ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR RELEASE PENDING APPEAL
This matter comes before the Court on Defendant Jagdip Singh Sekhon's ("Defendant" or "Sekhon") Renewed Motion for Release Pending Appeal (Doc. #563). The United States of America ("the "government") opposes the Motion (Doc. #564). On June 5, 2012, the Court held a hearing on this motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Until the inception of this case, Defendant was an immigration lawyer. He started his law office in 1995 in San Francisco, and two years later he hired his brother Jagprit,*fn1 a recent law graduate. By 1998, the firm of Sekhon & Sekhon maintained two 2 offices, with Defendant practicing out of San Francisco and Jagprit 3 running a second office in Sacramento. 4
In 2003, the Immigration and Customs Enforcement Agency 5 launched an investigation directed principally at asylum 6 applications from Romanian applicants. In September of that year, 7 the investigation resulted in the covert recording of client 8 interviews conducted by Jagprit and his assistants in the 9 Sacramento office. Four persons associated with the Sacramento office -- Jagprit; Manjit Rai, another lawyer, Iosef Caza and Luciana Harmath; two Romanian translators -- were indicted and convicted at trial for conspiring to make false statements in connection with the covert officer, in violation of 18 U.S.C. §§ 371 and 10001, as charged in Counts Seventeen and Eighteen of the Indictment (Doc. #94). Defendant was not charged with the conspiracy involving the undercover officer.
The four defendants associated with the Sacramento office were also charged with substantive violations of 18 U.S.C. §§ 1001 and 1546 in connection with asylum applications, principally from Romanian immigrants. Sekhon was not charged as either a perpetrator or aider and abettor of the substantive false statement (§ 1001) or perjured asylum application (§ 1546) offenses alleged in Counts Two through Sixteen in the Indictment. Instead, Defendant was charged and convicted on Count One, a conspiracy count (18 U.S.C. § 371). Count One contained two objects --
(1) defrauding the government by impeding the lawful functions of the Bureau of Citizenship and Immigration Services ("CIS") in the fair and objective evaluation of asylum applications, and to do so 2 by deceit, craft, and trickery and (2) making false statements on 3 asylum applications. 4
Defendant's guilty verdict was returned on June 24, 2009
(Doc. #325). He was sentenced to a term of 60 months and was 6 remanded into the custody of the Bureau of Prisons on September 24, 2010. Defendant has served twenty months of his sixty month 8 sentence and is presently confined in Atwater, California (Doc. 9 #462).
On December 28, 2010, Defendant filed his initial motion for release pending the resolution of his appeal in the District Court (Doc. #530). A hearing on the release motion was held before Judge Frank Damrell on January 24, 2010 (Doc. #544). In light of the government's concession that Defendant posed no flight risk or danger to the community, the trial court denied Defendant's motion on the basis that Defendant raised no substantial question of law or fact sufficient under Section 3143(b). Defendant appealed, and the Ninth Circuit affirmed. United States v. Sekhon, No. 10-10485 (9th Cir. May 4, 2011) (order denying Defendant's motion for bail pending appeal).
On April 6, 2012, Defendant renewed his motion for release pending appeal in the Ninth Circuit on the basis that in his previous motion for release his appellate counsel did not have sufficient opportunity to review the record and relied on trial counsel as to what issues might be cognizable on appeal. On May 9, 2012, the Ninth Circuit denied Defendant's renewed motion for bail without prejudice to refilling after presentation of the motion to this Court. United States v. Sekhon, No. 10-10485 (9th Cir. May 9, 2 2012) (order denying without prejudice to renewal of Sekhon's 3 motion for bail pending appeal, following presentation of the 4 motion to the district court). 5
On March 29, 2012, Defendant submitted his opening brief to 6 the Ninth Circuit presenting four issues for appeal: (1) Did the 7 government's impermissible charging of multiple, separate 8 conspiracies in Count One prejudice Sekhon, requiring a new trial? 9
("Kotteakos issue"); (2) Did the government fail to prove that Sekhon entered into a conspiracy criminalized by 18 U.S.C. § 371? ("substantial evidence issue"); (3) Was the "defraud" theory unconstitutional as applied to Sekhon's acts of legal advocacy? ("Skilling issue"); (4) Did the district court commit reversible error in denying the defense's proposed theory-of-the-case instruction on the duties of immigration counsel ("theory-of-the-case instruction issue")? The government's consolidated answering briefing is currently due on September 27, 2012, but as discussed at the June 5 hearing, will likely be continued.
18 U.S.C. § 3143(b)(1) requires detention pending appeal:
[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 ...