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United States v. Malik

United States District Court, D. Maryland

February 7, 2017

UNITED STATES OF AMERICA
v.
ATIF BABAR MALIK, ET AL.

          MEMORANDUM AND ORDER RE: FORFEITURE AND ASSET RESTRAINT

          MARVIN J. GARBIS, UNITED STATES DISTRICT JUDGE

         The 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.

         The Indictment presents 29 Counts including[1] 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 1035(a)(2).

         The 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. § 982(b)(1)." Id.

         On 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[2] to move for reconsideration. The Order was amended on January 27, 2017 [ECF No. 49] to correct the name of the insurance company.

         As 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. 59].
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 Amendment.
o There is no contention that the insurance proceeds here at issue are ...

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