United States District Court, D. Arizona
K. Jorgenson United States District Judge.
before the Court is the Motion for Release Pending Appeal
(Doc. 391) filed by Anthony Mark Boscarino
(“Boscarino”). The government has filed a
response and Boscarino has filed a reply. Also pending before
the Court is Boscarino's Motion for Prompt Ruling on
Motion for Bail on Appeal Setting Conditions of Release (Doc.
requests this Court to allow him to be released from custody
pending appeal. He points out that he is not seeking a
reduction in sentence with this request and acknowledges
that, if his appeal is unsuccessful, he may have to surrender
and serve the remainder of his sentence.
applicable statute provides, inter alia:
(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 . . . 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; and
(B) that the appeal is not for the purpose of delay and
raises a substantial question of law or fact likely to result
(ii) an order for a new trial,
(iii) a sentence that does not include a term of
(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).
danger to the community and flight risk are threshold factors
under § 3143(b)(1)(A), in that context the court
considers only whether the defendant has proved by clear and
convincing evidence that he is ‘not likely' to flee
or pose a danger to others.” United States v.
Garcia, 340 F.3d 1013, 1021 n. 6 (9th Cir. 2003);
United States v. Wheeler, 795 F.2d 839 (9th Cir.
1986) (appellant/defendant has burden of showing he is not a
flight risk or a danger to any person or the community). In
his Motion, Boscarino asserts that he had substantially
complied with his pre-trial release; indeed the Pretrial
Services Officer had testified that he had, at times,
authorized Boscarino to have lunch with his family and vary
slightly from the conditions. However, Boscarino does not
assert that he had permission to deviate from the release
conditions on the date for which his conduct resulted in the
revocation of his release. Since the revocation of release
and the order of detention, Boscarino has remained in custody
through the proceedings, which are now on appeal. Boscarino
asserts clear and convincing evidence establishes that he is
not likely to flee nor pose a danger to the safety of any
other person or the community.
points out that he is currently housed at a facility with no
fences and approximately 30 miles from U.S.A.-Mexico border;
nonetheless, Boscarino has remained at the facility. However,
Boscarino's history includes not only that he failed to
follow his release conditions, but also Boscarino also
apparently attempt to manipulate the system by arguing that
other approvals or inconsistent enforcement by the Pretrial
Services Officer constituted implicit approval for Boscarino
to unilaterally decide when to violate his release
conditions. This calls into question the implications that