The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER DENYING DEFENDANT'S RENEWED MOTION FOR BAIL
Defendant Samuel Ness's renewed motion for bail pursuant to 18 U.S.C. § 3143(b), in light of the Supreme Court's remand of his conviction to the Second Circuit for reconsideration in accordance with its decision in Cuellar v. United States, 128 S.Ct. 1994 (June 2, 2008), is denied for the reasons stated below.
On May 15, 2003, after a two-week jury trial, Ness was convicted on both counts of a two-count indictment. Count One alleged a conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). The Indictment alleged three objects of that conspiracy: 1) to engage in certain monetary transactions in criminally derived property in an amount greater than $10,000 that was derived from narcotics trafficking in violation of 18 U.S.C. § 1957(a); 2) to conduct certain financial transactions in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and 3) to transport and transfer funds in violation of 18 U.S.C. § 1956(a)(2)(B)(i). Count Two of the indictment alleged money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The jury's verdict found Ness guilty of both counts, and of all three objects of the conspiracy alleged in the first count.
At trial, the Government presented evidence that between April 2000 and November 2001, Ness sent millions of dollars in proceeds from Ecstasy trafficking abroad. He transported the money through his business, Protective Logistics, Inc., to foreign drug suppliers in Amsterdam, Belgium and Israel. He disguised the packages by mixing the Ecstasy money with the money, jewelry and other valuables that were entrusted by customers to his business. The evidence showed that Ness would take a one to four percent cut of the money being trafficked. See Ness Trial Tr. at 1061.
Immediately following the jury verdict on May 15, 2003, the Government moved to remand Ness.*fn1 After hearing argument from both parties, I ordered that Ness be remanded, finding that Ness had failed to show, by clear and convincing evidence, that he was not likely to flee. Three siblings were willing to post a bond on his behalf, but I held that they could not assure that he would be present for all court obligations. Specifically, I held that because of "the amount of money involved, the government's inability to find that money, the likelihood that the money is accessible to Mr. Ness in different parts of the world," the risk of loss posed to the people who said they were willing to cosign on his behalf would be substantially diminished. (Ness Trial Tr. at 1240).
At Ness's sentencing on February 13, 2004, I found that Ness's adjusted offense level was 34, resulting in a sentencing range of 151 to 188 months. I sentenced Ness to 180 months' imprisonment.
Ness appealed, and sought bail pending appeal. I denied his motion on August 19, 2004.
On April 25, 2005, the Court of Appeals remanded the case for further proceedings consistent with United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). See United States v. Booker, 543 U.S. 220 (2005). I held a renewed sentencing hearing on August 8, 2005.
I found that the sentence imposed was just and not materially different from any sentence that would have been imposed after Booker, using the criteria set out in 18 U.S.C. § 3553(a).
Ness appealed again to the Court of Appeals. On April 4, 2006, his motion for bail was denied. On October 10, 2006, the Court of Appeals affirmed Ness's convictions and again denied bail. See United States v. Ness, 466 F.3d 79, 81 (2d Cir. 2006), vacated, __ S.Ct. __, 2008 WL 2329930 (2008).*fn2
Ness then filed a petition for a writ of certiorari in the United States Supreme Court, arguing that the Second Circuit's affirmance of his conviction should be reversed because it was based on an incorrect definition of the terms "conceal or disguise." Ness argued that the concealment element of a money laundering charge pursuant to 18 U.S.C. § 1956 required not that the transportation itself was a concealment, but that the transaction or transportation at issue was designed to give unlawful proceeds the appearance of legitimate wealth. See United States v. Ness, 466 F.3d 79, 81 (2d Cir. 2006), vacated, __ S.Ct. __, 2008 WL 2329930 (2008). The Supreme Court had granted certiorari in Cuellar, a similar case, on October 25, 2007. As a result, Ness moved this Court for bail pending the resolution of his petition. On December 12, 2007, I denied Ness's motion, holding that Ness had failed to meet his burden by clear and convincing evidence that he was not a flight risk. Ness appealed my decision to deny bail, and on January 17, 2008, the Second Circuit denied his motion.
II. The Governing Statute
Release or detention pending a defendant's appeal is governed by 18 U.S.C. § 3143(b), ...