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Attorney Daniel Hajji and Kwame Kilpatrick during court Hearings. Detroit News

Kwame Kilpatrick Appeal by Daniel Hajji & Associates.

Click here to read the Appeal of July 11, 2011 concerning Kwame Kilpatrick relative to Book Proceeds.

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Read the documents: Appellate Attorney Daniel Hajji:

1. Kwame Kilkpatrick’s Application for Leave to Appeal filed by Attorney Daniel Hajji. December 2010 [Table of Contents]  [Brief]

2. Prosecutor’s Answer filed By Prosecutor Timothy Baughman, Chief Research Appellate Attorney. December 9, 2010  [Answer]

3. Kwame Kilpatrick’s Reply to Prosecutor’s Answer by Attorney Daniel Hajji. December 21, 2010 [Reply to Prosecutor's Answer]

This afternoon, April 14, 2010, Kwame Kilpatrick fired back at the Prosecutor’s allegations of probation violations with over 70-pages of court documents.

Daniel Hajji, Farmington Hills Attorney

(248) 865-4700

Daniel Hajji, Attorney for Kwame Kilpatrick

Statement of Facts

Pursuant to a written plea agreement between the Prosecutors and Defense Counsel (hereinafter referred to as the “parties”), Defendant, Kwame Kilpatrick, pled guilty to two (2) counts of obstruction of justice, MCL 750.505A.  For purposes of this brief in support of motion for reconsideration, the Plea Agreement required that Defendant pay $1,000,000.00 in restitution during the 5-year probationary period and with a down payment of $20,000.00 on or before the date of sentence. The agreement also required that Defendant be on supervised probation for the statutory maximum of 5 years. The plea agreement also provided for the inclusion of the additional conditions as the Court requires.

On September 4, 2008, the Defendant tendered his plea. After the entry of the plea, the Court referred the Defendant to the Wayne County Probation Department for a pre-sentence investigation interview and report. On or about October 20, 2008, a PSI report was furnished to the parties and the Court.

On October 28, 2008, Defendant was sentenced consistent with the terms of the plea agreement as well as the other statutory conditions of probation. In pertinent part, Defendant was sentenced to 120 days in the county jail; surrender his license to practice law; resign as Mayor of Detroit; surrender, assign, and/or transfer all present and future cash payments due to him from his State of Michigan pension; and pay $1,000,000 (less $20,000 down payment) in restitution; and placed on 5-years reporting probation. Prior to the time of sentence, Defendant paid had pre-paid the $20,000.00 ‘down payment’ toward his restitution.

On or about February 2, 2009, the day before Defendant’s release from jail, Defense counsel filed an emergency motion to allow Defendant to travel to Texas for a job interview. The ‘motion to travel’ was granted provided that Defendant return by February 9, 2009 and to restrict his travel for employment purposes only. Subsequently, Defendant accepted the job in Texas and was told that he was required to begin immediately.

Defendant informed his probation officer, Mr. Roach, of the employment circumstances and asked him to assist in expediting the necessary documents for the transfer of probation via the Michigan and Texas Interstate Compact Act. Upon information and belief, on or about February 11, 2009, the Texas Department of Corrections approved and accepted Defendant’s application for the transfer of probation. Defendant made diligent attempts to get the Court’s approval and eventually the Court granted the transfer to Texas on March 10, 2009.

On March 10, 2009, without hearing, the Court issued an order march 2009. The March 10, 2009 Order granted the Defendant’s request to transfer probation to Texas. The order further required Defendant pay on the 15^th of each month, 30% of his gross monthly income towards restitution. The Court classified gross income to include benefits and gifts valued over one hundred dollars ($100.00). The Court was aware that the Defendant was to receive $20,000.00 for the first six (6) months of his employment and $10,000.00 thereafter plus sales commissions, if any sales are made.

On March 24, 2009, Defendant’s attorney, Michael Schwartz filed a Motion for Reconsideration of the March 10, 2009 Order. In response, on May 9, 2009, the court issued an Opinion and Order Regarding the Motion for Reconsideration which indicated the reason why the Court imposed more conditions on the Defendant is because the Court believed that the Defendant had received a flow of funds and gifts after his sentencing date. Meanwhile Defendant, in good faith, continued to pay 30% of his employment paycheck every month.

On or about September 4, 2009, Defendant’s attorney reminded the Court by letter the Defendant will no longer be making $10,000 draws, thus the monthly restitution payment was to automatically adjust from $6,000 to $3,000 for the month of September 2009.

On or about September 8, 2009, the Court wrote back and informed Attorney Schwartz that if Defendant wished to modify the order, he should file a motion. On or about September 15, 2009, attorney Schwartz responded back to the Court by indicating that neither he or the Defendant would be filing a motion to modify the order of March 10, 2009.

On or about September 24, 2009, the Wayne County Prosecutor filed a motion to modify the terms of probation alleging that the Defendant ‘flagrantly’ violated the terms of probation by failing to disclose his finances. On October 2, 2009, Defendant filed his responsive pleadings.

On or about October 2009, the Court ordered that Defendant provided the Prosecutor’s office with discovery within 10 days. Defendant complied, in good faith, given the limited amount of time to comply. Thereafter, the Court issued an order to compel Defendant into Court because it had questions to ask of him.

On November 17, 2009, Defendant stood before the Court and answered the Court’s questions which followed by several days of testimony from the Defendant and other witnesses.

On January 20, 2009, the court issued an amended order of probation requiring that Defendant’s probation supervision to re-transferred from Texas to Michigan; to pay towards restitution approximately $79,000.00 within 30 days of the date of the order and $240,000.00 within 90 days of the date of the order. The Court further ordered that if Defendant does not comply with this order, he can be subjected to sanctions, violation of probation or imprisonment.

STANDARDS OF REVIEW

An order of restitution is generally reviewed for an abuse of discretion, see People v Byard, 265 Mich App 510, 511; 696 NW2d 783 (2005), and a trial court’s denial of a motion for reconsideration is also reviewed for an abuse of discretion. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW 2d 333 (2000).When the question of restitution involves a matter of statutory interpretation it is question of law subject to a review de novo. See People v Law, 459 Mich. 419, 423; 591 N.W.2d 20 (1999); People v Crigler, 244 Mich. App. 420, 423; 625 N.W.2d 424 (2001.)

Pursuant to MCR 2.119(F)(3): [A] motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

ARGUMENT

This Court ordered a restitution hearing after the prosecution filed a motion to amend Defendant’s order of restitution based on its allegation that Defendant was able to pay more than had been previously ordered. When the total amount of restitution is not in controversy, the apparent purpose of a restitution hearing is to determine the defendant’s ability to pay.

1. AS THE MOVING PARTY, THE PROSECUTION BEARS THE BURDEN OF ESTABLISHING DEFENDANT’S ABILITY TO  PAY.

When a defendant seeks modification of a restitution order based on inability to pay, he carries the burden of establishing the inability. However, the motion in this case was brought by the prosecution, claiming that the order of restitution should be amended , based on Defendant’s ability to pay more than originally ordered,  even though  the Crime Victim’s Rights Act, MCL 780.751 et seq., only permits a court to amend a restitution order at the prosecution’s request, “based upon new information related to the injury, damages, or loss for which the restitution was ordered,” MCL 780.766(22). Because Defendant was not contesting his ability to pay the restitution order, the burden should have been on the prosecution to show that the Defendant is able to pay more than originally ordered.

While the court has broad discretion to amend an order of probation, see MCL 771.2, the underpinnings for modification of an order is Defendant’s present ability to pay. However, this court allowed the restitution hearing to focus on what the Defendant could have paid and in reaching its decision this Court made no factual determinations as to what the Defendant can presently pay.  Although this Court stated that it was not a probation violation hearing and acknowledged that a restitution hearing lacked the procedural safeguards required to satisfy due process, this Court allowed the hearing to focus on issues dating back to the time of sentencing that had little relevance to Defendant’s present ability to pay. The very tenor of the hearing was analogous to a probation violation hearing absent the procedural safeguards.

1. B. IT WAS PALPABLE ERROR FOR THE COURT TO INCDREASE THE RESTITUTION PATYMENTS, AFTER THE EVIDENCE PRESENTED BY THE PROSECUTION CLEARLY ESTABLISHED THAT DEFENDANT DOES NOT HAVE THE PRESENT FINANCIAL RESOURCES TO PAY THE AMENDED ORDER.

Moreover, even though the evidence presented by the prosecution indicated that substantial sums had moved through the family’s accounts, it also indicated that that those sums were not being replenished and had essentially been exhausted, and he does not have the present ability to pay the amounts ordered by this Court. Therefore, the order of restitution, which requires the Defendant to pay $79,011 within 30 days and an additional $240,000 within 90 days clearly sets Defendant up for failure.

1. C. THE TRIAL COURT COMMITED PALPABLE ERROR BY USING THE INCOME AND ASSETS OF HIS WIFE AND CHILDREN IN DETERMINING HIS INCOME.

The most troubling aspect of this Court’s decision was its failure to distinguish the difference between the assets of the Defendant that may be used to satisfy the restitution obligation, and the assets of the family that can only be considered in regards to the financial needs of the family. Not only did the court fail to make this distinction, it imputed income to Defendant based on monetary gifts made to his wife and children, and required Defendant to pay $240,000 within 90 days, as the result of a loan made to Defendant solely for the support of his wife and children, the proceeds of which Defendant turned over to his wife, because this Court determined it to be a fraudulent conveyance. Further, it ordered Defendant to pay all of his 2008 income tax refunds in the amount of $23,369 towards restitution, within 30 days, and made no distinction or determination as to the portion of the 2008 income tax refunds that are Defendant’s and the portion that is his wife’s.

In Michigan, the property of the wife is not liable for the debts or obligations of others, including her husband, regardless of whether it was acquired through income, inheritance, grant, devise, or some other manner, including a gift. See MCL 557.21. Further, although an argument can be made that the assets of a wife that were acquired through the ill gotten gains of a Defendant may be attached, the cases addressing whether an innocent spouse’s assets can be taken to satisfy a defendant’s obligation to pay restitution, have resoundingly said “no.” See United States v Corbett, 357 F3d 194, 196 (2d Cir 2004.) See also United States v Kaye, 93 F supp 2d 196, 199 ( D Conn 2000.) As the Michigan Court of Appeals noted in an unpublished opinion, “the courts of this state have not spoken specifically to the issue of whether an innocent spouse may be liable for criminal restitution debt incurred by the partner spouse during the course of the marriage, probably because such an illogical and unreasonable argument has not before been made.” LINDA SUE LEAGUE v ROBERT RAY LEAGUE, 2006 Mich App LEXIS 3063 (Mich Ct App, Oct. 19, 2006.) And it is doubtful any court would even consider taking the property of the children.

The majority of this Court’s modifications were based on the assets of Defendant’s family and not on Defendant’s ability to pay. While the family assets are relevant to a determination of what Defendant can pay, because they lessen the financial needs of the Defendant’s dependants, they cannot be imputed as income to the Defendant, or be required to be used to pay restitution. Yet the payments ordered by this Court clearly indicate that it expects their assets to be used to satisfy the obligations of Defendant.

1. D. THE TRIAL COURT COMMITED PALPABLE ERROR, BY DETERMINING THAT THE TRANSFER OF PROPERTY TO HIS WIFE WAS A FRAUDULENT CONVEYENCE, WHEN THE PROPERTY WAS IN TRUST FOR THE WIFE AND CHILDREN.

This Court committed palpable error when it ordered Defendant to pay $240,000 as the result of a loan made to him by prominent leaders in the community, for the benefit of his wife and children, after it erroneously concluded that it was a fraudulent conveyance. The very evidence presented by the prosecution clearly indicate that this transaction at its very inception was intended to benefit his wife and children and the documents submitted, regardless of the formalities attended to their execution, also clearly establish that this transaction was intended as a benefit for his wife and children. The documents and testimony clearly indicated that the loan or gift as the prosecution appeared to infer, was made to Defendant solely for the benefit of his wife and children and was intended to be only used for the benefit for their benefit.

These assets are not those of Defendant, acquired for himself and then disposed of with the intent to defraud his creditors, as they were the assets of the wife and children only held shortly by Defendant in trust for them as either as third-party beneficiaries, or as the beneficiaries of a express parrole or constructive trust as the case may be.  Defendant never possessed more than mere legal title.

It is a well-settled principle that debtors do not own an equitable interest in property that they hold in trust for another, and thus, those trust funds are not ‘property of the estate.’ Accordingly, several courts of appeals have held that when a debtor receives money as a trustee pursuant to a statutory, express, or implied trust, the debtor acquires only bare legal title to the trust proceeds and maintains no equitable interest in those proceeds. As such, those trust proceeds can only be distributed to trust beneficiaries, and not to the creditors of the bankruptcy estate. Marrs-Winn Co v Giberson Elec (In re Marrs-Winn Co), 103 F 3d 584, 590 (7th Cir. Ill 1996)(citations omitted.)

1. THE TRIAL COURT COMMITED PALPABLE ERROR BY ORDERING HIM TO PAY NOT ONLY HIS, BUT HIS WIFE INCOME TAX REFUND  TOWARDS HIS RESTITUTION.

Further, in regard to this Court’s order that Defendant must pay all of his 2008 income tax refunds in the amount of $23,369 towards restitution, within 30 days, this Court made no distinction or determination as to the portion of the 2008 income tax refunds that are Defendants. Because the returns were filed jointly, this Court is not only requiring the Defendant to turn over his tax refunds, but those of his wife as well, contrary to MCL 557.21, and contrary to the plea and sentence in this matter. Further, there does not appear to be established precedent regarding the proper allocation of the refund, in this jurisdiction. While, bankruptcy proceedings provide insight, there do not seem to be established precedent applying Michigan law.

When faced with the question of allocating tax refunds in bankruptcy cases, courts have generally adopted one of two approaches: the Withholding Rule or the 50/50 Refund Rule. n2 The Withholding Rule provides for the division of a joint tax refund in proportion with each spouse’s tax withholdings. See, e.g., Carlson v. Moratzka (In re Carlson), 394 B.R. 491 (B.A.P. 8th Cir. 2008) (affirming the bankruptcy court’s adoption of the rule under  [**10] Minnesota law); Kleinfeldt v. Russell (In re Kleinfeldt), 287 B.R. 291 (B.A.P. 10th Cir. 2002) (affirming the bankruptcy court but not applying state law). Conversely, the 50/50 Refund Rule provides that each debtor is entitled to claim fifty percent of the tax refund, subject to a rebuttable presumption. For some courts, this rule relies heavily upon a correlation with state domestic relations law, primarily the division of assets in a divorce. See, e.g., In re Trickett, 391 B.R. 657 (Bankr. D. Mass. 2008); In re Marciano, 372 B.R. 211 (Bankr. S.D.N.Y. 2007); In re Innis, 331 B.R. 784 (Bankr. C.D. Ill. 2005) (adopting the 50/50 Refund Rule without any sort of rebuttable presumption); In re Barrow, 306 B.R. 28 (Bankr. W.D.N.Y. 2004); Loevy v. Aldrich (In re Aldrich), 250 B.R. 907 (Bankr. W.D. Tenn. 2000). n3 After analyzing  [*286]  the approaches, the court finds that the 50/50 Refund Rule, subject to rebuttal based on the circumstances of each individual case, is most compatible with Tennessee law.
In re Garbett, 410 BR 280, 285-286 (Bankr ED Tenn 2009)

However, regardless of the formulation used, this Court committed palpable error when it provided no allocation of the tax refund whatsoever, and required Defendant to pay all of it towards his restitution, contrary to case law and statute.

CONCLUSION

In conclusion, the trial court committed palpable error, by amending the restitution order when the prosecution failed to establish Defendant was able to pay more, and in fact established that Defendant was not able to pay more. Further, the Court committed palpable error by failing to make any factual determination that Defendant could pay more, and instead used the assets of his family to determine his income and even required their assets to be applied towards the restitution order based on incorrect legal conclusions not supported by law or fact.

WHEREFORE, Defendant respectfully request that this honorable court to vacate the amendments to the Restitution Order, because the prosecution failed to carry its burden in support of its motion to modify the prior order of restitution, the amendments violate established laws, statutes, and practice, and the amendments were the result of palpable error because the evidence established at the hearing indicated that Defendant does not presently have sufficient financial resources to satisfy the modifications.

Respectfully submitted,

Daniel Hajji, Attorney for Kwame Kilpatrick

Farmington Hills, MI (248) 865-4700

Dated: February 10, 2010

On the morning of February 23, 2010,  Wayne County Circuit Court Judge ordered former Mayor of Detroit, Kwame Kilpatrick to appear in Detroit  on February 26, 2010 for purposes of  arraignment on alleged probation violations. Within a few hours, on same date, Attorney Daniel Hajji for Kwame Kilpatrick, filed a motion with the Michigan Court of Appeals asking to halt the proceedings in the Circuit Court. Two days later and  just before Mr. Kilpatrick was ordered to  appear in Detroit for alleged probation violations, the Court of Appeals stopped the Circuit Court from Proceeding forward. Mr. Kilpatrick did not have to appear.

Brief/Argument to the Court of Appeals: Attorney Dan Hajji wrote:

NOW COMES, Kwame Kilpatrick, by and through his attorney Daniel Hajji and states as follows:

Within minutes of this Court’s decision denying Mr. Kilpatrick a stay of proceedings a news reporter asked, “What does this mean for your client?” Only a short time earlier a different news reporter had asked for a comment on the prosecution’s response to the motion. I downloaded the response from the internet, my office had not yet received anything. The prosecution’s response basically stated that the request was premature, until such time as consequences are imposed, citing People v Jackson, 483 Mich 271 (2009.) Within a short time of this Court’s decision the prosecution issued a statement indicating that it would be seeking a probation violation hearing, if the payment was not made.  This case had already become a farce, yet here the prosecution adds another layer of absurdity.

Counsel had attempted to get this Court to just maintain the status quo, allow this Court time to examine the record, ensure that standards of due process are being met, so that when this case is finally resolved, the City of Detroit and its citizens can agree that the proceedings were handled fairly and justly. The realities of this case speak louder than the legal analysis. The entire purpose of the plea agreement in this case was to let the City of Detroit heal and move forward, to require Mr. Kilpatrick to pay for his mistakes, and also to allow him to move forward. Mr. Kilpatrick wishes to move on, even if the City of Detroit does not. He only asks that his family be left alone. When the tapes of his conversations with his wife, while he was incarcerated, were played at the hearings, Mr. Kilpatrick’s tears were real. He had not allowed his children to see him behind bars, he had brought shame and disgrace not only to himself but his family as well.

Yet Mr. Kilpatrick is not being allowed to move forward. And the divisiveness caused by the underlying case remains and grows. As counsel dodges reporters, at his office, at the Circuit Court, and at the Court of Appeals, he can hear the various opinions circulating among the populace. Viewpoints seem to vary concerning the situation, yet there are distinct divisions along racial lines. This is not good for the City of Detroit.

In addition, the trial court and the prosecution do not seem to be concerned with getting the restitution paid. The trial court has been antagonistic to the very undertakings that are necessary to fulfillment of the restitution payments. The trial court even disapproved of the manner in which Mr. Kilpatrick secured employment because it did not arise in the exact manner that Mr. Kilpatrick thought and represented it would.  Undersigned counsel and legal experts would agree that it is unheard of a judge chastising a criminal defendant for the manner in which he secured employment. The trial court also disapproves of the assistance provided by friends and supporters of the Kilpatrick family. Indeed, Mr. Kilpatrick has reached out to friends and acquaintances for help; he has in the past borrowed to make the monthly restitution payments. The trial court appears to infer that it wants Mr. Kilpatrick to live a middle class existence, when such an existence is inconsistent with earning a sufficient amount to fulfill his restitution obligation.

The reality is that Mr. Kilpatrick would have to pay an average of $200,000 a year to fulfill the restitution requirement during the five years of probation. Now the trial court has shortened that period to within four-years from the time of the plea. Mr. Kilpatrick would have to average more than $250,000 a year, to fulfill the restitution requirement. It does not take a legal scholar or a rocket scientist to figure out that to clear an extra $250,000 a year Mr. Kilpatrick is going to have to function in the upper echelons of society. Yes, Mr. Kilpatrick has expended considerable sums to keep up appearances.

However, the clientele he must establish a rapport with are likely to be the privileged and the affluent. The deals he must close to fulfill the restitution obligation require considerable time and he is going to have to cater to sophisticated clients– Burgers and beer at the local bar is not going to be sufficient.  In addition, the trial court’s scrutiny of a sales meeting during the restitution hearing, which Mr. Kilpatrick had to attend, is the very type of scrutiny that such clients are likely to avoid. If the trial court really wants the restitution paid, it should exercise a little common sense and at least try to not spoil any possible deals.

Yet, while issuing his opinion and order, after the much publicized restitution hearing, the derision and scorn is apparent, as The trial court tells the cameras that Mr. Kilpatrick had requested that his restitution payment be lowered to $6.00. The trial court goes on to state Mr. Kilpatrick is living in a mansion and driving a fancy SUV, even though he owes the City of Detroit a million dollars. The trial court states that Mr. Kilpatrick has been deceitful and hidden assets.

However, the truth, which the trial court so readily avoided, is that Mr. Kilpatrick did not request that his restitution be lowered. The trial court even acknowledged this during the restitution hearings. The pleading referred to only indicated that based on Mr. Kilpatrick’s current income from his employment versus his expenses, there is only $6 left over. Yet the trial court statements to the cameras subjected not only Mr. Kilpatrick to derision, ridicule and scorn, but his family as well.

And the assets were not hidden. The restitution hearings did not disclose any hidden slush funds, offshore accounts, or financial accounts under assumed names. Basically all the alleged hidden assets were in his wife’s name.

Why? Because they were his wife’s.

They were not hidden, they just had not been disclosed to the court’s satisfaction. Mr. Kilpatrick had explained that he had asked his wife about her finances. The essence of his testimony regarding those conversations was that she told him she was not giving him that information, conversation over. Is it hard to believe that Mrs. Kilpatrick might take that stance in this matter? She never wanted to be involved, still doesn’t want to be involved. The prosecution had wanted to know how come Mr. Kilpatrick had not sought a subpoena for her records. Wouldn’t such a requirement be contrary to the rational underlying the marital privilege doctrine? The prosecution was able to subpoena the documents, the information was available.

The hearings even disclosed that Mrs. Kilpatrick had an elective surgical procedure to repair some type of hernia that was caused by childbirth, and may have had some additional plastic surgery. This is more than undersigned counsel really cares to know about Mrs. Kilpatrick’s personal issues. While this may be appropriate fodder for tabloids, its significance is trivial in relationship the magnitude of the restitution obligation in this case. During the hearings the prosecution also attempts to refute Mr. Kilpatrick’s contention that Mrs. Kilpatrick handles the finances, and seems to try and portray Mrs. Kilpatrick as being unable to handle the finances. However, Mrs. Kilpatrick does not appear too dumb to handle the financials to undersigned counsel. She paid $71,500 for a one-year lease, and you can probably bet that the trial court is not going to throw her and the kids out in the street anytime soon.

Moreover, the allegedly hidden money was given specifically to her and the children to provide for her and the children. Mrs. Kilpatrick and the children were the intended beneficiaries of loan that was allegedly fraudulently conveyed to her. Even though the trial court seems to blatantly ignore her rights in this matter, she probably is not going turn over any of her assets, nor is she going to use gifts specifically given to her to pay Mr. Kilpatrick’s restitution. She still sends her children to summer-camp, she still tithes, donates to charities and carries on with as much dignity as she can.

Mr. Kilpatrick reiterates the foregoing, because that is what this appeal is primarily about, the rights and dignity of his wife and children. What must he do to protect them? Must he go to the extremes of a separation or even a divorce? Should he recommend such to her? Should that even be necessary or required? A family court would surely recognize that as his wife Mrs. Kilpatrick has claims to a share of the marital assets, and Mr. Kilpatrick has obligations to her and the family.

However, this appeal is also about a trial judge standing the law on its head, and making a mockery of the justice system. This case is about a trial judge who has repeatedly maligned Mr. Kilpatrick, and even vilified him to the press. This case is about a trial judge who has repeatedly insisted that he is not trying to set Mr. Kilpatrick up for failure, while at the same time issuing an order that the evidence clearly indicated could not be complied with. This case is about a trial judge who creates stipulations and agreements out of thin air, to infer additional terms in a plea agreement. A trial judge that orders Mr. Kilpatrick to pay a percentage of any gifts and benefits he receives towards restitution, then determines that Mr. Kilpatrick violated probation because his wife has received gifts and benefits. This case is about a restitution order that automatically adjusts upward to include any gifts or benefits Mr. Kilpatrick receives, and as far as we can tell even his family, within its determination of income. Yet the same order apparently requires a motion before the automatic adjustment can trigger a downward departure. Mr. Kilpatrick needs a psychic to properly advise him in this matter.

This case is about the prosecution requesting an order to appear for the Michigan Department of Corrections and the Texas Department of Corrections to appear and explain why they have not sought a probation violation warrant. The case is about a trial court transferring Mr. Kilpatrick’s probation back to the State of Michigan contrary to the rules and procedures of the Interstate Compact for the Supervision of Parolees and Probationers. This case is about a request by the prosecution to hold a restitution hearing, and to modify Mr. Kilpatrick’s restitution upward based on his ability to pay, even though there is no statutory authority for such a request.

Finally this case is about a sham restitution hearing, where Mr. Kilpatrick was ordered to take the stand, and informed that he did not have the right not to take the stand, because the hearing was civil in nature, and not a probation violation hearing. The restitution hearing was ordered to determine whether the restitution payments were appropriately set, based on the prosecution’s allegations that he could pay more based on his financial resources.

Yet the only determinations the trial court made were that Mr. Kilpatrick had violated the orders of probation. There were absolutely zero determinations made concerning Mr. Kilpatrick’s present ability to pay. And the trial court further ordered Mr. Kilpatrick to pay close to $80,000 within 30 days and an additional $240,000 within 90 days, despite the fact that the very evidence presented by the prosecution indicated that he does not have the present financial resources to comply with the order. Moreover, the trial court stated that it was not setting Mr. Kilpatrick up for failure, when the evidence clearly indicates that it did. The Prosecution’s response to the Motion for a Stay of Proceedings, claiming that it was premature was a specious attempt to elevate form over substance, because the first deadline has now passed, the order was not met, probation violation proceedings have begun.

The public interest and scrutiny of this case is intense. Counsel has not tried to be impertinent, but rather counsel is just trying to illustrate the character and significance of this case. The underlying victim in this case is the City of Detroit, it always was and it continues to be. The town is divided, with many of the opinion that Mr. Kilpatrick is nothing more than a darker version of Bill Clinton, many of the opinion that he was corrupt, and many of the opinion that this is just another giant fiasco that is accomplishing little more than giving Detroit another black eye.

Detroit is being re-victimized, and this time the trial court and the prosecution are lending a hand. It should come as no surprise to the City of Detroit, if Mr. Kilpatrick loses his job as a result of the scrutiny in this matter. And it should also come as no surprise if he fails to satisfy his restitution obligations, because the trial court does not want him to have sufficient financial resources to be able to work the crowd so to speak, and little more than six-months to be successful.

And there are valid and significant legal issues here that should be resolved. Counsel has yet to find a case that states that a wife and children cannot validly receive gifts or benefits from strangers whose husband owes restitution and that a wife and children cannot be the intended beneficiaries of a loan specifically arranged to provide for their support whose husband owes restitution.

Further, it would be antithetical to the very principles of due process to believe that the prosecution and the courts could save the expense of providing due process for a probation violation hearing, by allowing the prosecution to schedule a restitution hearing instead, forcing a probationer to testify concerning alleged violations, making determinations that probation was violated, and formalizing those findings at a later hearing.

Moreover, to allow a court to issue an order requiring a probationer to pay a significant sum almost immediately, that it clearly knows cannot be complied with, except by some purely imaginary means, is antithetical to the very principles and concepts embodied in the term “Justice.”

WHEREFORE, Defendant-Appellant, Kwame Kilpatrick, respectfully requests that the Court reconsider it order of February 19, 2010, and grant him a stay of proceedings pending leave to appeal.

Respectfully submitted,

Daniel Hajji Attorney for Kwame Kilpatrick

30300, Northwestern Highway, Farmington Hills, Michigan 48334; (248) 782-8322