United States District Court, M.D. Pennsylvania
SYLVIA H. RAMBO, District Judge.
In this criminal case, Defendant Joseph W. Nagle, who was convicted of 26 counts related to his participation in a massive fraud on the Disadvantaged Business Enterprises program, filed a motion requesting his continued release from incarceration pending appeal (Doc. 324), which is opposed by the Government (Doc. 328). The court finds that Defendant has failed to demonstrate a valid basis to grant his request, and will accordingly deny the pending motion.
For the purposes of this motion, the court only briefly summarizes the relevant background; a more detailed version can be found in the court's opinion regarding Defendant's post-trial motions (the "Post-Trial Memorandum"). See United States v. Nagle, Crim. No. 09-cr-0384-01, Doc. 259, 2013 WL 3894841 (M.D. Pa. July 26, 2013).
On November 19, 2009 Defendant was charged in a 32 count indictment for his role in a massive fraud involving over 300 federally assisted government contracts. (Doc. 1.) Defendant filed pre-trial motions, including a motion to suppress electronic evidence which was seized pursuant to a search warrant. (Doc. 41.) This court denied the motion on September 1, 2010. (Doc. 89.)
A trial on the charges commenced on March 12, 2012, and the jury returned a guilty verdict on 26 counts on April 5, 2012. (Doc. 197.) On April 18, 2012, Defendant filed post-trial motions pursuant to Federal Rules of Criminal Procedure 29 and 33. (Doc. 198.) The brief in support of the motion asserted numerous claims, including arguments that: (1) the court erred in denying the Defendant's motion to suppress; (2) the court erred in giving a willful blindness instruction; and (3) the court erred in denying Defendant's motion for judgment of acquittal on the money laundering convictions due to the court's erroneous interpretation of United States v. Santos, 553 U.S. 507 (2008) and United States v. Cloud, 680 F.3d 396 (4th Cir. 2012). (Doc. 222.) The court denied Defendant's motion in its entirety. See Nagle, 2013 WL 3894841.
On May 7, 2014, the court issued an opinion overruling Defendant's objections to the loss calculation, in which the court determined that the amount of loss for sentencing guideline purposes was the entire face value of the government benefits obtained by Marikina as a result of the fraudulent contracts. United States v. Nagle, Crim. No. 09-cr-0384-01, Doc. 281, 2014 WL 1808193 (M.D. Pa. May 7, 2014). The court indicated its intention to apply a corresponding 24-level increase to Defendant's offense level, pursuant to U.S.S.G. § 2B1.1. Id.
On June 30, 2014, after reiterating its conclusion that the loss attributable to Defendant's conduct was $53.9 million, the court granted a variance and a departure on the basis that the guideline range overstated the seriousness of the offense and sentenced Defendant to undergo a term of imprisonment of 84 months and to pay a fine of $25, 000.00. (Doc. 297.) The court also granted Defendant's request to surrender voluntarily, and directed Defendant to self report on September 29, 2014. ( Id. at p. 3 of 7.) Defendant filed his notice of appeal on July 1, 2014. (Doc. 301.)
On September 3, 2014, Defendant filed the instant motion for release pending appeal. (Doc. 324.) The Government filed its brief in opposition on September 15, 2014. (Doc. 328.) The matter has been sufficiently briefed and is appropriate for disposition.
II. Legal Standard
Defendant's motion is governed by 18 U.S.C. § 3143(b), which provides, in pertinent part, as follows:
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer 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 under ...