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U.S. v. BROWN

February 10, 2005.

UNITED STATES OF AMERICA
v.
FRANKLIN C. BROWN.



The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM

Before the court is Defendant's Motion for Bail Pending Appeal (Doc. 772). In the motion, Defendant offers five issues that he asserts justify his release from incarceration during appeal under 18 U.S.C. § 3143(b)(1). The court recently granted Defendant's motion in part. (See Doc. 784.) Specifically, the court concluded that its decision to rule the United States Sentencing Guidelines (the "Guidelines") unconstitutional as applied to this case in light of Blakely v. Washington, 124 S. Ct. 2531 (2004) presented a substantial question of law that could have resulted in a significant modification of Defendant's sentence. The court stayed Defendant's sentence until the Supreme Court issued its anticipated decision regarding Blakely's impact on the Guidelines and deferred ruling on the remaining four issues in Defendant's motion.

On January 12, 2005, the Supreme Court rendered an opinion in United States v. Booker, 125 S. Ct. 738 (2005), which addressed the effect of Blakely on the Guidelines. The court ordered briefing on Booker's impact on Defendant's Motion Page 2 for Bail Pending Appeal. These issues have now been briefed, and the matter is ripe for disposition.

  Upon consideration of the parties' arguments, the court concludes, for the reasons set forth below, that in light of the Supreme Court's ruling in Booker, the court's handling of Blakely as it applied to this case no longer presents a substantial question of law that could result in a significant modification of Defendant's sentence. Additionally, the court finds that Defendant's four remaining arguments do not justify a release from incarceration pending appeal. Thus, as explained in further detail below, the court will deny Defendant's motion.

  I. Background

  The background of the instant motion is well-known to the parties and will not be reiterated in detail. The relevant facts are as follows. On June 21, 2002, Defendant was indicted on 36 counts for various offenses including conspiracy, false statements, and obstruction of justice. Defendant, along with a co-defendant, Martin Grass, filed a pretrial motion to suppress evidence of tape-recorded conversations he had with an undercover government informant. Defendant argued that the Assistant United States Attorney, Mr. Kim Daniel, obtained the recorded conversations in violation of Rules 4.2 and 8.4(a) of the Pennsylvania Rules of Professional Conduct. These rules, known as the "no-contact" provisions, prevent an attorney from communicating with a party who is represented by another attorney. In 1998, the McDade Amendment made federal prosecutors accountable to such state laws. See 28 U.S.C. § 530B. The court denied Defendant's motion on the ground that Mr. Daniel's conduct did not violate Pennsylvania's "no-contact" rules. The court Page 3 concluded that Mr. Daniel's actions fell within an exception to such rules in that they were "authorized by law." See United States v. Grass, 239 F. Supp. 2d 535, 542 (M.D. Pa. 2003). Additionally, the court concluded that even if Mr. Daniel had violated the "no-contact" rules, suppression of the tapes was not an appropriate remedy. Id. at 539.

  Defendant stood trial alone in September 2003 on eleven counts.*fn1 On October 17, 2003, a jury returned a special verdict form convicting Defendant on ten counts, Counts 1, 10, 12-15, and 33-36. Following trial, Defendant filed motions for judgment of acquittal and for a new trial. One of Defendant's arguments for a new trial was that the court improperly instructed the jury on the elements of aiding and abetting with respect to Counts 10 and 12-15. Although the court conceded that the aiding and abetting instruction was erroneous, the court concluded that a new trial was not warranted. United States v. Brown, No. 1:CR-02-146-02, slip op. at 33-34 (M.D. Pa. May 6, 2004). The court found that Defendant had not objected to the wording of the instruction in question; therefore, the court employed a plain error, as opposed to a harmless error, standard. Id. at 39. Under this standard, the court determined that the plain error that occurred was not prejudicial to the outcome of the trial because the jury's special findings independently supported Defendant's guilt under a Pinkerton theory of liability. Id. at 45. Thus, the court denied Defendant's motion for a new trial on this issue.

  Following the court's disposition of Defendant's post-trial motions, Defendant filed a supplemental post-trial motion seeking examination of taperecorded evidence that was used at Defendant's trial to determine whether the Page 4 Government tampered with the tapes. Defendant had hired three experts who detected anomalies with copies of the tapes and therefore believed that an analysis of the original tapes was warranted. The court rejected Defendant's arguments for three reasons. First, during Defendant's trial, defense counsel retained a forensic audio specialist who examined copies of three of the original tapes and decided not to pursue the matter. United States v. Brown, No. 1:CR-02-146-02, slip op. at 2 (M.D. Pa. Aug. 16, 2004). Second, Defendant was unable to provide any suggestion that the allegedly tampered portions were played to the jury. Id. at 3. Finally, because Defendant's experts had discovered anomalies on their copies that did not exist in previous copies, the court concluded that the anomalies were the product of copying error. Id. at 3. Thus, the court denied Defendant's supplemental post-trial motion.

  Before Defendant's sentencing, the court issued a memorandum and order resolving the objections to Defendant's presentence report. In that memorandum, the court concluded that the Guidelines were unconstitutional as applied to this case in light of the Supreme Court's decision in Blakely. United States v. Brown, No. 1:CR-02-146-02, slip op. at 2 (M.D. Pa. Aug. 17, 2004). Therefore, the court used a discretionary scheme to sentence Defendant, but relied on the Guidelines as "a measuring point to evaluate the seriousness of the offenses as well as the particular role that Defendant played in the commission of those offenses." Id. at 3. In resolving Defendant's objections to the presentence report, the court found that Defendant's Guidelines sentence would have fallen within the range of 121 to 151 months. Id. at 15.

  In so deciding, the court considered whether Defendant's sentence should be reduced due to his advanced age and physical condition. The court Page 5 weighed testimony from experts presented by both parties and concluded that the Bureau of Prisons could provide appropriate medical care for a person of Defendant's age and medical condition. Id. at 14-15. Defendant also argued for a departure in consideration of his charitable and civic contributions. The court, however, denied Defendant's request, reasoning that Defendant's civic contributions, while laudatory, were not extraordinary for a person of Defendant's significant financial resources. Id. at 14. At Defendant's sentencing, the court again considered these arguments as well as an argument that Defendant was vulnerable to abuse in prison. (See Tr. of Oct. 14, 2004 Sentencing, Afternoon Session at 2-3.) Defendant was unable to persuade the court that a departure on these grounds was justified. (Id.)

  On October 14, 2004, Defendant was sentenced to 120 months imprisonment. Defendant's voluntary surrender date was set for December 13, 2004. The instant motion was filed in the interim, and as stated above, the court granted the motion in part on December 6, 2004. The court stayed Defendant's sentence until the Supreme Court issued its then-impending decision regarding the impact of Blakely. The Supreme Court rendered an opinion in United States v. Booker, 125 S. Ct. 738 (2005) on January 12, 2005. The next day the court ordered briefing on Booker's effect on the instant proceedings. This issue, along with the other issues originally presented in Defendant's Motion for Bail Pending Appeal, are now ripe for disposition.

  II. Legal Standard: Release Pending Appeal Page 6

  A motion for release pending appeal is governed by 18 U.S.C. § 3143(b)(1).*fn2 In United States v. Miller, 753 F.2d 19 (3d Cir. 1985), the Third Circuit laid out the relevant legislative principles that led to the enactment of § 3143(b)(1). Section 3143(b)(1) came to fruition through the Bail Reform Act of 1984. Miller, 753 F.2d at 22. This act modified the standard for bail pending appeal because "Congress wished to reverse the presumption in favor of bail that had been established under the prior statute, the Bail Reform Act of 1966." Id. The Third Circuit cited the following as among the reasons that Congress disapproved of the prior standard:

  [O]nce a person has been convicted and sentenced to jail, there is absolutely no reason for the law to favor release Page 7 pending appeal or even permit it in the absence of exceptional circumstances. . . . [T]he conviction, in which the defendant's guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law, a presumption factually supported by the low rate of reversal of criminal convictions in the Federal system.

 Id. (internal quotation omitted). Thus, Congress created § 3143(b)(1) to establish a "more stringent rule for bail pending appeal," but not "to deny bail entirely to persons who appeal their convictions." Id.

  In order to fall within the "exceptional circumstances" that warrant bail pending appeal, the Miller court held that a defendant has the burden of proving: (1) that he is not likely to flee or pose a danger to the safety of any other person or the community if released; (2) that the appeal is not for purposes of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that if the substantial question is determined favorably to him on appeal, that decision is likely to result in reversal, an order for a new trial, a sentence that does not include a term of ...


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