IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA v.

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HANA AMAL BESHARA Defendant

Case No: 1:11-CR-447-001 Hon. Anthony J. Trenga Hearing: Jan. 13, 2012

REPLY TO GOVERNMENTS MOTION FOR RECONSIDERATION OF SELF-SURRENDER COMES NOW, the Defendant, HANA AMAL BESHARA, by and through counsel, in reply to the governments Motion for Reconsideration of Self-Surrender (filed Jan. 1, 2012, Dkt. #101) [hereinafter Govt Motion]. There is no legal basis for reconsideration of the Courts ruling that Ms. Beshara continue on release pending her designation to a BOP institution. We respectfully submit that the governments motion be denied. Hana Beshara has already met her burden of establishing that she is not likely to flee or pose a danger to the safety of any other person or the community if released. See 18 U.S.C. 3145(a); Fed. R. Crim. Pro. 46(c). Thus, her release is mandated by statute. See 18 U.S.C. 3145(a) (If the judicial officer makes such a finding, such judicial officer shall order the release of the person.) (emphasis added). The government cites nothing that warrants reconsideration. Reviewing NinjaVideos Facebook page, and a related internet forum, the government finds a woman who is letting off some steam in her online community. In fact, in Ms. Besharas post-sentencing musings, she

writes (in admittedly colorful language fairly common on the internet) to reassure friends and supporters that she will be able to handle serving the 22 month sentence. Govt Motion, Exhibit 2. She jokes about maybe losing some weight, picking up a degree, earning pennies making license plates. Id. Reflecting on her actual sentence, she notes that it would be natural to resent the judge that had imposed jail time on her, but she recognizes that she received a relatively lenient sentence. Id. These are not the writings of a defendant who is likely to flee. Ms. Beshara was writing about serving her sentence, she was retrospective about how it easily could have been worse, how she could have received more jail time. She is preparing to go to jail, not to run from it. The government does not dispute that Ms. Beshara is not a flight risk. Instead, they present two unpersuasive arguments. First, the government argues that Ms. Beshara poses a danger to the community due to internet postings that the government claims suggest she may engage in physical violence with her future fellow inmates. Govt Motion at 2. As an initial matter, this is simply not a basis for reconsideration as it is not evidence that Ms. Beshara poses a danger to the safety of any other person or the community if released. See 18 U.S.C. 3145(a). The governments position amounts to the bizarre argument that Ms. Beshara should be incarcerated sooner because she will present a danger to future fellow inmates once incarcerated. Govt Motion at 2. Moreover, the postings the government refers to are simply the online bluster of someone who has never spent a moment incarcerated. For example, the government notes Ms. Besharas posting that she will run her cell block. Id. at 3. Ms. Beshara wont even be on a cell block. She is clearly joking, as she jokes about having to make license plates, and the governments attempt to suggest otherwise is unpersuasive.

The governments other argument is that Ms. Besharas postings demonstrate a clear lack of remorse regarding illegal conduct. Id. at 2. Notably, in its motion, the government refers to these internet postings as actions and conduct. Id. at 2. They are not. There is a much more accurate term: speech. The prosecution is not happy that Ms. Beshara is not as remorseful as they would like her to be. However, Ms. Besharas exercise of her First Amendment right to express her displeasure at being sent to jail is not a basis for reconsideration of self-surrender. Copyright infringement is against the law and Ms. Beshara pled guilty. Expressing some anger that she is going to prison for her conduct is speech that is protected by the Constitution. See U.S. Const. Amend. I. The cases cited by the prosecution are inapposite as they deal with release pending appeal, pursuant to 18 U.S.C. 3143(b), not release pending execution of sentence, pursuant to 18 U.S.C. 3143(a). The governments lead citation itself notes the heavier burden imposed by 18 U.S.C. 3143(b) compared to release pending sentencing under 3143(a). See United States v. Nicolo, 706 F. Supp. 2d 330, 332 (W.D.N.Y. 2010) (cited by the prosecution, Govt Motion at 2). This is because subsection (b), regarding release pending appeal, requires a showing by the defendant that the appeal raises a substantial question of law or fact likely to result in relief. 18 U.S.C. 3143(b). This was the primary basis on which Defendant Nicolo was denied his motion to for release pending appeal. See Nicolo, 706 F. Supp. 2d at 336. No such burden exists in the instant case as it does not involve release pending appeal. The facts are completely distinguishable on other bases as well. Nicolo was tried and convicted of fraud and money laundering. Id. at 331. He never accepted responsibility for his actions and the trial court felt that his refusal to ever accept responsibility was an indication that

he would commit his crimes again if released. Id. at 335-36. By contrast, Ms. Beshara pled guilty. The government has already agreed that she accepted responsibility. See Motion for Acceptance of Responsibility by USA as to Hana Amal Beshara (filed 12/30/2011) (Dkt #90). She again accepted responsibility during allocution at sentencing. Subsequent to sentencing, she went online and expressed displeasure at being sent to prison. Who wouldnt be unhappy about that? It is not a basis to reconsider this Courts prior ruling. The case of United States v. Malquist, 619 F. Supp. 875 (D. Mont. 1985), also cited by the government, is similarly distinguishable. Defendant Malquist was convicted of tax evasion and sought release pending sentencing. Id. at 877. As in Nicolo, the court in Malquist found that the appeal did not raise any substantial question of law or fact likely to result in relief. Id. at 879-81. As in Nicolo, the discussion of the defendants lack of responsibility was dicta, since the primary basis for denial of release had to do with the lack of meritorious appeal issues. Id. By contrast, as noted above, Ms. Beshara accepted responsibility at her plea and again at her sentencing. Importantly, she is not seeking release pending appeal as were the defendants in the governments cases. She has already met the much lighter burden of establishing the basis for continued release pending execution of sentence. Hana Beshara accepted responsibility and expressed remorse during her allocution. Having been sentenced, she was understandably upset that she has to go to prison. Subsequent to sentencing, she expressed that sentiment online in a vulgar, undignified manner. While this was regrettable, this Court has already found that she is not a flight risk and is not a danger to the community. Exercising her constitutional right to express herself online, even with profanity, does not in any way justify reconsideration of the decision permitting self-surrender.

Respectfully Submitted, HANA AMAL BESHARA By Counsel

_________/s/_________________ DAVID B. SMITH VSB #25930 Smith & Zimmerman, PLLC 108 N. Alfred St. Alexandria, VA 22314 Tel: (703) 548-8911 Fax (703) 548-8935 dsmith@smithzimmerman.com

CERTIFICATE OF SERVICE I hereby certify that on this 11th day of January 2012, a true and accurate copy of the foregoing was electronically filed and served via the Courts CM/ECF system to all counsel of record. _________/s/_________________ DAVID B. SMITH VSB #25930 Smith & Zimmerman, PLLC 108 N. Alfred St. Alexandria, VA 22314 Tel: (703) 548-8911 Fax (703) 548-8935 dsmith@smithzimmerman.com