MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Motion for Release Pending Appeal, filed February 6, 2015 (Doc. 195)("Motion"). The primary issues are: (i) whether Defendant Thomas R. Rodella has presented a substantial question that, if answered in his favor, would likely result in a new trial; and (ii) whether Rodella has shown exceptional circumstances, which are required for a violent offender to be released pending appeal. The Court will deny the Motion, because Rodella has not presented a substantial question, and, even if he had, any judicial error or prosecutorial misconduct was harmless. Further, because Rodella's strength of appeal, health, offense, former profession, and family situation are not exceptional, the Court will deny the Motion.
Given the jury's verdict, the Court takes the facts from the evidence in a light most favorable to the United States. On March 11, 2014, Michael Tafoya pulled his car out of a driveway and onto the road, while a green jeep was traveling down the same road. Thomas R. Rodella, Jr., who was driving the jeep, began flashing the jeep's headlights and began tailgating Tafoya's car for the next quarter mile. Tafoya slowed down his car and pulled over to the side ofthe road to allow the jeep to pass. Once stopped, Tafoya raised his hands and said: "What the hell?" The jeep passed Tafoya's car, but then stopped in the middle of the road and backed up, until it parked about twenty-five feet in front of Tafoya's car. Rodella and Rodella, Jr. got out the jeep and began walking towards Tafoya's car while motioning for Tafoya to get out of his car and saying "come on." Because Tafoya thought that Rodella and Rodella, Jr. wanted to fight, and because he did not know whom they were, he was afraid. Wanting to avoid a confrontation, Tafoya drove away, and Rodella and Rodella, Jr. got back into the jeep and began chasing him.
Tafoya sped up, and eventually turned onto a private dirt road to escape from Rodella and Rodella, Jr. When Tafoya reached the end of the dirt road, he tried to turn his car around while Rodella got out of the jeep with a gun in his hand. Tafoya backed up his car until it hit a pole that was behind it. Rodella opened the passenger door of Tafoya's car and jumped in with his gun in his hand. Rodella attempted to point the gun at Tafoya's face, and Tafoya begged for Rodella not to kill him. While Tafoya was begging Rodella not to kill him, Rodella twice yelled: "It's too late." From the driver's side of the car, Rodella, Jr. grabbed Tafoya by his arm and shirt, pulled him out of the car, and threw him to the ground. Rodella, Jr. held Tafoya on the ground and told Tafoya that Rodella was the sheriff. Tafoya asked to see Rodella's badge, and Rodella pulled Tafoya's head up by his hair and said: "You want to see my badge mother fucker? Here's my badge." Rodella then struck Tafoya in his face with the badge. Before being hit in the face with the badge, Tafoya did not see Rodella display his badge and did not know that he was the sheriff. The Rio Arriba County Deputy Sheriffs arrived, and Tafoya was handcuffed and arrested.
After a five-day trial, Rodella was convicted of violating Tafoya's constitutional rights by using unreasonable force and for conducting an unlawful arrest. See Verdict at 1, filed September 26, 2014 (Doc. 127)("Verdict"). Rodella was also convicted of using a firearm during the commission of a crime of violence. See Verdict at 2. The Court sentenced Rodella to 121-months imprisonment. See Memorandum Opinion and Order, filed February 5, 2015 (Doc. 184)("Sentencing MOO"). Before trial, the United States moved to offer evidence of three events that included evidence of other wrongs or acts pursuant to rule 404(b) of the Federal Rules of Evidence. See Amended Motion in Limine to Introduce Evidence Pursuant to Federal Rule of Evidence 404(b), filed September 10, 2014 (Doc. 56)("404(b) Motion").
1. The 404(b) Incidents and Trial. The Court has previously summarized the three incidents:
In August, 2013, Lisa Gonzales, a Los Alamos, New Mexico, resident, and her husband were driving south on Highway 285 in Rio Arriba County. A vehicle pulling a camper was in front of them and was driving below the speed limit. There was not enough room to pass the vehicle, so Gonzales' husband continued to drive behind the vehicle. A pickup, with no law enforcement markings, pulled onto the highway behind Gonzales, caught up to her vehicle, and began tailgating her. The vehicle with the camper turned off the highway, so Gonzales' husband increased his speed to the speed limit of fifty-five miles-per-hour. The pickup continued tailgating in an aggressive manner for a long time. Emergency lights, which were not visible earlier, were activated on the pickup. Gonzales' husband prepared to pull over because of the emergency lights, but the road was too narrow and did not have a shoulder. Gonzales' husband saw a dirt road ahead, and prepared to pull over onto the dirt road by slowing down and engaging his turning signal. Before reaching the dirt road, the pickup "aggressively pulled up alongside" Gonzales' vehicle, occupying the left-hand lane that is designated for traffic coming from the other direction. Through the passenger-side window of the pickup, Rodella yelled for Gonzales to "pull the fuck over," while pointing his finger at them. Gonzales' husband "proceeded to the dirt road and pulled over as soon as possible."
Rodella parked the pickup in front of Gonzales' vehicle. Rodella parked the pickup in a manner that blocked in Gonzales' vehicle and partly obstructedHighway 285 with the back end of the pickup. Rodella exited the pickup, wearing plain clothes, and not displaying a badge or other law enforcement markings. Rodella wore a holster with a gun at his hip and walked toward Gonzales' vehicle with his hand on the gun. Gonzales was terrified, because a man with a gun had blocked their vehicle from accessing Highway 285, and because there was no indication -- other than the "multi-colored lights on the visor" of the pickup -- that Rodella or the vehicle were affiliated with law enforcement. When Rodella reached the window of the vehicle, he displayed his badge. Rodella asked why Gonzales' husband did not pull over when Rodella told him to do so, and Gonzales' husband told Rodella that it was not safe to pull over until he reached the dirt road. Gonzales' husband handed Rodella his license and registration, which indicated that he lived in Los Alamos. Rodella told Gonzales' husband: "You don't speed in my county." Rodella did not issue Gonzales or her husband any citation.
On or about March 28, 2013, Jacob Ledesma, a forty-year-old engineering consultant from Las Cruces, New Mexico, was driving on Highway 84 in Rio Arriba County. Ledesma was driving the speed limit when a brown SUV, with no law enforcement markings, turned onto the highway in front of oncoming traffic and Ledesma. The SUV drove slowly and caused the traffic to slow down. Passing was permitted in that part of the highway, and Ledesma moved into the other lane and passed the SUV. The SUV activated emergency lights, which were concealed in the vehicle's front grill. Ledesma pulled over to the side of the road, and the SUV pulled over behind him.
Rodella stepped out of the SUV, wearing plain clothes without a badge displayed. Rodella asked Ledesma: "Do you know who I am?" Ledesma told Rodella that he did not, so Rodella pulled out his driver's license and handed it to Ledesma. Ledesma responded by stating: "So? I have a driver's license, too." Rodella became angry, reached into his pocket, pulled out his badge, and threw it at Ledesma. Ledesma told Rodella that he did not know who Rodella was, that Rodella was not in a marked police unit, and that, if Rodella did not get a marked police unit there immediately, he was going to leave. Rodella summoned a sheriff deputy, who arrived in a marked unit and wrote Ledesma tickets "for passing in a no-passing zone and failing to sign his registration." Ledesma protested to the deputy, and the deputy replied: "He's my boss." The tickets were dismissed two weeks later. Ledesma revisited the area and confirmed that passing was prohibited on that stretch of highway.
Yvette Maes is a fifty-two year-old woman from Rio Arriba County. In January, 2014, Maes was driving home at night when a vehicle rapidly approached her vehicle from behind and began tailgating her. The vehicle passed Maes, and she flashed her high-beam headlights at it. The vehicle activated emergency lights, and Maes pulled over to the side of the road. The other vehicle pulled over on the side of the road, a short distance in front of Maes' vehicle.
Rodella exited the vehicle, appearing visibly shaken, and approached Maes' vehicle.
Rodella asked Maes what "she thought she was doing by flashing her lights at him" and told her that "flashing high beams is a form of road rage." Maes responded by telling Rodella that tailgating is also a form of road rage. Rodella asked Maes why she did not pull over on the side of the road, and Maes told him that "it was dark and she could not tell who was driving behind her." Rodella informed Maes that he was responding to an emergency, and Maes said that if there was an emergency, Rodella "should have turned on his emergency lights and passed her." Rodella "asked Maes if she should go to jail," and Maes said that, if Rodella "though it was appropriate, then he should take her to jail." Rodella then walked back to his car and drove away.
Memorandum Opinion and Order at 3-7, filed September 21, 2014 (Doc. 93)("404(b) MOO")(alterations omitted)(citations omitted)(footnote omitted)(headings omitted).
The Court granted the 404(b) M...
