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United States v. Arterbury

United States District Court, N.D. Oklahoma

August 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT FREDERICK ARTERBURY, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

         Now before the Court are defendant Scott Frederick Arterbury's motion for release on bond with conditions pending appeal (Dkt. # 35) and unopposed motion, in the alternative, to be allowed to self-report to the [Bureau of Prisons] BOP facility (Dkt. # 36).

         I.

         On December 7, 2015, in a separate case, a grand jury indicted defendant on one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). See United States of America v. Scott Frederick Arterbury, 15-CR-182 (N.D. Okla. filed Dec. 7, 2015) (Arterbury I), Dkt. # 14. Defendant filed a motion to suppress the photos and videos of child pornography that the Federal Bureau of Investigation obtained in searching his residence and computer. Id. at Dkt. # 33. For reasons explained in the Court's earlier opinion and order in this case (see Dkt. # 23, at 1-4), the magistrate judge handling pretrial matters in Arterbury I issued a report and recommendation that the district judge grant defendant's motion, and the district court accepted the magistrate judge's report and recommendation and granted defendant's motion to suppress. Arterbury I, 15-CR-182, at Dkt. # 42; Dkt. # 47. After the district court denied plaintiff's motion to reconsider the suppression order, on July 26, 2016, plaintiff filed a notice of interlocutory appeal in the Tenth Circuit, challenging the suppression order. Id. at Dkt. ## 55-56. But shortly thereafter, plaintiff moved to voluntarily dismiss its interlocutory appeal and, in the district court, moved to voluntarily dismiss the indictment. Id. at Dkt. # 63, Dkt. # 66. On October 20, 2016, the Tenth Circuit dismissed plaintiff's interlocutory appeal. Id. at Dkt. # 63. On November 10, 2016, the district court dismissed the indictment, “without prejudice to re-filing same.” Id. at Dkt. # 67.

         Plaintiff's effort to hold defendant accountable for his alleged possession of child pornography, however, would not end there. On July 21, 2017, the Tenth Circuit issued an opinion in United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), cert. denied, 2018 WL 1786016 (U.S. Apr. 16, 2018), which, also as explained in the Court's earlier opinion and order in this case (see Dkt. # 23, at 1-4), overruled the legal basis upon which defendant's motion to suppress in Arterbury I was granted. Accordingly, plaintiff believed it was entitled to reprosecute defendant for the conduct charged in Arterbury I. Dkt. # 17, at 1-2. And, on March 7, 2018, a separate grand jury returned an indictment identical to the indictment in Arterbury I, charging one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2) . Dkt. # 17, at 1-2; Dkt. # 2.[1]

         Defendant filed a motion to enforce the Arterbury I suppression order on the ground of collateral estoppel (Dkt. # 13), and, in the alternative, to suppress evidence and request for an evidentiary hearing (Dkt. # 14). The Court denied both. Dkt. # 23. Shortly thereafter, defendant entered into a conditional plea agreement with plaintiff, in which defendant agreed to plead guilty to the count in the indictment but reserved his right, inter alia, to appeal the Court's denial of his pretrial motions. Dkt. # 27, at 1-3.

         II.

         Defendant argues that the Court, under 18 U.S.C. § 3143(b) as interpreted by United States v. Affleck, 765 F.2d 944 (10th Cir. 1985), should release him on bond with conditions pending appeal of his sentence because he is not a flight risk or danger to the community, and his appeal is not for the purpose of delay and raises a substantial question of law. Dkt. # 35, at 3-6. Defendant asserts that he has established by clear and convincing evidence that he is not a flight risk or a danger to the community because, at all relevant times, he has complied with the conditions of his pretrial release, timely appeared for all court proceedings, never left the Northern District of Oklahoma, and has committed no new crimes. Id. at 3. Defendant contends that his appeal presents a substantial question of law because: (1) in its opinion and order denying defendant's motion to enforce the Arterbury I suppression order, the Court characterized the collateral estoppel issue that defendant intends to appeal as one of first impression; and (2) if the Tenth Circuit vacates the Court's opinion and order as to the collateral estoppel issue, a reversal of defendant's conviction will likely result. Id. at 3-5 (quoting Dkt. # 23, at 7).

         Plaintiff agrees that the governing authority in this case is § 3143(b) as interpreted by Affleck and does not argue that defendant is likely to flee, poses a danger to the community, is bringing this appeal for purposes of delay, or that, should the Tenth Circuit decide the collateral estoppel issue in his favor, reversal of his conviction is not probable. Dkt. # 37, at 2. But plaintiff contends that defendant's appeal does not present a substantial question of law because defendant “points to nothing that suggests the Tenth Circuit might disagree with the Court's ruling.” Id. at 2-3.

         The Court finds that, under 3143(b) as interpreted by Affleck, defendant's motion for release on bond with conditions pending appeal (Dkt. # 35) should be granted. Section 3143(b) provides, in pertinent part, :

(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-
(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 . . . .
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section ...

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