United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
convicted defendant Joel Zupnik of attempted enticement of a
minor using the internet under 18 U.S.C. § 2422(b).
(Docket 81). The court sentenced defendant to 10 years in
prison. (Docket 103). Defendant is appealing his conviction.
(Docket 104). Now pending before the court is defendant's
motion seeking to be released from custody pending the
resolution of his appeal. (Docket 93). The United States
opposes defendant's motion. (Docket 100). For the reasons
given below, the court denies the motion.
court “shall order that a person who has been found
guilty of [a crime of violence] and sentenced to a term of
imprisonment, and who has filed an appeal . . . be
detained.” 18 U.S.C. § 3143(b)(2). Attempted
enticement of a minor using the internet under 18 U.S.C.
§ 2422(b) is a “crime of violence within the
meaning of . . . 18 U.S.C. § 3156(a)(4)(C)” and 18
U.S.C. § 3142(f)(1)(A). United States v. Larue,
478 F.3d 924, 925 (8th Cir. 2007). “A person subject to
detention pursuant to section [3143(b)(2)], and who meets the
conditions of release set forth in section [3143(b)(1)], may
be ordered released, under appropriate conditions, by the
[court], if it is clearly shown that there are exceptional
reasons why such person's detention would not be
appropriate.” 18 U.S.C. § 3145(c). The United
States Court of Appeals for the Eighth Circuit defines
exceptional as “clearly out of the ordinary, uncommon,
or rare.” Larue, 478 F.3d at 926.
interplay between the above-cited statutes produces four
conditions defendant must meet before he may be released
1. Defendant must “clearly show that there are
exceptional reasons why [his] detention would not be
appropriate.” 18 U.S.C. § 3145(c).
2. The court must find “by clear and convincing
evidence that [defendant] is not likely to flee or pose a
danger to the safety of any other person or the community if
released[.]” 18 U.S.C. § 3143(b)(1)(A).
3. The court must find “that the appeal is not for the
purpose of delay[.]” Id. at §
4. The court must find defendant's appeal “raises a
substantial question of law or fact likely to result in
reversal, [or] an order for a new trial[.]”
Id. at §§ 3143(b)(1)(B)(i), (ii).
court must first determine the order, if any, in which it
must evaluate the four factors defendant must meet before the
court may release him from custody pending the outcome of his
appeal. Defendant, citing to out-of-circuit precedent,
suggests the court should first evaluate the factors listed
in 18 U.S.C. § 3143(b)(1)-those listed above as factors
2-4-before determining if exceptional circumstances exist.
(Docket 101 at p. 3) (citing United States v.
DiSomma, 951 F.2d 494, 496 (2d Cir. 1991)). However, the
Eighth Circuit does not appear to follow this practice.
See United States v. Little, 485 F.3d 1210, 1211
(8th Cir. 2007) (finding no exceptional circumstances without
reference to the § 3143(b)(1) factors); Larue,
478 F.3d at 925 (referencing the § 3143(b)(1) factors
but focusing on exceptional circumstances); United States
v. Brown, 368 F.3d 992, 993 (8th Cir. 2004) (finding no
exceptional circumstances without reference to §
3143(a)(2) factors governing release pending execution of
sentence). The parties do not point the court to any Eighth
Circuit case requiring district courts to perform an
exceptional circumstances analysis last.
preferred approach also does not comport with the conjunctive
nature of the four bail requirements. If any of the four
requirements are not met, defendant cannot be released
pending the resolution of his appeal. 18 U.S.C. §
3145(c). The court does not perceive any reason why it must
evaluate these factors in any particular order and, aside
from defendant's citation to DiSomma, the
parties provided no reason. ...