Free Motion for Release from Custody - District Court of Arizona - Arizona

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Anders Rosenquist Jr., Bar No. #002724 ROSENQUIST & ASSOCIATES ATTORNEYS AT LAW 80 East Columbus Phoenix, AZ 85012 TELEPHONE: (480) 488-0102 Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. NEIL RUSTY BOND, Defendant. No. CR 03-0974-PHX-DGC MOTION FOR RELEASE PENDING APPEAL AND REQUEST FOR STATUS CONFERENCE (expedited ruling requested)

Defendant, Neil Rusty Bond (hereinafter "Defendant"), through undersigned counsel, hereby requests that Defendant be released pending his direct appeal in this matter pursuant to Fed. R. Crim. P. 46(c) and 18 U.S.C. § 3143(b), and that his sentence of imprisonment be stayed pursuant to Fed. R. Crim. P. 38(b). Defendant's request is more fully supported by the

following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS Undersigned counsel was recently appointed as counsel in this matter pursuant to the Criminal Justice Act. Upon being appointed, undersigned counsel pulled the docket in this matter and gathered any available information regarding this case. Based upon the small

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amount of information currently known by undersigned counsel, undersigned is extremely concerned about the issues and problems that have plagued this case. First, the docket does not show that a sentence has been imposed in this matter. However, after checking with the Court's staff, it is counsel's understanding that Defendant is sentenced to eighteen (18) months imprisonment and that Defendant is due to surrender himself on March 31, 2006. Defendant has been on release status since 2003. The jury trial in this case lasted approximately six (6) days. During that time,

Defendant's request for an expert, which would have countered the theories set forth by the Plaintiff's expert, was denied. Defendant was appointed at least three different defense Furthermore, at the

attorneys on separate occasions prior to the beginning of his trial.

conclusion of Defendant's trial, the trial judge recused herself. Also, pursuant to the docket it appears that there was an "Order to Show Case Hearing why sanctions should not be imposed for reasons stated on the record" held after the trial in this matter, though the docket does not specify who was to be sanctioned. Based upon the foregoing, undersigned counsel will be representing Defendant on appeal in the Ninth Circuit Court of Appeals. However, since it appears that much of the issues in Defendant's case occurred outside of the trial record, such as receiving constitutionally ineffective assistance of counsel and the fact that the trial judge recused herself after trial, Defendant will be requesting a stay of his Ninth Circuit Appeal so that he may file a Petition for Writ of Habeas Corpus. Undersigned counsel is also requesting that Defendant be released pending appeal and that his prison sentence be stayed pending the outcome of that appeal.
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Lastly, since undersigned counsel is newly appointed in this case, undersigned requests that a status conference be set regarding the issues raised herein, prior to Defendant's March 31, 2006 surrender date. II. DEFENDANT HAS MET THE REQUIREMENTS OF FED. R. CRIM. P. 46(c) AND 18 U.S.C. § 3143(b) AND THEREFORE SHOULD BE RELEASED PENDING THE APPEAL OF HIS CONVICTIONS. Rule 46, Federal Rules of Criminal Procedure, states, "The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal. The burden of establishing that the

defendant will not flee or pose a danger to any other person or to the community rests with the defendant." Furthermore, 18 U.S.C. § 3143(b), which governs the release or detention of a defendant pending appeal, states that a person may be released pending appeal if 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...; 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 that the total of the time already served plus the expected duration of the appeal process." If the judicial officer makes such findings as set forth in 18 U.S.C. § 3143(b), "such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title." 18 U.S.C. § 3143(b). 1. Defendant Is Not Likely To Flee Or Pose A Danger To The Safety Of Any Other Person Or The Community If Released.

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Defendant has been on release status since 2003. Defendant was on release prior to his trial and throughout his entire criminal trial. Furthermore, Defendant was on release status pending sentencing in this matter, and has been ordered to self-surrender. During the

approximately two years Defendant has been on release during this case, Defendant has complied with the law and with all restrictions imposed upon him by this Court. Defendant was not convicted of any violent crimes. Due to Defendant's performance while on release status, he has demonstrated by clear and convincing evidence that he is not likely to flee and does not pose a danger to the safety of any other person or the community if he were to remain on release status pending his appeal. Therefore, Defendant has met the first requirement of 18 U.S.C. § 3143(b). 2. Defendant's Appeal Is Not For The Purpose Of Delay And Will Raise A Substantial Question Of Law And Fact Likely To Result In Reversal Or An Order For A New Trial. Defendant's appeal in this matter is not for the purposes of delay and has merit. As stated, undersigned counsel was recently appointed in this matter. However, after a simple review of the docket, undersigned counsel could easily spot meritorious issues, which could be presented in Defendant's appeal. It appears that the jury trial in this case lasted approximately six (6) days. During that time, Defendant's request for an expert, which would have countered the theory set forth by the Plaintiff's expert, was denied. Defendant was appointed at least three different defense Furthermore, at the Also,

attorneys on separate occasions prior to the beginning of his trial.

conclusion of Defendant's trial, the trial judge recused herself. Also, pursuant to the docket it
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appears that there was an "Order to Show Case Hearing why sanctions should not be imposed for reasons stated on the record" held after the trial in this matter, though the docket does not specify who was to be sanctioned. Based upon the foregoing, Defendant will be filing a direct appeal with the Ninth Circuit Court of Appeals. Defendant will then be requesting a stay of his Ninth Circuit Appeal so that he may file a Petition for Writ of Habeas Corpus since it appears that much of the issues in Defendant's case occurred outside of the trial record, such as receiving constitutionally ineffective assistance of counsel and the fact that the trial judge recused herself after trial. It is highly likely that Defendant's appeal will result in a reversal of his convictions, or at a minimum he will be granted a new trial. Therefore, Defendant is entitled to release pending his appeal. 3. Exceptional Reasons Also Exist That Make Defendant's Detention During Appeal Inappropriate. The length of a prison sentence is a relevant factor when determining whether to release a defendant pending his appeal because the defendant could be forced to serve most or all of his sentence before his appeal has been decided. United States v. Garcia, 340 F.3d 1013, 1019 (9th Cir. 2003). Incarcerating such a defendant immediately upon conviction will substantially diminish the benefit he would ordinarily receive from an appeal. Id., citing United States v. McManus, 651 F.Supp. 382, 384 (D.Md. 1987) ("There seems little point to an appeal if the defendant will serve his time before a decision is rendered."). As stated, Defendant's sentence of imprisonment is only for eighteen months. As

Defendant has previously set forth, his appeal has merit as it is based upon Defendant receiving constitutionally ineffective assistance of trial counsel and issues surrounding the trial judge's
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recusal of herself after completion of Defendant's trial. Since Defendant's length of sentence is so short, if he is imprisoned on March 31, 2006 it is likely that he will complete, or substantially complete, his term of imprisonment prior to the appellate court hearing the merits of his appeal and the conclusion of any petition for writ of habeas corpus. This would cause irreparable harm and Defendant will have served an unjust prison term should the appellate court reverse his conviction or order a new trial in this matter, which is likely. The fact that Defendant's prison sentence is only 18 months is an exceptional factor which makes Defendant's detention during appeal inappropriate. Also, as of this date, the judgment has NOT yet been entered in this case. It is prejudicial to require Defendant to surrender either after the imposition of the judgment or within a few days after the imposition of the judgment. Due to the delay in entering the judgment and the delay in appointing counsel for Defendant until mere days prior to his release day is extremely prejudicial to Defendant. III. CONCLUSION Based upon the foregoing, Defendant respectfully requests this Court order that Defendant be released pending his appeal and resolution of his petition for writ of habeas corpus. Defendant further requests that his sentence of imprisonment be stayed pursuant to Fed. R. Crim. P. 38(b) because "if the defendant is released pending appeal, the court must stay a sentence of imprisonment." Lastly, Defendant respectfully requests this Court set a status conference based upon the issues presented herein, prior to Defendant's self surrender date of March 31, 2006.

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RESPECTFULLY SUBMITTED this 27th day of March 2006. ROSENQUIST & ASSOCIATES

By:

/s/ Anders Rosenquist Anders V. Rosenquist Attorney for Defendant

ORIGINAL filed this 27th day of March 2006 with: Office of the Clerk Arizona District Court COPY submitted this 27th day of March 2006 to: Michelle Rae Hamilton-Burns U.S. Attorney's Office Two Renaissance Square 40 N. Central Avenue, STE 1200 Phoenix, Arizona 85004 Counsel for Plaintiff Neil Rusty Bond

By:

/s/ Florence M. Bruemmer

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