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U.S. v. FRASER

June 27, 2001

UNITED STATES
v.
ALAN FRASER.



The opinion of the court was delivered by: Eduardo C. Robreno, United States District Court Judge.

MEMORANDUM

Before the court is defendant Fraser's pro se motion requesting bail pending appeal. The motion raises two issues: One, does this court have jurisdiction to hear defendant Fraser's motion given that an appeal from the judgment of conviction is pending in the Third Circuit; two, even if the court has jurisdiction, is Fraser entitled to relief on the merits.

For the reasons that follow, the court finds that it does have jurisdiction under 18 U.S.C. § 3143(b) to consider defendant Fraser's motion and that the court's jurisdiction is not limited by Rule 9 of the Federal Rules of Appellate Procedure. However, because 18 U.S.C. § 3143(b)(2) does not authorize the release pending appeal of a defendant who has committed a "crime of violence" and because 18 U.S.C. § 2252(a)(2), the statutory provision to which defendant Fraser pled guilty, is defined as a "crime of violence" under the Bail Reform Act, the court denies defendant Fraser's motion for application of bail pending appeal.

I.

On July 22, 1999, defendant Fraser was indicted on fourteen separate counts involving the receipt and transmittal of child pornography on the internet. The charges against defendant Fraser included one count of conspiracy to transport visual depictions of minors engaged in sexually explicit conduct, one count of interstate shipment of visual depictions of minors engaged in sexually explicit conduct, eleven (11) counts of distribution and receipt of visual depictions of minors engaged in sexually explicit conduct, and one count of possession of items containing visual depictions of minors engaged in sexually explicit conduct. At defendant Fraser's arraignment on August 19, 1999, Magistrate Judge Peter B. Scuderi ordered defendant Fraser released on $10,000 O/R bond and established the following conditions. Defendant Fraser was (1) only permitted to travel in the Eastern District of Pennsylvania, the District of New Jersey, and Harrisburg, Pennsylvania; (2) required to regularly report by telephone to Pretrial Services; and (3) surrender his passport and any firearms in his possession.

On September 20, 1999, defendant Fraser, pursuant to a plea agreement, entered a plea of guilty to count four of the indictment — transmitting via the internet visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). At the hearing in which defendant Fraser entered his plea of guilty, defendant Fraser admitted that on September 26, 1994, he uploaded child pornography on the internet and sent that pornography to eighteen (18) America Online subscribers. The court ordered that defendant Fraser be released pending his sentencing without objection by the Government on the same conditions imposed by Magistrate Judge Scuderi.

On April 19, 2000, the court sentenced defendant Fraser to seventeen (17) months imprisonment, three years of supervised release, a fine of $1,000, and a special assessment of $100. Defendant Fraser was required to self surrender on June 6, 2000 to an institution designated by the Bureau of Prisons. The court also ordered that the bail conditions imposed on defendant Fraser remain in place and included an additional condition that defendant Fraser remain under the care of Dr. McClain, a licensed clinical psychologist. The judgment of conviction was entered on April 21, 2001.

On April 24, 2000, defendant Fraser filed a notice of appeal from the judgment of conviction with the United States Court of Appeals for the Third Circuit ("Third Circuit"). On April 26, 2000, defendant Fraser filed with the Third Circuit a motion to continue bail pending appeal. On June 5, 2000, the Third Circuit without comment denied defendant Fraser's motion to continue bail pending appeal. On June 6, 2000, defendant Fraser began serving his seventeen (17) month sentence.

On April 23, 2001, defendant Fraser filed the instant pro se motion in this court requesting bail pending appeal pursuant to 18 U.S.C. § 3143(b). In his motion, defendant Fraser argues that he meets the requirements under 18 U.S.C. § 3143(b) for bail pending appeal for the following reasons. First, defendant Fraser asserts he does not pose a risk of flight or a danger to the community or any other person. Second, defendant Fraser states that his appeal is not for the purpose of delay. Third, and finally, defendant Fraser argues that his appeal raises a substantial question of law which is likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence.

The Government opposes the motion on the grounds that this court lacks jurisdiction to entertain it. The Government argues that Rule 9 of the Federal Rules of Appellate Procedure ("Rule 9") requires that the defendant must file the motion for bail pending appeal with the Third Circuit, where he has appealed the judgment of conviction entered by this court. In addition, the Government argues that defendant Fraser's motion is untimely under Local Appellate Rule 9.1 because he failed to file the motion at or near the time that he filed his appeal to the judgment of conviction. Finally, the Government argues that, even if this court had the power to hear defendant Fraser's motion, defendant Fraser has failed to meet the requirements of 18 U.S.C. § 3143 because his appeal does not raise a substantial question of law.

II.

The appropriate standard for determining whether to release or detain a defendant pending trial, sentence, or appeal is set forth in 18 U.S.C. § 3142 ("section 3142") and 3143 ("section 3143"). Section 3143 provides that a defendant who wishes to obtain an order for his release pending appeal must apply for such an order after he has been adjudged guilty, sentenced to a term of imprisonment, and filed an appeal or a petition for writ of certiorari.*fn1 See 18 U.S.C. § 3143 (b). "[A]n application for release after a judgment of conviction must be made in the first instance to the district court, notwithstanding that the jurisdiction of the court of appeals has already attached by virtue of the appeal from the judgment of conviction." United States v. Provenzano, 605 F.2d 85, 91 (3d Cir. 1979).

Whereas section 3143(b) outlines the appropriate standard and procedure for obtaining an order of release from the district court following a judgment of conviction, Rule 9(b) details the procedure for obtaining a review of such an order. Rule 9(b)*fn2 reads in pertinent part:

A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has ...

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