Case 1:10-cr-00200-LMB Document 82 Filed 10/21/10 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA, :

:
v. : Case No. 1:10cr200 (LMB)
:
LEE BENTLEY FARKAS, :
:
Defendant. :

DEFENDANT’S REPLY TO THE GOVERNMENT’S RESPONSE

TO THE DEFENDANT’S MOTION TO AMEND THE
TERMS AND CONDITIONS OF HIS RELEASE

COMES NOW the defendant, LEE BENTLEY FARKAS (hereinafter

Mr. Farkas), by counsel, and submits this, his reply to the government’s response to his

motion to amend the terms and conditions of his release, and for it he states as follows:

I. BACKGROUND

This reply is presented to stress that Mr. Farkas is making this motion now

because the GPS tracking device in question, the device he is currently wearing, is not

the GPS tracking device that was imposed upon him when he was released from

detention in June 2010. The older device was a two (2) piece unit consisting of a very

small, thin, almost weightless, band around his ankle, with a remote battery/transmission

pack that he could carry with him and put down while in a vehicle, an office, or a room in

his house. That original device did not cause him pain or inconvenience, as opposed to

the current device, which is an integrated, one (1) piece unit consisting of a three inch

(3") or four inch (4") box about as thick as a cell phone strapped to his ankle. The new

device includes both the battery pack and transmission system in the ankle component, so
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is much bulkier and inconvenient. It also causes additional chafing and pain from its

weight impacting his ankle. The new device was installed on Mr. Farkas’s ankle on

October 5, 2010, after he had spent more than three (3) months wearing the original GPS

anklet without incident.

The government has responded to Mr. Farkas’s request for a revision of his terms

and conditions of release to eliminate the need for the GPS anklet by raising issues

relating to his alleged assets, and his alleged failure to disclose his assets, and relating to

his alleged lack of compliance with the terms and conditions of his release. Those issues

are red herrings, issues without any relevance to the issue of Mr. Farkas’s GPS tracking.

Another irrelevancy raised in the government’s response is its discussion of the

significant sentence Mr. Farkas is facing in this matter. That has not changed since the

government argued it as a basis for the detention the government sought. That argument

was rejected by the court in Florida.

II. REPLY ISSUES

A. Pretrial Services Asset Disclosure

Mr. Farkas is filing this reply to reassure the Court that he has not failed to

disclose his assets, despite the government’s assertions to the contrary in its response to

his motion. Specifically, Mr. Farkas disputes the government’s characterizations

concerning Mr. Farkas’s disclosures to Pretrial Services in Florida, which took place

prior to his release in the first place.

The only “disclosure” Mr. Farkas made to Bryan Coomer, his Ocala, Florida

Pretrial Services officer, was when Mr. Farkas was in jail, pending the court’s

consideration of the government’s request for detention. Mr. Coomer, a perfect stranger

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to Mr. Farkas, called Mr. Farkas and represented to Mr. Farkas that he was from the

government (or, possibly, from the court, Mr. Coomer does not recall), and that he

needed to know about Mr. Farkas’s assets located in Marion County and/or Florida. Mr.

Farkas listed his local assets, over the telephone, without any preparatory resources.

Therefore, he did not list any properties or assets outside Florida, including a piece of

property in Maine (the same property the government has subsequently released from all

restraint in this case). There were no follow-up interviews and Mr. Coomer never

requested corrections or amendments to the original list. In fact, that short telephone call

was the only request for such information that Mr. Coomer ever made.

Just as happens in this Court, Mr. Farkas’s counsel was allowed to see Mr.

Coomer’s report only during the detention hearing itself, and had to then return it to Mr.

Coomer, so counsel for Mr. Farkas was not particularly aware of what was listed on the

asset list in that report, much less what might have been missing from that list. Not only

was the incident fleeting, but it was harmless. In fact, Mr. Farkas is not even sure of how

he described his assets to Mr. Coomer, since he only saw the report (if at all) at the

detention hearing.

Mr. Farkas did not attempt to mislead the court, or the government, about his

assets, Mr. Coomer did not ask about any property outside Florida, including the

relatively inconsequential piece of property in Maine, while listing Mr. Farkas’s assets.

Similarly, Mr. Coomer’s questions concerning Mr. Farkas’s assets were limited by the

time he had available to prepare his report. The report was not designed to be a

conclusive report for forfeiture purposes, it was a Pretrial Services report to give the

court an indication of who, and what it was looking at in a detention hearing situation.

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As noted by Magistrate Judge Jones, Mr. Farkas had known about the investigation, and

the potential charges, since well before his arrest, yet the decision to release him was still

made, over the objection of the government. The fact that he had multiple properties, or

how many multiple properties he had, was irrelevant to his release. In addition, this issue

hardly seems to address the need for Mr. Farkas to continue to wear the new GPS anklet.

B. Health Club Equipment

Mr. Farkas did transfer used gym equipment to one of his landlord’s prior to

obtaining approval to do so. The circumstances of that transfer again indicate, however,

that this is also not a situation that provides any support for requiring Mr. Farkas to

continue to wear the new GPS monitor.

Mr. Farkas owns a health club that had two (2) locations, the main, original

location, and a secondary, expansion, location. After his release on bond, the health club

fell behind in paying its rent. In fact, the health club was behind in paying the rent on the

secondary location in an amount of approximately $80,000, and the problem was getting

worse. Month after month the debt would grow worse. The business could not support

the debt load, and the landlord for the secondary location appeared at the secondary

location prepared to padlock the doors and gave Mr. Farkas a choice. Either submit to

having the health club closed and padlocked, since it could not pay the rent, or, since the

landlord was willing to accept the used gym equipment at the secondary health club

location, which had a value of approximately $5,000 to $10,000, in exchange for a

release of the debt for the past due rent on the site, transfer the gym equipment.

Mr. Farkas agreed to the swap on behalf of the health club, giving up at most

$10,000 of the health club’s used gym equipment for forgiveness of approximately

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$80,000 of the health club’s debt. Mr. Farkas did not transfer his interest in the health

club. He agreed to a transfer of one asset for a more valuable asset, and for the

elimination of an ongoing drain on the value of the health club. Mr. Farkas

acknowledges that he did not obtain approval from the court, the government, or Mr.

Coomer before agreeing to the swap. Despite the lack of prior approval, there has been

subsequent acceptance of the swap, since it actually improved the health club’s balance

sheet by eliminating a large debt and terminating an ongoing and insupportable rental

expense.

C. Mr. Farkas’s Other Properties

The Pretrial Services officer assigned to Mr. Farkas asked Mr. Farkas about his

Marion County and/or Florida properties. Mr. Farkas did his best to identify those assets

in the context of the limited interview for detention hearing report purposes. Mr. Farkas

was not, of course, able to identify all of his assets in light of that limited questioning.

Thereafter, the Pretrial Services officer did not, nor could he, offer Mr. Farkas any venue

for providing additional information. The government’s assertions that Mr. Farkas is

actively concealing assets is ludicrous, since there is no entity in this case asking Mr.

Farkas to identify any further assets, or to update, or to correct the list previously provide

in the limited detention hearing context. That hearing is over.

D. Pretrial Services Attitude

The Pretrial Services officer assigned to Mr. Farkas in the Eastern District of

Virginia defers to the Pretrial Services officer assigned to Mr. Farkas in the Middle

District of Florida, and has advised this Court that Mr. Farkas is in compliance with the

terms and conditions of his release. The Pretrial Services officer assigned to Mr. Farkas

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in the Middle District of Florida advised Mr. Farkas when the new GPS was installed that

he did not see the need for the new unit, but that to have it removed Mr. Farkas should

seek an amendment from this Court, which Mr. Farkas has done. Similarly, the Pretrial

Services officer from the Middle District of Florida places no significance on either the

“undisclosed Maine property” or the “health club gym equipment transfer” issues with

respect to the issue of the alleged ongoing need for the GPS monitoring device.

III. NEED FOR THE GPS DEVICE

The government argues for the conclusion that the GPS device is effective in

preventing Mr. Farkas from fleeing. However, Magistrate Judge Jones found that there

was no evidence, or credible accusation, that Mr. Farkas was a threat to flee. The

government also indicates that the GPS device helps to stop Mr. Farkas from contacting

others on the do not contact list, although the government does not provide any indication

of how that works, since the device only indicates where Mr. Farkas is, not to whom he is

talking. Furthermore, since Mr. Farkas is permitted to be anywhere within the Middle

District of Florida at any time, without reporting to Pretrial Services or obtaining

permission, it does not appear that the GPS will stop him from contacting anyone.

Similarly, the government asserts that Mr. Farkas will be more limited to abide by his

travel restrictions if he is wearing the GPS device, although that is, again, not actually

explained in the response. Mr. Farkas is permitted to tell his Pretrial Services officer that

he is going to travel to Miami or Atlanta to consult with counsel. He is not required to

obtain permission, nor is he required to fly. He can drive to either location. In addition,

he is permitted to travel to the Eastern District of Virginia for court appearances, but he

can drive to get here, or to return to Florida.

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Perhaps, as described in United States v. Tortora, 922 F.2d 880 (1st Cir. 1990),

electronic monitoring can help in the early “detection of possible flight,” but in this case

there does not appear to be any actual flight risk, despite the government’s protestations.

Magistrate Judge Jones found that there was no credible flight risk; Mr. Farkas’s Pretrial

Services officer sees no such risk requiring the use of the GPS device; and Mr. Farkas

has repeatedly sought leave of this Court prior to traveling in even a slight deviation from

his restricted areas of access. In a variation on that practice, Mr. Farkas, through his

counsel, sought permission from his Pretrial Services officer to attend a meeting with

counsel, in the District of Columbia, on Thursday, October 21, 2010, prior to attending

the motion hearing in this matter on October 22, 2010. That request was granted without

requiring an order from this Court.

Mr. Farkas has not exhibited any lack of candor concerning his assets. He

answered what Mr. Coomer asked to the best of his recollection at that time, in the

limited manner the questions were asked. He has not been asked questions thereafter.

His alleged willingness to violate the terms of his release was, at worst, a de minimis

violation, but was, in reality, a simple business decision that benefitted the health club

and did nothing to reduce Mr. Farkas’s asset portfolio.

IV. CONCLUSION

For the reasons set forth above, and for the reasons previously provided in his

memorandum in support of his motion, there is no longer any need (if there ever was) for

Mr. Farkas to be subject to GPS monitoring. In addition, the new GPS monitoring device

is inconvenient and painful. Therefore, Mr. Farkas’s motion to amend the terms and

conditions of his release should be granted and the terms and conditions of his release

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should be amended to eliminate condition number 4, the requirement that he wear a GPS

anklet as part of his supervision on release, pending trial in this matter.

Respectfully submitted,

LEE BENTLEY FARKAS

By: /s/
WILLIAM B. CUMMINGS, ESQUIRE
VA Bar No. 6469
Counsel for LEE BENTLEY FARKAS
WILLIAM B. CUMMINGS, P.C.
Post Office Box 1177
Alexandria, Virginia 22313
(703) 836-7997
Fax (703) 836-0238
wbcpclaw@aol.com

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CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of October, 2010, I electronically filed the

foregoing with the Clerk of Court using the CM/ECF system, which will send a

notification of such filing (NEF) to at least the following registered ECF users:

Paul J. Nathanson, Esquire

paul.nathanson@usdoj.gov
Charles Connolly, Esquire
charles.connolly@usdoj.gov
United States Attorney’s Office for
the Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, Virginia 22314

/s/
WILLIAM B. CUMMINGS, ESQUIRE
VA Bar No. 6469
Attorney for LEE BENTLEY FARKAS
WILLIAM B. CUMMINGS, P.C.
Post Office Box 1177
Alexandria, Virginia 22313
(703) 836-7997
Fax (703) 836-0238
wbcpclaw@aol.com