BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
XXX XXX ,
Defendant.
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No. CR 98-00116 TEH
DEFENDANT'S MOTION FOR RELEASE PENDING SENTENCING PURSUANT TO 18 U.S.C. § 3145(c)TO:
UNITED STATES OF AMERICA, PLAINTIFF; AND ROBERT S. MUELLER, III, UNITED STATES ATTORNEY;
AND KAREN D. BEAUSEY, ASSISTANT UNITED STATES ATTORNEY.
PLEASE TAKE NOTICE that on Tuesday February 1, 2000, defendant XXX XXX will move this Court pursuant to the Bail Reform Act, 18 U.S.C. § 3145(c), to permit his release pending sentencing.
This motion is based upon the instant notice and motion, the memorandum of points and authorities filed and served herewith, all other applicable constitutional, statutory and case authority, and such other argument and evidence as the Court may consider.
Introduction
Mr. XXX has been a model defendant in his compliance with the terms of his pretrial release. By this motion he respectfully requests the Court to permit his continued release to live with and support his elderly and ailing parents until judgment and sentencing is imposed.
Introduction
On June 4, 1998, the Grand Jury returned a four-count indictment against Mr. XXX that charged conspiracy to import opium, possession with intent to distribute opium, importation of opium, and importation of a controlled substance.
Mr. XXX has been on pretrial release since 1998, and has met all the terms of that release in an exemplary fashion. He has made every court appearance and has never appeared before this Court on an allegation a pretrial release violation.
Mr. XXX came to the United States as a political refugee when he was only five years old. His entire functional world is now circumscribed by the relatively small Mien community found in Sacramento, California. Since his arrival in the United States he has traveled abroad on one occasion; the trip to Laos that underlies the present conviction.
Mr. XXX has no prior criminal convictions or, for that matter, any prior arrests.
Mr. XXX lives with his elderly mother and father in Sacramento. His mother, who speaks little English, attended several days of the trial in a show of support for her son. Mr. XXX's father is too ill to travel to San Francisco from Sacramento.
In addition to providing financial support, Mr. XXX also supports his parents by shopping, running errands, and serving as a translator for the English-speaking world around them.
Trial on the four counts of the federal indictment began on Tuesday, January 25, 2000. On Tuesday, February 1, 2000, after a four-day trial, the jury returned a verdict of guilty on one or more of the four counts of the federal indictment.
Discussion
I. Exceptional Reasons Support Mr. XXX's Release Pending Sentencing or Appeal
Exceptional circumstances support Mr. XXX's continued release, and this Court should permit him to remain on supervision until judgment and sentence is imposed.
A. Restrictions in 18 U.S.C. § 3143: Release Pending Sentencing or Appeal
The Bail Reform Act, 18 U.S.C. § 3141 et seq., provides for the release of a defendant pending sentencing or appeal. Section 3143 of that Act permits the release of a defendant pending sentencing if "the judicial officer finds 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)." 18 U.S.C. § 3143(a).
Subsection (b) of section 3143 permits the release of a defendant pending appeal if there is clear and convincing evidence that there is no flight risk or danger to the community, and the appeal raises "a substantial question of law or fact likely to result in--(i) reversal; (ii) an order for new trial." 18 U.S.C. § 3143(b)(1)(A), (B).
Section 3143 of the Bail Reform Act admittedly places restrictions upon the release of a defendant for certain types of offenses. In "presumption" cases, the judicial officer is directed to retain the defendant pending sentencing:
(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) (1) of subsection (f)(1) of section 3142 and is awaiting imposition of execution of sentence be
detained . . . .
18 U.S.C. § 3143 (a)(2). There follows a description of two scenarios in which release is appropriate; neither of which apply in the present case. See 18 U.S.C. § 3143 (a)(2)(A)(i) and (ii).
Similarly, the statute directs the judicial officer to detain the defendant pending appeal in cases involving "presumption" offenses:
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(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) (2) 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.
18 U.S.C. § 3143(b)(2).
Thus, an initial review of the Bail Reform Act would seem to preclude Mr. XXX's release. Fortunately, in adopting the Act Congress anticipated unusual cases such as the one before the Court and authorized the pre-sentence or pre-appeal release of a defendant "for exceptional reasons." 18 U.S.C. § 3145(c).
B. Section 3145 of the Bail Reform Act Permits the Release of Defendants Otherwise Precluded by Section 3143 for "Exceptional Reasons"
Title 18 Section 3145 of the Bail Reform Act permits release after conviction if there is a showing of "exceptional reasons:"
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.
18 U.S.C. § 3145(c).
As an initial matter, it should be noted that the title of this section can be misleading. "Section 3145(c) is confusing because it is entitled 'appeal from a release or detention order.'" United States v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1991).
Despite the confusing title, courts that have considered the subsection have concluded that it provides the judicial officer in the first instance the power to release a defendant pending sentencing given exceptional reasons. "We conclude that the 'exceptional reasons' language of § 3145 may be applied by the judicial officer initially ordering such mandatory detention, despite its inclusion generally covering appeals." Id.
In United States v. Kinslow, 105 F.3d 555 (10th Cir. 1997), the Tenth Circuit considered the application of Section 3145 for release pending sentencing. The defendant in Kinslow had been convicted of a "crime of violence;" one of the enumerated "presumption" offenses in 18 U.S.C. § 3142 (f)(1) that triggers the limitations of 18 U.S.C. § 3143.
The Tenth Circuit observed that release pending sentencing was still possible for the defendant, although precluded under 18 U.S.C. § 3143--"Release or detention of a defendant pending sentence or appeal:"
Alternatively, appellant could obtain release under 18 U.S.C. § 3145(c), by meeting the conditions of release set forth in
18 U.S.C. § 3143(a)(1) and by making a clear showing of exceptional reasons why his detention would not be appropriate.
Appellant chose this route to attempt to obtain continued release pending sentencing. Under § 3143(a)(1), he was required
to show, by clear and convincing evidence, that he was not "likely to flee or pose a danger to the safety of any other person
or the community if released."
Kinslow, 105 F.3d at 557.
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Mr. XXX thus bears the burden of showing under 18 U.S.C. § 3145(c) that he meets the conditions of § 3143(a)(1) or (b)(1), and that there are exceptional reasons why his detention would not be appropriate.
C. Mr. XXX's Detention Would Not Be Appropriate
Mr. XXX satisfies the dual requirements of 18 U.S.C. § 3145(c); he meets the conditions of 18 U.S.C. § 3143(a)(1), and exceptional reasons make his detention inappropriate.
1. Conditions of 18 U.S.C. § 3143(a)(1)
The first requirement of Section 3145 is that the defendant meet the conditions of the "Release . . . of a defendant pending sentencing" statute; 18 U.S.C. § 3143(a)(1) or (b)(1).
Title 18 Section 3143(a) permits the release of a defendant pending sentence upon meeting certain requirements by "clear and convincing evidence:"
[T]he judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or
execution of sentence . . . be detained, unless the judicial officer finds 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).
18 U.S.C. § 3143(a)(1).
In the roughly two years it has taken this case to proceed to trial, Mr. XXX has demonstrated by clear and convincing evidence that he is unlikely to flee and that he poses no danger to any other person or to the community. Since he arrived in the United States at the age of five he has only made one international trip; the trip underlying the present offense. He has close ties to the Mien community in Sacramento, and extensive family ties in the area. Mr. XXX has never missed--or been late for--a court appearance before this Court or a federal magistrate. A naturalized citizen of the United States, Mr. XXX has surrendered his passport and now knows of no home outside of the Mien community in the Sacramento area.
He also poses no danger to any person or to the community. Mr. XXX has no prior convictions, and no prior arrests. His conduct while on pretrial release has been exemplary, and the government can identify no potential dangers should he be released. Two years of proven compliance with the conditions of pretrial release demonstrate by clear and convincing evidence that he is neither a flight risk nor danger to the community.
2. Exceptional Reasons Make Mr. XXX's Detention Inappropriate
A number of exceptional reasons make Mr. XXX's detention pending sentencing inappropriate.
The first, and foremost reason is the complete reliance of Mr. XXX's elderly and infirm parents upon their son's support. Mr. XXX's parents are both Mien refugees from Laos, who fled to Thailand after the Mien suffered the ravages of the Vietnam conflict and the retribution of the Laotian communist regime.
Neither parent is fluent in English, and Mr. XXX's father is too ill to make the trip to San Francisco from Sacramento. Mr. XXX acts as a care giver to his parents, providing financial support and acting as an intermediary for the pair between the Mien and English worlds.
The family must ultimately make other provisions to care for these two elderly people. Mr. XXX's continued release until sentencing will permit the family to transition into some other type of care giving environment. It will also permit Mr. XXX to continue to work and to try to save enough funds to support his parents during his incarceration.
Other exceptional reasons make Mr. XXX's detention pending sentencing inappropriate. Mr. XXX has no prior convictions, and indeed, no prior arrests. His extensive family obligations, his tenuous ability to negotiate the English-speaking world outside of the Mien community in Sacramento, and his outstanding performance while on pretrial release are each unique aspects of this case.
Finally, like co-defendant Kiam Saeteune, Mr. XXX will be seeking from this Court downward departures from the
sentencing guideline range based on the unique circumstances of his life and family obligations. In addition, with no prior
convictions, Mr. XXX is an excellent candidate for boot camp or a minimum security facility. Successful self-surrender
after sentencing would lower his security designation and help to ensure his placement in such a facility. In sum, Mr.
XXX has much to lose and little to gain by failing to maintain his exemplary performance on pretrial--or
presentence--release. These considerable disincentives for flight are additional exceptional reasons that make Mr. XXX's
detention pending sentencing unnecessary and inappropriate.
Conclusion
For the foregoing reasons, Mr. XXX respectfully requests that the Court permit his continued release pending sentencing
under 18 U.S.C. § 3145(c).
Dated: February 1, 2000
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public Defender
1. Mr. XXX has been convicted of a "presumption" offense covered in 18 U.S.C. § 3142(f)(1)(C); an offense proscribed by the Controlled Substances Act for which the maximum term of imprisonment is ten years or more. See 18 U.S.C. § 3142(f)(1)(C).
2. As described in the previous footnote, Mr. XXX has been convicted of a "presumption" offense under 18 U.S.C. § 3142(f)(1)(C).