U.S. v. Revis

• Decision Date: 08 October 1998
• Docket Number: No. 97-CR-163-H.,97-CR-163-H.
• Citation: 22 F.Supp.2d 1242
• Parties: UNITED STATES of America, Plaintiff, v. Harley REVIS, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

22 F.Supp.2d 1242

UNITED STATES of America, Plaintiff, v. Harley REVIS, Defendant.

No. 97-CR-163-H.

United States District Court, N.D. Oklahoma.

October 8, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephen J. Knorr, Federal Public Defender's Office, Tulsa, OK, Harley Revis, Sapulpa, OK, for Harley Revis, defendant.

Stephen J. Knorr, Federal Public Defender's Office, Paul D. Brunton, Kent Randall Hudson, Tulsa, OK, Terrance Revis, Sapulpa, OK, for Terrance Revis, defendant.

Martin Gambil Hart, Tulsa, OK, Roman Yahola, Okemah, OK, for Roman Yahola, defendant.

John David Russell, Gordon Boyd Cecil, United States Attorney, Tulsa, OK, Melody Noble Nelson, Office of the Attorney General, Oklahoma City, OK, for U.S.

ORDER

HOLMES, District Judge.

This matter comes before the Court on a motion and an amended motion to stay imposition of imprisonment pending appeal of the sentence by Defendant Harley Revis (Docket # 50 and Docket # 51). On September 15, 1998, in accordance with applicable law, the Court sentenced Defendant to incarceration for 51 months. Defendant requests the Court to stay this sentence of imprisonment pending his appeal.

I

Federal Rule of Criminal Procedure 38(b) states that a sentence of imprisonment shall be stayed if an appeal is taken and the defendant is released pending appeal pursuant to Rule 9(b) of the Federal Rules of Appellate Procedure.

Defendant has taken an appeal and thus the former requirement has been satisfied. Rule 9(c) directs the Court to use the standards set forth in 18 U.S.C. § 3143 as the criteria for release pursuant to Rule 9(b). That statute, which governs release pending appeal, states in pertinent part as follows:

(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer 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,

(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) (1994).

Under this statute, Defendant must first establish by clear and convincing evidence that, if released, he is not likely to flee or pose a danger to the safety of any other person or to the community. Based on the present record, and in accordance with the stipulation of the parties, the Court finds that Defendant has satisfied this requirement.

Defendant must further establish by a preponderance of the evidence that the appeal was not filed for purposes of delay. See United States v. Burger, 773 F.Supp. 289, 295 (D.Kan.1991). Based on the present record, the Court finds that Defendant has satisfied this requirement as well.

Once Defendant has satisfied these threshold requirements, the Court must follow the two-step analysis set forth in United States v. Affleck, 765 F.2d 944, 952 (10th Cir.1985) (citing United States v. Miller, 753 F.2d 19 (3d Cir.1985)). Under this analysis, the Court must make two determinations: first, whether the appeal raises a "substantial" question of law or fact; and, second, "if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed." Affleck, 765 F.2d at 952.

A "substantial question" is a "`close' question or one that very well could be decided the other way." Id. (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985)). See also Miller, 753 F.2d at 23 (stating that a "substantial question" is one "which has not been decided by controlling precedent, or which is fairly doubtful"). Whether a particular question is "substantial" should ultimately be decided upon a case-by-case basis. See Affleck, 765 F.2d at 952.

Under the second step of the Affleck analysis, the Court must decide the significance of the "substantial question" to the ultimate disposition of the appeal. For example, 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." Id. at 953 (quoting Miller, 753 F.2d at 23).

In the instant case, Defendant claims that testimony against him at trial was introduced in violation of the federal bribery and gratuity statutes. Based on the trial record in this case, the Court finds that a favorable ruling on this claim would result in a new trial. Essentially, therefore, the question before the Court is whether the legal issue raised by Defendant's motion is "one that very well could be decided the other way." Id. at 952.

II

The facts that form the basis of Defendant's motion are not in dispute. After a four-day jury trial, April 27, 1998, through April 30, 1998, Defendant was convicted of one count of conspiracy to commit mail fraud and sixty-two counts of mail fraud. During the course of the trial, Terrance Revis (Defendant's son) and Roman Yahola, testified as witnesses for the United States. Each witness had previously entered into a plea agreement with the U.S. Attorney which specified that he was obligated to provide cooperation to the government, including truthful trial testimony.

Specifically, the plea agreement between the United States Attorney¹ and Mr. Terrance Revis stated as follows:

3. Cooperation. If requested by the government, but only if so requested, defendant agrees to cooperate in accordance with the following terms:

a) Defendant shall respond truthfully and completely to any and all questions or inquiries by any government agency at any trial or other court proceeding ...

d) Defendant understands that only truthful and accurate information and testimony is required pursuant to this provision and that knowingly giving false information or testimony may be prosecuted as an additional criminal offense.

Plea Agreement at 3.

This plea agreement was presented to the Court for review on April 27, 1998, along with a Petition to Enter Plea of Guilty and Order Entering Plea ("Petition"). Following an extensive colloquy in open court pursuant to and in accordance with Federal Rule of Criminal Procedure 11, which included a detailed review of the plea agreement, the Court accepted Mr. Terrance Revis's plea of guilty, pronounced him guilty as charged, signed his Petition, and placed the Petition, with the plea agreement as an attachment, on file of record in this case.

Similarly, the plea agreement between the United States Attorney and Mr. Yahola stated as follows:

3. Cooperation. If requested by the government, but only if so requested, defendant agrees to cooperate with the government in accordance with the following terms:

a) Defendant shall respond truthfully and completely to any and all questions or inquiries by any government agent or agency designated by the government, before a grand jury or at any trial or other court proceeding ...

d) Defendant understands that only truthful and accurate information and testimony is required pursuant to this provision and that knowingly giving false information or testimony may be prosecuted as an additional criminal offense.

Plea Agreement at 3.

This plea agreement was presented to the Court for review on April 16, 1998, along with his Petition. As with Mr. Terrance Revis, following an extensive colloquy in open court in accordance with Rule 11, which included a detailed review of the plea agreement, the Court accepted Mr. Yahola's plea of guilty, pronounced him guilty as charged, signed his Petition, and placed the Petition, with the plea agreement as an attachment, on file of record in this case.

Each of the two plea agreements at issue provided that the defendant will plead guilty to certain specified charges in the Indictment, and that the government will dismiss certain other charges and will not prosecute the defendant further. In addition, each agreement stated that if the defendant "fails to observe and perform any provision of this Agreement" he would be in breach of the contract and the government, inter alia, "may initiate criminal prosecution of defendant for any violation of federal criminal laws." Plea Agreements at 9-10.

Defendant's instant motion claims that, as a result of the above-described plea agreements, the government impermissibly gave both Mr. Terrance Revis and Mr. Yahola "something of value" (a promise to not prosecute for certain alleged criminal conduct) for their testimony against Defendant in violation of 18 U.S.C. § 201(c)(2). Accordingly, the question presented is whether this claim constitutes a "substantial question" for purposes of bail pending appeal.

The instant motion is based on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vacated and reh'g en banc granted, (July 10, 1998), which held that the government had violated 18 U.S.C. § 201(c)(2) by entering into a plea agreement that promised leniency to a witness in consideration of his trial testimony. On July 10, 1998, pursuant to Tenth Circuit Rule 35.6, this opinion was vacated and the matter was set for oral argument en banc during the November term of court. While the opinion has been vacated and therefore is not controlling authority, the analysis and conclusions in the opinion are before the Court in the form of arguments and authorities in support...