United States v. Higgins
Docket Number | 3:18-cr-186 |
Decision Date | 26 May 2022 |
Parties | UNITED STATES OF AMERICA, Plaintiff, v. BRIAN HIGGINS, Defendant. |
Court | U.S. District Court — Southern District of Ohio |
ORDER DENYING DEFENDANT'S MOTION FOR RELEASE PENDING DISPOSITION OF APPEAL (DOC. NO. 127)
This case is before the Court on the Motion for Release Pending Disposition of Appeal (Doc. No. 127) (the “Motion”), filed by Defendant Brian Higgins (“Higgins”). In the Motion, Higgins asks “the Court to allow him to be released from custody on recognizance, pending the disposition of his Appeal.” (Doc. No. 127 at PageID 1145.) The Motion is DENIED.
18 U.S.C. § 3143(b) addresses whether a person who has been found guilty of an offense and sentenced to a term of imprisonment should be released or detained pending an appeal by a defendant. The text of the statute creates a presumption against release pending appeal. United States v Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002) (“[t]he Bail Reform Act, 18 U.S.C. § 3143(b) creates a presumption against release pending appeal”). The statute states:
Therefore, Section 3143(b)(1) “requires a district court to make two findings before granting bail pending appeal.” United States v. Pollard, 778 F.2d 1177, 1181 (6th Cir. 1985).
However, Section 3143(b)(2) provides that a defendant must be detained if the defendant has been found guilty of certain offenses. See 18 U.S.C. 3143(b)(2).
Here, Higgins is not subject to the mandatory detention provision in 18 U.S.C. § 3143(b)(2). A jury found him guilty of three counts of mail fraud (18 U.S.C. §§ 1341 and 2) and two counts of witness retaliation (18 U.S.C. § 1513(e)). (Doc. No. 95 at PageID 895-905, 908-09; Doc. No. 112.) The Court held a sentencing hearing on May 25, 2022. (Doc. No. 126.) The Court sentenced Higgins to 24 months of imprisonment for each of the mail fraud offenses and to months of imprisonment for each of the witness retaliation offenses, all to run concurrently for a total aggregate sentence of 36 months of imprisonment. (See id.)
However the Court makes neither of the two findings necessary to permit Higgins to be released pending appeal, pursuant to 18 U.S.C. § 3143(b)(1). First, Higgins has not shown “by clear and convincing evidence that [he] is not likely to flee or pose a danger to the safety of any other person or the community if released.” 18 U.S.C. § 3143(b)(1)(A). The Court explained during the sentencing hearing that Higgins poses a danger to the safety of the community. Moreover, although the Court acknowledges that Higgins has not missed a court appearance and is both employed and maintains his own apartment in the Dayton area, the Court is concerned about his failure to comply with certain court rules and orders. As discussed during the sentencing hearing, Higgins has repeatedly violated rules and orders of the Court, including violating the prohibition against making an audio recording of a courtroom proceeding (see S.D. Ohio Civ. R. 83.2(a); S.D. Ohio Crim. R. 1.2) and violating the protective order entered in this case (see Doc. No. 43 ( )). Higgins' own Motion reflects that he has done so. (Doc. No. 127 at PageID 1145-46 (“Mr. Higgins was denied Voluntary Surrender, upon the Government's showing that Mr. Higgins engaged in prohibited behavior; taping Court proceedings and publishing documents contemplated in the Protective Order filed of Record in this case”).) This further supports denial of the Motion. See United States v. Flores, 856 F.Supp. 1400, 1408 (E.D. Cal. 1994) (...
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