U.S. v. Rose

Full title: UNITED STATES OF AMERICA, Plaintiff, v. DANIEL T. ROSE, Defendant

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Apr 18, 2005

Criminal No. 3:03-CR-189-D (N.D. Tex. Apr. 18, 2005)

Opinion

Criminal No. 3:03-CR-189-D.

April 18, 2005

MEMORANDUM OPINION AND ORDER

SIDNEY FITZWATER, District Judge

Defendant Daniel T. Rose ("Rose") moves the court pursuant to 18 U.S.C. § 3143(b) or (c)¹ for release pending appeal and for a stay of the fine and special assessment imposed as part of his sentence. For the reasons that follow, see Fed.R.App.P. 9(a)(1) and (b),² the court denies the motion.

1 18 U.S.C. § 3143(c) does not appear to apply at this juncture, and the court will address the motion under § 3143(b).

2 Under Rule 9(b), the court must comply with the requirements of Rule 9(a). Rule 9(a)(1) provides, in pertinent part, that the court must state in writing the reasons for an order regarding the detention of a defendant in a criminal case.

Section 3143(b) provides that a defendant who has been found guilty of an offense and sentenced to a term of imprisonment shall be detained unless the judicial officer finds, inter alia, that the appeal raises a substantial question of law or fact.³ A substantial question of law or fact is one that is nonfrivolous and novel, raising substantial doubt as to the outcome of its resolution, with the defendant required to show that a contrary appellate ruling would more probably than not result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or 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. See § 3143(b)(1)(B)(i)-(iv); United States v. Valera-Elizondo, 761 F.2d 1020, 1022-25 (5th Cir. 1985).

3 The other elements of § 3143(b) are not pertinent. Rose does not present a risk of flight or pose a danger to the community, and he is not prosecuting this appeal for purposes of delay.

Rose asserts three grounds concerning his conviction and one ground concerning his sentence as bases for obtaining release pending appeal. None is sufficient alone, nor are they adequate in the aggregate, to demonstrate a substantial question of law or fact under the standard as explained in Valera-Elizondo. The evidence is sufficient to support the verdict, the court did not err in giving an Allen charge (and Rose has failed to demonstrate coercion or prejudice), and Rose's sentence is reasonable.

* * *

Rose's March 28, 2005 motion for release pending appeal and for stay of fine imposed is denied.

SO ORDERED.