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United States v. Peel

April 3, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GARY E. PEEL, DEFENDANT.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

Before the Court is defendant's motion to reconsider (Doc. 141) the Court's ruling granting the government's motion for detention pending sentencing. The government has filed a response to defendant's motion (Doc. 142), and the defendant a reply (Doc. 143). The defendant asks the Court to reconsider its ruling of March 28, 2007, where the Court held that in light of his convictions in Counts 3 and 4 of the Indictment for possession of child pornography, the defendant had to be detained pending sentencing pursuant to 18 U.S.C. § 3143(a)(2).

The defendant asserts that although § 3143 mandates detention in this case, 18 U.S.C. § 3145 gives the Court the discretion to allow the defendant to remain on bond pending sentencing. The defendant, in part, bases his motion for reconsideration on his belief that the Court did not consider § 3145 in its ruling of March 28, 2007, which is incorrect. Although the Court may not have specifically mentioned § 3145, it did consider the application of that statute to the request for detention pending sentencing.

A brief review of the critical statutory language is warranted for the sake of clarity. Section 3143 provides, in pertinent part:

(a) Release or detention pending sentence.-(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence. . . be detained, unless the judicial officer finds 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. . . .

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless-

(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or

(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and

(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

Applying the plain language of this statute, before the Court can even consider the issues of flight risk, or danger to any other person or to the community, the Court must first find either that it is likely to grant a motion for acquittal or for a new trial, or that the government will not be recommending a term of imprisonment for the defendant. The Court has previously found that it is not likely to grant a new trial or a motion for an acquittal, and the record reveals that the government has repeatedly stated its intention to seek a term of imprisonment for the defendant.

Despite the mandatory language of § 3143, the defendant contends that the provisions of § 3145(c) nonetheless allow the Court to permit the defendant to remain on bond if there are "exceptional circumstances" which exist. The critical language of § 3145 is:

(c) Appeal from a release or detention order.-An appeal from a release or detentionorder, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title [title 18]. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.

The defendant asserts that although this section is entitled "appeal from a release or detention order," the Seventh Circuit has held that the court which entered the detention order may consider release issues under this statute. United States v. Herrera-Soto, 961 F.2d 645, 647 (7th Cir. 1992). The defendant further contends that the threshold requirements for release under § 3145 are the same as those under § 3143(a)(1) or (b)(1), that is, clear and convincing evidence that the defendant is not a flight risk or a danger to any other person or ...


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