Opinion
No. CR 10-1942-TUC-CKJ
02-23-2017
United States of America, Plaintiff, v. Anthony Mark Boscarino, Defendant.
ORDER
Pending before the Court is the Motion for Release Pending Appeal (Doc. 391) filed by Anthony Mark Boscarino ("Boscarino"). The government has filed a response and Boscarino has filed a reply. Also pending before the Court is Boscarino's Motion for Prompt Ruling on Motion for Bail on Appeal Setting Conditions of Release (Doc. 397).
Boscarino requests this Court to allow him to be released from custody pending appeal. He points out that he is not seeking a reduction in sentence with this request and acknowledges that, if his appeal is unsuccessful, he may have to surrender and serve the remainder of his sentence.
The applicable statute provides, inter alia:
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal . . . be detained, unless the judicial officer finds -
(A) 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) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in --
18 U.S.C. § 3143(b).(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
"Although danger to the community and flight risk are threshold factors under § 3143(b)(1)(A), in that context the court considers only whether the defendant has proved by clear and convincing evidence that he is 'not likely' to flee or pose a danger to others." United States v. Garcia, 340 F.3d 1013, 1021 n. 6 (9th Cir. 2003); United States v. Wheeler, 795 F.2d 839 (9th Cir. 1986) (appellant/defendant has burden of showing he is not a flight risk or a danger to any person or the community). In his Motion, Boscarino asserts that he had substantially complied with his pre-trial release; indeed the Pretrial Services Officer had testified that he had, at times, authorized Boscarino to have lunch with his family and vary slightly from the conditions. However, Boscarino does not assert that he had permission to deviate from the release conditions on the date for which his conduct resulted in the revocation of his release. Since the revocation of release and the order of detention, Boscarino has remained in custody through the proceedings, which are now on appeal. Boscarino asserts clear and convincing evidence establishes that he is not likely to flee nor pose a danger to the safety of any other person or the community.
Boscarino points out that he is currently housed at a facility with no fences and approximately 30 miles from U.S.A.-Mexico border; nonetheless, Boscarino has remained at the facility. However, Boscarino's history includes not only that he failed to follow his release conditions, but also Boscarino also apparently attempt to manipulate the system by arguing that other approvals or inconsistent enforcement by the Pretrial Services Officer constituted implicit approval for Boscarino to unilaterally decide when to violate his release conditions. This calls into question the implications that may be raised by Boscarino's remaining at the facility. The Court concludes clear and convincing evidence does not establish that Boscarino is not likely to flee.
Boscarino similarly asserts clear and convincing evidence establishes that he would not pose a danger to any person or to the community should he be released pending appeal. However, Boscarino's established willingness to skirt release conditions, along with his gambling addiction, refutes Boscarino's assertion there is clear and convincing evidence that he would not pose a danger to any person or to the community. Rather, there is no basis to conclude Boscarino would not engage in the same type of conduct which formed the bases for his convictions. See e.g. United States v. Seide, 492 F. Supp. 164, 167 (C.D. Cal. 1980) (Defendant would "engage in the same type of fraud, deceit, deception, and "con-activities" that formed the basis for the income which he failed to report and for which failure he was prosecuted in this case. This threat constitutes a definite, clear and present danger."); United States v. Provenzano, 605 F.2d 85, 95 (3d Cir. 1979) (citations omitted) (Courts that have addressed the danger to the community provision "are not confined in such cases to considering only harms involving an aura of violence. We agree and hold that a defendant's propensity to commit crime generally, even if the resulting harm would be not solely physical, may constitute a sufficient risk of danger to come within the contemplation of the Act."). The Court finds clear and convincing evidence does not establish Boscarino is not likely to pose a danger to the safety any person or the community.
The Court finds Boscarino's appeal is brought in good faith and not for the purpose of delay.
Even if clear and convincing evidence had established that Boscarino is not likely to flee or pose a danger to the safety of any other person or the community if released, the Court finds release pending appeal is not appropriate. As previously stated, the appeal must raise a substantial question of law or fact likely to result in a reversal (or other favorable result as set forth in the statute). A "substantial question" is one that is fairly debatable or fairly doubtful. It is a question of more substance than would be necessary to a finding it was not frivolous. Garcia, 340 F.3d 1013 (9th Cir. 2003); United States v. Montoya, 908 F.2d 450 (9th Cir. 1990). The type of question that must be presented is one that is "likely to result in a reversal . . . " United States v. Handy, 761 F.2d 1279, 1280 (9th Cir. 1985). This second part of the inquiry "concerns only the type of question that meets the requirement; it does not involve assessing the likelihood that a reversal will occur in the particular case." Garcia, 340 F.3d at 1020, n. 5, citing Handy, 761 F.2d at 1280. In other words, under this part of the inquiry, a defendant need only present "a non-frivolous issue that, if decided in the defendant's favor, would likely result in reversal or could satisfy one of the other four conditions." Id.
While a defendant does not need to demonstrate at the outset of the appellate proceedings that the appeal will probably result in a reversal, a defendant must argue that the "'chance for reversal is substantial.'" Handy. 761 F.2d at 1280, quoting S.Rep. No. 98-225, 98th Cong., 2d Sess. 27 reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3210. The Handy court also stated: "The question may be 'substantial' even though the judge or justice hearing the application for bail would affirm on the merits of the appeal. The question may be new and novel. It may present unique facts not plainly covered by the controlling precedents. It may involve important questions concerning the scope and meaning of decisions of the Supreme Court. The application of well-settled principles to the facts of the instant case may raise issues that are fairly debatable." Id. at 1281, quoting D'Aquino v. United States, 180 F.2d 271, 272 (11th Cir.1950). --------
Boscarino asserts that his appeal raises substantial questions of law and fact which are likely to result in a reduced term of imprisonment less than the total time already served plus the expected duration of the appeal process. Although Boscarino has summarized the arguments he has raised on appeal, he has not shown these arguments are likely to result in a reversal or resentencing. Indeed, he has not shown he is presenting a substantial question; in other words, Boscarino has not shown a substantial question that is "fairly debatable" or "fairly doubtful." Boscarino has failed to identify a "substantial question of law or fact" likely to result in reversal or a new sentencing. 18 U.S.C. § 3143(b)(1)(B). Rather, Boscarino's assertions that his sentence may be significantly reduced is speculative.
The Court concludes that Boscarino's appeal does not raise a "substantial question of law or fact" because he has not raised an issue that is "fairly debatable" or "fairly doubtful." The essence of Boscarino's appeal is that this Court should have applied proposed amendments to the then-effective Sentencing Guidelines, that this Court erred in its application of the Sentencing Guidelines (e.g., two-level increase for obstruction of justice) and that his term of imprisonment may be reduced (e.g., based on good time credits or placement in a halfway house). The Court finds the appeal issues are not fairly debatable or doubtful.
Boscarino asserts this Court has not timely addressed his request for bail while this matter is pending. Boscarino asserts this matter has been fully briefed and pending for more than 60 days. However, on January 30, 2017, Boscarino filed a Supplement to Reply to the Government's Opposition to Motion for Appeal Bond (Doc. 396). In other words, this issue has only been fully briefed and pending before this Court since January 30, 2017; i.e., this matter has been pending before this Court for 24 days. Moreover, the case relied upon by Boscarino for his assertion that his release is appropriate as a sanction for the failure to review promptly the order of his detention was addressing pre-trial detention rather than release while an appeal is pending. United States v. Fernandez-Alfonso, 813 F.2d 1571, 1574 (9th Cir. 1987). Boscarino has not provided any authority that release while an appeal is pending is warranted if and when a review is untimely. The Court finds the timeliness of the review in this case does not warrant Boscarino's release while his appeal is pending.
Accordingly, IT IS ORDERED:
1. The Motion for Prompt Ruling on Motion for Bail on Appeal Setting Conditions of Release (Doc. 397) is GRANTED to the extent the Court issues its ruling herein. The Motion (Doc. 397) is DENIED as to the request Boscarino's release while his appeal is pending be ordered because of an untimely review.
2. Boscarino's Motion for Release Pending Appeal (Doc. 391) is DENIED.
DATED this 23rd day of February, 2017.
/s/_________
Cindy K. Jorgenson
United States District Judge