United States District Court, D. Connecticut
RULING ON MOTION FOR BAIL PENDING APPEAL OR STAY OF
SURRENDER FOR SENTENCE
Michael P. Shea, U.S.D.J.
Defendant
George Connelly has filed an expedited motion seeking bail
pending appeal under 18 U.S.C. § 3143 or, in the
alternative, an order directing the Bureau of Prisons
(“BOP”) to designate Connelly to a BOP medical
facility or a stay of Connelly's self-surrender,
currently scheduled for today, December 3, 2018, until he can
be designated to an appropriate BOP facility. (ECF No. 206.)
For the reasons stated herein, Connelly's motion is
DENIED.
Connelly
was convicted after jury trial of one count of Conspiracy to
Transport Stolen Property in violation of 18 U.S.C. §
371 and two counts of Interstate Transport of Stolen property
in violation of 18 U.S.C. § 2314. (ECF No. 172.) On May
25, 2018, this Court denied Connelly's motion for
judgment of acquittal in a written opinion (ECF No. 143),
which is incorporated herein by reference. On October 5,
2018, this Court issued its judgment sentencing Connelly to
78 months imprisonment. (ECF No. 172.) On October 11, 2018,
the government filed a motion under Rule 35(a) to correct or
amend the sentence to reflect that Connelly fell into
criminal history category I, not II, which this Court granted
on October 12, 2018. (ECF Nos. 180, 181.) However, the Court
concluded that while the correction was warranted, the
original non-Guidelines sentence of 78 months imprisonment
remained appropriate. (ECF No. 181.) Connelly's appeal is
currently pending before the Second Circuit. (ECF No. 206 at
2-3.) Connelly initially filed a motion for bail pending
appeal in the Court of Appeals, but after the government
filed its opposition noting that Connelly did not first seek
relief in the district court, Connelly re-filed the motion
here, attaching the briefs filed in the Court of Appeals.
(ECF No. 206 at 2-21.) These papers were filed in this Court
on Friday, November 30, 2018. (ECF No. 206.)
Connelly's
motion attaches a 2-page exhibit, which Connelly asserts is a
CT scan report from October 16, 2018, after this Court
imposed sentence. (ECF No. 206 at 9-10.) The report states in
relevant part that Connelly “is at significant risk for
vertebral fracture and paralysis if he suffered a fall, was
in an altercation, or even did heavy physical work” due
to a bullet fragment lodged in his spine from a 2008 shooting
in which Connelly was an innocent victim. (Id.;
see ECF No. 206 at 7.) Having reviewed
Connelly's motion, his and the government's briefs
filed in the Court of Appeals, and the medical evidence
submitted, the Court denies each of the three types of relief
Connelly seeks.
First,
Connelly has not shown that he is entitled to bail pending
release. “The Bail Reform Act, as amended, sets forth
the procedure by which judicial officers determine whether a
recently convicted person is eligible for release pending
appeal.” United States v. DiSomma, 951 F.2d
494, 496 (2d Cir. 1991) (citing 18 U.S.C. §§
3143(b) and 3145(c)).
As
relevant here, [1] 18 U.S.C. § 3143(b)(1) provides:
[T]he 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.
Connelly bears the burden of persuasion to meet each of these
elements. See United States v. Randell, 761 F.2d
122, 125 (2d Cir. 1985).
Connelly's
motion for bail pending release fails, because he does not
show that his appeal raises a substantial question of law or
fact likely to result in reversal, new trial, a sentence of
non-imprisonment, or a reduced sentence. See 18
U.S.C. § 3143(b)(1)(B). A “substantial question is
one of more substance than would be necessary to a finding
that it was not frivolous. It is a close question or one that
very well could be decided the other way.”
Randell, 761 F.2d at 125 (internal quotation marks
omitted). “If a court does find that a question raised
on appeal is ‘substantial,' it must then consider
whether that question is so integral to the merits of the
conviction on which defendant is to be imprisoned that a
contrary appellate holding is likely to require reversal of
the conviction or a new trial.” Id. (internal
quotations omitted). Connelly's appellate brief lists,
without citation and in one-paragraph summary fashion, the
potential issues on appeal that “could”
result in reversal, but does not argue how or why any raise a
substantial question of law or fact or are so integral to the
merits that they would likely require reversal, new trial, or
non-imprisonment. (ECF No. 206 at 6-7 (emphasis added).)
Without further development, Connelly has not met his burden
on this element, and the Court further notes that while bail
is not “dependent upon the willingness of a trial court
to certify that it is likely to be reversed, ” the
Court appears to have already rejected some of the same
issues Connelly now seeks to raise and Connelly provides no
reasons to convince the Court that it was mistaken.
Randell, 761 F.2d at 125. (See, e.g., ECF
No. 70 (denying motion to sever).) See United States
v. Mancuso, No. 5:08-CR-611 (FJS), 2010 WL 11530519,
at *3 (N.D.N.Y. Dec. 22, 2010) (finding no substantial
questions raised where defendant “provides no authority
or compelling arguments to convince the Court that it reached
the wrong conclusions in [a] previous decision.”).
Accordingly, because Connelly has not met all of the §
3143(b) requirements, his motion for bail pending appeal must
be DENIED.
Second,
Connelly's request that the Court order the BOP to
designate him to a particular facility likewise fails.
Connelly does not point to (and the Court is not aware of)
any authority that gives the Court authority to
require a particular designation by the BOP as a
result of subsequent medical evidence, especially where
almost 2 months has passed since the judgment issued.
See 18 U.S.C. § 3621(b) (stating that
“[t]he Bureau of Prisons shall designate the place of
the prisoner's imprisonment” and allowing the
Bureau to consider, among other factors, recommendations by
the sentencing court in making the designation); cf.
Fed. R. Crim. P. 35(a) (authorizing corrections of
“clear error” within 14 days after sentencing);
Fed. R. Crim. P. 36 (authorizing corrections of clerical
errors “arising from oversight or omission” at
any time). Even if the Court had such authority, it would not
use it here, because the judgment recommended that the
“defendant receive a full medical evaluation upon entry
into the BOP; and that the BOP be aware of all medical
reports provided by the defendant, ” which would
include the CT scan that is the subject of this motion. (ECF
No. 172.) Provided Connelly has given the BOP the report
attached to his motion, the BOP, which makes the designation
decision in any event, should have all the information it
needs to make a suitable designation within the prison
system.
Third
and finally, Connelly's request that the Court stay his
self-surrender date until the BOP makes a medical center
designation is also unavailing. Rule 38 provides that a court
must stay a sentence of imprisonment if a defendant is
released pending appeal. Fed. R. Crim. P. 38(b)(1). The Court
cannot stay execution of the sentence under this provision,
because Connelly has not shown entitlement to bail. “If
the defendant is not released pending appeal, ”
however, “the court may recommend to the
Attorney General that the defendant be confined near the
place of the . . . appeal for a period reasonably necessary
to permit the defendant to assist in preparing the
appeal.” Fed. R. Crim. P. 38(b)(2) (emphasis added).
Because Connelly seeks a stay for medical reasons and has not
suggested that a particular designation is necessary to
enable him to assist in preparing the appeal, this provision
is inapplicable, but in any event it would still not
authorize the Court to order stay of his sentence,
as opposed to simply making a recommendation to the Attorney
General. Further, as noted above, Rules 35 and 36 permit
amendment of a criminal judgment only under limited
circumstances, none of which apply here. Accordingly, the
Court does not believe it is authorized to stay the
self-surrender date. Even if it was so authorized, however,
it would not do so for the same reasons as discussed above.
For the
reasons stated above, Defendant's motion for bail pending
appeal or stay of surrender for sentence is DENIED.
IT IS
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