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United States v. Rachel

United States District Court, D. Arizona

July 27, 2015

United States of America, Plaintiff,
v.
David P. Rachel, Defendant.

ORDER

NEIL V. WAKE, District Judge.

Before the court is Defendant David Rachel's Amended Motion for Release Pending Appeal (Doc. 858). For the reasons that follow, the Motion will be denied.

Rachel was convicted on October 8, 2014, of one count of conspiracy and twelve counts of money laundering. (Doc. 506.) On March 30, 2015, the court sentenced Rachel to concurrent terms of thirty-six months on the conspiracy count and the money laundering counts, followed by three years of supervised release. (Doc. 704; Doc. 716 at 1.) After filing a Notice of Appeal (Doc. 717) on April 1, 2015, Rachel submitted a Motion for Release Pending Appeal (Doc. 792) on May 27, 2015, which he renewed on June 24, 2015 (Doc. 858). The Government opposes the Motion. (Doc. 818.)

The Bail Reform Act of 1984 establishes a presumption that convicted defendants will be detained pending appeal:

(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 section 3142(b) or (c) of this title [18 USCS § 3142(b) or (c)]; 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-
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment,
or
(iv) 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.

18 U.S.C. § 3143(b). For purposes of § 3143(b)(1)(B), "the word substantial' 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"-i.e., whether the alleged error is reversible or merely harmless. See United States v. Handy, 761 F.2d 1279, 1281 (9th Cir. 1985). A "substantial question' is one that is fairly debatable' or fairly doubtful.' In short, a substantial question' is one of more substance than would be necessary to a finding that it was not frivolous." Id. at 1283 (citations and some internal quotation marks omitted).

Here, Rachel argues his appeal presents a number of "substantial questions" of law or fact that are likely to lead to reversal. Several of Rachel's proposed questions are simply attempts to relitigate matters on which the court has already ruled. The court determined before trial, for example, that Federal Rule of Criminal Procedure 14 did not require severing Rachel's trial from those of his co-defendants. (Doc. 359.) Nothing that happened during trial throws that conclusion into doubt. Nor is there any reason to reconsider the court's pre-trial denial of Defendant Steven Brewer's Motion in Limine Re: Parol Evidence (Doc. 306), which Rachel joined (Doc. 316). ( See Doc. 333.) Similarly, at trial the court overruled objections to the Government's ...


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