Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Carlson

United States District Court, W.D. Washington, Tacoma

May 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GERALD C. CARLSON, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR BOND PENDING APPEAL

          RONALD B. LEIGHTON, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendant Carlson's renewed Urgent Motion for Release Pending Appeal [Dkt. #61-1, No. 18-30096]. Carlson initially filed his motion in the Ninth Circuit, and that court referred the motion here to consider whether exceptional circumstances for bail pending appeal exist under 81 U.S.C. § 3145(c) [Dkt. #87, No. 18-30096]. The Court has reviewed the materials, including the Declaration of Dr. James Pelton [Dkt. #90]. For the following reasons, the Motion for Release Pending Appeal is DENIED.

         I. FACTS

         Magistrate Judge Creatura entered an order releasing Carlson on bond pending his trial. [Dkt. Nos. 16, 17, 20, 22]. While he was on bond, Carlson committed two violations of the terms of his release. On October 12, 2017, the magistrate judge found that Carlson violated the terms of his bond by using controlled substances. [Dkt. #35]. On December 12, 2017, the magistrate judge found that he violated the terms of his bond by using alcohol. [Dkt. #37].

         A jury found Carlson guilty of one count of possessing 50 grams or more of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The jury also found Carlson guilty of possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and (2). This Court remanded Carlson to custody immediately after the jury's guilty verdicts. [Dkt. #61].

         This Court entered judgment and sentenced Carlson to 180 months of imprisonment, the mandatory minimum sentence applicable to Carlson's offenses. [Dkt. #77]. He has not previously sought release pending appeal. His sentence on the narcotics count alone was 120 months. [Dkt. #77].

         II. THE MOTION

         Carlson now moves for release pending appeal. To date, the opening and answering briefs have been filed with the Ninth Circuit and Carlson's reply brief is due shortly. See United States v. Carlson, C.A. No. 18-30096. In his motion, Carlson argues that he has a hip condition that, together with his congestive heart failure and diabetes, constitutes exceptional circumstances justifying his release.

         III. ANALYSIS

         In general, persons convicted of federal crimes are not eligible for release pending appeal unless a court 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 . . . 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 (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.'” United States v. Garcia, 340 F.3d 1013, 1015 (9th Cir. 2003) (emphasis added) (quoting 18 U.S.C. § 3143(b)(1)). “A substantial question is ‘fairly debatable,' or ‘fairly doubtful.'” United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985) (internal citations omitted) (substantial question must be “one of more substance than would be necessary to a finding that it was not frivolous.”) (quotation omitted).

         Thus, while a defendant is presumptively entitled to release before trial, Congress, through Section 3143(b), presumes detention after an adjudication of guilt. Quoting the legislative history, the Second Circuit has explained that, “‘[o]nce guilt . . . has been established[, ] there is no reason to favor release pending imposition of sentence or appeal.' . . . [T]he government [has a] strong and obvious . . . interest in detaining defendants who have been found guilty beyond a reasonable doubt of serious crimes: such detention promotes public safety by removing a presumptively dangerous person from the community; it also encourages general respect for the law by signaling that a guilty person will not be able to avoid or delay imposition and service of the sentence prescribed by law.” United States v. Abuhamra, 389 F.3d 309, 319-320 (2d Cir. 2004) (quoting S. Rep. No. 225, 98th Cong., 1st Sess. 26 (1983)).

         More importantly, for defendants like Carlson, who have been convicted of narcotics offenses that carry a maximum penalty of ten years or more of imprisonment, detention following a guilty verdict is mandatory. See 18 U.S.C. § 3143(b)(2) and 18 U.S.C. § 3142(f)(1)(C). Such defendants are only eligible for bond pending appeal if, in addition to the showing required under 18 U.S.C. § 3143(b)(1), the defendant also “clearly show[s]” that “exceptional reasons” justify release pending appeal. 18 U.S.C. § 3145(c); see also Garcia, 340 F.3d at 1015 (“exceptional reasons” requirement is “an additional condition” imposed by § 3145(c)); United States v. Larue, 478 F.3d 924, 925 (8th Cir. 2007) (“the only possible avenue of post-trial release would be the showing of the existence of ‘exceptional reasons why [his] detention would not be appropriate'”) (emphasis added) (quoting § 3145(c)).

         Carlson has not met either the general standard or the one that applies to defendants who have been convicted of serious drug offenses. He has not met the general standard because he cannot satisfy the general test for bond pending appeal. He has not shown by clear and convincing evidence that he is unlikely to pose a danger to the safety of the community in light of his use of controlled substances when he was released pending trial. While he contends that he had only minor violations of the terms of his supervised release, his use of controlled substances is a signal that he remained involved in the drug world, which poses a risk to the community. Additionally, Section 3145(c) requires a higher showing for serious drug offenses because they are presumed dangerous to the community.

         And, given the length of his sentence, Carlson also has incentive to flee. Although he suffers from medical conditions, this alone will not keep him ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.