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United States v. Zupnik

United States District Court, D. South Dakota, Western Division

June 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOEL ZUPNIK, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         A jury 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.

         DISCUSSION

         I. Legal Standard

         The 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.

         The interplay between the above-cited statutes produces four conditions defendant must meet before he may be released pending appeal:

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 § 3143(b)(1)(B).
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).

         II. Analysis

         The 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.

         Defendant's 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. ...


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