Opinion
Case No. 98-20030-JWL
September 18, 2001
MEMORANDUM ORDER
Dan Anderson, Ronald LaHue and Robert LaHue move this court to stay their sentences of imprisonment pending a determination by the Supreme Court on their petitions for certiorari (Docs. 714, 716 and 718). Section 3143(b)(1) of Title 18 provides that a defendant "who has filed an appeal or a petition for a writ of certiorari" shall be detained unless the court 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" and that "the appeal is not for the purpose of delay and raises a substantial question of law" likely to result in, among other things, an order for a new trial. 18 U.S.C. § 3143 (b)(1).
The government apparently concedes that the defendants are not likely to flee or pose a danger to the safety of any other person or the community and the court finds this to be the case based on the defendants' compliance with their conditions of bond since sentencing, their sentences of imprisonment having been stayed pending a decision by the Tenth Circuit on appeal. The government suggests, instead, that the petition for certiorari must have been filed for the purpose of delay because there is no substantial question of law likely to result in a remedy listed in the statute, including a new trial. The court disagrees. "`[A] `substantial question' is one of more substance than would be necessary to a finding that it was not frivolous. It is a `close' question or one that very well could be decided the other way.'" United States v. Affkeck, 765 F.2d 944, 952 (10th Cir. 1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). Whether the "one purpose" rule is the appropriate test for implementing criminal liability under 42 U.S.C. § 1320a-7b(b), the "Anti-kickback Statute," in the opinion of this court, fits the definition of a substantial question of law. In deciding the issue, this court felt that it could very well be decided the other way, that it was a relatively "close call." While there may not be a true conflict among the circuits, that fact goes more to the likelihood of the Supreme Court granting certiorari than to the question of whether the defendants present a "substantial question" of law in their petitions. The court concludes that the issue is a substantial question of law and that the petitions for certiorari were not filed for the purpose of delay. The court also believes that if the Supreme Court were to hold that the "one purpose" rule should not be applied that the defendants would be entitled, at least, to a new trial.
IT IS THEREFORE ORDERED that the defendants' motions to stay their sentences of imprisonment pending a determination by the Supreme Court on their petitions for certiorari (Docs. 714, 716 and 718) are granted.
IT IS SO ORDERED.