Opinion
No. 02-40012-01-SAC
November 13, 2003
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion for reconsideration of the court's prior order denying a stay of judgment pending appeal. In support of his motion, defendant raises a new argument and cites law not previously cited relative to issues previously addressed. Although the government's response time has not expired, the court decides this motion due to exigencies of time.
The court will not repeat herein the standards for motions to reconsider in criminal cases, but refers the parties to United States v. D'Armond, 80 F. Supp.2d 1157 (D. Kan. 1999). Defendant has not met the requisite standard, but merely requests that the court revisit the same issues previously rejected. On this basis alone, the defendant's motion to reconsider is denied.
Had the court reached the merits of this motion, however, it would nonetheless be denied. Defendant contends that there are "exceptional reasons" why he should not be detained pending appeal, pursuant to 18 U.S.C. § 3145(c). However, the existence of "exceptional reasons" alone is insufficient to warrant release pending appeal, because the statute requires that other conditions of release be met as well. See generally United States v. Hamilton, 64 F.3d 670, 1995 WL 492876, *1 (10th Cir. Aug. 18, 1995) (Table); United States v. Flynn, 16 Fed. Appx. 958, 2001 WL 909345 (10th Cir. Aug. 13, 2001); United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997); compare United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997).
But even assuming that there were no other requirements, or that defendant met all other requirements, the court finds that he has failed to show "exceptional reasons" why his detention would not be appropriate. In determining what may constitute an exceptional reason for release, "a case by case evaluation is essential." United States v. Schuermann, 978 F.2d 1268, 1992 WL 322156, *1 (10th Cir. Nov. 5, 1992) (Table), quoting United States v. DiSomma, 951 F.2d 494, 497 (2d Cir. 1991). District judges should not be foreclosed "from the full exercise of discretion in these matters" and their discretion "is constrained only by the language of the statute: 'exceptional reasons.'" Id, quoting United States v. DiSomma, 951 F.2d at 497. The Tenth Circuit thus refrains from placing contours around the outer limits of the circumstances that may constitute "exceptional reasons," while finding that particular circumstances fail to meet that exception. See e.g., United States v. Verbickas, 75 Fed. Appx. 705, 707, 2003 WL 22091819, *2 (10th Cir. Sept. 2, 2003) (holding that a disparate treatment argument that other defendants convicted of the same violations had been released "does not establish an exceptional reason warranting defendants' release.")
The court has reviewed the reasons stated in defendant's motion, as well as the attachment thereto which consists of copies of discharge instructions and various prescriptions for defendant's medications. The court remains confident that defendant's health condition, although poor, is not beyond the bounds of health care which the United States penal system is able to provide. Although no other evidence has been submitted for the court's review, the court is aware of the additional allegation that defendant's elderly wife is "extremely ill." Taking all the circumstances into account, the court finds that it has not been clearly shown that there are exceptional reasons why defendant's detention would not be appropriate. See 18 U.S.C. § 3145(c). Defendant's motion must therefore be denied.
Alternatively, defendant requests a 30-day or more extension of time for his reporting date, currently set for November 17, 2003. Counsel states that he has not had sufficient time to prepare a competent appeal of the court's denial of his initial motion to stay sentence because of his workload and because the transcript of the trial was not filed until recently. Although defendant may find such an extension to be futile, the court, in its discretion, grants this request.
IT IS THEREFORE ORDERED that defendant's motion for reconsideration of denial of stay of judgment pending appeal (Dk. 117) is denied.
IT IS FURTHER ORDERED that defendant's reporting date to begin service of his prison sentence is hereby postponed from November 17, 2003 to December 22, 2003 before 12:00 noon, to the institution designated.