The Government does not contend that defendant poses a risk of flight or danger to the community, 1

or that defendant’s appeal is frivolous, or brought solely for purposes of delay.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA §

§

v. § CR. NO. 2:06cr202-WKW

§

EUGENE CLECKLER §

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR BOND PENDING

APPEAL

Comes now the United States of America, by and through Leura G. Canary, United States

Attorney for the Middle District of Alabama, and hereby responds to Defendant’s motion for bond

pending appeal as follows.

I. LEGAL STANDARD APPLICABLE TO RELEASE PENDING APPEAL

Title 18, United States Code, Section 3143(b) governs the Court's determination of whether

the defendant may be granted release pending appeal. The statute provides in pertinent part that a

defendant who is not a flight risk or a danger to the community, and who has been sentenced to a 1

term of imprisonment, “shall” be detained pending appeal, unless a court finds that the appeal “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 term of imprisonment less

than the total of the time already served plus the expected duration ofthe appeal process.” 18 U.S.C.

§ 3143(b).

Prior to the enactment of Section 3143(b), there existed a presumption in favor of granting

convicted defendants bond pending appeal. Section 3143(b) was enacted by Congress in 1984 in

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order to “reverse the presumption in favor of bail that existed under the prior statute . . . .” United

States v. Giancola, 754 F.2d 898, 900 (11 Cir. 1985). Under the amended statute, the “burden of th

establishing” a right to bail “is on the convicted defendant.” Id. at 901. The shift in the presumption

“assure[s] that post-conviction bail is confined to those who are among the more promising

candidates for ultimate exoneration.” United States v. Schoffner, 791 F.2d 586, 589 (7th Cir. 1986).

The presumption of confinement pending appeal “gives recognition to the basic principle that

a conviction is presumed to be correct.” S. Rep. No. 225, 98th Cong., 1st Sess. 27, reprinted in U.S.

Code Cong. & Ad. News 3182, 3209. The change in the law also reflects Congress’s appreciation

that “release of a criminal defendant into the community after conviction may undermine the

deterrent effect of the criminal law, especially in those situations where an appeal of the conviction

may drag on for many months or even years.” Id. In other words, Congress has recognized that

“harm results not only when someone is imprisoned erroneously, but also when execution of

sentence is delayed because of arguments that in the end prove to be without merit.” Schoffner,

79 F.2d at 589.

Because of the shift in the presumption, even defendants who are neither a flight risk nor a

danger to the community have the burden of establishing (1) “that the appeal raises a substantial

question of law or fact,” and (2) that resolution of that question in favor of the defendant would

“likely result in reversal or an order for a new trial of all counts on which imprisonment has been

imposed.” Giancola, 754 F.2d at 901. A “‘substantial question’ is one of more substance than

would be necessary to a finding that it was not frivolous. It is a ‘close’ question or one that very well

could be decided the other way.” Id.

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See also United States v. Reich, 420 F. Supp. 2d 75, 90 n.6 (E.D.N.Y. 2006) (denying motion for 2

bond pending appeal where defendant sought to appeal evidentiary ruling with respect to which district court

was afforded discretion under Fed. R. Evid. 403); United States v. Kemp, 379 F. Supp. 2d 690 (E.D. Pa.

2005) (denying bond pending appeal where rulings related to jurors were matters within court’s discretion

and rulings were consistent with precedent from other circuits); United States v. Lane, 194 F. Supp. 2d 758,

777, 786 (N.D. Ill. 2002) (denying motion for bond pending appeal on ground that no substantial question

was raised regarding the exclusion of evidence and, “more significantly,” that such exclusion could not

legitimately be found to constitute an abuse of discretion), aff'd, 281 F.3d 638 (7th Cir. 2002); United States

v. Butler, 704 F. Supp. 1351, 1354 (E.D. Va. 1989) (denying motion for bond on ground that denial of

mistrial, in part because ruling was reviewable only for abuse of discretion); United States v. Draiman,

614 F. Supp. 307, 311 (N.D. Ill. 1985) (denying bond where court’s restriction of cross examination was a

matter of discretion).

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Even if a question is determined to be “substantial” within the meaning of § 3143(b), the

defendant must also show, as a second step, that a resolution of that question in the defendant's favor

would be likely to lead to reversal or the grant of a new trial. This aspect of the inquiry requires the

Court to consider the potential impact of a decision in defendant’s favor in light of the nature or type

of question involved. E.g., United States v. Handy, 761 F.2d 1279,1280 (9th Cir. 1985) (the second

prong focuses on the type of question that must be presented). “[H]armless errors, errors that have

no prejudicial effect, or errors that have been insufficiently preserved,” which would not result in

reversal or a new trial, do not satisfy the applicable standard. United States v. Bilanzich, 771 F.2d

292 (7th Cir. 1985). Similarly, questions that address matters that are not “integral to the merits,”

or to which deferential standards of appellate review apply, are substantially less likely to satisfy the

second prong of the inquiry required by § 3143(b). United States v. Powell, 761 F.2d 1227, 1234

(8th Cir. 1985) (en banc); see also United States v. Day, 433 F. Supp. 2d 54, 56-57 (D.D.C. 2006)

(denying motion for bond pending appeal, and noting that evidentiary rulings, which are reviewed

for abuse of discretion, are less likely to result in reversal than rulings on issues of law, which are

reviewed de novo).2

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See Tarver v. Hopper, 169 F.3d 710, 717 (11 Cir. 1999) (prosecutor’s statement to defense counsel 3 th

that the witness’s testimony would be “taken into consideration” was “too preliminary and ambiguous to

demand disclosure.”); Depree v. Thomas, 946 F.2d 784, 797 (11 Cir. 1991) (prosecutor and detective told th

witness that they would “take care of” him; disclosure not required because statement was “ambiguous” and

was not a “promise[] that the witness would, in fact, receive more favorable treatment”); McCleskey v. Kemp,

753 F.2d 877, 884 (11 Cir. 1985) (state not required to disclose detective’s promise to witness that detective th

would “speak a word” on behalf of the witness), aff’d on other grounds, 481 U.S. 279 (1987); Bell v. Haley,

437 F. Supp. 2d 1278, 1309 (M.D. Ala. 2005) (agent’s statement to witnessthat agent could discuss witness’s

pending charges after defendant’s trial “was too insubstantial to constitute a ‘promise’”).

See United States v. Bueno-Sierra, 99 F.3d 375, 378 (11 Cir. 1996) (disclosure made during trial; 4 th

no prejudice when district court granted a recess to allow for additional cross-examination, and impeaching

material was “fully explored”) United States v. Mejia, 82 F.3d 1032, 1036-37 (11 Cir. 1996) (no prejudice th

where “the information alleged to have been withheld was brought out in fact on cross examination”);

United States v. Knight, 867 F.2d 1285, 1289 (11 Cir. 1989) (disclosure made during trial; no prejudice th 

where witness was recalled and subject to additional cross-examination); United States v. Darwin, 757 F.2d

1193, 1201 (11 Cir. 1985) (disclosure made after witness’s testimony; no prejudice where defense could th

have recalled witness but chose not to); United States v. Nixon, 634 F.2d 306 (5 Cir. 1981) (reversal th

inappropriate when “the late disclosure in no way prejudiced full impeachment of [the witness]”).

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II. CLECKLER RAISES NO SUBSTANTIAL QUESTIONS LIKELY TO RESULT IN

A NEW TRIAL

Applying this standard here, it is clear that the Court should deny Cleckler’s motion. With

respect to the Court’s failure to declare a mistrial based on the untimely disclosure of impeachment

evidence, as the Government noted in its response to Cleckler’s motion for new trial, the information

in question was not Giglio material at all. In addition, even if disclosure was required, Cleckler 3

pointed to no prejudice from the late disclosure, which came in time for Cleckler to make use of the

information on cross-examination. Moreover, the Eleventh Circuit will review this Court’s “denial 4

of a motion for mistrial for abuse of discretion.” United States v. Ramirez, 426 F.3d 1344, 1353 (11th

Cir. 2005); see also United States v. Cardales, 168 F.3d 548, 555 (1 Cir. 1999) (abuse of discretion st

standard applies to a “motion[] for a mistrial based on [an] alleged Brady violation”). Therefore, the

Giglio issue does not pose a substantial question likely to result in a new trial.

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See Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (“The party invoking the 5

attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the

particular communications were confidential.”); In re Grand Jury Investigation (Schroeder), 842 F.2d 1223,

1226 (11th Cir. 1987); United States v. Moore, 485 F.2d 1165, 1167 (5 Cir. 1973).

th

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The attorney-client privilege issue that Cleckler mentions is even less substantial. Cleckler

had the burden of establishing the validity of the privilege, yet, as the Court noted in its Order

5

denying Cleckler’s motion for new trial, Cleckler “fail[ed] to specify” the advice and strategy he

claimed was improperly disclosed”. (Ord. at 5) Therefore, neither the privilege nor the Giglio issue

provides a basis for granting Cleckler bail pending appeal.

CONCLUSION

For the reasons set forth above, the United States requests that the Court deny Cleckler’s

motion for bond pending appeal.

LEURA G. CANARY

UNITED STATES ATTORNEY

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney

131 Clayton Street

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

Case 2:06-cr-00202-WKW-CSC Document 114 Filed 07/13/2007 Page 5 of 6
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IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA §

§

v. § CR. NO. 2:06cr202-WKW

§

EUGENE CLECKLER §

CERTIFICATE OF SERVICE

I hereby certify that on July 13, 2007, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system which will send notification of such filing to the following:

George Beck, Esq., and Ronald Brunson, Esq.

Respectfully submitted,

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

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