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United States v. Johnson

United States District Court, E.D. California

February 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL LELAND JOHNSON, Defendant.

          GARLAND E. BURRELL JR. UNITED STATES DISTRICT JUDGE.

          ORDER DENYING BAIL PENDING APPEAL

         Defendant Paul Leland Johnson (“Defendant”) seeks bail pending appeal under 18 U.S.C. § 3143(b). Bail Mot., ECF No. 123. The United States (“Government”) opposes the motion, arguing that Defendant “fails in his burden of proving a substantial question on appeal.” Opp'n at 4:16-17, ECF No. 126. A defendant seeking bail pending appeal must show:

(A) by clear and convincing evidence [he] is not likely to flee or pose a danger to the safety of any other person or the community if released . . . 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.

18 U.S.C. § 3143(b)(1).

         “[A] ‘substantial question' is one that is ‘fairly debatable, ' or ‘fairly doubtful, '” United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985) (internal citations omitted); “In short, a ‘substantial question' is one of more substance than would be necessary to a finding that it was not frivolous, ” Id. (citing United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)).

         Defendant has not shown he does not “pose a danger to the safety of . . . the community if [he remains] released.” 18 U.S.C. § 3143(b)(1)(A). Defendant bears the burden to show he is not a danger. Fed. R. Crim. P. 46(c). Defendant argues the following facts support a finding by clear and convincing evidence that he does not pose a danger to the community:

[He] was only convicted of two counts of willfully making material false statements in violation of 18 U.S.C. § 1001; the jury acquitted [him] of one other false statement count and was unable to reach a verdict on the two remaining counts. He has no prior criminal record. The offenses occurred in 2012, more than five years ago. [He] was recently married and lives in San Jose, California. Over the last almost three-year period, [he] made all his court appearances. He appeared as required throughout the trial.

         Bail Mot. at 4:1-7. This does not support by clear and convincing evidence that Defendant is not a danger to the community. Although Defendant was not found guilty of arson of a federal vehicle in violation of § 844(f), the question is not whether a jury found him guilty of a dangerous offense but, rather, whether Defendant has met his burden of showing, by clear and convincing evidence, that he “pose[s] [no] danger to the safety of . . . the community if released.” 18 U.S.C. § 3143(b)(1)(A). For the reasons set forth in the undersigned judge's Ruling on Sentencing Objections and Findings Augmenting Presentence Report (“PSR Order”), issued contemporaneously with this order, clear and convincing evidence supports the conclusion that Defendant set fire to his Forest Service truck. The PSR also evinces a troubling pattern of fire-setting activity, and the trial record reveals his keen interest in documenting the fires he was involved with by videotaping the fires or taking pictures of the fires. In light of his fire ignition proclivities, and his lack of candor, he is a probable recidivist. Defendant has not shown clear and convincing evidence that Defendant poses no danger to the safety of the community if allowed to be released on bail.

         Nor has Defendant shown that his appeal raises “a substantial question of law or fact.” 18 U.S.C. § 3143(b)(1)(B). Defendant states he will argue on appeal the insufficiency of the evidence in support of counts 4 and 5, of which he was convicted. See Bail Mot. at 4:26-6:19. This argument would be near frivolous. In ...


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