Cailfornia AG's Civil Lawsuit Lands Loan Modification Scammer In Jail For Five Years (& Counting), Despite Never Having Been Charged (Much Less Convicted) For A Crime

In Orange County, California, The Orange County Register reports:

• Zulmai Nazarzai has been in Orange County jail for five years now, but has never been charged with a crime.
  
  The missing duffel bag stuffed with $360,540 cash that the judge ordered him to turn over back in 2010? It has not reappeared, miraculously or otherwise.
  
  The fantastical explanation Nazarzai gave the judge regarding its disappearance may have been hogwash, and Nazarzai may not have been a very nice guy. But this?
  
  ***
  THE SCAM
  
  Nazarzai and his then-girlfriend were the masterminds behind a “boiler-room telemarketing operation” that lied to distressed and elderly people on the verge of losing their homes back in 2008 and 2009, prosecutors said in court documents. More than 1,000 people paid $2 million to keep their homes from foreclosure, most often unsuccessfully.
  
  The state attorney general sued them – a civil, not criminal, action – and they were ordered to pay more than $4 million in penalties and restitution. Nazarzai pulled some $370,000 of company funds from the bank and stashed it at his home; the judge ordered him to hand it over to a court receiver.
  
  Nazarzai said he counted out $360,540 in cash from his closet, and gave it to his partner and then-girlfriend to deliver. Fasela Sheren, who went by the name Sharon Fasela, said she packed it in a black duffel bag, drove toward the receiver’s office in Los Angeles, but blacked out on the way. She awoke at a hospital. The car had been towed, and when she reclaimed it, the bag with the money was gone, she said in a deposition.
  
  Orange County Superior Court Judge Andrew Banks called this the most incredulous story he’d ever heard, “and I’ve heard some whoppers.” He ordered Nazarzai to jail for contempt of court until he produced that $360,540.
  
  And Nazarzai has been there ever since. Sheren remained free. She was not held in contempt.
  
  TIME, CRIME
  
  Neither were charged with a crime, though it appears from the court record that they ran a rather unsavory operation that could have produced charges of fraud or the like.
  
  “The Attorney General originally decided to proceed against Mr. Nazarzai civilly, not criminally,” noted Campbell, dean of the Chapman Law School. “Had the AG gone criminally, I doubt Mr. Nazarzai would have been sentenced to five years; and if he had, he’d be out now for good behavior. So, by proceeding civilly, the AG has obtained more jail time than if the AG had started a criminal case.
  
  “Even if a condition of being freed from jail in a criminal case was restitution, Mr. Nazarzai would have been free, and able to work, to pay back at least some of what he (allegedly) defrauded from people. I say ‘allegedly’ since the underlying guilt of Mr. Nazarzai on the matter of fraud has not, apparently, ever been proven.”
  
  Campbell asks, what prevents Nazarzai from life imprisonment? “If nothing, it’s absurd; if there is some line when civil incarceration becomes too much, when will it be reached?”
  
  If Nazarzai was behind bars on criminal charges, attorneys say, at least they could tell him when he’d get out of jail.
  
  We posed these questions to the AG’s office, which responded with a copy of the letter-brief it filed with the Court of Appeal over the summer, which summarizes its position.
  
  Nazarzai is being coercively – not punitively – confined “because of his willful refusal to obey a court order that he turn over $360,540 to the People,” the brief says. “The trial court concluded following trial that, beyond a reasonable doubt, (Nazarzai) has the capability of complying with this order. Substantial evidence supports this conclusion, including...(his) insistence on repeating the same unbelievable tale of the money’s disappearance....
  
  “(T)he key to his freedom is in his pocket - he alone can open the door by complying with the trial court’s order.”
  
  It’s not surprising that Nazarzai continues to “obstinately refuse to turn over the funds when he has already invested such significant time to keep them and has acted on the apparent belief that his release is always just another lunge away,” the AG said.
  
  WHAT’S NEXT
  
  There are precious few inmates in jail on civil charges. Of the 3,222 inmates at Theo Lacy Jail last week, only five of them were in for civil offenses, said Sheriff’s Lt. Jeffrey Hallock.
  
  So how long might someone who has not been accused of a crime languish in jail for civil contempt?
  
  Former lawyer H. Beatty Chadwick set the America record, spending 14 years behind bars under circumstances similar to Nazarzai’s. A Pennsylvania judge ordered Chadwick to place $2.5 million into a court-controlled account during divorce proceedings. Chadwick said he couldn’t, as he had lost the money in bad investments. His wife’s lawyer charged that he actually hid it offshore.
  
  The judge believed the wife. Chadwick went to jail in 1995 for failing to produce the money, and stayed there until 2009, when the court finally agreed that his incarceration had morphed from something coercive into something punitive. Continued jail time wouldn’t result in him producing the money, the court concluded, and he was set free.
  
  Chadwick noted that if he had been convicted of third-degree murder, he would have been out in half the time.
  
  Civil contempt is a rarely used tool, but one that critics say is prone to abuse. The accused must prove a negative – i.e., that they don’t have the money – rather than prosecutors proving that they do. That runs counter to the underpinnings of the American justice system, critics say.

For more, see No money, no charges, but he's in jail for 5 years.