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Robert L. Pottroff, Myers, Pottroff & Ball, Manhattan, William K. Rork, Rork Law Office, Topeka, for Mark Henry
Allerheiligen (1), defendants.
Gregory G. Hough, Office of United States Attorney, Topeka,
for U.S. Attorneys.
MEMORANDUM AND ORDER
SAFFELS, District J.
*1 This matter is before the
court on the defendant's Motion to Release Defendant on Bond Pending Appeal
(Doc. 118).
I. BACKGROUND
The defendant pled guilty to one count of possession with intent to distribute
marijuana on November 3, 1998.
[FN1] Defendant was sentenced to a period of incarceration of 41 months
pursuant to the safety valve provisions of the sentencing guidelines, U.S.S.G.
§ 5C1 .2 and 18 U.S.C. § 3553(f), on April 12, 1999. Defendant filed his
notice of appeal on April 26, 1999, at the same time that he filed the motion
which is currently before the court.
FN1.
Although defendant now characterizes this as a conditional plea of no contest,
the record clearly indicates that defendant entered a guilty plea, rather than
a plea of no contest.
II. DISCUSSION
A. Jurisdiction
The court recognizes that the general rule regarding the district court's
jurisdiction is that " '[t]he filing of a notice of appeal ... transfers
jurisdiction over the matter from the district court to the court of
appeals." ' United States v. Pinter, 971 F .2d 554, 557 (10th
Cir.1992) (quoting United States v. Winterhalder, 724 F.2d 109, 111 (10th
Cir.1983)). However, with regard to defendant's motion to remain on bond
pending his appeal, the court notes that Fed. R.App. P. 9 indicates that the district court must state
its reasons for the release or detention of a defendant pending appeal either
in writing or orally on the record. Furthermore, the Tenth Circuit has
recognized, under a previous version of Rule 9, that an application for bail pending appeal should be
made with the district court initially. United States v. Affleck, 765 F.2d 944, 954 (10th
Cir.1985). In doing so, the Tenth Circuit noted that "the district
court is in a better position to evaluate, in the first instance, the propriety
of granting bail pending appeal." Id. Therefore, the court
concludes that it has jurisdiction to decide the defendant's motion to remain
on bond pending his appeal, regardless of when the notice of appeal was filed.
B. Motion to Release Defendant on Bond Pending Appeal (Doc. 118)
The defendant requests that the court allow him to remain on bond pending his
appeal, pursuant to 18 U.S.C. § 3143(b). The defendant asserts that his probation
officer has no objection to his release pending appeal. The government responds
that it is bound by the plea agreement, wherein the government agreed to
recommend that the defendant remain at liberty on bond during the pendency of
his appeal.
Whether a defendant is to be released pending appeal is controlled by 18 U.S.C. § 3143(b), which requires that a defendant who has
been found guilty of an offense and sentenced to a term of imprisonment be
detained unless the court finds--
(A) by clear and convincing evidence that the person is not likely to flee or
pose a danger to the safety of any other person or the community if released
under section 3142(b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial
question of law or fact likely to result in--
(i) reversal,
(ii) an order for a new trial,
*2 (iii) a sentence that does
not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the
time already served plus the expected duration of the appeal process.
18 U.S.C. § 3143(b)(1).
1. Likelihood of flight or danger
Defendant represents that he has honored all prior commitments to appear before
the court, that he has never violated any of the conditions of his release, and
that he will be neither a flight nor a safety risk if he is released. Again,
the government agreed to recommend that the defendant be released during the
pendency of his appeal. The court previously ordered defendant released
pursuant to 18 U.S.C. § 3143(a) pending imposition of his sentence, and
the determination which the court made at that time with respect to danger to
the community and likelihood of flight is the same as that required by 18 U.S.C. § 3143(b)(1). United States v. Giannetta, 725 F.Supp. 60, 62 (D.Me.1989).
The court is satisfied that its previous finding is equally valid today, and
finds that defendant has shown by clear and convincing evidence that he is not
likely to flee or pose a danger to the safety of any other person or the
community if released.
2. Substantial questions of law or fact
A "substantial question" under 18 U.S.C. § 3143(b) is a question "of more substance
than would be necessary to a finding that it was not frivolous. It is a 'close'
question or one that very well could be decided the other way." United States v. Affleck, 765 F.2d 944, 952 (10th
Cir.1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th
Cir.1985)). The substantial question of law or fact, however, must also be
likely to result in reversal, a new trial, or a reduced sentence. See 18 U.S.C. § 3143(b)(1)(B). "A question of law or fact
may be substantial but may, nonetheless, ... be considered harmless, to have no
prejudicial effect, or to have been insufficiently preserved. A court may find
that reversal or a new trial is 'likely' only if it concludes that the question
is so integral to the merits of the conviction on which defendant is to be
imprisoned that a contrary appellate holding is likely to require reversal of
the conviction or a new trial." Affleck, 765 F.2d at 953.
The defendant indicates that he intends to appeal virtually all of the court's
rulings on the pretrial motions. Specifically, he intends to appeal the denial
of his motion to suppress, the rulings on all of the government's motions in
limine, and the ruling that defendant could not contest the number of marijuana
plants at his sentencing and still be eligible for the safety valve provision. Again,
the government does not oppose defendant's release during the pendency of his
appeal.
The court has previously set forth the reasons for all of its pretrial rulings
and will not now revisit those rulings. With regard to defendant's sentencing
issues, those will be addressed in a subsequent order. While the court is not
entirely convinced that defendant's issues on appeal are such "close
questions" that they rise to the level of a substantial question of law or
fact, the court is not willing to order that the defendant be detained given
the government's recommendation that he be released during the pendency of his
appeal.
*3 IT IS THEREFORE BY THE COURT
ORDERED that defendant's Motion to Release Defendant on Bond Pending Appeal
(Doc. 118) is granted. The defendant shall remain on bond during the pendency
of his appeal under the same conditions of release which were previously
imposed upon him.
D.Kan.,1999.
END OF DOCUMENT
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