United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it Defendant Douglas L. Swenson's Motion for Release Pending Appeal (Dkt. 761). Doug Swenson's co-defendants filed similar motions several weeks ago, which the Court denied. For the reasons explained below, the Court will deny Doug Swenson's motion as well.
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).
1. Flight Risk
Swenson has the burden to show by clear and convincing evidence that he is not a flight risk. 18 U.S.C. § 3143(b)(1)(A). The Government suggests Swenson has not met that burden because he is a 66-year-old man facing 240 months of prison, has been ordered to forfeit a massive sum of money, and as illustrated by the outcome of the trial has regularly engaged in calculated dishonesty and deceit for his own personal gain. The Government therefor suggests Swenson has every reason to flee.
The Court agrees that generally once a defendant has been convicted and sentenced to a long term of imprisonment, especially a defendant in his mid-60s, he has more reason to flee than he did during trial or before sentencing. However, the Court still finds that Swenson has met his burden of showing that he is not a flight risk. Notwithstanding the general assumption that someone in his position may want to flee, Swenson has significant ties to his community, has never missed a court appearance, and has no previous convictions. Moreover, based upon post-trial motions and other issues raised during trial, it seems clear to the Court that Swenson appears to believe he has hope in his appeal, which could be seriously disrupted if he fled. Accordingly, the Court finds that Swenson has met his burden of showing by clear and convincing evidence that he is not a flight risk.
Swenson has the burden of showing that he is appealing his conviction for purposes other than delay. Swenson does have a history of attempting to delay post-trial proceedings as the Government suggests. He delayed the forfeiture hearing because apparently neither of his attorneys were available for an earlier hearing, he asked to self-surrender beyond the typical 4-6 week reporting window (the Court granted that request), he sought a significant delay in the middle of the forfeiture hearing, and he asked the Court to stay all post-trial proceedings pending his interlocutory appeal on a meritless issue which the Ninth Circuit summarily denied. Significantly and somewhat gallingly, Swenson also waited almost a month after his sentencing to file his pending motion for release pending appeal - which contained an overlength brief - and requested that either the matter be fully briefed and decided by the Court within one week or that the Court grant him a 30-day extension on his report date. Although any one of these events, by itself, may not suggest Swenson sought to delay the proceedings, taken together they show a consistent theme of delay tactics.
But Swenson's delay tactics suggest he was trying to delay his sentencing and his report date, not that he filed his appeal for purposes of delay. As the Court noted above, Swenson appears to believe he has hope in his appeal, and the issues he intends to raise in his appeal are not merely frivolous. Accordingly, Swenson has met his burden of showing he is appealing his conviction for purposes other than delay.
3. Substantial Questions of Law or Fact
As the Court explained in its Order denying Swenson's co-defendants' motions for release pending appeal, 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).
Swenson identifies seven issues he intends to present on appeal, but his briefing only discusses four of those issues. The Court will address the ...