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United States v. Zfmny

United States Court of Appeals, First Circuit

May 16, 2017

UNITED STATES OF AMERICA, Appellee,
v.
MARK J. ZFMNY, Defendant, Appellee.

          Before, Torruella, Thompson, and Kayatta, Circuit Judges.

          ORDER

          THOMPSON, Circuit Judge.

          After this court remanded this case to the district court to conduct an inquiry into the colorable claim of juror misconduct raised by the defendant, Mark J. Zimny, United States v. Zimny, 846 F.3d 458, 470-72 (1st Cir. 2017), [1] Zimny filed a motion in the district court for release from custody pending appeal under 18 U.S.C. § 3143(b)(1). The district court denied the motion without prejudice, reasoning that, "[u]ntil the court conducts further interviews of the other jurors, . . . there is insufficient basis at this time to determine whether the investigation will likely result in a reversal or an order for a new trial."[2] Zimny then filed with this court a motion under Rule 9(b) of the Federal Rules of Appellate Procedure for release from custody pending appeal. The government opposes the motion.

          On our "independent review" of the district court's denial of the motion, see United States v. Bayko, 774 F.2d 516, 520 (1st Cir. 1985), [3] we grant the motion and remand to the district court for determination of the appropriate release conditions. And, because of the dearth of authority addressing motions for release from custody pending appeal in circumstances like those presented by this case, we briefly explain our reasons for granting the motion.

         Zimny seeks release from custody pending appeal under § 3143(b)(1). That statute provides that, as a general rule, a person convicted of an offense and sentenced to a term of imprisonment shall be detained pending appeal,

unless the judicial officer finds -
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; 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). "If the judicial officer makes such findings, such judicial officer shall order the release of the person . . . ." Id.[4] We conclude that Zimny has met these requirements and is therefore entitled to release pending appeal.

         Zimny convincingly argues that he is not a flight risk or danger to the community. Indeed, the government does not contend otherwise. He remained out on bail during trial, and the district court allowed him to self-report to prison following his conviction and the imposition of sentence. Cf. United Statesv.Weiner, No. 92-1708, 1992 WL 180697, at *1 (1st Cir. July 31, 1992) (unpublished decision) (explaining, in a case where the district court found that the defendant posed no risk of flight but made no explicit finding as to dangerousness, that "[w]hile no explicit finding was made as to dangerousness, the fact that defendant was released pending sentence necessarily entailed a finding that he was not likely to pose a danger"). And nothing that has happened in the time that Zimny has been imprisoned changes this calculus. In fact, Zimny has submitted documentation to this court ...


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