence of an intent to flee, the Court\nshould conclude that this obvious omission favors finding that Ms. Wang is not a flight risk or that\nsome set of conditions would ensure her appearance. See, e.g., United States v. Yaming Nina Qi\nHanson, 613 F. Supp. 2d 85, 90 (D.D.C. 2009) (“In this case, . . . there is no strong circumstantial\nevidence indicating that [the defendant] intends to flee the United States.”). Indeed, the\ngovernment has not even bothered to argue that Ms. Wang possesses an intent or even an\ninclination to flee. Instead, the government has asserted that she may have opportunity to flee,\nwhich we debunked (ECF No. 81 at 11–20), or help from others to facilitate flight (also debunked,\nid.); but it is silent as to state of mind. No wonder: as we demonstrated in our brief, Ms. Wang has\nno intention to flee, if for no other reason than that she is more afraid of the CCP (which would\nlikely torture and kill her) than she is even of a long sentence in the U.S. (The government has\nnow admitted that Victim-1 in the Eastern District indictment is Mr. Kwok (“[T]he Government\ncan confirm that Kwok is ‘Victim-1.’”). Ms. Wang’s fear of being harassed, followed, and exposed\nby the Chinese government’s agents in the U.S. should she flee are well-founded (ECF No. 81 at\n16–17), and the government does not spare a single word refuting that because it is true.\nThe government’s argument that Ms. Wang’s application to travel for business is evidence\nof flight risk stands logic on its head. Knowing that the federal prosecutor cavalry was coming for\nher (id. at 15–16), she informed the government of her desire to travel to save her asylum\napplication. If she were inclined to flee and had the means and opportunity to do so, as the\ngovernment alleges (if, for example, she were able to hide in Abu Dhabi or anywhere else)—she\nwould have boarded a plane on her Chinese passport and left.\nIn short, the government makes no attempt to provide any evidence akin to corroborating\nthat Ms. Wang intends to flee, relying instead on conclusory supposition and conjecture for its\n6\n\nproffer on this issue. (See ECF No. 89 at 27 (“With this backdrop, it is not credible for Wang to\nclaim she has ‘no intention to flee.’”)). Absent evidence of intent to flee, much less a discussion\nof it, the Court should hold that Ms. Wang does not present enough of a flight risk to warrant\ndetention.\nB. Ms. Wang Has Strong Communal Ties\nThat Ms. Wang’s community in the U.S. consists primarily of other members of the anti-\nCCP movement who are also in the U.S. is a sufficient showing of community ties, unless, of\ncourse, the government were to take the position that immigrants living here cannot form a\ncommunity. Again, Ms. Wang is not only a member, but a leader, of the anti-CCP movement in the\nU.S. (ECF No. 81 at 1 (“Ms. Wang is one of the leaders of a dissident movement whose aim is\nnothing short of the overthrow of Chinese Communist Party (CCP) rule in China.”), 13, 19–20).\nThe government is once again silent on these points and thereby concedes that Ms. Wang does in\nfact have strong ties to the anti-CCP community here in the U.S.\nHowever, even if the government’s concession on this issue were somehow not enough to\nestablish strong communal ties, many facts would still heavily support a finding of a strong bond\nbetween Ms. Wang and the anti-CCP community. Perhaps most probative of this is the fact that\nmany individuals from within that community voluntarily came forward to offer their assets as\nsecurity to ensure Ms. Wang’s release. Moreover, even more of the same came in solidarity to\nattend Ms. Wang’s detention hearing. Those facts strongly favor finding a strong community to\nwhich Ms. Wang belongs, as some courts have observed. See, e.g., United States v. Carriles, 481\nF. Supp. 2d 792, 796 (W.D. Tex. 2007) (“[The defendant] has ample ties to the community, as\nevidenced by the thousands of supporters who have signed petitions on his behalf and volunteered\ntheir personal resources to aid in his defense.”); United States v. Barnett, 986 F. Supp. 385, 396\n7\n\n(W.D. La. 1997) (“[A]pproximately fifteen to twenty members of the community appeared at [the\ndefendant’s] . . . hearing, indicating that he retains strong ties to this community.”).\nC. Ms. Wang Has Nowhere Else to Go\nRelying on the connections of her co-defendants but not Ms. Wang’s, the government\nattempts to portray her as someone having substantial international connections, implying that she\nwould use these connections of others to flee the U.S. (ECF No. 89 at 28 (“As described above,\nKwok and others have been moving the operations of the Himalaya Exchange and other Kwok-\ncontrolled entities to the UAE for the admitted purpose of evading the U.S. legal system. . . . Her\nco-defendant, Je, is presently believed to be hiding in the UAE.”) (emphasis added)). In doing so,\nthe government entirely ignores our analysis showing that Ms. Wang has nowhere else to go. (ECF\nNo. 81 at 2 (“She literally has nowhere to go.”), 20 (“She really has nowhere else to go.”)). So,\neven if Ms. Wang did have an expansive network of international connections of her own (she does\nnot), the fact would still remain that Ms. Wang is incapable of utilizing those networks to ensure\nshe remains unfound.\nNotably also, Ms. Wang’s supposed international connections, really others’ connections,\ncould not ensure her flight from the U.S. Missing from the government’s analysis is any\nexplanation as to how Ms. Wang is tied to the connections of others that she would supposedly\nutilize. For example, the government points to Ms. Wang’s co-defendant as being “suspected” of\nbeing in the UAE but presents no evidence supporting this, much less evidence supporting that\nMs. Wang would desire to join him or that he (presumably, a fugitive in hiding) would want her\nto, such that she could lead the authorities to him. In sum, the government’s entire presentation of\nMs. Wang’s international contacts can be summarized as: she knows people in other parts of the\nworld. But so does almost every single New Yorker and defendant in this district. That does not,\n8\n\nand cannot, demonstrate an intent or ability to flee. That is quite the stretch. The government’s\nproffered international connections theory should in no way sustain continued detention.\nD. The Government Abandons Its Cryptocurrency Theory for Another Theory\nThat Is Equally Groundless\nPreviously, the government sought to show that Ms. Wang had access to substantial funds\nto support flight from the U.S. because she held and had allegedly failed to disclose millions of\ndollars in cryptocurrency. We already detailed why the government’s cryptocurrency theory failed\nto hold water (id. at 23–28), and tellingly, the government failed to address that point, providing\nno specifics as to Ms. Wang’s purported crypto holdings. In place of its cryptocurrency theory, the\ngovernment has now pivoted to trying to establish Ms. Wang’s alleged access to funds by painting\nan image of Ms. Wang as being highly connected to the entities that allegedly carried out the\nconspiracy and now purportedly contain a treasure trove of money that is all supposedly accessible\nto Ms. Wang and that she would use if given the chance to flee. (See ECF No. 89 at 28–30 (“[T]his\nclaim is belied by Wang’s role in the fraud and her effective control over tens of millions of dollars,\nas described in greater detail herein.”)).\nThe elephant in the room here is that, as noted, these are real businesses with real\nemployees. For this reason, the government is unable to even proffer any evidence showing that\nMs. Wang can access the funds for her own use from these entities. Even if the government were\ncorrect (and it is not), it has presented no evidence that Ms. Wang still has access to the funds\nassociated with any of these entities. The summary of accounts that the government points to does\nnot establish access to funds. (See id. at 30 (“[T]he defendant had printed summaries of account\nbalances for six bank accounts held in the names of Kwok-controlled GF Italy, GFNY, HCHK\nTechnologies, and HCHK Property in her purse, which indicated that those six accounts alone held\nmore than $55 million as of March 13, 2023.”)). Clever phrasing in the government’s opposition\n9\n\nmakes it seem like Ms. Wang now has access to numerous bank accounts, (ECF No. 89 at 29 n.22),\nbut read closely, the language indicates that she may have had access, not that she still does. The\ngovernment offers no explanation for how Ms. Wang could access corporate funds of active\nbusinesses for her personal use, none. Moreover, the bulk of that $55 million is in HCHK\nTechnologies and HCHK Properties. But, as the government well knew before filing its opposition,\nboth HCHK Technologies and HCHK Properties (and all their assets) were transferred to an\nassignee (acting as a fiduciary of those companies) for the benefit of their creditors. Ms. Wang is\nnot one of them.\nIndeed, neither the indictment nor any other allegation made by the government to date has\nmentioned Ms. Wang’s ability to divert or participation in diverting corporate funds for anyone’s\npersonal use. The only specific allegation in the indictment relating to misuse of funds by\nMs. Wang is investing funds in a manner inconsistent with use-of-funds disclosure to investors.\n(Id. at 18 (“On June 5, 2020, Wang authorized the $100 million wire transfer . . . [and t]he\nsubscription agreement, which Wang signed, made clear that $100 million investment . . . was\nmade on behalf of Saraca, whose ultimate beneficial owner is Kwok’s son.”) (emphasis added)).\nIn other words, concluding that Ms. Wang would appropriate funds for her own use is yet another\nleap untethered to facts or logic.1 In short, only because it benefits the government’s conclusory\ntheory does the government now claim that Ms. Wang, a salaried employee, can now take and use\n1 The government’s opposition paints with a broad brush and attempts to expand the nature of\nMs. Wang’s involvement in the conspiracy to extend beyond the GTV Private Placement. (See\nECF No. 89 at 19). But a review of the indictment reveals that Ms. Wang is only specifically\nconnected to the GTV Private Placement, nothing more. (ECF No. 81 at 11–12).\n1 0\n\nthe funds that she never once touched or received before.2 Unsupported hypotheses are not\nevidence.\nE. The Government Fails to Address the Case Law Supporting That Wealth and\nthe Possibility of Non-Extradition Alone Do Not Justify Pretrial Detention\nThe government does nothing to try and refute the cases we cited showing that affluent\nforeign nationals who may possibly flee to jurisdictions where extradition is impossible cannot be\ndetained on those grounds alone. (See ECF No. 81 at 21–22). Nevertheless, those grounds are\nessentially the grounds upon which the government seeks to detain Ms. Wang. As we have\ndiscussed, at base, the government believes Ms. Wang will flee because she allegedly has access\nto a substantial amount of money and reason to flee—supposedly having no connection here but\nmany connections elsewhere—to countries where extradition would be impossible, such as the\nUAE. Yet at this moment, Sam Bankman-Fried, who indisputably had and likely still has actual\naccess to opulent wealth and boundless resources—and faces staggering sentencing guidelines,\nwhile periodically disobeying Judge Kaplan—fights his case from his home. The government\ncannot (and therefore it did not) distinguish Ms. Wang from Mr. Bankman-Fried; neither of them\nwarrants detention. And yet one—the foreign national with modest personal funds and nowhere to\ngo—is detained. The Court should follow the authorities we cited and conclude that this is an\ninsufficient basis upon which to detain Ms. Wang.\nF. Ms. Wang Did Not Lie to Pretrial Services\nWe thoroughly addressed and refuted the government’s assertion that Ms. Wang lied to\nPretrial Services (“PTS”) about cash in her home safe. (See id. at 28). In response, the government\n2 In the absence of proof of personal enrichments, the government has attempted to paint\nMs. Wang’s salary as extraordinary. Ms. Wang’s compensation was consistent with that of other\nsimilar executives. See http\nretention-strategies-in-family-offices-Citi-Private-Bank.pdf. This is certainly not evidence of\nreceiving fraud proceeds.\n11\n\ncompletely fails to address the fact that it presented an imaginary transcript of Ms. Wang’s PTS\ninterview. Indeed, the Court now has additional evidence supporting Ms. Wang’s truthful assertion\nthat she was not asked whether she had any cash aside from what was on her person at the time of\nher arrest. As the Court is aware, certain confidential notes were accidentally filed with our motion.\nThose notes indicate that Ms. Wang disclosed to counsel prior to her PTS interview that she had\ncash in her safe. Two things follow: one, Ms. Wang was not hiding the fact that she had cash in her\napartment; and two, had the right question been asked and Ms. Wang had given an incorrect\nanswer, counsel would have corrected the record on the spot in the interview. That did happen with\nrespect to another question asked in the PTS interview. When asked about her bank accounts,\nMs. Wang mistakenly identified one of them as JPMorgan instead of Morgan Stanley. Counsel,\nwho had asked that question before the interview, immediately corrected her.\nII. THE GOVERNMENT HAS FAILED TO SHOW THAT NO CONDITIONS EXIST\nTHAT WOULD REASONABLY ASSURE MS. WANG’S APPEARANCE\nThough the government bears the burden of proof on this issue, it nevertheless fails to show\nby a preponderance of the evidence that no conditions exist that would reasonably assure\nMs. Wang’s appearance. One problem with the government’s analysis of this issue is that it fails\nto describe how or why many of Ms. Wang’s proposed conditions would be insufficient to\nreasonably assure her appearance. For instance, Ms. Wang proposes that restrictions be placed\nupon her ability to use her bank accounts—e.g., she would only be able to use funds for necessities.\nThe government says nothing about this, though it writes at length about how Ms. Wang’s\nresources lean in favor of her being a flight risk. Likewise, the government says nothing directly\nrefuting the efficacy of Ms. Wang’s proposal to have a friend live with and monitor her to ensure\nMs. Wang’s compliance with her proposed conditions. (See ECF No. 89 at 40 (contending\ngenerally that Ms. Wang’s past conduct should lead the Court to believe that she would not comply\n1 2\n\nwith her proposed conditions)). For obvious reasons, someone willing to submit to this Court’s\ncontempt power has a strong incentive to report Ms. Wang should she not abide by her conditions.\nAt the very least, that incentive creates reasonable assurance that Ms. Wang will appear.\nSeparately, up to now, Ms. Wang has been penalized for not knowing enough wealthy\nindividuals who could afford to act as sureties. Indeed, although Ms. Wang continues to believe\nthat she has sufficient moral suasion over the individuals whom she offered as potential sureties,\nMs. Wang was forced to lower the amount of her proposed bond (from $5 million to $2 million)\nbecause this is all she has. Any amount above that would run afoul of Congress’ enacted directive\nthat financial conditions may not be imposed if they result in the pretrial detention of the defendant.\nSee 18 U.S.C. § 3142(c)(2) (“The judicial officer may not impose a financial condition that results\nin the pretrial detention of the person.”).\nIII. THE GOVERNMENT SHOULD BE PRECLUDED FROM MAKING NEW\nALLEGATIONS OR ASSERTING NEW GROUNDS FOR DETENTION THAT IT\nDID NOT ASSERT BEFORE JUDGE PARKER AND JUDGE LEHRBURGER\nNotably absent from the government’s opposition is any authority supporting its present\nattempt to make allegations and raise grounds for detention that it previously did not. The\ngovernment is in essence engaging in a game of “whack-a-mole” in which the government raises\na new allegation every time Ms. Wang addresses a prior false contention of the government. The\nCourt should not permit this. Instead, the Court should conclude that the government is estopped\nat this juncture from making any new allegations and from raising any new grounds for detention.\nAlternatively, the Court should hold a hearing at which the government would be required to\nprovide Ms. Wang with adequate discovery to examine and opportunity to challenge these new\nallegations. United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992) (“Detention can be ordered,\ntherefore, only ‘in a case that involves’ one of the six circumstances listed in (f), and in which the\n1 3\n\njudicial officer finds, after a hearing, that no condition or combination of conditions will\nreasonably assure the appearance of the person as required and the safety of any other person and\nthe community.”). At the pretrial detention hearing, the defendant “shall be afforded an opportunity\nto testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to\npresent information by proffer or otherwise.” 18 U.S.C. § 3142(f).\nAs it did before Judge Lehrburger, the government has waited until the eleventh hour to\ncreate a new justification for detaining Ms. Wang. Now, the government would have this Court\ndetain Ms. Wang on the basis that she is an obstructionist because she has supposedly lied to PTS,\nviolated bankruptcy orders, and continues to operate the alleged conspiracy from behind bars.\n(ECF No. 89 at 32–39). While the prejudice to Ms. Wang caused by the belated nature in which\nthe government raises these issues cannot be overstated, the Court need not address any of these\nissues because the authority upon which the government relies is entirely inapposite. What the\ngovernment ignores in raising this issue is that only a specific type of “obstruction” has been\nrecognized by courts as warranting pretrial detention. As the Eastern District of New York\nobserved, “[i]n such cases, defendants have consistently been found to have engaged in severe\nwitness tampering or worse to support a finding of obstruction.” United States v. Berger, No. 06-\nCR-130-NGG, 2006 U.S. Dist. LEXIS 55844, at *13 (E.D.N.Y. Aug. 9, 2006) (collecting cases).\nAs the government raises no such allegations, the Court should not detain Ms. Wang on its alleged\n“obstructive behavior” grounds.\nBut even if the Court were to consider the government’s new allegations, the Court should\nstill not detain Ms. Wang on the basis that she has engaged in the alleged obstructive behavior. To\nbegin, Ms. Wang was not herself subject to any order that the government alleges was violated.\nAll that the government alleges is that Mr. Kwok was held in contempt for violating a court order\n1 4\n\nand that a court found troubling an adverse party’s allegation that Ms. Wang transferred a company\nafter the court found that company to be property of the estate. (Significantly, Mr. Kwok was found\nnot to have communicated proper instructions to Ms. Wang. (ECF No. 89, Exhibit D ¶ 5)). The\ntype of behavior alleged here—involvement in others disobeying a court order or giving\ninstructions to run a business, including by informing others who are not alleged to be co-\nconspirators where company funds are located—does not rise to the type of “obstruction” that\nleads courts to snatch up and lock up defendants. As this Court well knows, disobeying a condition\nof release, on its own, does not necessarily result in a remand; it usually warrants a strict lecture\nfrom the supervising PTS officer.\nCONCLUSION\nFor all the forgoing reasons and those we raised in our motion, Ms. Wang should be\nreleased and given ten business days to meet all her proposed bail conditions.\nDated: June 30, 2023 Respectfully submitted,\n/s/ Alex Lipman\nPriya Chaudhry\nCHAUDHRYLAW PLLC\n147 West 25th Street, 12th Floor\nNew York, New York 10001\nTel: (212) 785-5550\nEmail: priya@chaudhrylaw.com\nAlex Lipman\nLIPMAN LAW PLLC\n147 West 25th Street, 12th Floor\nNew York, New York 10001\nTel: (212) 401-0070\nEmail: alexlipman@lipmanlawpllc.com\nAttorneys for Defendant Yanping Wang\n1 5","body_zh":null,"key_entities":[],"ecf_references":[],"word_count":5409,"status":"published","published_at":"2023-06-30 00:00:00","created_at":"2023-06-30","updated_at":"2026-07-06 17:58:04"}