U.S. v. Santos

• Decision Date: 08 September 1999
• Docket Number: No. 99 CR 47.,99 CR 47.
• Citation: 65 F.Supp.2d 802
• Parties: UNITED STATES of America, v. Miriam SANTOS.
• Court: U.S. District Court — Northern District of Illinois

65 F.Supp.2d 802

UNITED STATES of America, v. Miriam SANTOS.

No. 99 CR 47.

United States District Court, N.D. Illinois, Eastern Division.

September 8, 1999.

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Chris C. Gair, Freeman, Freeman & Salzman, P.C., Chicago, IL, David J. Stetler, Corey B. Rubenstein, Stetler & Duffy, Ltd., Chicago, IL, for Miriam Santos, defendant.

Jerome Natahan Krulewitch, U.S. Atty's Office, Chicago, IL, for U.S.

OPINION & ORDER

NORGLE, District Judge.

Before the court is Defendant Miriam Santos' Motion for Release Pending Appeal. For the following reasons, the court denies Defendant's motion.

I. INTRODUCTION

Defendant is the former Treasurer of the City of Chicago, which is a position that is responsible for the oversight of approximately $2.5 billion in city funds. Defendant was appointed Treasurer in 1989, and she later ran successfully as the Democratic candidate for Treasurer in elections in 1991, 1995, and (February) 1999. While serving as Treasurer in September 1997, Defendant announced that she would seek the Democratic nomination for Illinois Attorney General. Defendant eventually secured the nomination, but lost in the general election in November 1998.

On January 27, 1999, the Government filed a 12-count indictment that charged Defendant with five counts of attempted extortion in violation of 18 U.S.C. §§ 1951 & 1952,¹ five counts of mail fraud in violation of 18 U.S.C. § 1341,² and two counts of wire fraud in violation of 18 U.S.C. § 1343.³ In short, the Government alleged that Defendant attempted to extort contributions from several brokerage firms for the Democratic Party of Illinois and that she engaged in a scheme to defraud the City of Chicago ("the City") for her political advancement. All of the underlying illegal conduct was alleged to have occurred between October 1997 and October 1998, and was allegedly done to further Defendant's candidacy for Attorney General of Illinois in the then-upcoming November 1998 general election.

At Defendant's arraignment on February 3, 1999, the court set a trial date of April 14, 1999. On February 12, 1999, the court denied Defendant's motion for a continuance. On February 23, 1999, Defendant was re-elected Treasurer.

As scheduled, jury selection began on April 14, 1999, and opening statements began two days later, on April 16, 1999. After two and a half weeks of trial, the jury deliberated approximately six hours before rendering its verdict on May 3, 1999. The jury found Defendant guilty on one count of attempted extortion and the five counts of mail fraud, but acquitted her on the remaining four counts of attempted extortion and the two counts of wire fraud. Upon her conviction, Defendant automatically lost her position as Treasurer.

On July 27, 1999, the court sentenced Defendant to a prison term of 40 months. The court granted Defendant's motion to surrender in eight weeks, on October 1, 1999.

Defendant now moves for release pending appeal pursuant to 18 U.S.C. § 3143(b). She argues that the court committed several errors that will ultimately require the court of appeals to reverse her conviction on all counts or to order a new trial. Specifically, Defendant contends that: (1) several of the court's evidentiary rulings deprived her of a fair trial; (2) the Government's misconduct during its rebuttal argument resulted in an unfair trial; (3) the court's refusal to continue the trial date violated her Sixth Amendment right to counsel of choice; (4) the court improperly excluded three critical defenses; (5) the court erroneously permitted specific evidence involving an episode with Citi-bank, N.A., that, coupled with the Government's improper reference to that evidence during closing argument, resulted in an unfair trial.

II. LEGAL STANDARD

The Bail Reform Act of 1984, 18 U.S.C. § 3143(b), governs the issue of release pending appeal by the defendant. Enacted largely to reverse the presumption in favor of bail under the Bail Reform Act of 1966, see United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir.1985), the statute provides

that a court may allow a convicted defendant to remain free on bond pending appeal if: (1) the defendant is not likely to flee or pose a danger to the community, (2) the appeal is not for the purpose of delay, and (3) the appeal raises a "substantial question of law or fact" likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a sentence that reduces the term of imprisonment.

United States v. Ashman, 964 F.2d 596, 598 (7th Cir.1992) (citing 18 U.S.C. § 3143(b)); see also United States v. Greenberg, 772 F.2d 340, 341 (7th Cir. 1985).⁴ "The change Congress enacted `requires an affirmative finding that the chance for reversal is substantial. This gives recognition to the basic principle that a conviction is presumed to be correct.'" Bilanzich, 771 F.2d at 298 (quoting S.Rep. No. 225, 98th Cong., 1st Sess. 27, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3210). Further, § 3143(b) suggests "that harm results not only when someone is imprisoned erroneously, but also when execution of sentence is delayed because of arguments that in the end prove to be without merit." United States v. Shoffner, 791 F.2d 586, 589 (7th Cir.1986).

Here, the first two inquiries to determine whether Defendant is entitled to release pending appeal — likelihood of flight and danger to the community, § 3143(b)(1)(A) — are not at issue. Nor is there any indication that Defendant's motion is for the purpose of delay. See § 3143(b)(1)(B). The sole contention is whether Defendant raises a substantial question of law or fact likely to result in reversal or an order for a new trial. See § 3143(b)(1)(B).

Section 3143(b)(1)(B) places "the burden of showing the merit of the appeal" on the defendant. Bilanzich, 771 F.2d at 298. Under § 3143(b)(1)(B)'s framework, a defendant who is not a danger or flight risk and does not intend delay must satisfy two elements. See Shoffner, 791 F.2d at 588; Bilanzich, 771 F.2d at 298. First, she must show that her appeal presents a "substantial" issue. See Shoffner, 791 F.2d at 588; Bilanzich, 771 F.2d at 298. "An issue is `substantial' ... if it presents `a "close" question or one that very well could be decided the other way.'" United States v. Hattermann, 853 F.2d 555, 557 n. 6 (7th Cir.1988) (quoting Shoffner, 791 F.2d at 589 (7th Cir.1986) (quoting in turn United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985))); see also United States v. Eaken, 995 F.2d 740, 741 (7th Cir.1993). While "[t]his standard does not require the district court to predict the outcome of the appeal[,]" Hattermann, 853 F.2d at 557 n. 6, the court must find "that the appeal could readily go either way, that it is a toss-up or nearly so." Greenberg, 772 F.2d at 341.

Once the defendant satisfies this first element, she must address whether the substantial issue will affect the validity of her conviction. See Shoffner, 791 F.2d at 588; Bilanzich, 771 F.2d at 298. At this stage, the court "must determine whether a contrary appellate ruling is likely to require a reversal of the conviction or a new trial." Shoffner, 791 F.2d at 588 (citing Bilanzich, 771 F.2d at 298; United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)). Thus, the defendant must do more than show that an error occurred at trial; she must persuade the district court that "the appellate court is more likely than not to reverse the conviction or order a new trial on all counts for which imprisonment has been imposed." Bilanzich, 771 F.2d at 298 (emphasis added); see also Morison v. United States, 486 U.S. 1306, 1306-07, 108 S.Ct. 1837, 100 L.Ed.2d 594 (1988) (denying bond application for appeal to Supreme Court where the petitioner had "not shown that his appeal [was] likely to result in reversal with respect to all the counts for which imprisonment was imposed. ...").

With these principles in mind, the court must "return its attention to its own analysis of these issues at earlier stages of the proceedings[,]" Shoffner, 791 F.2d at 589, and provide a statement of reasons supporting its disposition of Defendant's motion. See United States v. Swanquist, 125 F.3d 573, 575-76 (7th Cir.1997). In Swanquist, the Seventh Circuit explained:

Rule 9(a) [of the Federal Rules of Appellate Procedure] unambiguously requires that the district court "must" provide a statement of "reasons" for a decision regarding release, either in writing or orally on the record. Although the standards for what suffices as a statement of reasons are not subject to rigid definition, we believe that a statement of reasons encompasses more than a mere recitation of the statutory language followed by nothing more than a conclusory statement that the applicable factors have (or have not) been met. See United States v. Fields, 466 F.2d 119, 121 (2d Cir.1972) (reasons must "be stated with particularity"); United States v. Thompson, 452 F.2d 1333, 1336 n. 7 (D.C.Cir.1971) ("A mere parrotting of the provisions of the applicable statute is not an adequate substitute for a full statement of reasons"), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972). In other words, "a district court's reasons for its decision must be adequately explained; conclusory statements are insufficient." [United States v. Wheeler, 795 F.2d 839, 841 (9th Cir. 1986)] (citations omitted).

The district court's failure to provide the mandatory statement of reasons has several negative consequences. First, in the absence of a remand, it forces us to undertake a task specifically designated to be completed by the district court. Although we conduct a de novo review of orders granting or denying release pending appeal (United States v. Eaken, 995 F.2d 740, 741 (7th Cir.1993)), it is nevertheless vital to the court of appeals to be apprised of the district court's rationale. See United States v. Stanley,...