United States District Court, D. Maryland
MEMORANDUM AND ORDER RE: FORFEITURE AND ASSET
J. GARBIS, UNITED STATES DISTRICT JUDGE
Court has before it Defendant Atif B. Malik, M.D.'s
Motion for Reconsideration of the Pretrial Orders Restraining
More Than $5 Million In Untainted Assets [ECF No. 59] and the
materials submitted relating thereto. The Court has held a
hearing and had the benefit of the arguments of counsel.
Indictment presents 29 Counts including
forfeiture-related Counts charging Defendants Sandeep
Sherlekar, Atif Babar Malik, Muhammad Ahmad Khan, Konstantin
Bas, and Mubtagha Shah Syed of conspiracy to violate the
Anti-Kickback Act [42 U.S.C. § 1320a-7b(b)(1)(A)], 18
U.S.C. § 1347, and 18 U.S.C. § 1035(a)(1) and
Indictment includes Forfeiture Allegations stating that the
Defendants "shall forfeit to the United States, pursuant
to 18 U.S.C. § 982(a)(7), any and all property, real or
personal, which constitutes or is derived, directly or
indirectly, from gross proceeds traceable to the charged
offenses." Indictment [ECF No. 1] at 33. In addition,
the Indictment states the Government intends to seek
forfeiture of substitute property "pursuant to 21 U.S.C.
§ 853(p), as incorporated by 18 U.S.C. §
September 30, 2016, Defendant Sherlekar committed suicide.
Defendant Malik, as beneficiary of a life insurance policy on
Defendant Sherlekar's life, was therefore entitled to
receive the policy proceeds of $5, 000, 000.00 plus interest.
On January 20, 2017, the Government filed The United States
of America's Motion Seeking a Pre-Trial Restraining Order
With Respect to Certain Assets [ECF No. 44]. On January 23,
2017, to preserve the status quo, the Court granted the
motion [ECF No. 45] without prejudice to the right of
Defendant Malik to move for reconsideration. The Order was
amended on January 27, 2017 [ECF No. 49] to correct the name
of the insurance company.
discussed at the motion hearing:
• There are debatable legal issues regarding the maximum
possible forfeiture recovery in the case.
o The Government contends that the maximum possible
forfeiture recovery is $4, 064, 776.64 [ECF No. 53].
o Defendant Malik contends that the maximum possible
forfeiture recovery is no more than $533, 500.00 [ECF No.
o Co-defendants Khan, Bas, and Syed demand the right to be
heard prior to any decision that could affect them regarding
the amount of any forfeiture.
• Defendant Malik wishes to retain new counsel who
require a retainer of $1, 750, 000.00 to enter their
appearance and represent him through the conclusion of the
case, including any sentencing procedures.
o The decision in Luis v. United States, U.S., 136
S.Ct. 1083 (2016), in broad terms, provides that pretrial
restraint of a criminal defendant's untainted assets
needed to retain counsel of choice violates the Sixth
o There is no contention that the insurance proceeds here at
issue are ...