郭文贵上诉 · 2Cir ECF 26-361_emergency_stay

Form T-1080 (rev.12-13) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Number(s): ________________________________________ _______________Caption [use short title]_____________________ Motion for: ______________________________________________ ________________________________________________________ ________________________________________________________ Set forth below precise, complete statement of relief sought: ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ MOVING PARTY:_______________________________________ OPPOSING PARTY:____________________________________________ ___Plaintiff ___Defendant ___Appellant/Petitioner ___Appellee/Respondent MOVING ATTORNEY:___________________________________ OPPOSING ATTORNEY:________________________________________ ________________________________________________________ _______________________________________________________________ ________________________________________________________ _______________________________________________________________ ________________________________________________________ _______________________________________________________________ Court- Judge/ Agency appealed from: _________________________________________________________________________________________ Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUCTIONS PENDING APPEAL:

Is oral argument on motion requested? ___Yes ___No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? ___ Yes ___No If yes, enter date:_______________________________________________________ Signature of Moving Attorney: _________________________________ Date:__________________ Service by: ___CM/ECF ___Other [Attach proof of service] [name of attorney, with firm, address, phone number and e-mail] Has this request for relief been made below? ___Yes ___No Has this relief been previously sought in this court? ___Yes ___No Requested return date and explanation of emergency: ________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ Has movant notified opposing counsel (required by Local Rule 27.1): ___Yes ___No (explain):__________________________

_______________________________________________ Opposing counsel’s position on motion: ___Unopposed ___Opposed ___Don’t Know

Does opposing counsel intend to file a response: ___Yes ___No ___Don’t Know 26-361 EMERGENCY MOTION FOR A TEMPORARY STAY OF SENTENCING PENDING RESOLUTION OF PETITION FOR WRIT OF MANDAMUS Please see in the motion Tony United States District Court, Southern District of New York Tony Nathan Rehn 26 Federal Plaza, 37th Floor, New York, NY 10278 (212)-637-2354 United States District Court, Southern District of New York, Hon. Analisa Torres, U.S. District Judge Sentencing date is April 27, 2026, therefore before the sentencing date April 15, 2026 In Re: Tony to prevent irreparable harm. Case: 26-361, 04/18/2026, DktEntry: 18.1, Page 1 of 1 SIGN

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT In Re: Tony SDNY: 1:23-cr-00118-AT Second Circuit: 26-361 EMERGENCY MOTION TO STAY SENTENCING PENDING MANDAMUS REVIEW, OR IN THE ALTERNATIVE, FOR RECORD PRESERVATION I, Tony, appearing pro se, respectfully move this Court to stay the sentencing in SDNY Case No. 1:23-cr-00118-AT, currently scheduled for April 27, 2026, pending resolution of my petition for a writ of mandamus.

The issues presented do not merely affect the precision of loss calculation; they render the entire loss determination structurally unreliable and legally insufficient for sentencing purposes. Proceeding to sentencing on such a record would violate basic due process requirements that sentencing be based on reliable and verified information.

I. Background:

According to my original mandamus, funds remitted to G-series entities and subsequently frozen by the United States have, in multiple instances, been characterized by Chinese authorities as conduct constituting “funding criminal activities that endanger national security”, creating a direct cross-sovereign inconsistency in the treatment of the same transactions. At the same time, certain individuals identified as “victims” in the U.S. proceedings have reportedly been detained in China and are unable to appear or assert claims, raising concerns regarding the completeness and adversarial balance of the record before the Court. The record further shows that numerous investors followed a substantially identical remittance pathway, reflecting a broader, systemic pattern rather than isolated conduct. In addition, official Chinese materials classify these matters as national-security cases subject to “centralized handling” (集中处置)—a process of coordinated, higher-level governmental control rather than ordinary case-by- Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 1 of 9

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case adjudication—underscoring the need for careful scrutiny to ensure that victim determinations and forfeiture assessments are based on a complete and independently verifiable record. II. A STAY IS NECESSARY TO PRESERVE APPELLATE RIGHTS AND PREVENT IRREPARABLE HARM Absent a stay, the harm is immediate and irreversible:

A. Extinguishment of CVRA Rights at Sentencing My rights under the Crime Victims’ Rights Act will be effectively extinguished. The right to be reasonably heard at sentencing is inherently time-sensitive and can only be exercised prior to the imposition of sentence. Once sentencing has occurred, that right cannot be restored. The mandamus petition does not seek to alter substantive outcomes, but to ensure that the record on which sentencing is based is procedurally complete. If sentencing proceeds before mandamus review, the very right at issue—the right to have submissions docketed and considered—will be rendered meaningless.

B. Irreparable Harm from Systemic Methodological Defects in Loss Attribution 1. Intermediary-Mediated Flow Structure (See my original Mandamus, SDNY 817, page 9)

As reflected in the record, funds originating from Chinese investors were not transferred directly to downstream entities, but instead moved through a structured intermediary process. Specifically, investor funds were first deposited into personal accounts and then routed through foreign-trade company accounts for currency conversion before being transmitted to accounts associated with the Himalaya Alliance network. Once received, those funds were further redistributed through additional layers of designated accounts under organizational control. This multi-layered routing structure was not isolated, but appears to follow a uniform and systemically replicated pattern across transactions.

2. Victim Pool Contamination and Inaccessibility (Frozen / Detained Claimants)

A further structural issue arises from the effective inaccessibility of a subset of putative victims due to foreign enforcement actions, detention, or coercive Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 2 of 9

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measures affecting their ability to assert claims or participate in verification processes. Where individuals within the alleged victim pool are unavailable to confirm, reject, or clarify their claimed losses, the resulting dataset becomes partially non-adversarial and structurally incomplete. This affects not only individual claim validity, but also the integrity of aggregate loss calculations that depend on victim confirmation for allocation and reconciliation.

Accordingly, the absence of a fully participatory victim verification process introduces systematic distortion risk in both (i) the scope of recognized losses and (ii) the allocation of funds among claimants.

3. Failure to De-duplicate Across Commingled and Multi-Layer Transfers

The Government’s methodology does not appear to implement a rigorous de- duplication framework capable of distinguishing between: initial capital contributions, intra-entity transfers, intermediary pass-through movements, partial redemptions or reallocations, and overlapping accounting classifications across entities or accounts. Given the documented intermediary structure and commingling at intermediary layer and downstream accounts, the same economic value may be reflected multiple times across different segments of the transactional record. Without a trace-level reconciliation model, aggregated inflow figures risk overstating net pecuniary harm by failing to eliminate internal movement redundancies. This creates a material risk that the nominal loss figure reflects gross flow aggregation rather than net, non-duplicative victim loss.

4. Cross-Jurisdictional Legal Classification Conflict and Unvalidated Loss Attribution Model

The record also reflects materially inconsistent legal characterizations of the same financial flows across jurisdictions, including divergent sovereign determinations regarding the legal nature of the underlying transactions. While such foreign classifications are not dispositive in U.S. sentencing, their existence underscores that the underlying dataset has not been subjected to a unified legal classification framework capable of consistently distinguishing lawful investment flows, disputed funds, and alleged criminal proceeds. Critically, the Government’s loss model does not appear to have explicitly tested whether the same funds can be Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 3 of 9

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consistently classified as “actual loss” under U.S.S.G. §2B1.1 across competing interpretive frameworks, nor does it resolve whether portions of the aggregated inflows should be treated as non-loss, disputed, or legally ambiguous funds. Instead, the model proceeds from aggregated financial movement data to a conclusion of loss magnitude without a documented intermediate step validating classification stability under the governing legal standard.

5. Systemic Replication Through “Centralized Handling” (集中处置)

The record further reflects that the intermediary-mediated routing structure and victim pool issue, as well as Cross-Jurisdictional issue described above are not limited to isolated transactions, but is consistent with a broader pattern identified in Chinese enforcement and administrative characterization as “centralized handling” (集中处置). Therefore, the government has not produced a loss estimate; it has produced an unverified aggregation of financial flows that cannot, as a matter of law or methodology, be translated into “actual loss” under U.S.S.G. §2B1.1. 6. Fatico Hearing Insufficiency in Addressing Structural Defects

Notably, defense counsel has requested a Fatico hearing (SDNY Dkt. 822) to address disputed sentencing issues. While such a hearing may be appropriate for resolving discrete factual disputes through testimony and evidentiary presentation, it is not capable of curing the structural defects identified here. A Fatico hearing presumes that disputed facts can be resolved through adversarial testing of evidence—such as witness credibility, document authenticity, or competing factual narratives. However, the issues presented in this case are not limited to discrete factual disagreements, but instead concern systemic methodological deficiencies in the construction of the loss figure itself.

Accordingly, even if a Fatico hearing were conducted, it would not address the threshold issue presented here: whether the Government’s loss estimate is derived from a sufficiently reliable and methodologically valid foundation as required under U.S.S.G. § 6A1.3 and Fed. R. Crim. P. 32.

7. Conclusion: Structural Defects Render Loss Determination Irreparably Unreliable

Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 4 of 9

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Taken together, the foregoing defects demonstrate that the Government’s loss calculation rests on a structurally unstable and methodologically unverified foundation. The underlying dataset is non-adversarial, non-deduplicated, and classification-unstable. As a result, any resulting figure is not merely imprecise—it raises serious questions as to whether it can qualify as a ‘reasonable estimate’ under U.S.S.G. §2B1.1. The intermediary-mediated and systemically replicated transaction structure (“centralized handling”), combined with victim inaccessibility, absence of de-duplication controls, and unresolved cross- jurisdictional classification conflicts, prevents reliable separation of investor- originated funds, intermediary transfers, and downstream allocations.

Although the Government invokes a “reasonable estimate” standard (SDNY Dkt. 833), such a determination must still satisfy the reliability requirements of U.S.S.G. § 6A1.3 and Fed. R. Crim. P. 32. Those requirements cannot be met here because the underlying dataset is non-adversarial, commingled, and methodologically unvalidated. While a Fatico hearing may resolve discrete factual disputes, it cannot cure systemic methodological defects where the issue is the absence of a reliable framework for loss attribution itself.

Accordingly, once the current loss model is adopted at sentencing, it becomes the binding factual predicate for restitution and forfeiture, and would significantly constrain meaningful appellate review or any subsequent effort to revise or displace that determination, as doing so would require disturbing the finality framework of the judgment. Critically, this transformation occurs not after resolution of the mandamus issues, but in the absence of any adjudication addressing their merits. In that posture, the Court is not merely deferring review—it is allowing the contested methodology itself to be transformed into binding fact. Proceeding to sentencing under these circumstances would therefore effectively moot the mandamus relief by eliminating the Court’s ability to provide meaningful post-adoption correction, because the challenged framework would already have been incorporated into the operative judgment.

In the absence of a stay, the mandamus petition would be rendered effectively unreviewable in a meaningful sense, because the challenged methodology would have already been crystallized into binding sentencing findings without prior adjudication of the issues currently before this Court. Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 5 of 9

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III. Likelihood of Success Likelihood of Success on the Merits:

The mandamus petition presents a substantial likelihood of success because the district court failed to docket and consider material evidence directly bearing on: victim identification, loss calculation, and ownership of funds. This is not a routine evidentiary dispute. It is a record-formation failure that directly affects the legal validity of any sentencing determination. 1: Incomplete Record Material exhibits (including Exhibit D) were never docketed. A sentencing based on an incomplete record is inherently unreliable.

2: Unverified Victim Pool The Government relies on a broad victim population that: cannot be independently verified, includes individuals unable to appear, and lacks disclosed methodology. An unverified victim pool cannot support a reliable loss calculation under U.S.S.G. §2B1.1.

3: Cross-Border Legal Conflict: The same funds are: treated as “criminal proceeds endangering national security” by Chinese authorities, and as “victim losses” in this proceeding. A loss calculation built on legally contradictory characterizations of the same funds is structurally unreliable. IV. Impact on public interest

Public interest strongly favors a stay. This case presents a replicable risk that sentencing may proceed on unverified and internally inconsistent records, thereby normalizing adjudication based on evidentiary frameworks that have not been subjected to adversarial testing. V. Balance of equities

The choice is between a short delay and a potentially flawed sentencing—equity strongly favors preserving the status quo to prevent irreversible incorporation of disputed facts into the sentencing record. These issues cannot be dismissed as harmless. Loss amount and victim identification are central drivers of the applicable sentencing range. Structural unreliability in these determinations necessarily undermines the integrity of the sentencing framework as a whole. Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 6 of 9

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VI. RECORD PRESERVATION (CRITICAL FACTUAL FOUNDATION) To preserve issues for review, Petitioner identifies the following material facts that were not fully incorporated into the sentencing record: A. CCP Interference with Witnesses (Ya Li Testimony on SDNY Dkt. 415, p. 141)

1: Trial testimony confirms that Chinese authorities contacted a government witness’s family and issued warnings related to “national security” 2: This directly corroborates evidence I submitted regarding state pressure on participants This evidence bears on credibility of witnesses, voluntariness of complaints, integrity of the evidentiary record. B. Evidence of Systematic Coerced or Falsified Complaints

1:Defense submissions acknowledge that some complaints were coerced or state- influenced (SDNY Dkt. 822, p 58)

2: Key declarants did not appear for cross-examination (25-2726 Dkt. 34, 40)

3: First-hand exculpatory explanations (including livestream disclosures) were never entered into the trial record (25-2726 Dkt. 40 page 21) This creates a record where: accusations are included, but countervailing first- hand evidence is structurally absent. C. Cross-Border Legal Conflict Over the Same Funds My evidence demonstrates: 1: The same funds are treated by a foreign sovereign as national-security-related criminal funds 2: While in this proceeding they are treated as victim losses Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 7 of 9

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This unresolved conflict creates ambiguity in ownership, uncertainty in victim status , instability in loss calculation. A loss figure derived from legally conflicting characterizations cannot be considered reliable. D. Impact on Government Theory and Expert Testimony FBI agent Kimberly Espinoza (SDNY Dkt. 425 p. 129) and government experts Paul Hinton (SDNY Dkt. 441) relied on a simplified “money-in/money-out” fraud model. My evidence introduces: 1: Coercion 2: Political pressure 3: Alternative explanations for fund flows 4: Unverified sources of funds and judicial conflicts Had this evidence been included: expert conclusions may have been limited or undermined, the reliability of the Government’s model would be materially affected E. Core Structural Defect Taken together: 1: Missing evidence 2: Untested victim pool 3: Cross-border legal conflict 4: Unchallenged expert assumptions create a single structural problem: The sentencing record is structurally unreliable and incapable of supporting a lawful sentencing determination.

The above issues are preserved for appellate review and are not presented as resolved findings of fact. VI. Relief requested

Absent resolution of these issues, proceeding to sentencing would risk imposing punishment based on a record that is incomplete, internally inconsistent, and legally unreliable. This harm is irreparable because it would be extremely difficult to Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 8 of 9

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reconstruct on appeal. Once sentencing is imposed, appellate review will be confined to a record that never incorporated my submissions. A brief stay is therefore necessary to prevent irreparable harm and to preserve the integrity of the judicial process. I respectfully request that the Second Circuit issue an immediate stay of all sentencing proceedings in the United States District Court for the Southern District of New York, Case No. 1:23‑CR‑118‑1 (AT), until my pending mandamus petition before this Court is fully adjudicated.

I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing statements are true and correct to the best of my knowledge, information, and belief. Respectfully submitted, Tony April 15, 2026

Case: 26-361, 04/18/2026, DktEntry: 18.2, Page 9 of 9

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Certificate of Service In re: Tony, Petitioner United States Court of Appeals for the Second Circuit Case No: 26-361 SDNY Case: United States v. Kwok, et al., 1:23-CR-118-1 (AT) I, Ryan Bai, hereby certify as follows: On April 16, 2026, I submitted true and correct copy of the following document: EMERGENCY MOTION TO STAY SENTENCING PENDING MANDAMUS REVIEW, OR IN THE ALTERNATIVE, FOR RECORD PRESERVATION was served on the following party Nathan Rehn United States Attorney’s Office for the Southern District of New York 26 Federal Plaza, 37th Floor New York, NY 10278 Executed on April 16, 2026. Respectfully submitted, Tony Case: 26-361, 04/18/2026, DktEntry: 18.3, Page 1 of 1