United States District Court, N.D. California, San Jose Division
ORDER ON SIMS' MOTION FOR RELEASE PENDING APPEAL
RONALD M. WHYTE, District Judge.
Defendant Michael Sims has moved "ex parte" for release pending appeal. The government has filed an opposition. Although the defendant's application was not filed with proper notice, the court has nevertheless considered the merits of the motion. The court hereby denies the motion.
On November 17, 2014, Sims was sentenced to thirty months in prison, to be followed by a three year term of supervised release. (Dckt. #341). He was originally ordered to self-surrender by January 13, 2015 but was subsequently granted an extension to February 18, 2015. (Dckt. ##340, 363). Sims' extension request was purportedly stipulated to by the government but the government asserts otherwise. In any event, Sims, pursuant to Criminal Local Rule 47-3, now moves the court on an ex parte basis for an order permitting him to remain released on his present bond pending the disposition of the appeal of his conviction currently before the United States Court of Appeal for the Ninth Circuit. (Dckt. #415). Defendant has not referenced "a citation to the rule or order which permits use of an ex parte motion to obtain the relief sought" as required by Criminal Local Rule 47-3(b)(1). The court nevertheless has considered the motion on its merits. See Criminal Local Rule 47-3(c).
A. Requirements for Release on Appeal Following Conviction
Since Sims has been convicted and sentenced, the court is required to order him detained despite the fact that he has filed an appeal, unless he can demonstrate: (1) by clear and convincing evidence that he, if released, is "not likely to flee or pose a danger to the safety of any other person or the community" (18 U.S.C. §3143(b)(1)(A)); and (2) 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." 18 U.S.C. § 3143(b)(1)(B). The court examines each of the two requirements for release.
B. Not Likely to Flee
The government contends that Sims has not borne his burden of showing by clear and convincing evidence that he does not present a risk of flight. It contends that Sims: (1) faces a substantial sentence; (2) has failed to acknowledge his wrongdoing and tried to justify his actions; and (3) has not put up any of his own funds to secure a release bond. However, the government overlooks a number of factors that clearly and convincingly demonstrate that Sims does not present a flight risk.
Sims is a life-long resident of California and a long-time resident of Santa Clara County. He has been married since 1978. He has two daughters, both of whom reside locally with their respective husbands. He has five grandchildren, ranging in age from six months to nine years. Sims has no history of criminal convictions or arrests. Pretrial Services at the commencement of the case concluded that Sims has strong familial ties to this area and poses a "minimal flight risk" and recommended that he be released on supervised release during the course of the proceedings. He was released and has met all of his conditions and made all of his court appearances.
Except for his involvement with S3, Sims' appears to have had a history of legitimate and successful employment.
Sims also has significant health issues for which he has been treated and monitored by local doctors including specialists. It seems highly unlikely that he would flee the location where he receives this medical care.
Despite the government's speculative concerns, the evidence clearly and convincingly establishes ...