United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it Defendant David Swenson's Motion for Release Pending Appeal and Request for Expedited Review (Dkt. 736), Defendant Jeremy Swenson's Motion for Release Pending Appeal and Memorandum in Support and Request for Expedited Review (Dkt. 744), and Defendant Mark Ellison's Motion for Release Pending Appeal and Memorandum in Support Thereof and Request for Expedited Review (Dkt. 745). The Court ordered expedited briefing on the motions, which has now been completed. For the reasons explained below, the Court will deny the motions.
To be released pending appeal, a defendant must demonstrate that he meets certain statutory requirements: (1) that he does not pose a flight risk or danger to the community;
(2) that the appeal is not for purposes of delay; and (3) that the appeal raises a substantial question of law that is likely to result in reversal, an order for new trial, a sentence of no imprisonment, or a sentence reduced to a term of imprisonment less than the time expected for the duration of the appeal. 18 U.S.C. § 3143(b); see also U.S. v. Handy, 761 F.2d 1479 (9th Cir. 1985). The defendant bears the burden to overcome the presumption that he should be detained while his appeal is pending. United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990).
The government concedes that all three defendants are not a flight risk, and that their appeals are not for purposes of delay. The Court agrees. Thus, all three defendants satisfy the first two of the three requirements for release pending appeal. The real issue before the Court is whether the appeal raises a substantial question of law that is likely to result in reversal or an order for a new trial.
The Ninth Circuit has determined that "the word substantial' defines the level of merit required in the question raised on appeal, while the phrase likely to result in reversal' defines the type of question that must be presented." United States v. Handy, 761 F.2d 1279, 1280-81 (9th Cir. 1985). A substantial question "is one that is fairly debatable, or fairly doubtful. In short, a substantial question is one of more substance than would be necessary to a finding that it was not frivolous." Handy, 761 F.2d at 1283; see also United States v. Montoya, 908 F.2d 450, 450 (9th Cir.1990).
Collectively, the three defendants identify five main issues they intend to present on appeal. The Court will address each below.
1. 404(b) Evidence
David Swenson intends to appeal the Court's ruling to allow 404(b) evidence of non-disclosed loans. He argues that the Court erred when it admitted such evidence because his convictions for securities fraud did not contain an intent element, and because the non-disclosed loans were the only evidence "where David was said to have done something bad'" David Swenson Opening Br., p. 7 (Dkt. 736).
Other than to state that the Court has discretion when admitting 404(b) evidence, the defendant cites no support for his contention that the Ninth Circuit will order a new trial because the Court erred in admitting the evidence. Rule 404(b) evidence may be admitted to show motive, opportunity, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed.R.Evid. 404(b). Here, it is unlikely the appellate court will find that the Court erroneously admitted evidence of non-disclosed loans simply because David Swenson was convicted on counts that did not include an intent element or that it was the only evidence he had done something "bad." Moreover, the blanket statement that evidence of non-disclosed loans was the only evidence that David Swenson did something bad oversimplifies the trial record, and even if the appellate court found that the Court erred, the defendant has not met his burden of showing that it would likely result in reversal or an order for a new trial.
2. Rule 16 Discovery
The defendants intend to appeal the Court's Rule 16 ruling. Rule 16 provides for a defendant's disclosure of documents and objects by stating that if a defendant requests disclosure under Rule 16(a)(1)(E), and the government complies with that request, the defendant must disclose items within his possession, custody, or control if he wants to use them in his case-in-chief. Fed. R. Crim. P. 16(b)(1)(A). A defendant's failure to comply with discovery obligations may result in exclusion of the undisclosed evidence. Fed. R. Crim. P. ...