U.S. v. Rausch

• Decision Date: 28 September 2010
• Docket Number: Criminal Action No. 07–cr–00497–JLK.
• Citation: 746 F.Supp.2d 1192
• Parties: UNITED STATES of America, Plaintiff,v.Ralph RAUSCH, Defendant.
• Court: U.S. District Court — District of Colorado

746 F.Supp.2d 1192

UNITED STATES of America, Plaintiff,
v.
Ralph RAUSCH, Defendant.

Criminal Action No. 07–cr–00497–JLK.

United States District Court, D. Colorado.

Sept. 28, 2010.

[746 F.Supp.2d 1193]

Virginia L. Grady, Office of the Federal Public Defender, Denver, CO, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR BOND PENDING APPEAL KANE, Senior District Judge.

In 2007, the government seized several thousand images and videos depicting child pornography and child erotica from Defendant and charged him with possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). Defendant pleaded guilty to this offense on January 31, 2008. I sentenced him to one day's incarceration with supervised parole for the remainder of his life and imposed numerous conditions on his release, including that he was to be confined to his home and that he must participate in the sex-offender treatment programs required by the Probation Office. Since Defendant suffered from end-stage renal failure and was in need of a kidney transplant, this sentence was the strongest penalty I could exact without putting his life at risk.

On March 23, 2010, the Probation Office filed a petition for issuance of a summons due to Defendant's violations of his supervised release conditions. At the petition hearing on May 13, 2010, Defendant admitted that he had violated his supervised release conditions by viewing adult pornography, failing to comply with the location monitoring requirements, and failing to comply with sex-offender treatment program requirements. I found that Defendant

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had violated the terms of his release, and I reinstated the supervised release with modified conditions, including a requirement that he reside in a halfway house for 180 days.

The Probation Office filed another report on August 3, 2010, stating that Defendant was again in violation of his supervised release. Defendant filed a response to this report denying that he had failed to participate in the sex-offender treatment program. At the violation hearing on August 17, 2010, I found that Defendant had not complied with the sex-offender treatment condition of his supervised release, and I sentenced him to two years in prison followed by a lifetime of supervised release. Defendant filed his notice of appeal of his Judgment and Commitment Order on August 24, 2010. He then moved to be released on bond pursuant to 18 U.S.C. § 3143(b) pending that appeal. For the reasons stated below, Defendant's motion is denied.

LEGAL STANDARDS

Section 3143(b)(2) of Title 18, United States Code, mandates that a defendant be detained if he has been convicted of an offense described in subparagraphs (A), (B), or (C) of § 3142(f)(1) and has been sentenced to a term of imprisonment. Subparagraph (A) of § 3142(f)(1) includes an offense that is a “crime of violence,” ¹ the definition of which incorporates any felony under Title 18, Chapter 110. § 3156(a)(4)(C). The possession of child pornography in violation of 18 U.S.C. § 2252A falls within Title 18, Chapter 110. It is, therefore, a “crime of violence” under § 3142(f)(1), the conviction of which requires that a defendant be detained pending appeal.

Defendant argues that, in accordance with Tenth Circuit precedent, I should apply § 3145(c) as an exception to § 3143(b)(2) and grant him bond pending resolution of his appeal. See United States v. Jones, 979 F.2d 804 (10th Cir.1992).² Although I afford deference to

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relevant precedent, I must interpret the statute as it is written. Despite the Tenth Circuit's statement in United States v. Jones, in light of the plain meaning of § 3145(c) and other principles of statutory interpretation, I do not believe I have the discretion to permit Defendant's release pending appeal. ³ Even if, however, I did have discretion to grant Defendant's Motion for Bond Pending Appeal, Defendant has failed to show that he satisfies the requirements of § 3145(c).

A. Applicability of § 3145(c)

Although eight circuits have found that the authority to permit release pending appeal pursuant to § 3145(c) extends to district courts, these courts have failed to engage in a meaningful analysis of the statutory text, instead relying on precedent without performing their own intelligent analysis. The trend began with the Fifth Circuit in Carr. In its determination that Congress intended district courts to apply § 3145(c), the Fifth Circuit relied on two district court cases ( United States v. DiSomma, 769 F.Supp. 575 (S.D.N.Y.1991) and United States v. Bailey, 759 F.Supp. 685 (D.Colo.), aff'd, 940 F.2d 1539 (10th Cir.1991)), neither of which actually considered whether or not Congress intended for district courts to apply § 3145(c). In DiSomma II, the Second Circuit then propagated the precedential house of cards by relying on the Fifth Circuit's decision in Carr. 951 F.2d at 496. “This circle of decisions, however well-intentioned, reflects a certain circularity of reasoning inherent in the Second Circuit's decision and suggests the runic quality of § 3145(c).” Bloomer, 791 F.Supp. at 101 n. 1. The trend continued as the Seventh Circuit, the Tenth Circuit, the Eighth Circuit, the Ninth Circuit, and the Sixth Circuit simply relied on the inadequately reasoned decisions that came before. Herrera–Soto, 961 F.2d at 646; Jones, 979 F.2d at 806; Mostrom, 11 F.3d at 94; Garcia, 340 F.3d at 1014 n. 1; Christman, 596 F.3d at 870–71. “[T]he appellate opinions cited above either did not analyze the statutory language at all, or did so cursorily or conclusorily.” Nesser, 937 F.Supp. at 509. Although in United States v. Goforth the Fourth Circuit deviated from this trend and provided some in-depth analysis of the text of § 3145(c), I am not persuaded by its reasoning. 546 F.3d 712 (4th Cir.2008).

In determining that § 3145(c) applies to district courts, the Fourth Circuit relied upon its holding that the term “judicial officer,” as used in the statute, includes district court judges. Goforth, 546 F.3d at 714–16. ⁴ The statute defines a “judicial officer” as, “unless otherwise indicated, any person or court authorized pursuant to section 3041 of this title, or the Federal Rules of Criminal Procedure, to detain or release a person before trial or sentencing or pending appeal in a court of the United States, and any judge of the Superior Court of the District of Columbia.”

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§ 3156(a). The Fourth Circuit asserts that “placement of the ‘exceptional reasons' language within § 3145(c)” is not by itself “sufficient to constitute the affirmative ‘indication’ required under § 3156(a)(1) in order to render its definition of ‘judicial officer’ inapplicable.” Goforth, 546 F.3d at 715. I am not persuaded by this argument. Congress clearly “indicated otherwise” by placing the provision under a heading that states: “Appeal from a release or detention order.” The provision only applies, therefore, to a “judicial officer” reviewing an “appeal from a release or detention order.”

The Fourth Circuit also argues that the legislative history of the statute supports the conclusion that Congress intended the term “judicial officer,” as used in the statute, to include district court judges. Id. at 716 (“The substitution of the broader term ‘judicial officer’ indicates that Congress intended to include district judges among those who could grant ‘exceptional reasons' relief.”). Section 3145(c) of the Simon Act originally stated that exceptional reasons could be considered “by a court of appeals or a judge there of.” 136 Cong. Rec. S6, 491 (daily ed. May 17, 1990) (Section 1152—Mandatory Detention). The language of the statute as passed by Congress, however, reads “by the judicial officer.” § 3145(c). The Fourth Circuit reaches too far in assuming that this change in language reveals an intent to extend § 3145(c) to district court judges. Congress could have substituted the language for any number of reasons. Perhaps Congress felt that the heading of the subsection made it obvious. Courts, however, should not speculate. The circuit courts' assertions regarding the significance of the term “judicial officer” are without merit.⁵

1. Plain Language of the Statute

Because the reasoning of the circuit courts that have considered the issue provides no assistance in interpreting the statute, I start my analysis from “the language employed by Congress” and I “may assume that the legislative purpose is expressed by the ordinary meaning of the words used.” American Tobacco Co. v. Patterson, 456 U.S. 63, 67, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) (internal quotations omitted). Section 3145(c) states:

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

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clearly shown that there are exceptional reasons why such person's detention would not be appropriate.

Although the plain language of the statute is not unclear, the competing interpretations of the term “judicial officer” and disagreement over the application of the statute betray some ambiguity.⁶ I must, therefore, look to the context of the statute for greater understanding.2. Context of the Provision

The provision of § 3145(c) at issue follows two sentences that deal strictly with appellate courts.⁷ Originally, section 3145(c) only contained the first two sentences addressing appellate courts, but it was amended in 1990 and the third sentence providing the “exceptional reasons” provision at issue here was added.⁸ The addition of the provision to a subsection titled “Appeal from a release or detention order” that otherwise exclusively pertains to appellate issues demonstrates that Congress intended the provision to apply only to appellate courts, just as the rest of the subsection did prior to the 1990 amendment.

3. Placement of the Provision

Not only did...