The opinion of the court was delivered by: Reagan, District Judge
I. Factual and Procedural Background
Following a jury trial, Defendant Kyle Kimoto was found guilty on fourteen counts: one count of Conspiracy, one count of Mail Fraud and twelve counts of Wire Fraud. After the jury returned its verdicts, the Government moved for detention in open court. The undersigned District Judge ordered Kimoto detained pending a detention hearing. Magistrate Judge Clifford J. Proud held a detention hearing on May 29, 2008, and, on May 30th, entered an Order of Detention. Judge Proud found that Kimoto presented a flight risk because he faced a lengthy sentence and had access to substantial sums of money. He also found that Kimoto presented an economic danger to the community because the offenses for which Kimoto had been convicted in this Court were not the first time that he had engaged in fraudulent activity. Kimoto has remained in custody since that time.
On September 5, 2008, the Court sentenced Kimoto to 350 months' incarceration to be followed by five years' supervised release. On September 12, 2008, Kimoto filed a motion for bond pending appeal (Doc. 102). The motion is fully briefed and ready for disposition.
Kimoto submits that, despite the prior findings upon which his detention order was based, he meets the conditions for release pending his sentencing and appeal of his convictions pursuant to 18 U.S.C. § 3143(b). Specifically, he claims that (1) his appeal will raise "substantial question[s] of law or fact" that are likely to result in reversal, if not a new trial; and (2) there is clear and convincing evidence, given the conditions of release available, that he is neither likely to flee nor likely to pose a danger to the safety of any person or the community.
Kimoto maintains that the issues he will raise on appeal - particularly those issues related to the Government's duty to preserve electronic evidence and the consequences of its alleged failure to do so - present "close" questions. He also contends that the Court could impose conditions of release that would assure his appearance and the safety of any person or the community. Kimoto asserts that he has never been charged with a violent or drug-related crime and that, while any offense may pose a "generic" danger to the community, the Court could restrict or ban Kimoto from participating in any business and from using phones, the internet or other forms of communication.
According to Kimoto, he has never attempted to flee prosecution, and the violation of travel restrictions found by Magistrate Judge Proud was based on a misunderstanding or miscommunication with his Pretrial Services officer. Kimoto contends that the Court could assure his compliance by ordering him to wear a Global Positioning System ("GPS") that could track his whereabouts within a range of a few feet and by requiring his Pretrial Services officer to contact him, in person or by phone, more frequently. Additionally, Kimoto attaches exhibits which show that the Court can obtain substantial financial security, in excess of 2.3 million dollars, against violation of the conditions of release.
Finally, Kimoto contends that his history and characteristics weigh in his favor. He claims that he has close family and community ties to Las Vegas, Nevada, where he lives with his wife and six children, with other family members nearby. Kimoto asserts that he has no prior substantial criminal record, no history of alcohol or drug abuse and no access to substantial funds, given that he and his wife have turned over all of their assets to receivers as part of a civil judgment against them in the amount of $106,000,000.00.
The Government responds that Kimoto already had a hearing to review his bond and failed to establish that he was not a flight risk and danger to the community. Since the Government previously briefed and argued two prongs of 18 U.S.C. § 3143(b), danger to the community and flight risk, it does not reargue those issues here but rests on the record. However, the Government addresses at length the question of whether Kimoto's appeal presents a "substantial question of law or fact." First, the Government asserts that the Court found no evidence that it engaged in rampant destruction of evidence. Second, the Government contends that, by failing to seek a continuance, Kimoto waived or forfeited appellate consideration of his argument that the Government violated his rights by failing to provide forensic images of various hard drives.
In Kimoto's reply, he contends that the Government, by standing on the record, has waived any objections to newly asserted, specific conditions of release that would ensure that he is not a flight risk. Kimoto also argues that, on two occasions, the Court showed doubt about its decision on his motion to dismiss and, thus, indicated that the outcome presented a "close" issue. Kimoto reiterates his arguments regarding the Government's duty to preserve electronic evidence. He also maintains that there has been no waiver of appellate rights regarding the digital evidence.
Section 3143(b), enacted as part of the Bail Reform Act of 1984, provides in pertinent part that a defendant who has been found guilty and sentenced to a term of imprisonment, must be detained pending appeal unless the defendant is not a flight risk or a danger to the community and the court finds "that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in ... reversal [or] an order for a new trial...." 18 U.S.C. § 3143(b)(1)(B); see United States v. Shoffner, 791 F.2d 586, 588 (7th Cir. 1986) (per curiam). As a convicted defendant, Kimoto bears the burden of showing "by clear and convincing evidence" that he is "not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to § 3142(b) or (c)." United States v. Queen, 847 F.2d 346, 350-51 (7th Cir. 1988) (citing 18 U.S.C. § 3143); United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir. 1985). In United States v. Greenberg, Judge Posner explained that "'substantial' ... must mean that the appeal could readily go either way." 772 F.2d 340, 341 (7th Cir. 1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) (per curiam). "[T]he practical reality [is] that not every difficult decision constitutes a 'close call' and thus a 'substantial question' for purposes of § 3143(b)." United States v. Warner, WL 2931903, 6 (N.D.Ill. 2006).The district court must provide a statement of its reasons supporting its ruling on a motion for release pending appeal.United States v. Eaken, 995 F.2d 740, 741 n. 1 (7th Cir. 1993) (citingFED.R.APP.P. 9(b)).
A. Flight Risk and Danger to the ...