The opinion of the court was delivered by: Judge Curtis L. Collier
Before the Court is Defendant Michael Nelson's ("Defendant") motion for release pending appeal (Court File No. 43)*fn1 as well as his memorandum of law in support (Court File No. 42). Defendant requests an order granting him bond pending appeal pursuant to 18 U.S.C. §3143(b). The United States of America ("Government") filed a response (Court File No. 45). Also before the Court is Defendant's notice of late-filed exhibit to motion for release and in the alternative motion to delay report date (Court File No. 46). For the following reasons, the Court will DENY both of Defendant's motions (Court File Nos. 43 & 46).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On May 25, 2006, with the benefit of a plea agreement, Defendant pleaded guilty to Count Three of the Indictment which charged him with aiding and abetting mail fraud in violation of 18 U.S.C. §§ 1341 and 1342 before Magistrate Judge Susan Lee (Court File No. 19).*fn2 The Magistrate Judge issued her report and recommendation on June 1, 2006, which recommended that Defendant's plea of guilty to Count Three of the Indictment be accepted by this Court (Court File No. 24). On June 29, 2006, the Court entered an order acceptingand adoptingthe Magistrate Judge's report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and orderedthat Defendant's plea of guilty to Count Three of the Indictment was accepted, adjudged Defendant guilty of the charges set forth in Count Three of the Indictment, deferred a decision on whether to accept the plea agreementuntil sentencing, and ordered that Defendant shall remain on bond until sentencing (Court File No. 26). Defendant's sentencing hearing was held on February 8, 2007 and February 9, 2007 before this Court (Court File Nos. 31 & 33).*fn3 Defendant was sentenced to 27 months imprisonment, 3 years supervised release and ordered to pay $477,204.00 in restitution (Court File No. 36). Defendant is not an American citizen and is subject to deportation upon release from imprisonment (Id.).
Defendant filed a notice of appeal on February 16, 2007 (Court File No. 34) and Judgment was entered against Defendant on February 23, 2007 (Court File No. 36). Defendant filed a motion to stay sentencing pending appeal on March 2, 2007 (Court File No. 39). The Court denied this motion and ordered Defendant to comply with the Judgment and self-report to the Bureau of Prisons for service of his sentence on April 9, 2007 before twelve noon (Court File No. 40). Defendant then filed the instant motion on March 14, 2007 requesting release pending appeal (Court File 43) as well as a notice of late-filed exhibit to the motion for release and in the alternative a motion to delay his reporting date (Court File No. 46).
The Bail Reform Act governs the Court's determination of whether a defendant should be allowed to remain on bond while an appeal is pending, and it creates a presumption against release. United States v. Vance, 851 F.2d 166, 169 (6th Cir. 1988). The statute provides that a defendant found guilty of an offense and sentenced to a term of imprisonment must be detained unless a judicial officer finds: (1) by clear and convincing evidence the defendant is not likely to flee or pose a danger to the safety of another person or the community; and (2) the appeal is not for delay and raises a substantial question of law or fact likely to result in reversal, an order for new trial, a sentence that does not include a term of imprisonment, or a sentence reduced 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)(A)-(B); United States v. Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002); United States v. Pollard, 778 F.2d 1177, 1181 (6th Cir. 1985). "[A]n appeal raises a substantial question when the appeal presents a close question or one that could go either way and the question is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor." Pollard, 778 F.2d at 1182 (internal quotations omitted).
A. Motion for Release Pending Appeal
Applying the elements of 18 U.S.C. § 3143(b)(1)(A)-(B) the Court must first determine whether Defendant is not likely to flee or pose a danger to the safety of another person or the community if allowed to remain on bond pending his appeal. Defendant submitted three affidavits along with his brief in support of his motion: (1) the affidavit of James Waddell, his immediate supervisor at his current job, (2) the affidavit of Jennifer Nelson, his wife, and (3) his own affidavit (Court File No. 42, Attachments 1, 2, & 3). Defendant is a citizen of the United Kingdom; however, he surrendered his passport prior to his arrest in this matter (Court File No. 42, Attachment 3). Defendant indicates it is his intention to remain in Chattanooga, Tennessee indefinitely upon the final resolution of this case (Id.). There is evidence that Defendant has resided in Chattanooga, Tennessee since 1994 and has owned a home in that location for approximately five years (Id.). Defendant is currently employed and has been offered continued employment upon his release from imprisonment if a vacancy exists (Court File No. 42, Attachment 1). Additionally, Defendant's wife of over 37 years has indicated it is her intention to continue to reside in Chattanooga, Tennessee with her husband for the remainder of their lives (Court File No. 42, Attachment 2). In her affidavit, Jennifer Nelson also indicates she does not believe Defendant poses a flight risk. (Id.). Accordingly, the Court finds by clear and convincing evidence that Defendant is not likely to flee if allowed to remain on bond pending his appeal.
There is no evidence that Defendant has a criminal history (Court File 42, Attachments 2 & 3). Additionally, the factual basis of Defendant's plea agreement indicates the crime he pleaded guilty to did not involve violence (Court File No. 21). Therefore, the Court finds by clear and convincing evidence Defendant is not likely to pose a danger to the safety of the community if allowed to remain on bond pending his appeal.
Therefore, Defendant must prove his appeal is not for delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence. 18 U.S.C. § 3143(b)(1)(B). In the brief accompanying his motion, Defendant argues his appeal raises two such questions: (1) whether this Court erred in finding Defendant responsible for the loss caused by his co-defendant, Kelli Finnell's ("Defendant Finnell") diversion of two checks that belonged to Nedgraphics (Defendants' previous employer); and (2) whether this Court erred in accepting the valuation of Kids R Kids (the day care center which was the subject of a fraudulent loan Defendants obtained) as stated in the Presentence Report (Court File No. 42). Extensive evidence was presented at the sentencing hearing concerning both of these issues and the Court made findings of fact concerning them (Court File No. 44, Transcript, at 54-59).*fn4
A district court's factual findings at sentencing concerning the amount of loss for which a defendant is to be held accountable are subject to a deferential "clearly erroneous" standard of review. United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997); United States v. Brawner, 173 F.3d 966, 971 (6th Cir. 1999). A finding of fact is clearly erroneous when a reviewing court is "left with the definite and firm conviction that a mistake has been committed" based upon a review of the entire evidence. United States v. Gort-DiDonata, 109 F.3d 318, 320 (6th Cir. 1997). The Court will consider each of these issues in turn.
i. Loss Caused by Diversion of Two Checks From NedGraphics Defendant Claims this Court Erred in Finding him Responsible for the Loss Caused by the Diversion of Two Checks ...