USA v. Brown et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff
vs. 	4:17-cr-40058
MEMORANDUM
RANDY LEVERNE GARRISS, 	AND ORDER
Defendant
__________________________________________________________________
Pending before the Court is Defendant’s Motion to Continue Release
Conditions Pending Appeal and Stay of Execution (Doc. 366).
I. Background
Defendant was convicted by a jury of Attempt to Interfere with the
Administration of Internal Revenue Laws, 26 U.S.C. § 7212(a) and Conspiracy to
Defraud the United States, 18 U.S.C. § 371. The jury reached its verdict on June
17, 2022, after a lengthy trial in which Defendant represented himself with stand-
by counsel. The case against Defendant centered around his conspiring with others
to assist Steve and Ted Nelson in sheltering funds owed to the United States in
connection with the criminal case against them for conspiracy to defraud the
United States, failure to file income tax returns, and impeding the Internal Revenue
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Service. They were convicted on May 12, 2015. The Government alleged
Defendant participated in the conspiracy involving the Nelsons, Loren Brown and
Garriss by, among other actions, serving as trustee of sham trusts which had been
set up by the Defendant, the Nelsons, and others to shield the Nelsons' assets from
recovery by the United States. Garriss was prosecuted with co-defendant Brown,
who pleaded guilty to impeding the Internal Revenue Service on June 21, 2022. At
the time of Garriss's trial, Brown was awaiting sentencing. He was a cooperating
witness and testified at length at Garriss's trial.
The Court sentenced Garris on September 26, 2022, to 36 months and three
years of supervised release. The Court did not order restitution. (Doc. 356). The
Court ordered that Defendant appear at the United States Marshalls Service on
October 17, 2022, to begin serving his sentence. Defendant now moves the Court
to stay his report date.
II. Legal Standard
The governing statute is 18 U.S.C. § 3143 which provides in pertinent part
as follows:
Release or detention of a defendant pending sentence or appeal …
(b) Release or detention pending appeal by the defendant.--(1) Except as
provided in paragraph (2), the judicial officer shall order that a person who
has been found guilty of an offense and sentenced to a term of
imprisonment, and who has filed an appeal or a petition for a writ of
certiorari, be detained, unless the judicial officer finds--
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(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.
The Eighth Circuit has provided guidance on the interpretation of §
3143(b)(1)(B). The court has directed that in determining whether an individual
has raised a substantial question of law or fact the court should address the
likelihood of success on the merits. United States v. Powell, 761 F.2d 1227, 1233
(8th Cir. 1985). Thus, a petition involving harmless error or failure to preserve the
record would clearly not qualify as “likely to result in reversal,” and thus would
not present a substantial question. Id. On the other hand, in determining what
would qualify, the court stated the test for whether a substantial question is
presented is that the issue is a “close question,” and “will more probably than not,
if decided in defendant's favor, lead to a reversal or an order for new trial on all
counts on which imprisonment has been imposed.” Id.
Numerous courts have applied this standard in resolving claims similar to
Garriss’s. In United States v. Ruzicka, the defendant was convicted of fraud and
filing false tax returns, resulting in an 84-month sentence. 2019 WL 2710699 (D.
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Minn. 2019). The court set a date six months in the future as the report date, and
defendant moved for a postponement. The court denied the request. Id. *6. It
rejected defendant’s claim of insufficiency of evidence and other alleged trial
errors, concluding defendant had not presented a substantial question that would
result in reversal and the order of a new trial. Id. Likewise, in United States v.
Engelman, the court rejected defendant’s request for release pending appeal. 985
F.Supp.2d 1042, 1050 (D. Iowa 2013) aff’d 720 F.3d 1005 (8th Cir. 2013). The
issue before the district court was an alleged violation of a sequestration order in
connection with defendant’s trial for bank fraud and wire fraud. The district court
applied the standards of 18 U.S.C. § 3143 and Powell in denying relief. Id. 1050-
51. The court found the issues did not pose a “close question” and determined
nothing had impaired the fundamental fairness of the proceeding. Id.at 1051. See
also, United States v. Sampica, 2015 WL 4247148 (D. Minn. 2015) (no substantial
question under § 3143(b) presented); United States v. Estrada, 2008 WL 2148762
(D. S.D. 2008) (same).
III. Garriss’s Motion
Defendant requests a stay of the Order that he report to begin serving his
sentence on October 17, 2022. In applying the standards of § 3143, the Court must
first address the requirement in § 3143(b)(1)(A) that it make a determination that
the defendant is not a flight risk or poses a danger to any other person or to the
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community. The Court finds that Garriss is not a flight risk and does not pose a
danger to another person or to the community. The Court noted in imposing
sentence that Garriss did not have to be taken into custody immediately because he
was not a flight risk and did not pose such dangers. Nothing has occurred in the
intervening period of time to alter the Court’s determination in this regard.
The second factor the Court must address is whether Garriss raises a
substantial question on appeal, meaning one that is likely to result in reversal. The
Court finds Garriss does not have a substantial question to raise on appeal. The
Court summarized the evidence at trial in the Background section, above. The jury
listened to the evidence at a lengthy trial and reached a guilty verdict. Garriss
proceeded pro se and handled his defense with the assistance of stand-by counsel.
The Court discerned no error during trial that would likely result in reversal on
appeal and finds Defendant has not met the standard of § 3143(b)(1) and Powell.
In his motion for a stay, Garriss relies primarily on his perception of inconvenience
in handling his appeal while incarcerated. This is not a sufficient reason under §
3143 to grant a stay. Therefore, the Court denies the motion for a stay.
The Court recognizes that pursuant to F.R.Crim.P. 38(b)(2), when a stay is
denied the Court can make a recommendation to the Attorney General that the
Defendant be confined in a place near the place of appeal to permit the defendant
to assist in the preparation of the appeal. The Court so recommends.
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CONCLUSION
The Defendant has not met the standard of 18 U.S.C. § 3143 for a stay of
execution of his report date of October 17, 2022, because he has not demonstrated
he has a substantial question of law or fact to raise on appeal. Therefore his Motion
to Continue Release Conditions Pending Appeal and Stay of Execution (Doc. 366)
is denied.
Accordingly, IT IS ORDERED that the Motion to Continue Release
Conditions Pending Appeal and Stay of Execution (Doc. 366) is denied.
Dated this 14th day of October, 2022.
BY THE COURT:
____________________________
Lawrence L. Piersol
United States District Judge
ATTEST:
MATTHEW W. THELEN, CLERK
________________________________
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