A Hawaii businesswoman is appealing her two-year federal prison sentence
and the $250,000 fine she
received Jan. 19 after she pleaded guilty to working with a former hip-hop star and a rich Republican donor to illegally lobby former President Donald Trump to drop the prosecution of a Malaysian fugitive and send an exiled businessman back to China.
Nickie Mali Lum Davis, 47, pleaded guilty Aug. 31, 2020, to a single count of aiding and abetting in violation of the Foreign Agents Registration Act for her work on behalf of Jho Low, a foreign fugitive responsible for one of the “largest embezzlement schemes in history,” involving the 1Malaysia Development Berhad, according to a sentencing memorandum from U.S. Department of Justice Principal Deputy Chief John D. Keller.
Davis, who did not register as a lobbyist for foreign interests, tried to “use back channel influence” to persuade Trump to drop a federal investigation into Low and to “agree to the extrajudicial removal of a Chinese exile,” Guo Wengui, living in the U.S.
Neither lobbying effort was successful. Guo Wengui, whose real name is Ho Wan Kwok, was charged by the U.S. Department of Justice in a 12-count indictment unsealed March 15 for alleged wire fraud, securities fraud, bank fraud and money laundering in connection with a $1 billion fraud scheme.
One of Davis’ attorneys, David J. Minkin, wrote in a motion to allow bail pending appeal filed Feb. 17, saying that Lum Davis has a 10-year-old daughter and “strong family and community ties” to Hawaii and Los Angeles and is “not a flight risk or danger to the community.”
“She will also raise substantial issues on appeal as to whether her guilty plea was knowing, voluntary, and otherwise valid, and regarding the constitutionality of the statutory scheme underlying her conviction, claims that would result in reversal,” wrote Minkin.
Davis filed notice of her appeal Jan. 26.
Minkin wrote that Davis will present a “substantial question” regarding whether the court erred in denying her motion to withdraw her guilty plea because one of her prior attorneys, Abbe Lowell, had a conflict of interest because he was under investigation by the U.S. Department of Justice for similar criminal allegations while he was negotiating her plea deal.
Davis’ attorneys will
also present evidence challenging the validity of her guilty plea and “erroneous advice” she received about the maximum penalty and an “inadequate factual basis” for her guilty plea.
Davis is going to argue that the Foreign Agents Registration Act is unconstitutional under the First and Fifth Amendments. The appellate waiver in the plea agreement “will not bar Ms. Davis’ appellate challenges to her conviction,” her counsel maintains.
In a supplemental brief filed Tuesday, Minkin described the reporting requirements of FARA as “onerous” and noted the “relative infrequency of FARA enforcement since its enactment.”
The U.S. Department of Justice does not “contend that Davis poses a flight risk or a danger to the community,” wrote Assistant U.S. Attorney Ken Sorenson, chief of the Criminal Division, in a response in opposition to motion for bail pending
appeal.
“So the only question
for the court to decide is whether Davis has met the substantial-question standard. She has not,” wrote Sorenson, who said Lowell had no conflict of interest during the plea deal negotiations because the government never initiated a criminal investigation of Lowell and because Lowell was unaware during plea negotiations that a government filter team was reviewing conduct in connection with a pardon he sought earlier on behalf of another client, according to the government’s response.
Lowell only learned of the government’s interest in his behavior more than a week after finalizing the plea agreement, Sorenson wrote.
The Probation Office
prepared a Presentence
Investigation Report that “largely tracked the recommended penalties outlined in Davis’ plea agreement except that the Probation Office concluded that the max-
imum fine was $250,000, not $10,000.”
Davis cannot raise a “substantial challenge of law” because “a valid, enforceable waiver of appeal” is in place.
“By its plain terms, the waiver encompasses the various claims of error that her appeal raises,” Sorenson wrote.
U.S. District Judge Leslie E. Kobayashi informed Davis’ attorneys of her “inclination to deny the defense motion” during a hearing Monday and will consider the arguments and filings
before issuing her order.
