The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On August 22, 2012, defendant Dustin E. Bole ("defendant") filed a Motion for Release Pending Appeal ("Motion"). (Motion, Dkt. No. 75.) The United States filed an opposition brief on August 27, 2012 ("Opposition"). (Opposition, Dkt. No. 80.)
The matter came on for hearing before the undersigned on August 29, 2012. (Minutes, Dkt. No. 82.) Attorney Ann McClintock appeared on behalf of defendant. Attorneys Nicholas Fogg and Christopher Hales appeared on behalf of the United States. For the reasons discussed during the hearing and within this order, defendant's motion is denied.
In March 2012, defendant was convicted of the crime of "Theft of Government Property" in violation of 18 U.S.C. § 641. (Verdict, Dkt. No. 58.) Defendant was sentenced to eight months in prison. (Dkt. No. 67.) Defendant has appealed the conviction to United States Senior District Judge Karlton. (Notice of Appeal, Dkt. No. 68.)
Defendant now argues that he should be released pending his appeal under Federal Rules of Criminal Procedure 47(c), 58(g)(3), and 18 U.S.C. § 3143(b).*fn1
The jury instruction that was given at the close of defendant's trial, and is at issue in defendant's appeal, reads:
The defendant is charged in Count One of the information with theft of government money in violation of Section 641 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following evidence elements beyond a reasonable doubt: First, the defendant knowingly stole money with the intention of depriving the owner of the use or benefit of the money; second, the money belonged to the United States or any department or agency thereof. (Trial Transcript dated March 14, 2012, Exh. B to Motion at 688.) ////
Defendant argues that it was plain error not to instruct the jury that theft of government property must be "willful" and it was also plain error not to define "stole" for the jury. (Motion at 8-11.) Defendant did not raise either objection during trial and did not propose either instruction during trial, so review is on the "plain error" standard.*fn2 (Id.)
The release or detention of a defendant pending his or her appeal is controlled by 18 U.S.C. § 3143(b) ("Section 3143(b)"). Relevant here, Section 3143(b) provides that a defendant shall be released pending appeal pursuant to 18 U.S.C. § 3142(b) or (c) if the court finds: (1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the community; and (2) that the appeal is not for purposes of delay and (3) raises a substantial question of law or fact likely to result in reversal or a new trial. 18 U.S.C. § 3143(b).
A. Not Likely To Flee Or Pose A Danger To The Community Defendant notes that "this court has already found that Bole is not a flight risk and that he does not pose a danger to the community." (Motion at 7 (citing Dkt. No. 55 at 3).) The undersigned finds ...