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United States v. Murtaugh

August 3, 2009

UNITED STATES OF AMERICA
v.
RICHARD R. MURTAUGH, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On February 10, 2009, a jury convicted Defendant Richard R. Murtaugh of two counts of tax evasion in violation of 26 U.S.C. § 7291 and four counts of filing false individual and corporate income tax returns in violation of 26 U.S.C. § 7206(1). The jury also acquitted Defendant of two counts of tax evasion, three counts of filing false individual and corporate income tax returns, and one count of conspiracy to obstruct an official proceeding.

On June 19, 2009, this Court denied Defendant's post-verdict motion for a new trial. On June 24, 2009, this Court sentenced Defendant to a total term of twenty-one months of imprisonment on each count to run concurrently and to a term of two years of supervised release upon completion of his term of imprisonment. The Court also ordered him to pay a $10,000 fine and a $600 special assessment, both of which he has paid in full. The Court ordered Defendant to begin serving his jail sentence on September 1, 2009. Defendant filed a Notice of Appeal on June 29, 2009.

On July 17, 2009, Defendant filed a motion for bail pending appeal pursuant to 18 U.S.C. § 3143(b). Defendant contends that he has met all of the requirements of § 3143(b)(1) and that, therefore, he is entitled to the relief he seeks. The Government opposes this motion.

In support of his motion, Defendant argues that there is clear and convincing evidence that he is neither a flight risk nor a danger to the community. In addition, he claims that there are substantial appellate issues that are likely to result in either a reversal, an order for a new trial, or a sentence that does not include a term of imprisonment. Specifically, he asserts that (1) the search warrant affidavit was sufficiently deficient to require suppression of evidence, (2) the Court committed reversible error by ruling that the Government could cross-examine him about his refusal to speak with Special Agents of the Internal Revenue Service during their execution of the search warrant, (3) the Court's refusal to comply with the request that he made during jury deliberations for an instruction concerning the legal rules governing the filing of IRS Form 1099s was reversible error, (4) the jury's failure to follow the Court's instructions requires a new trial, and (5) the Court improperly imposed a sentence of incarceration.

The Court will address each of these arguments in turn.

II. DISCUSSION*fn1

A. The Governing Statute

Section 3143(b)(1) provides, in pertinent part, that 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 --

(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, [or]

(iii) a sentence that does not include a term of ...


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