IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 19, 2010
UNITED STATES OF AMERICA, PLAINTIFF
DONNA ROWE DEFENDANT
REQUEST AND ORDER STAYING SELF-SURRENDER DATE UNTIL MOTION FOR BAIL PENDING APPEAL DECIDED BY COURT OF APPEALS
RELEVANT PROCEDURAL HISTORY
Following her conviction and sentencing on February 26, 2010, defendant Rowe filed a timely notice of appeal*fn1 .
On March 23, 2010, the District Court entertained and denied a Motion for Bail Pending Appeal. The District Court also set April 30, 2010 for defendant Rowe's self surrender.
Following an agreement between the parties, defendant Rowe's self-surrender date has been rescheduled for May 21, 2010.
On April 26, 2010 defendant filed a renewed Motion for Bail Pending Appeal in the Ninth Circuit Court of Appeals, USCA No. 10-10189. On May 7, 2010 the government filed its opposition. No decision by the Court of Appeals has issued as of this writing.
A STAY OF THE SELF SURRENDER DATE IS AUTOMATIC PENDING FINAL DECISION BY THE COURT OF APPEALS ON APPELLANT'S MOTION FOR BAIL PENDING APPEAL
On July 18, 2005, defendant Rowe was released on her own recognizance without opposition from the government. Her release status has remained unchanged.
Circuit Rule 9-1.2 Release Pending Appeal, states in pertinent part:
(e) If the appellant is on bail at the time the motion is filed in this court that bail will remain in effect until the court rules on the motion. (Rev. 1/1/01 - changed from (d) to (e)).
In U.S. v Fuentes, 946 F.2d 621 (9th Cir. 1991) the Court of Appeals held:
The intent of this rule is to provide for an automatic stay of an appellant's surrender date if he or she is on bail at the time the motion for bail pending appeal is filed in this court.
The operation of the rule, however, is automatic and provides an appellant, who is still released, whether on bond or on his or her own recognizance, with an automatic stay of surrender upon the filing in this court of a motion for bail pending appeal.
For these reasons defendant Rowe respectfully requests this Court to stay its order of self surrender pending final decision on appellant's motion for bail pending appeal by the Ninth Circuit Court of Appeals.
Counsel for appellant Rowe has no objection to filing a status report with this Court on a weekly basis advising Court and counsel of the status of appellant's motion in the Appellate Court. Should the Appellate Court deny appellant's motion, a new self-surrender date may be scheduled.
IT IS ORDERED THAT: For good cause shown, defendant Donna Rowe's self surrender date is hereby stayed pending the outcome of her motion for bail pending appeal in the Ninth circuit Court of Appeals.
IT IS FURTHER ORDERED THAT: Counsel for Donna Rowe on appeal shall file a weekly status report with this Court reflecting progress, if any, on her motion for bail pending appeal.