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United States v. Nicolo

April 15, 2010


The opinion of the court was delivered by: David G. Larimer United States District Judge


Defendants John Nicolo and David Finnman have been convicted after jury trial of multiple counts involving conspiracy, mail and wire fraud, and money laundering. Defendant Nicolo was remanded into custody immediately after the jury returned its verdict on May 20, 2008. On February 19, 2009, Nicolo was sentenced by this Court to a term of imprisonment of 144 months.

Defendant Finnman was also sentenced on February 19, 2009, to a 21-month term of imprisonment. Finnman, who had previously been released on bail, was allowed to self-surrender, which he did on May 14, 2009.

Both Nicolo and Finnman have moved for release from custody pending the outcome of their appeals, which are currently pending before the Court of Appeals for the Second Circuit, pursuant to 18 U.S.C. § 3143(b). For the reasons that follow, both motions are denied.


I. General Principles

Section 3143(b) provides in general that when a defendant has been convicted, and has filed an appeal or a petition for a writ of certiorari, the district court shall order that he be detained, unless the court finds, by clear and convincing evidence, that: (1) the defendant is not likely to flee; (2) if released, the defendant is not likely to pose a danger to the safety of any other person or the community; and (3) the appeal is not for the purpose of 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 to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. "The defendant bears the burden of persuasion as to all of the elements in subsection (b)." United States v. Lima, No. 06-cr-00349, 2007 WL 4565030, at *1 (E.D.N.Y. Dec. 21, 2007)(citing United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985)).

A question raised on appeal is "substantial" if it "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." Randell, 761 F.2d at 125 (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). If the district court does find that a question raised on appeal is "substantial," the court "must then consider whether that question is 'so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.'" Randell, 761 F.2d at 125 (quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)). "[O]n this issue, as on all the criteria set out in subsection (b), the burden of persuasion rests on the defendant." Id.

The statute, then, creates a "presumption that a defendant who has received a sentence of imprisonment will be detained pending appeal...." United States v. Ciccone, No. 07 Cr. 399, 2008 WL 2498242, at *1 (S.D.N.Y. June 19, 2008). "The convicted defendant bears a heavy burden in arguing for release pending appeal" under this provision. United States v. Weisberg, No. 07-CR-66, 2008 WL 5114218, at *1 (W.D.N.Y. Nov. 25, 2008) (citation omitted); accord United States v. Ramjohn, No. 96 CR 767, 2008 WL 974580, at *1 (E.D.N.Y. Apr. 8, 2008). See also United States v. Abuhamra, 389 F.3d 309, 317 n.5 (2d Cir. 2004) (noting "the heavier burden imposed by 18 U.S.C. § 3143(b)" compared to release pending sentencing under § 3143(a)); United States v. Blair, No. 06-CR-208, 2009 WL 3672064, at *1 (W.D.N.Y. Oct. 29, 2009) ("The defendant bears the burden of proving that he does not pose a risk of flight or a danger to the community").

II. Nicolo's Motion

In his motion, Nicolo raises a panoply of reasons why, he claims, he should be released pending appeal. He alleges that he does not pose a danger to the community, and is not a flight risk, because: (1) he is in his late seventies and in ill health; (2) he would have no access to firearms if released; and (3) he has a "long history of compliance" with this Court's orders and conditions of release.

Nicolo also contends that he has raised substantial issues on his appeal. Specifically, he has asserted on appeal that this Court erred in denying his motion to change venue, and in denying his request for a three-month continuance for medical reasons. He also alleges that the prosecutor committed misconduct in his closing argument at Nicolo's trial, and that Nicolo's own trial attorney (who no longer represents Nicolo) was ineffective.*fn1

Having reviewed Nicolo's motion and the Government's response, and based on my familiarity with this case, I conclude that Nicolo has fallen far short of the showing required under § 3143. His motion, then, is denied.

First, while it does appear that Nicolo suffers from some health problems, that alone does not mean that he poses no flight risk or danger to others. See, e.g., United States v. Rogers, No. SA:06-CR-00272, 2006 WL 1677849, at *1-*2 (W.D.Tex. June 12, 2006) (rejecting defendant's argument that because of his age--63--recent heart attack, and absence of past violent behavior, he did not pose a flight risk or danger to others, in light of other evidence concerning defendant's past behavior); United States v. Sessa, 821 F.Supp. 870, 873 (E.D.N.Y. 1993) ("No matter how aged or infirm, [defendants] will continue to represent serious dangers to the community").

That is not to say that Nicolo's age and health are not relevant considerations, but only that they are not the only factors that the Court should consider relative to the risk that he would attempt to flee or pose a danger to the community if released. See, e.g., United States v. Sudeen, No. CR. 02-062, 2003 WL 21977170, at *1-*2 (E.D.La. Aug. 14, 2003) (denying defendant's motion to be released pending sentence, notwithstanding defendant's series of health problems, and noting that "there is no evidence that the defendant cannot obtain necessary medical treatment while in custody").

Indeed, while a defendant's advanced age may, in some circumstances, tend to diminish those risks, it may also increase the risk of flight, especially where the defendant is facing a lengthy prison sentence; such a defendant may feel that he has little or nothing to lose by fleeing. The Second Circuit recently noted this concerning a request for release by Bernard Madoff. United States v. Madoff, 316 Fed.Appx. 58, 59 (2d Cir. 2009) ("As to the incentive to flee (based on his age and exposure to a lengthy imprisonment), we consider that such an incentive naturally bears upon and increases the risk of flight"); see also United States v. Georgiou, Cr. No. 09-88, 2010 WL 701892, at *2 (E.D.Pa. Mar. 1, 2010) (finding that defendant had failed to show that he was unlikely to flee, in part because defendant was "effectively facing a possible life sentence"); United States v. Bedoya, No. 89 CR 803, 1990 WL 164826, at *1 (S.D.N.Y. Oct. 22, 1990) (finding, based on defendant's "demeanor at trial and the fact that he [wa]s faced with spending a significant portion of the rest of his life in custody," both that he "ha[d] an incentive to flee" and that "he ha[d] no respect for his legal obligation" not to flee).

In addition, notwithstanding Nicolo's claim to have established a "long history of compliance" with this Court's orders and conditions imposed on his prior release, the record in this case shows exactly the opposite. Indeed, as this Court has commented on prior occasions, Nicolo has consistently seen himself, throughout this prosecution, as a victim, and he has elevated his own perceived interests above the law, the Court's orders, and the interests of others in general.

This Court has already addressed matters relating to Nicolo's violations of the conditions of his release. On December 15, 2008, the Court issued a Decision and Order granting the Government's motion to revoke Nicolo's release pending sentence. In that decision, I noted that "[w]ithin a matter of hours" after releasing Nicolo on bail on September 8, 2008, "the Court received information that Nicolo had almost immediately violated the conditions of the Court's order not to contact [his wife and co-defendant] Constance Roeder, her family or Roeder's attorneys." 2008 WL 5234342, at *1. Based on that information, the details of which need not be repeated here, the Court issued a warrant for ...

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