U.S. v. Rodriguez, 3:95CR772-02.

• Decision Date: 12 February 1999
• Docket Number: No. 3:95CR772-02.,3:95CR772-02.
• Citation: 50 F.Supp.2d 717
• Parties: UNITED STATES of America, Plaintiff, v. Jose RODRIGUEZ, Jr., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

50 F.Supp.2d 717

UNITED STATES of America, Plaintiff, v. Jose RODRIGUEZ, Jr., et al., Defendants.

No. 3:95CR772-02.

United States District Court, N.D. Ohio, Western Division.

February 12, 1999.

Joseph R. Wilson, Thomas O. Secor, Sr., Office of the U.S. Attorney, Toledo, OH, for Plaintiffs.

Charles M. Boss, Boss & Vitou, Maumee Legal Bldg., Maumee, OH, for defendant.

MEMORANDUM AND ORDER

JOHN W. POTTER, Senior District Judge.

This case is before the Court on defendant Neller's motion to modify, the government's response and various briefs filed by the parties thereafter. The issue presented to the Court is whether or not defendant should now be released from detention pending his appeal. This Court, after defendant's conviction, denied bond; and the Court of Appeals also denied bond finding no substantial issue.

Based on alleged new evidence of prejudicial government attorney misconduct and resulting trial court errors, defendant asserts that he has demonstrated "exceptional reasons" entitling him to be released pending appeal pursuant to 18 U.S.C. § 3145(c). In addition, defendant contends that financial hardship to his family as well as a recently diagnosed illness constitute "exceptional reasons" warranting his release.

Section 3145(c) provides as follows:

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.

Section 3143(b) provides as follows:

Release or detention pending appeal by the defendant. (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 of 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.

If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.

(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 sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained.

Paragraphs (A), (B), and (C) of 18 U.S.C. § 3142(f) describe the following offenses:

(A) a crime of violence;

(B) an offense for which the maximum sentence is life imprisonment or death;

(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App. § 1901 et seq.)....

Detention of persons convicted of offenses described in paragraph (C) is determined by the maximum statutory penalty, not one that is imposed under the guidelines. See United States v. Carr, 947 F.2d 1239, 1240 (5th Cir.1991). Detention is mandatory under 18 U.S.C. § 3143(b)(2) unless all of the conditions of 18 U.S.C. § 3145(c) are met.

The Court initially notes that although the instant case is on appeal and the Court of Appeals has already ruled on and denied defendant's motion for release pending appeal, this Court retains jurisdiction over questions of custody. See United States v. Krzyske, 857 F.2d 1089, 1090-91 (6th Cir.1988). The first question presented to the Court is whether or not the "exceptional reasons" provision of 18 U.S.C. § 3145(c) may be applied by a District Court or whether it is available only to an appellant court. As noted in Carr, Section 3145(c) is confusing because the section is entitled, "Appeal from a release or detention order." However, the language in the section appears to trump the caption. Appellate courts have uniformly held that the "exceptional reasons" language of § 3145(c) may be applied by the district court. See Carr, 947 F.2d at 1240; United States v. Herrera-Soto, 961 F.2d 645, 647 (7th Cir.1992); United States v. Jones, 979 F.2d 804, 806 (10th Cir.1992); United States v. Cantrell, 888 F.Supp. 1055, 1056-57 (D.Nev.1995); United States v. Devinna, 5 F.Supp.2d 872, 873 (E.D.Cal. 1998).

Since defendant is suspect to mandatory detention pursuant to § 3143(b)(2), to be released from detention he must satisfy the two prong test set forth in § 3145(c). First, he must meet the conditions of release set forth in § 3143(b)(1) and, second, he must demonstrate exceptional reasons why his detention would not be appropriate. See Herrera-Soto, 961 F.2d at 646:

The Bail Reform Act, as amended provides standards under which judicial officers determine whether a recently convicted person should be detained pending appeal. The Act mandates detention for persons convicted of crimes of violence, crimes with a life sentence and drug crimes with a maximum sentence of ten years or more. See 18 U.S.C. §§ 3142(f)(1)(A), (B) and (C) and 3143(b)(2) (1990) The Act also includes an exception that allows for release pending appeal for those persons subject to mandatory detention who first meet the conditions for release required of any convicted person, See 18 U.S.C. § 3143(b)(1) (1990), and then show that, "there are exceptional reasons why such person's detention would not be appropriate." 18 U.S.C. § 3145(c) (1990) (emphasis added). Therefore, a judge must find that a defendant does not pose a risk of flight or a danger to the community and raises a substantial question of law or fact, not presented simply to delay incarceration, for determination on appeal before considering whether "exceptional reasons" exist making detention inappropriate.

See also, United States v. Koon, 6 F.3d 561, 564, n. 9 (9th Cir.1993), as follows:

While many appeals are from conviction for drug or other violent crimes, not many have to do with release under § 3145(c). In most such cases, the threshold requirements are not met and so the "exceptional reasons" inquiry is not triggered.

Thus, the threshold issue in the case sub judice is whether or not the alleged new evidence of prejudicial misconduct of United States trial attorneys and resulting erroneous trial court procedure raises a substantial issue. The Court finds it does not. In United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.1985), the Court of Appeals adopted the following test regarding a substantial issue:

After considering the legislative history of the Bail Reform Act of 1984, we adopt the further refinement that the Eighth Circuit, sitting en banc, espoused in United States v. Powell, [761 F.2d 1227 (8th Cir.1985)]. In Powell, the Eighth Circuit concluded that an appeal raises a substantial question when the appeal presents a "close question or one that could go either way" and that the question "is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor." Id. at 1233-34.

See also, United States v. Negro, 158 F.3d 1233, 1998 WL 393776 (6th Cir. June 12, 1998); United States v. Russell, 942 F.Supp. 1126, 1127 (E.D.Mich.1996).

The following facts are pertinent to issues raised on appeal. On May 13, 1996, defendant filed a motion to strike certain language in the indictment, including the following paragraph setting forth allegations of relevant conduct with respect to the drug conspiracy charge:

On August 4, 1981, JOSE C. RODRIGUEZ, JR., RICHARD NELLER, and other persons known to the Grand Jury but not indicted herein, abducted and murdered Cynthia Anderson, RICHARD NELLER'S legal secretary, because she had overheard conversations wherein JOSE C. RODRIGUEZ, JR. and RICHARD NELLER had discussed armed robberies and their expanding drug business.

Indictment, ¶ 9, p. 7. Defendant argued that this paragraph should be excluded as surplusage under Fed.R.Crim.P. 7(d), and as prejudicial under Fed.R.Evid. 403. The Court referred the motion with respect to the above cited paragraph to Judge Katz for an ex parte in camera evidentiary hearing on the issue presented in that paragraph. The hearing was held and Judge Katz set forth his findings in an unsealed written order dated September 25, 1996. In his order, Judge Katz found as follows:

Having considered the arguments in Defendant Neller's motion and memorandum, the evidence and arguments of the Government, the Court finds that the specific language Defendant seeks to have stricken from the indictment is not surplusage or irrelevant since the evidence to be adduced at trial in support of said allegation is relevant to show not only the existence of the alleged conspiracy, but the depth and breadth thereof....