Maximov Eitan Transcript

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

UNITED STATES OF AMERICA, ) )

Plaintiff, ) CR 08-0368-PHX-DGC )

vs. ) Phoenix, Arizona ) July 22, 2008

EITAN MAXIMOV, ) 4:58 p.m. )

Defendant. ) )

______________________________) BEFORE: THE HONORABLE LAWRENCE O. ANDERSON, MAGISTRATE JUDGE

TRANSCRIPT OF PROCEEDINGS

DETENTION HEARING

Transcriptionist: Linda Schroeder Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc. 32 Phoenix, Arizona 85003-2151 (602) 322-7249 Proceedings Recorded by Electronic Sound Recording Transcript Produced by Transcriptionist

Case 2:08-cr-00368-DGC Document 40 Filed 08/06/08 of 28

2

1 A P P E A R A N C E S

2

3 For the Government:

4 U.S. Attorney's Office By: KEVIN M. RAPP, ESQ.

5 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004

6 For the Defendant Maximov:

7 Law Office of Allen B. Bickart

8 By: ALLEN B. BICKART, ESQ. 812 Clubhouse Drive

9 Prescott, AZ 86303

10 STEPHEN C. KUNKLE, ESQ. 7227 North 16th Street, Suite 224

11 Phoenix, AZ 85020

12

13

14

15

16

17

18

19

20

21

22

23

24

25



3

1 THE CLERK: Criminal docket 08-368, United States of

2 America versus Eitan Maximov, on for detention hearing.

3 MR. RAPP: Good evening. Kevin Rapp on behalf of the

4 United States.

5 THE COURT: Welcome to night court, Mr. Rapp. Good

6 evening to you, sir.

7 MR. BICKART: Good evening, Your Honor. Allen Bickart

8 and Stephen Kunkle on behalf of Mr. Maximov.

9 THE COURT: All right. Good afternoon, gentlemen, and

10 good afternoon, Mr. Maximov. And I apologize that we're

11 starting this hearing at 5:00 instead of the scheduled time at

12 4:15. As you've been able to see, counsel, I've been very,

13 very busy this afternoon and tried to move these cases on as

14 best I could.

15 Is the government ready to proceed, Mr. Rapp?

16 MR. RAPP: Yes, Your Honor.

17 THE COURT: And you're prepared to proceed,

18 Mr. Bickart?

19 MR. BICKART: Yes, I am, Your Honor.

20 THE COURT: You may be seated, Mr. Maximov.

21 All right. Do you intend to call any witnesses or

22 just proceed by proffer, Mr. Rapp?

23 MR. RAPP: Judge, it's my intent to proceed by

24 proffer.

25 THE COURT: All right. You may proceed.



4

1 MR. RAPP: Judge, I know you have had -- you have not

2 had the opportunity to read the pretrial services report, or

3 have you?

4 THE COURT: Well, I'm reading it as you're talking.

5 MR. RAPP: Okay. Well, both the original report and

6 the addendum recommend that the defendant be detained because

7 there are no conditions that would secure his release.

8 This defendant has no employment. He has no

9 reportable wages. He has no property in Arizona. He has ties

10 to a foreign country, that is, Israel. Indeed, when he was

11 arrested, he was returning from Israel. He is facing prison if

12 convicted of the offenses charged in the indictment. The

13 indictment contains property that has been foreclosed upon

14 resulting -- due to the defendant's fraudulent activities that

15 would result -- that did result in a $3.6 million loss.

16 As the Court knows, the loss amount drives the

17 Guidelines. That is approximately a 16-level increase from a

18 base offense level of 6, and that's where you just start. The

19 evidence in this case shows that it was the defendant who was

20 directing these fraudulent activities and is subject to an

21 increase under the advisory guidelines for a leadership role.

22 The government views the fraudulent activities as

23 sophisticated which, under 2B1, would result in an additional

24 two-level increase in his guideline range. And therefore he is

25 looking at prison somewhere between five and ten years.



5

1 He is a lawful permanent resident. If he's convicted

2 of these offenses -- they are aggravated felonies -- he's

3 subject to deportability. He has no family in Arizona. He has

4 family in Canada and in Israel. He has an ex-wife here. He

5 does have two children. He has been separated from his wife,

6 and the divorce has been finalized for approximately three

7 years. He has not paid -- He has paid very little child

8 support, if any. He has challenged the paternity of his

9 youngest child, and that has been resolved as being his child,

10 though there is no parent/child relationship with his youngest

11 child. He has traveled to Thailand in 2005.

12 With respect to the information in the pretrial

13 services report, you will see on the addendum he has all of

14 these companies that are listed as him having business

15 affiliations. All State Van Lines Worldwide, Aragon

16 Development, Eilon Properties, Hollywood Auto Import, none of

17 those are viable companies. Aragon Stables is not a viable

18 company. Eilon Properties, Aragon Luxury Real Estate, Aragon

19 Stables, none of these is he drawing any income from.

20 Oddly enough, he says that Connect America Worldwide

21 Transportation in the first pretrial services report is the

22 company by which he is drawing income from. The pretrial

23 services report says this business is active and in good

24 standing. The government's information is contrary to that.

25 As of today, we received a certificate of dissolution dated



6

1 7-14 of 2008 for Connect America Worldwide Transportation.

2 This is not a viable company. It is a company, I should add,

3 that he used during the course of the fraud. The defendants --

4 His co-defendants have advised that he directed them to put

5 this company down as their company and that they worked for

6 him. That information was fraudulent.

7 In terms of the case against the defendant, we have an

8 informant in this case --

9 THE COURT: You know every question I'm going to ask

10 you.

11 MR. RAPP: I've been here before.

12 THE COURT: Yeah, you have, and you've paid attention.

13 Good. I want to hear what you have to say.

14 MR. RAPP: In terms of the evidence in this case, we

15 do have an informant where this defendant has been -- has made

16 tape recorded incriminating statements. We have loan documents

17 with the co-defendants who have advised investigating agents

18 that this defendant directed them to put the false information

19 on the loan document to purchase the house. The house now has

20 gone into foreclosure.

21 During the divorce proceedings, as the Court can

22 imagine, there was depositions, questions by the judge

23 regarding this defendant's financial activities. It is the

24 government's view that during his deposition, he made

25 incriminating statements regarding his involvement in this



7

1 cash-back scheme. Again, we have cooperating co-defendants,

2 and we have loan documents that speak for itself. We view the

3 evidence against this defendant as strong.

4 Based on all those factors, based on the fact that he

5 has no job, no assets in this state -- He has strong ties to a

6 foreign country. He doesn't even have a place to live,

7 although there is some suggestion that he could live with his

8 ex-girlfriend, though I will tell you during the interview he

9 was confused as to what her residence was.

10 So with all those factors, the government believes

11 this defendant is -- agrees with the pretrial services report

12 and the pretrial services writer that this defendant is a risk

13 to flee the country.

14 THE COURT: Mr. Rapp, we've had a number of mortgage

15 fraud cases. That seems to be one of the primary areas that

16 you're focusing on. I don't recognize this. Can you give me a

17 little bit of a background as to what the scheme was?

18 I see in reviewing the indictment that there were

19 straw purchasers. Is there allegations that they fraudulently

20 increased the value of the home and then got cash back? Or

21 give me some sense of what happened in this particular

22 indictment in terms of the bank fraud or mortgage fraud.

23 MR. RAPP: Certainly. In general terms, Judge, what

24 they do is they find a seller willing to sell the property,

25 Mr. Maximov does, approaches them, increases the sale price of



8

1 the house by -- through an appraiser who is willing to puff up

2 the price. The difference between what the seller wants to

3 sell the house for and the difference between the inflated

4 value of the house, Mr. Maximov is able to get the escrow

5 officer to give that money in the form of cash back to him, and

6 he has that wired to one of the many LLC's that he has on

7 his -- that he's incorporated, Connect America Worldwide,

8 Aragon Stables, Eilon Properties. He then takes that money,

9 keeps it for his own, pays some kickbacks to real estate

10 agents, escrow officers, and the like. The property -- The

11 person whose name is on the property does not have the

12 financial viability to sustain the payments because they

13 don't --

14 THE COURT: The so-called buyer?

15 MR. RAPP: The straw buyer, yes, the straw buyer who

16 Mr. Maximov directed to fill out the uniform loan application.

17 They've inflated their gross monthly income, their assets,

18 their liabilities, put down businesses and indeed Connect

19 America Worldwide that they never worked for, so that they

20 would qualify for the loan. They can't qualify for the loan.

21 They never make any payments. The houses go into foreclosure.

22 I would add that the defendant's own residence, the

23 Sweetwater residence that he lists as one of his previous

24 residences, is in foreclosure. That's the scheme.

25 The defendant explains this scheme to a confidential



9

1 informant while he's being taped, views it as creative

2 financing. During the course of this scheme, they'll do things

3 such as creating addendums that -- where the defendant will

4 require the parties that he'll get $500,000 back, and all the

5 parties agree that this addendum will not go to the lender.

6 And indeed they actually agree on the addendum that

7 the lending institution will not see the fact that he's getting

8 the half a million dollars back. That's essentially the

9 scheme.

10 THE COURT: Okay. Thank you. And I assume the

11 government has subpoenaed or seized bank records and bank

12 accounts of some of these companies for Mr. Maximov, and so

13 you're aware of the paper trail that's been created?

14 MR. RAPP: If the Court is asking if we've issued

15 subpoenas to get bank records, escrow files, loan documents,

16 real estate files, we've done that.

17 THE COURT: Okay. And do those documents indeed

18 support the criminal charges here, or is this something that's

19 kind of an ongoing investigation, and you're still looking at

20 it?

21 MR. RAPP: No. They support the charges as they are

22 charged. I will tell you that this is an ongoing

23 investigation, and we're looking into some other activities of

24 Mr. Maximov.

25 THE COURT: All right. So obviously the government is



10

1 requesting that he be detained as a serious flight risk.

2 Mr. Bickart, I don't know if you or co-counsel are

3 going to --

4 MR. BICKART: I will.

5 THE COURT: -- do the proffer. Okay. And are you

6 going to call any witnesses or not, or solely a proffer,

7 Mr. Bickart?

8 MR. BICKART: Well, I have one witness here, Your

9 Honor, and that is the young lady who is referred to in the

10 presentence -- pretrial services report with respect to her

11 willingness to have Mr. Maximov reside with her under an

12 electronic monitoring arrangement until he can obtain an

13 apartment with a fixed phone, which is in the works, Your

14 Honor.

15 THE COURT: Okay. If she would just raise her hand,

16 please.

17 All right. Thank you. What is this young lady's

18 name?

19 MR. BICKART: Her name Sherry Sapir, S-a-p-i-r.

20 THE COURT: All right.

21 MR. BICKART: She resides at 7027 North 79th Place in

22 Scottsdale.

23 THE COURT: Okay. All right. And so if that's your

24 proffer, then, regarding the availability of this place to

25 live, then I think that's sufficient. I don't need to hear



11

1 from her unless the government chooses to cross-examine her or

2 challenge the credibility of your proffer. Okay?

3 What else do you wish for me to know, Mr. Bickart?

4 MR. BICKART: Well, you know, it's an interesting

5 situation, Your Honor.

6 It seems that when someone is engaged in the real

7 estate business, and they are then under indictment, and they

8 are not further engaged in the real estate business, they have

9 no occupation, and they have no income, and they are without

10 means. And that's essentially the position of the government

11 with respect to Mr. Maximov.

12 However, Mr. Maximov has an income of $1,733 a month

13 from a contractual arrangement that he made from the sale of a

14 business. And he is in arrearage in his child support and his

15 alimony. However, he has been paying some payments each month.

16 His father passed away, Your Honor, in the month of

17 May. He's an Orthodox Jew. He flew to Israel for the funeral.

18 Under Orthodoxy, Your Honor, the first seven days of mourning

19 is called Shiva. He performed that. The next 30 days are

20 considered to be those days where each day he is to attend the

21 cemetery and do that. That accounts for five weeks of his stay

22 in Israel. He then made arrangements to return to Israel. But

23 let me proffer to you what occurred before he left.

24 About six months prior to his father's death, he

25 became aware of the fact through some acquaintance that the



12

1 government was investigating some of his activities.

2 He went, and he engaged Bill Foreman as his attorney,

3 paid him fees, discussed the matter, and was advised that he

4 would be represented. At that point two of the co-defendants

5 in this case felt that they wanted Mr. Foreman to represent

6 them, and he said he couldn't, he had a conflict, and he

7 directed them to other counsel.

8 It now appears that Mr. Foreman is representing at

9 least one of the other defendants in this proceeding. And when

10 Mr. Maximov returned, he was arrested -- not on the ground --

11 he was arrested in the aircraft.

12 And before he came back, it is submitted by way of

13 proffer that he was aware of the fact that charges were

14 imminent and that he was going to be arrested in the State of

15 Arizona, yet he chose to return. He is a resident alien. He

16 has been so for a number of years and is pending citizenship at

17 the moment. He does not want to return to Israel. He went to

18 Thailand, I believe, on a vacation in 2005. And that's the

19 serious travel internationally that he did.

20 Now, I submit to the Court that if I were before the

21 Court under similar circumstances -- well, I've gone to

22 England, and I've gone to France, but I've come back to the

23 United States -- I would say that, in my present financial

24 condition, I would say that I might be a suspect to be detained

25 for the same period of time for the same specious reasoning.



13

1 I think, Your Honor, that the government is stating

2 its case in a little different posture. Throughout Mr. Rapp's

3 dissertation of how the evidence was going to be obtained and

4 how it was going to come in, one salient thing was omitted:

5 The appraiser.

6 No mortgage is going to be written for the size of

7 mortgages that were involved in these transactions unless two

8 appraisers certified to the mortgage companies their appraisal.

9 He didn't say that the appraiser was part of the

10 scheme. He didn't say he was paid, he was encouraged, or

11 anything else.

12 The banking institution relies on the appraisal. And

13 if the appraiser says no, it's not worth that money, then the

14 mortgage isn't given.

15 I submit to the Court that there is a lot to be seen

16 between the allegation and the conclusion. And I'd suggest to

17 the Court that the same presumption should apply to a defendant

18 as he sits here today, before any evidence is heard, before any

19 discovery is given, as to whether there is such a viable case

20 against the defendant. There is a charge, as always, before

21 this Court.

22 Now, there are various things in these reports that

23 are in error. When he returned, having flown from Israel to

24 Atlanta, Atlanta to Phoenix, he was taken to pretrial services.

25 And he thinks in Hebrew before he thinks in English, just like



14

1 these gentlemen that were here before the Court just

2 previously. They think in Spanish before -- if they even had a

3 rudimentary knowledge of English.

4 And when he was asked the question about his

5 residence, he gave them, since his business had been closed

6 down, he gave them the post office box. But yet later on in

7 the report, he did give them the correct address where he was

8 living before he went to his girlfriend's father's funeral.

9 And that was 2402 East Esplanade Lane, Apartment No. 805. And

10 that's where he had been living, where he has a lease option on

11 the property. It's an apartment at 24th Street and Camelback.

12 It was attributed to Ms. Sapir, but she really resides at the

13 79th Place address, which is in the next paragraph down.

14 She does not reside at Esplanade Lane. Mr. Maximov

15 lives at that address.

16 I submit to the Court that Mr. Maximov is not the

17 villain that Mr. Rapp would suggest. He served his time in the

18 military in Israel in the IDF in the air force. He was given

19 two commendations. He was honorably discharged. The

20 commendation was for saving another serviceman's life who was

21 severely injured in the legs by shells.

22 He came to the United States as an immigrant with the

23 intention of becoming a citizen of the United States, and that

24 is still his intention now.

25 Whether or not this matter results in a conviction and



15

1 the actions of the Immigration Act are brought into play is not

2 a concern at this moment. The biggest concern at this moment

3 is the defendant with respect to the allegations that are set

4 forth in the indictment.

5 I submit to the Court that he has a family. He has

6 two children here, an ex-wife. He has a brother in Canada, a

7 brother in Florida, two of them in Israel -- or one in Israel,

8 I believe.

9 And other than a traffic ticket that he paid a $233

10 fine on, there is no failure to appear, no running away. As a

11 matter of fact, if he were to testify here, I would proffer

12 that he was aware of this pending matter and returned

13 notwithstanding his knowledge.

14 He expected to be arrested, but he didn't expect to be

15 arrested in the airplane that he had traveled from Atlanta to

16 Phoenix on.

17 THE COURT: Was he arrested when the plane landed in

18 Phoenix?

19 MR. BICKART: Yes, in the airplane, not even in the

20 jet way. The agents came onto the plane and took him into

21 custody.

22 THE COURT: You mean in front of all the other

23 passengers?

24 MR. BICKART: Yes, sir.

25 THE COURT: Okay.



16

1 MR. BICKART: I submit to the Court that he has family

2 support. They are supporting him financially at the moment

3 until he can get some work additionally to the $1,733 a month

4 that he earns.

5 Now, Judge, when the Act was created with respect to

6 this presumption, whether there are other alternatives --

7 THE COURT: Hold on. Hold on. There's no presumption

8 of detention in this case.

9 MR. BICKART: No.

10 THE COURT: The only presumption I'm aware of is the

11 presumption of innocence.

12 MR. BICKART: That's right.

13 THE COURT: Okay. Go ahead.

14 MR. BICKART: What I meant to say was that when the

15 Act was created, they took into consideration the presumption

16 of innocence and balancing whether or not there are some

17 conditions that would apply that would make him answerable to

18 the Court without a flight of risk -- a risk of flight, rather.

19 I submit to the Court that electronic monitoring is an

20 appropriate method. I submit to the Court that an appearance

21 bond, where his family is willing to help him post it, is

22 appropriate.

23 THE COURT: What can you tell me about the two

24 failure-to-appear in Scottsdale Municipal Court?

25 MR. BICKART: It was a photo radar ticket, Your Honor,



17

1 and he just absolutely mentally at the time didn't register,

2 and when he came to the realization, he went in and paid the

3 fine.

4 THE COURT: And a process server served him with

5 something, a failure to appear or something --

6 MR. BICKART: Yeah, an FTA.

7 THE COURT: -- for him to appear on a second date, and

8 he didn't show up on the date that he was supposed to.

9 MR. BICKART: No, he didn't. He showed up two days

10 later.

11 THE COURT: Ten days later according --

12 MR. BICKART: And he satisfied the sanction.

13 He was acquitted on another offense. This all, by the

14 way, was handed to me just before this hearing.

15 THE COURT: Well, do you want more time?

16 MR. BICKART: No, I don't want more time.

17 THE COURT: He has children here in Phoenix?


19 THE COURT: Where is that in the report? I probably

20 skipped over it unintentionally.

21 MR. BICKART: It's not in the report.

22 THE COURT: Okay. Tell me about his children. How

23 old are they? Where do they live? Who do they live with?

24 MR. BICKART: I'm sorry. Just a moment.

25 (The defendant and his counsel confer off the record.)



18

1 MR. BICKART: There's a two-year-old and a

2 six-year-old living with his ex-wife in the City of Phoenix.

3 He has visitation rights. She indicates that he does visit.

4 He pays $400 a month until his income will increase, which

5 hopefully it will.

6 THE COURT: So the home that he has to live at is

7 actually Ms. Sapir's home on North 79th Place?

8 MR. BICKART: At the moment, yes.

9 THE COURT: And the address 2402 East Esplanade Lane,

10 Unit 805, that's where Mr. Maximov has been living?

11 MR. BICKART: Yes, sir. The only reason that we're

12 not asking for him to go to that address is that it has no hard

13 line phone, and I can't arrange that quickly.

14 THE COURT: And is that the Esplanade Towers there at

15 24th Street and Camelback?

16 MR. BICKART: Yes, it is, Your Honor.

17 THE COURT: Eighth floor?

18 MR. BICKART: Yes, it is.

19 THE COURT: Okay. Have there been any seizure

20 warrants issued to date that you are aware of that you can

21 share with us, Mr. Rapp?

22 MR. RAPP: No, Your Honor.

23 THE COURT: I see on Page 2 of the addendum that's

24 dated last Friday, July 18th, it does say he has two children

25 the middle of the page, second page, two children ages six and



19

1 two born to this union to Ronit (indiscernible) Rosenberg.

2 Does he or willing friends or family member have any

3 ability to post a secured bond of any kind, Mr. Bickart?

4 MR. BICKART: Yes, sir, I think so. I believe so,

5 Your Honor.

6 THE COURT: Okay. Can you tell me if a substantial

7 cash bond or secured bond is ordered in this case what they

8 would be willing and able to post?

9 MR. BICKART: Your Honor, I think that, in the short

10 term, I think that his brother in Canada might be able to

11 arrange a $10,000 cash appearance bond.

12 THE COURT: I want to make sure I've given you and

13 your client a full opportunity to be heard, Mr. Bickart, before

14 I turn to the government for their rebuttal of some of the

15 claims that you've made. Have you finished, sir?

16 MR. BICKART: No, Your Honor. I wanted to touch on

17 one last thing.

18 I talked to Mr. Rapp early this morning about this.

19 I'm new in this case, and I'm gravely concerned about this

20 business about Mr. Foreman and his being engaged in this

21 matter.

22 THE COURT: You know, that's really an important

23 issue, but it's collateral to this.

24 MR. BICKART: It's collateral, but it led to a serious

25 problem in this case in the report --



20

1 THE COURT: And do you believe --

2 MR. BICKART: -- because the advice --

3 THE COURT: Hold on. Do you believe that Mr. Foreman

4 is representing a co-defendant that has agreed to cooperate

5 with the government?


7 THE COURT: Mr. Rapp, can you -- can you give us any

8 information about the accuracy of that? Because if that's the

9 case, I do have serious concerns, but it's collateral to the

10 issue of detention in one way, but if this is the person that's

11 willing to testify having now been being represented by

12 Mr. Foreman, a very experienced criminal defense lawyer who

13 formerly represented Mr. Maximov earlier, that gives me real

14 cause for concern. So what are you able to share with me, if

15 anything, about that?

16 MR. RAPP: Judge, Mr. Foreman represents defendant

17 Bartlemus. Now, defendant Bartlemus was indicted and arrested

18 in another case. He just happens to be also a defendant in

19 this case. Mr. Foreman would not have known -- and I also

20 would suggest that's the case for Mr. Maximov -- that

21 Mr. Bartlemus would have been indicted along with Mr. Maximov.

22 I don't know if there's any truth to the fact that

23 Mr. Maximov knew that there was a grand jury indictment against

24 him, an investigation, that he would be arrested. I don't know

25 of any information that he would have that.



21

1 But with respect to Mr. Foreman, Mr. Foreman just

2 simply did not know that Mr. Bartlemus also was going to be

3 indicted with Mr. Maximov. I couldn't envision how he would

4 know that, because I would not have in any way shared with him

5 a grand jury indictment that was under seal which is now not

6 under seal.

7 So I can't speak to any of this about Mr. Foreman

8 being retained on behalf of Mr. Maximov. Only Mr. Foreman

9 could. But I can tell you that Mr. Foreman did not somehow

10 know that Mr. Maximov was going to be indicted. I can assure

11 you of that, because I've had some conversations with him.

12 MR. BICKART: I'm not suggesting, Your Honor, that

13 Bill knew. What I'm suggesting is that it had an impact on

14 what occurred when he was arrested. He advised Mr. Maximov, I

15 am informed that I am proffering it, that if he is questioned,

16 to be very polite but to answer no questions and to call him.

17 And when he was taken into custody in the aircraft, he asked

18 the agents to call his attorney. They removed Mr. Foreman's

19 card from his wallet to call him, and he never heard a thing.

20 When he encountered this gentleman from pretrial

21 services, he gave serious omissions in answers because that's

22 what he was instructed to do.

23 THE COURT: Well, this is a cause for the concern, but

24 this is more for Judge Campbell than for me on the issue of

25 detention. Anything else on the merits of the issue of



22

1 detention, Mr. Bickart?

2 MR. BICKART: Nothing else, Your Honor.

3 THE COURT: Mr. Rapp, I made an assumption, if not

4 heard you directly, perhaps indirectly, that the appraisals on

5 these homes were significantly higher than the true fair market

6 value of the home. Is that an incorrect assumption on my part?

7 MR. RAPP: That's not incorrect. The appraiser is

8 indicted in this case.

9 THE COURT: Oh, and the appraiser is whom?

10 MR. RAPP: Andrew Ament. He is one of the appraisers.

11 THE COURT: Andrew Ament at the bottom?

12 MR. RAPP: Yes.

13 THE COURT: Okay. So your view, the government's

14 view, this was not an arm's length appraisal for a bank but,

15 rather, somebody that was part of the conspiracy?

16 MR. RAPP: Yes.

17 THE COURT: Okay. Do you wish to address in response

18 to any of the proffers made by Mr. Bickart?

19 MR. RAPP: Well, just with respect to his income,

20 Judge, the -- we've gotten Department of Economic Security

21 reports that say that this defendant has no reportable wages in

22 the last three years. He's saying that -- Counsel is saying

23 that he has some kind of contract with other companies. I sure

24 would like to see those contracts where he's receiving income.

25 With respect to the -- his third-party release to an



23

1 ex-girlfriend at a different location, I would sure like to

2 know what her profession is and how she supports herself.

3 THE COURT: Ms. Sapir?

4 MR. RAPP: Yes.

5 THE COURT: Okay. All right. It's 5:30 now. Why

6 don't we do this. I'll continue this to another time. I'm

7 going to order that Ms. Sapir appear at the next court hearing

8 for cross-examination and give you an opportunity to challenge

9 the proffer made by Mr. Bickart about her, if that's important

10 to you.

11 MR. RAPP: It's not that -- If Mr. Bickart can just

12 proffer to the Court what she does for a living.

13 THE COURT: What she does for a living?

14 MR. RAPP: What she does for a living.

15 THE COURT: Do you know, Mr. Bickart?

16 MR. BICKART: I don't know. I haven't asked her.

17 MR. RAPP: Well, she's here. Can she just advise the

18 Court what she does for a living?

19 MR. BICKART: I can answer it in a moment if the Court

20 would give me an opportunity.

21 THE COURT: All right. You may have that opportunity.

22 (Conference off the record.)

23 MR. BICKART: Ms. Sapir advises me, Your Honor, that

24 she is a licensed general contractor in the State of Arizona,

25 that she is also a licensed real estate broker, that she has an



24

1 agency, she has salespeople working for her, and that she has

2 built other things in the past.

3 THE COURT: Okay. Does that satisfy your inquiry,

4 Mr. Rapp?

5 MR. RAPP: It does, Judge, and just raises some

6 concerns that she's in the real estate market. This is a

7 mortgage fraud case. And if this is the same woman, I think

8 she may have listed one of the subject properties in the

9 indictment, which is the Sweetwater residence.

10 In any event, I don't think an ex-girlfriend inspires

11 a great deal of confidence that she'll be the third-party

12 custodian for a defendant who has no employment and no income

13 and no property and has some other ties to a foreign country.

14 With respect to the cash bond, Judge, it would really

15 have to be substantial, and, at least in the pretrial service

16 report, the brother Moti Maximoff is willing to make available

17 $5,000 for collateral in posting a bond. And that is his

18 limit. Apparently he has extended quite a bit of funds with

19 respect to the recent death of his father and the funeral,

20 things involved in the funeral, to the tune of $53,000.

21 Apparently $5,000 is all he is willing to make available for a

22 cash bond at the moment.

23 MR. BICKART: I would not have proffered ten, Your

24 Honor, unless I was sufficiently confident it could be

25 arranged.



25

1 THE COURT: All right. Thank you. Thank you,

2 Mr. Rapp.

3 All right. Let me first make a few preliminary

4 comments. First of all, this is not an indictment in which

5 there's probable cause to believe that he's committed one of

6 the serious -- one of the series of crimes in which a

7 rebuttable presumption arises that he should be detained. The

8 government proffers that he should be detained because he's a

9 serious flight risk.

10 Let me point out that he's not here illegally. He's

11 here legally. That is -- inures to the benefit of Mr. Maximov.

12 That he has no prior criminal history, that certainly inures to

13 the benefit of Mr. Maximov.

14 I find that Ms. Sapir is an appropriate third-party

15 custodian. There's no reason for me to believe that he could

16 not live with her to ensure that Mr. Maximov appears at all

17 further proceedings.

18 I find that there's no history or evidence of drug

19 usage or drugs involved in this case or dangerous weapons and

20 firearms. That certainly inures to the benefit of Mr. Maximov.

21 This is not an easy call for an experienced magistrate

22 judge because Mr. Maximov enjoys the presumption of innocence.

23 By the same token, I believe that the government has a

24 serious and substantial case against Mr. Maximov. I find that

25 even though there were meritorious reasons for him to travel to



26

1 Israel, nevertheless, he has traveled internationally on a

2 number of occasions, to Israel most recently for the death of

3 his father, to Turkey, Thailand.

4 Mr. Maximov is alleged to be a leader, and with the

5 amount of loss that's alleged to have occurred in this case,

6 Mr. Maximov is looking at a significant prison sentence, if

7 convicted, with enhancements for his leadership role allegedly

8 and for his use of sophisticated means.

9 The Bail Reform Act requires me to impose the least

10 onerous or least restrictive condition of release.

11 The only evidence that I have that Mr. Maximov would

12 take these orders of this Court to appear as required was two

13 misdemeanor or municipal citations that were related to traffic

14 matters. The only conclusion I can have from this is that

15 Mr. Maximov did not give those orders the weight that he should

16 have. And the only reason I can judge -- The only way I can

17 judge your future behavior, Mr. Maximov, is to look at your

18 past behavior.

19 I believe that there are conditions of release that

20 would assure his appearance. A significant secured bond in the

21 amount of $500,000 is ordered. And he shall be detained until

22 that money is posted or property secured, and at that time

23 conditions of release will be imposed.

24 I don't know when/if your client can post this money.

25 Let me say this for the record, that I believe that this is a



27

1 sufficient and necessary component to his appearing at all

2 future court proceedings without which there was no reason --

3 there would be no reason for Mr. Maximov to appear and remain

4 in the United States.

5 Mr. Bickart, when you and co-counsel, if they have the

6 money and it's posted by way of cash or a bail bond, then

7 contact Vickie, my judicial assistant, and we will set an

8 appropriate hearing and give Mr. Rapp an opportunity to request

9 a Nebbia hearing and make sure he believes that that's an

10 appropriate source of the monies for the posting of the bond.

11 Anything else, Mr. Rapp?

12 MR. RAPP: Not from the government, no, Your Honor.

13 THE COURT: All right. Mr. Bickart?

14 MR. BICKART: Yes, Your Honor. If it's posted by way

15 of surety bond, there wouldn't be any need for a Nebbia.

16 THE COURT: If that's the case, that's true.

17 MR. BICKART: Thank you.

18 THE COURT: All right. But if it's a cash bond, then

19 perhaps there would be a question as to the source.

20 MR. BICKART: I understand that.

21 THE COURT: Anything further from defense counsel,

22 Mr. Bickart?

23 MR. BICKART: No, sir.

24 THE COURT: All right. Thank you. We are adjourned.

25 (Proceedings recessed at 5:37 p.m.)



28

1 C E R T I F I C A T E

2

3 I, LINDA SCHROEDER, court-approved transcriber,

4 certify that the foregoing is a correct transcript from the

5 official electronic sound recording of the proceedings in the

6 above-entitled matter.

7

8 DATED at Phoenix, Arizona, this 5th day of August,

9 2008.

10

11 s/Linda Schroeder

12 Linda Schroeder

13

14

15

16

17

18

19

20

21

22

23

24

25



Maximov Eitan Transcript

Documents

Transcript of Maximov Eitan Transcript