IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
UNITED STATES OF AMERICA, ) CR 01-11-GF-DWM Plaintiff/Appellee, ) ORDER vs. ) BARRY ADAMS, ) Defendant/Appellant. ) __________________________________________On March 2, 2001, Defendant/Appellant Barry Adams moved to stay execution of sentence pending completion of the appellate process. The Order on the motion, filed on March 7, 20001 (dkt # 88), analyzed the wrong subsectionof the statute. This Order replacees the portion of the Order of March 7, 20001, that pertained to the motion to stay (dkt # 86).
18 U-S-C. 3143(b)(3.) provides:
[T}he judicial Olficer shall order that a person who has been found guilty of an offense and sentenced to a term of imprrisonment, and who has filed an appeal... 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 personor the community if released under section 3142 (b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely`to result in - -
(ii) an order for a new trial,
(iii) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
The statute creates a presumption against bail pending appeal. The- United States concedes that Adams is not likely to flee or poses a danger to others. See Gov. Resp. to Oral Mtn. (dkt #73), at 2. The United States does not contend that Adams' appeal is made for the purpose of delay. However, the Government opposes release on the grounds that the case presents no substantial question of law or fact likely to have any effect on the decision below.
In this case, the expected duration of the appeal process is longer than the term of imprisonment. The sole question is whether there is some substantial question of law or fact on the merits such that, if error were found, the error would not be harmless and would require remand for one of the purposes listed in (b) (1) (B) (i) - (iv).
"(S)ubstantial" defines the level of merit required in the question raised on appeal, while the phrase "likely to result in reversal", defines the type of question that must be presented." United States v. Handy, 761 F. 2d 1279, 1281 (9th Cir. 1985). A substantial question is one that is "fairly debatable' or "fairly doubtful." Id at 1282. It is "something more than the absence of frivolity." Id. at 1281.
Adams argues that adjudication of his case requires consideration of "many issues which are new",- such as the "Hobson's choice between attending a gathering of 22,000 People who do not believe in representatiion and the need to truthfully apply as a representative of the Rainbow Family to obtaina permit, as well as the application of "newly issued precedent," e.g. Boy Scouts of America v. Dale, 530 U.S. 640 (2000). Adams does not attempt to explain how the Boy Scouts decision is pertinent to his case, nor is its relevance too obvious to require explanation. Adams' claim of selective prosecution is not new or novel. Adams does not identify a "school of thoughts a philosophical view, a technical argument, an analogy, an appeal to precedent or to reason commanding respect that might possibly prevail." Handy, 761 F.2d at 1281 (Mtn. to Stay at 4). Adams has not adduced one. The Court sees no issue that amounts to "something more than the absence of frivolity."
Adams argues that "(t)he... facts of the current case are unique in nature and have not been heard by any other Court in all of these United States." Def. Br. at 4. However, that is not the standard. Every set of facts is unique. If that were enough, every defendant would be entitled to release pending appeal.
Accordingly, IT IS HEREBY ORDERED that the Order of March 12, 2001, is VACATED insofar as it pertains to Adams' motion for release pending appeal (dkt # 86).
The referral to Judge Cebull is also VACATED.
IT IS FURTHER ORDERED that Adams motion for release pending appeal (dkt # 86) is DENIED.
The Bureau of Prisons shall designate a facility where Adams will report and serve his sentence. Adams shall immediately pay the $500 fine by check or money order payable to "U.S. Courts -- CVB" and shall mail it to Central Violations bureau, P.O. Box 780549, San Antonio, TX 78278-0549.
DATED this 14th day of March, 20001.
DONALD W. MOLLOY, CHIEF JUDGE
UNITED STATES DISTRICT COURT
________________________________________________________________________________ U.S. Department of Justice
United States Marshals Service
District of Montana
307 Federal Building
215 let Avenue North
P. 0. Box 2224
Great Falls, Montana 59403
March 12, 2001
PO Box 8574
Missoula, MT 59807
Re: Self Surrender
Dear Mr. Adams:
The United States Bureau of Prisons has designated the following facility for your client to serve the federal sentence imposed by the Court:
PO Box 13901
Seattle, Washington 98198-1091
LOCATION: 12 miles south of Seattle, and 16 miles north of Tacoma, I mile west of Interstate 5 (200" Street exit). The SeaTac International Airport is 1 mile from the facility. Amtrak and commercial bus lines also serve the area. The street address is 2425 South 200th Street.
Pursuant to the Courts Order, please surrender to the above facility no later than 2:00 p.m., March 30, 2001.
If you have any questions, please contact this office.
WILLIAM S. STRIZICH
United States Marshal
District of Montana
signed (Rebecca Hill for)