United States District Court, D. Maine
ORDER DENYING EMERGENCY MOTION FOR RELEASE PENDING APPEAL
JOHN A. WOODCOCK, Jr., Chief District Judge.
Despite Carole Swan's hyperbolic language and charges, the Court denies her earnest demand for immediate release pending appeal because she has failed to demonstrate that her appeal is not for purposes of delay and that it raises a substantial question of law likely to result in reversal or an order for a new trial under 18 U.S.C. § 3143(b)(1)(B).
On July 26, 2013, a federal jury found Carole Swan guilty of five counts of making false statements in her federal income tax returns and guilty of two counts of making false statements to obtain federal workers' compensation benefits. Jury Verdict Form (ECF No. 167). On September 17, 2013, a second federal jury found Ms. Swan guilty of three counts of Hobbs Act extortion. Jury Verdict Form (ECF No. 273). On June 17, 2014, the Court sentenced Ms. Swan to 87 months imprisonment on the Hobbs Act extortion counts, 36 months imprisonment on the tax counts, and 60 months imprisonment on the workers' compensation counts, all to be served concurrently. J. (ECF No. 358). At the close of the sentencing hearing, upon Ms. Swan's request, the Court imposed a report date of August 15, 2014 by 2:00 p.m. to surrender for service of sentence at the institution designated by the Bureau of Prisons. Id. at 2.
On July 21, 2014, Ms. Swan filed an expedited motion for bail pending appeal. Expedited Mot. for Bail Pending Appeal (ECF No. 373). The Government filed an objection on the same day. Gov't's Opp'n to Def.'s Expedited Mot. for Bail Pending Appeal (ECF No. 374). Ms. Swan replied on July 22, 2014. Reply to United States' Resp. to Expedited Mot. for Bail Pending Appeal (ECF No. 375). On July 24, 2014, the Court denied the expedited motion because Ms. Swan had failed to sustain her burden to demonstrate that she intends to raise a "substantial question of law or fact" as to her tax and workers' compensation fraud convictions on appeal. Order Denying Mot. for Release Pending Appeal at 4 (ECF No. 376).
On September 30, 2014, Ms. Swan filed what she termed an emergency motion for release, again requesting that the Court release her on bail pending appeal. Appellant's Emergency Mot. for Release Pending Appeal Pursuant to FRAP Local Rule 9(b), 18 USC [§] 3143(b) and 3145(c) and Riley v. California, 134 S.Ct. 2473 (June 2014) (ECF No. 386) ( Def.'s Mot. ). On October 1, 2014, the Government filed its opposition to the motion. Gov't's Opp'n to Def.'s Second Emergency Mot. for Release Pending Appeal (ECF No. 387) ( Gov't's Opp'n ). On October 6, 2014, Ms. Swan filed a reply. Appellant's Reply to the New Matters Raised in the Gov't's Opp'n (ECF No. 388) ( Def.'s Reply ). On the same day, the Government filed a sur-reply. Gov't's Resp. to Def.'s Reply to the New Matters Raised in the Gov't's Opp'n (ECF No. 389) ( Gov't's Sur-reply ).
II. THE PARTIES' POSITIONS
A. Carol Swan's Motion
Carol Swan argues that the Court should release her on bail pending the appeal of her convictions. Def.'s Mot. at 1-20. In her motion, Ms. Swan criticizes the Court's July 24, 2014 decision to deny her first emergency motion for bail. She says that the Court denied the motion because it "adopted the Government's response that Carole's motion only concerned the Hobbs Act convictions, " which were part of the September trial. Def.'s Mot. at 1. In fact, she instructs, "the incriminating statements were admitted as evidence against Carole at both [the July and September] trials." Id. (citing the exhibit lists for both trials).
Turning to the standards for release under 18 U.S.C. § 3143(b)(1)(A) and (B), Ms. Swan contends that she is unlikely to flee or to pose a danger to the community and that she is pursuing a meritorious appeal. Id. at 2-3. Regarding the first issue, she maintains that she complied with the conditions of her release, appeared for all court hearings, and self-reported to prison. Id. at 3. She notes that she has paid all fines and restitution in full. Id. She says she has no prior criminal history and has lived her entire life in the greater Augusta area of Kennebec County, Maine, where members of her immediate family live. Id.
As for the merits of her appeal, she observes that her "unwarned and uncounseled statements were admitted as evidence in both trials." Id. at 4. Ms. Swan focuses on the denial of her motion to suppress the statements she made to the police at the Kennebec County Sheriff's Office on February 3, 2011. Id. She asserts that "the author of the recommended decision... omitted and/or misconstrued salient facts that support the finding that Carole was placed in custody in the parking lot and that her statements were involuntary." Id. Ms. Swan argues that the Magistrate Judge applied the wrong standard, namely a subjective, not an objective standard in assessing whether an "objective reasonable person placed in the same circumstances" would believe he or she was in custody. Id. at 5. Ms. Swan says that her "freedom of movement (freedom to leave) was restricted in the parking lot and continued to be restricted until released from the sheriff's station." Id.
She also claims that her statements were involuntary because the deputies overbore her will and "she submitted to the intimidation and pressure and proceeded to describe her role in the offense." Id. at 6. She complains that the Magistrate Judge "failed to consider that offense-specific questions were directed at Carole, questions which the officers should have known would evoke an inculpatory response in violation of Rhode Island v. Innis, 446 U.S. 291, 330-01 (1980)." Id. She also implies that this Court failed to perform its statutory obligation to conduct a de novo review of the Magistrate Judge's recommended decision and admitted as much at trial when it allegedly said that it had "not read the entire transcript of the audio portion of the interview." Id. at 4 n.1.
Finally, she asserts that the police searched her cellphone without a search warrant in violation of Riley. Id. at 7.
B. The Government's Opposition
The Government opposes her release. Gov't's Opp'n at 1-7. The Government maintains that Ms. Swan poses a danger to the safety of the community. Id. at 1. It says that she is "a corrupt public-official, three time extorter and a multi-year defrauder of two government programs." Id. at 1-2. It states that her "perjury during these criminal proceedings was pervasive, a fact her counsel conceded at sentencing and that resulted in an obstruction of justice enhancement." Id. at 2. The Government asserts that Ms. Swan "sought to interfere with efforts to collect any fine imposed and mandatory restitution by conveying a $700, 000 gravel pit she owned to her son after she was indicted." Id. Finally, it notes that contrary to her claims, she did in fact violate her pretrial release. Id.
Turning to the merits of Ms. Swan's appeal, the Government argues that the Magistrate Judge properly found that Ms. Swan was not in custody when she gave the interview at the Sheriff's Office on February 3, 2011. Id. at 2-6. The Government reviews the legal standards for determining whether a person is in custody and argues that the Magistrate Judge carefully considered the applicable legal standards and properly concluded both that Ms. Swan was not in custody and that her statements were voluntary. Id. It acknowledges that this Court "did indeed say it had not seen the whole transcript of the interview", but the Government points out that "[u]p to that point in the first trial, the full transcript (GX 11-T) had not been introduced and the court had not seen or admitted it." Id. at 7. Finally, the Government says that the Riley decision is inapplicable because Ms. Swan failed to attempt to suppress evidence of a cellphone search and because no evidence admitted at trial contained data from her cellphone. Id. at 7.
C. Ms. Swan's Reply
Ms. Swan contends that even though her trial defense counsel acknowledged that she had committed perjury, she decries his concession as "ethically questionable." Def.'s Reply at 2. She says that even if she did commit perjury, the Court granted her bail after its sentencing hearing and allowed her to self-report to prison, which she did. Id. at 1-2. Therefore, she argues, if her perjury did not prohibit her post-sentencing bail, it should not prohibit her bail pending appeal. Id. In support of her position, Ms. Swan cites United States v. Farlow, 824 F.Supp.2d 189, 196 (D. Me. 2011), in which this Court found a convicted child pornographer did not pose a danger to the community, and contends that her crimes pose much less risk to the community than those convicted of violent acts against children. Def.'s Reply at 2.
Turning to her argument under Riley, Ms. Swan dismisses as "patently incorrect" the Government's argument that records related to her cellphone were not admitted at trial. Def.'s Reply at 2. She asserts that "the call logs were admitted at the trials to prove she contacted [Frank] Monroe." Id. She also says that Government exhibits definitely show Deputy Reardon searching Ms. Swan's cellphone. Id. at 3 (citing ECF Nos. 82, 166, 272 at 11-DVD). She argues that other than during the February 3, 2011 interview, law enforcement never had possession of Ms. Swan's cellphone and she concludes that "the search of the call logs on Carole's cell phone, resulting in the discovery of relevant evidence' (and other personal information), occurred on February 3, 2011 while the phone was unlawfully in the hands of law enforcement." Id. Ms. Swan says that the call log evidence was admitted in both trials to prove " Carole initiated contact with Monroe ", thereby "quash[ing] any possible defense theory that the extortion was Monroe's game." Id. at 4 (emphasis in Def.'s Reply ). She concludes that law enforcement's unwarranted search of her cellphone violated the First Circuit decision of United States v. Wurie, 728 F.3d 1 (1st Cir. 2013). Id. at 5. She notes that following United States v. Cameron, 09-cr-24-JAW ( Order of Court [ECF No.] 267), the First Circuit ordered Mr. Cameron released pending appeal of his conviction based on intervening constitutional law. Id. at 6. Ms. Swan concludes that the holdings in this array of cases are sufficient for this Court to find that she has presented a "close question" on appeal. Id. at 6-7.
D. Government's Sur-reply
In its sur-reply, the Government says that the so-called call logs were in fact audio recordings and transcripts of calls between Ms. Swan and Frank Monroe, that these recordings were made on a recording device that law enforcement gave Mr. Monroe, that the recordings were authenticated at trial by both Detective Bucknam and Mr. Monroe, and that the transcripts were authenticated at trial by Mr. Monroe. Gov't's Sur-reply at 1-2. It repeats its view that Ms. Swan "has not identified any evidence seized from the defendant's cell phone or admitted into evidence." Id. at 2.
III. LEGAL STANDARD
This Court has the authority to release an incarcerated defendant pending appeal under 18 U.S.C. § 3143(b)(1). Under that provision, the judicial officer shall order a person found guilty of an offense and sentenced to a term of imprisonment and who has filed an appeal be detained unless the judge 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 § 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, [or]
(ii) an order for a new trial[.]
The burden rests on Ms. Swan. United States v. Colon Berrios, 791 F.2d 211, 211 (1st Cir. 1986) (Defendant has "burden of demonstrating by clear and convincing evidence that he is not likely to flee").
The First Circuit interpreted the "raises a substantial question of law or fact" provision in United States v. Bayko, 774 F.2d 516 (1st Cir. 1985). Analyzing the statutory language, the First Circuit adopted the Eleventh Circuit's interpretation and concluded that the phrase should be read to require that the issue appealed be "a close' question or one that very well could be decided the other way." Bayko at 523 (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). The First Circuit expressly rejected any interpretation that would require the district court to conclude that its own ruling would likely be reversed, as that would present the district court with a classic "Catch 22." Bayko at 522-23; see also United States v. Tyler, 324 F.Supp.2d 69, 70 (D. Me. 2004).
A. The Trial Transcript and De ...