The opinion of the court was delivered by: DALZELL
Before the Court is defendant Michael Marks's motion for reconsideration of our denial of bail pending his sentencing. After a hearing today and for the reasons discussed below, the motion is denied.
On August 15, 1996, defendant Michael Marks
was indicted on a ten-count indictment charging wire fraud,
interstate transportation of securities obtained by fraud, conspiracy to defraud the United States, and attempt to launder monetary instruments. On November 18, 1996 -- the day scheduled for the start of his trial in this case -- the defendant pled guilty to all ten counts of the indictment.
The charges stem from unusual facts which bear detailed exposition because the fraudulent acts to which the defendant has pled guilty to having committed are a significant factor in our decision to deny the defendant's motion for release on bail pending his sentencing scheduled for March 4, 1997. These facts are those the defendant admitted at his change of plea hearing.
In mid-June of this year, Donna M. Hillier, an eighteen year college freshman at the University of Maryland, visited "Madam Flora," a fortune-telling establishment located on Route 1 in College Park, Maryland. There she met Dorin, a fortune teller who, after performing a "reading", informed Hillier that she was afflicted by "negativity." Hillier paid Dorin forty-five dollars for these services.
A few days later, Hillier returned to Madam Flora and was introduced to Dorin's "sister", Selen, who Hillier later identified as Maria Marks, defendant Michael Marks's paramour. Selen was able to identify the source of Hillier's "negativity." Selen told Hillier that about two thousand years ago, Hillier (presumably in a former life) gave information to royalty about a peasant uprising, which resulted in the massacre of these unnamed peasants and Hillier being cursed (presumably by the massacred peasants' surviving families). According to Selen, this curse, if not removed, would turn into a fatal disease. After this first session, Hillier became a frequent customer of Madam Flora's and Selen's services, returning every day for at least a dozen days.
Selen soon discovered how to "remove" the negativity and resulting curse afflicting Hillier. Selen instructed Hillier to take two thousand dollars in cash and wear it on her person for a day. After doing so, Hillier gave the cash to Selen, who never returned it. This apparently did not do the trick. Hillier then informed Selen that she had received money as a result of her father's wrongful death. Selen told Hillier that the curse could be removed if Hillier wrote out two checks for a total of two hundred thousand dollars, which Selen would take into meditation. On July 2, 1996, Hillier wrote two checks for one hundred thousand dollars each and gave them to Selen. In conformity with Selen's instructions, Hillier left the payee line blank and went to her bank to transfer sufficient funds into her checking account to cover the checks. This was necessary, according to Selen, to remove the curse and destroy the negativity.
The next day, July 3, 1996, the defendant Michael Marks telephoned a check cashier (who was a cooperating witness) in Philadelphia and explained that he had two checks for one hundred thousand dollars each which he wanted to cash without filing any currency transaction reports with the Internal Revenue Service.
After several telephone calls (which the check cashier recorded) over the span of several days, Michael Marks agreed to pay a fee of five percent to the check cashier for cashing the checks without completing any currency transactions reports, as well as a flat fee of $ 2,500 to a banker in order to insure that the checks would be cashed without law enforcement detection. When Michael Marks, Maria Marks and Steve Eli Ristik met the check cashier on July 16, 1996 to collect the proceeds of Hillier's checks, they were arrested.
Following Michael Marks's indictment on July 18, 1996, Magistrate Judge Tullio Gene Leomporra ordered his detention without bail. On August 16, 1996, Magistrate Judge Diane M. Welsh denied Michael Marks's motion for reconsideration of Magistrate Judge Leomporra's detention order, but on August 26, 1996, Magistrate Judge Welsh reversed herself and set conditions for Michael Marks's release on bail. Magistrate Welsh's Order was stayed pending the Government's appeal, pursuant to 18 U.S.C. § 3145(a), to this Court. On September 4, 1996, after a de novo hearing on Michael Marks's motion for release on bail pending his trial, we ordered the defendant's detention. On November 18, 1996, defendants Michael Marks, Maria Marks and Steve Eli Ristik pled guilty to all counts of the indictment against them. At that time, we denied Michael Marks's oral motion for bail pending his sentencing, which we scheduled for March 4, 1997.
II. Basis of the Instant Motion
Yesterday, November 25, 1996, Michael Marks's attorney, Thomas J. Eoannou, Esquire, filed a motion and affidavit seeking Michael Marks's release pending his sentencing. We held a hearing this day on defendant's motion. The motion is premised on the religious obligations facing Michael Marks now that he has learned of his mother's death.
On October 20, 1996, while on bail, Janet Marks, Michael Marks's late mother, who was a defendant in the case before Judge Brody, was killed by an automobile in New Jersey. Michael Marks's motion for reconsideration of our prior denial of bail is based on his need to lead the pomana -- the "black feast" -- which is said to be the traditional mourning ceremony of the Romani-American or "Rom" (commonly, and perhaps incorrectly, known as "gypsies") that is held at six weeks, six months, and one year after the death of a family member. The first black feast for Janet Marks is scheduled for December 1, 1996, six weeks after her death.
In support of his motion, Michael Marks has submitted as an exhibit the unnotarized affidavit of Ruth E. Anderson, Ph.D., who, according to Mr. Eoannou's affidavit, is a noted scholar of "Gypsy" life and culture. Dr. Anderson explains in some detail the history and religious beliefs of Romani-Americans, which we now rehearse.
Romani-Americans trace their roots to a people who left India before 900 A.D. and have since experienced a diaspora which has scattered them throughout the world. Michael Marks's family is said to trace its roots to a sub-group called the Kalderasha (or Russian Coppersmiths) that immigrated to the United States at the turn of this century. Although relatively little is known of the Kalderasha, according to Dr. Anderson, they are a traditional folk group that adheres to longstanding customs, traditions and religious beliefs.
For our purposes, the most important aspect of the Kalderasha 's culture is their religious observances upon the death of a family member. We quote extensively from Dr. Anderson's statement explaining what Michael Marks is required to do in preparation for his mother's black feast.
The Rom believe that when someone dies, in order to prevent the displeasure of God and of the spirits of the dead, certain practices must be performed. Following his mother's death, an eldest or only son must:
1) Wear plain black clothing for one year. . . .
2) Remain at home with extended family members in a large group, showing respect for the deceased by praying, burning holy incense (tumuya) over all meals that are consumed, refraining from any form of entertainment (no TV, radio, or parties), and receiving calls and visits from family members who have come from far away in honor of the deceased.
3) Provide hospitality in the form of elaborate food and a place to stay for visiting family members, often including paying for ...