U.S. v. Mellies, 3:05-00132.

• Citation: 496 F.Supp.2d 930
• Decision Date: 10 July 2007
• Docket Number: No. 3:05-00132.,3:05-00132.
• Parties: UNITED STATES of America v. John Wyatt MELLIES.
• Court: U.S. District Court — Middle District of Tennessee

496 F.Supp.2d 930

UNITED STATES of America v. John Wyatt MELLIES.

No. 3:05-00132.

United States District Court, M.D. Tennessee, Nashville Division.

July 10, 2007.

S. Carran Daughtrey, Office of the United States Attorney, Nashville, TN, for United States of America.

William Taylor Ramsey, Neal & Harwell, Nashville, TN, for John Wyatt Mellies.

MEMORANDUM

HIGGINS, District Judge.

The Court has before it the defendant's motion for release pending sentencing (filed June 1, 2007; Docket Entry No. 79), a memorandum of law in support (Docket Entry No. 80), and two exhibits to his memorandum-the affidavit of Mary Wolfe, who is the defendant's mother (Exhibit A), and dental and medical records (Docket Entry No. 81-1, Exhibit B). The dental records provide details of defendant's own recent dental treatment. Exhibit B also includes a one-page hospital discharge instruction summary for defendant's stepfather dated February 2007. The government filed a response in opposition to the motion. (Docket Entry No. 82).

Defendant makes his motion for release pursuant to 18 U.S.C. § 3145(c), urging the Court to exercise its discretion to order his release pending sentencing. Contrary to the position taken by the government, he contends that his confinement is not mandatory and he is eligible for release because he meets the conditions for release set forth in 18 U.S.C. § 3143(a)(1) (he is not likely to flee or pose a danger to the safety of any other person or the community) and, as § 3145(c) requires, there are exceptional reasons why his continued detention would not be appropriate.

Defendant identifies four exceptional reasons justifying his release: (1) shortly before trial all of his teeth were extracted, two implants were placed in his lower jaw, and temporary denture plates were provided to him which fit poorly and make it difficult for him to chew food; (2) although all crimes listed in the child pornography chapter are deemed to be "crimes of violence," possession of child pornography is not considered a "crime of violence" in other contexts; (3) the defendant has strong family support and strong ties to the Illinois community where he was successfully supervised on pretrial release; and (4) defendant's mother was recently diagnosed with Parkinson's disease and his stepfather is undergoing treatment for kidney cancer. Prior to trial the defendant assisted his mother and stepfather by taking them to their doctors' appointments and providing other services to them, and he cannot continue to provide this assistance while detained.

The affidavit of Mary Wolfe confirms the defendant's representations that he assisted his parents during their medical treatment by driving them to doctors' appointments, taking them grocery shopping or doing the grocery shopping, handling automobile maintenance, and doing yard and garden work. (Wolfe Aff. ¶ 5.) In light of their ongoing medical problems, the defendant's parents feel they would benefit from the defendant's assistance pending sentencing. (Id. ¶ 6.) After the defendant was detained following the jury verdict, the defendant missed a dental appointment to have his new implants and dentures checked, and he needs to have a new bottom denture created to fit his implants because his current one is temporary. The defendant also is required to follow a specialized routine of oral hygiene. (Id. ¶ 7.) The dental records provided in Exhibit B corroborate the nature of the defendant's recent dental work. The government does not object to the Court's consideration of Mary Wolfe's affidavit.

The government emphasizes that the defendant's child pornography collection included hundreds of videos and over 11,000 images of child sexual exploitation, including many images depicting very violent acts, and Congress' characterization of the defendant's offense of conviction as a crime of violence is not open to review. The government opposes the motion for release contending the Court correctly held under applicable law that detention pending sentencing is mandatory under § 3143(a)(2), and the defendant fails to establish any exceptional reason justifying his release pending sentencing under § 3145(c).

I.

The pertinent statutes provide as follows:

§ 3143. Release or detention of a defendant pending sentence or appeal

(a) Release or detention pending sentence.-(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds 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).¹

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless

(A) (i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or

(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and

(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

Section 3142(f)(1)(A) provides for detention on motion of the attorney for the government in a case that involves a crime of violence. For purposes of the bail and detention statutes, a "crime of violence" includes "any felony under chapter 110[.]" 18 U.S.C. § 3156(a)(4)(C). The child pornography possession statute under which the defendant was convicted, 18 U.S.C. § 2252A(a)(5)(B), is codified in Chapter 110 — Sexual Exploitation and Other Abuse of Children. Thus, the defendant stands convicted of a crime of violence for purposes of detention, even if possession of child pornography is not considered to be a crime of violence in other contexts.

Because the offense of conviction is a crime of violence, the Court "shall order" detention unless the Court finds: (1) that there is a substantial likelihood that a motion for acquittal or new trial will be granted or (2) an attorney for the government has recommended that no sentence of imprisonment be imposed on the defendant and (3) the Court finds by clear and convincing evidence that the defendant is not likely to flee or pose a danger to any other person or the community. Following the jury's verdict, the Court found there is not a substantial likelihood that a motion for acquittal or new trial will be granted, and the government attorney stated she will not recommend that no sentence of imprisonment be imposed on the defendant. Thus, because neither of the two alternatives in § 3143(a)(2)(A) can be satisfied, it becomes immaterial under § 3143(a)(2) whether the Court might find by clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released on conditions similar to those the defendant successfully obeyed while on pretrial release.

Despite the requirement for mandatory detention under § 3143(a)(2), the defendant points the Court to an escape valve found in § 3145(c). That statute provides:

(c) Appeal from a release or detention order. An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.

This provision is located at the end of a statute which allows for review of a magistrate judge's release order by a district judge having original jurisdiction, § 3145(a), and for review of a magistrate judge's detention order by a district judge having original jurisdiction, § 3145(b).

The initial sentence of § 3145(c), that "[a]n appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title[,]" logically might lead the reader to conclude that subsection (c) pertains to review of a release or detention order by the court of appeals. After all, 28 U.S.C. § 1291 confers appellate jurisdiction on the courts of appeals "from all final decisions of the district courts of the United States . except where a direct review may be had in the Supreme Court." Title 18 U.S.C. § 3731 confers on the government limited appeal rights to the courts of appeals in criminal cases, including "from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense[.]" Yet, the circuit courts of appeals to address § 3145(c) in published opinions have held that district courts, as well as appellate courts, have power to apply § 3145(c) and to consider whether exceptional reasons exist why a particular defendant should not be detained pending sentencing. See United States v. DiSomma, 951 F.2d 494 (2nd Cir.1991); United States v. Carr, 947 F.2d 1239 (5th Cir. 1991); United States v. Herrera-Soto, 961 F.2d 645 (7th Cir.1992); United States v. Mostrom, 11 F.3d 93 (8th Cir.1993); United States v. Koon, 6 F.3d 561 (9th Cir. 1993); United States v. Jones, 979 F.2d 804 (10th Cir.1992).

In an unpublished opinion, ...