Monday, September 19, 2016

Judge Uses Civil Contempt Charge (Arising Out Of Civil Lawsuit) To Jail Loan Modification Scammer For Over Six Years (& Counting) Without Criminal Charges Ever Having Been Filed

In Orange County, California, The Orange County Register reports:
  • The judge simply does not believe that the black duffel bag, the one stuffed with $360,540 cash from Zulmai Nazarzai’s closet, mysteriously disappeared on that summer day six years ago. And, really, it’s hard to blame him.

    “The most incredulous story I’ve ever heard, and I’ve heard some whoppers,” Orange County Superior Court Judge Andrew Banks said in 2010, when he ordered Nazarzai to go to jail on contempt of court charges for failing to turn over the money as ordered.

    Nazarzai was never charged with, or convicted of, a crime. But he has been in solitary confinement in the Orange County jail ever since.

    Last week, however, a crack appeared in the prison wall: For the first time, a state appeals court asked Orange County Superior Court to hold a hearing to decide whether Nazarzai lacks “the present ability” to comply with the court’s turnover order; whether there’s a “substantial likelihood that continued confinement will accomplish the purpose”; and whether Nazarzai’s continued confinement has, in fact, become punitive.

    If the county does not hold that hearing, it must explain why. The Court of Appeal gave Orange County until Sept. 19 to comply.
    ***
    The California attorney general accused Nazarzai of doing very bad things in the civil suit that started this chain of events. He 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 prevailed in this civil – not criminal – action, and the couple 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 gave the cash to then-girlfriend Fasela Sheren, who said that she stuffed it in the duffel bag and was driving it to the receiver’s office in Los Angeles when she blacked out. 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.

    “I think he’s got the money in his possession, custody or control,” Judge Banks said of Nazarzai at the time. “And he holds the keys to getting out of jail.”

    Contempt is a tool judges use to compel reluctant witnesses to testify, deadbeat parents to pay child support or recalcitrant journalists to reveal sources.

    The law gives judges sweeping authority to use this tool: One can be held in civil contempt as long as a judge thinks it’s possible for you to comply and there’s a chance of compliance, [...]. Former lawyer H. Beatty Chadwick set the American record for time in jail on a contempt charge, spending 14 years behind bars under circumstances similar to Nazarzai’s.

    In 1995, 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 for failing to produce the money. He 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.

    Had the attorney general filed criminal charges against Nazarzai and prevailed, law professor Campbell doubts Nazarzai would have been sentenced to five years. If he had, and if his behavior in prison had been good, he’d be out by now, Campbell said.

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