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