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United States v. Boscarino

United States District Court, D. Arizona

February 23, 2017

United States of America, Plaintiff,
v.
Anthony Mark Boscarino, Defendant.

          ORDER

          Cindy K. Jorgenson United States District Judge.

         Pending 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. 397).

         Boscarino 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.

         The 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 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).

         “Although 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.

         Boscarino 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 ...


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