United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
court sentenced defendant David G. Pflum on May 25, 2017.
Doc. 73. Near the end of his sentencing hearing, Mr. Pflum,
representing himself at the hearing, made an oral motion. It
asked the court to place a location monitoring system on him.
Because this motion made little sense - Mr. Pflum is in
custody - the court elected to treat this motion as one
seeking pretrial release under 18 U.S.C. § 3143(b) while
he appeals his criminal convictions to the Tenth Circuit. The
court denies Mr. Pflum's motion.
3143 of Title 18 of the United States Code requires detention
of a person “who has been found guilty of an offense
and sentenced to a term of imprisonment, and who has filed an
appeal” unless the court 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 . . .; and
(B) that the appeal is not for the purpose of delay and
raises a substantial question of law or fact likely to result
(ii) an order for a new trial,
(iii) a sentence that does not include a term of
(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.
18 U.S.C. § 3143(b)(1) (emphasis added).
court applies a two-step analysis to determine whether to
release a defendant pending appeal under this statute.
United States v. Affleck, 765 F.2d 944, 952 (10th
Cir. 1985). First, the court must determine that the appeal
raises a “substantial” question of law or fact.
Id. at 952. Second, the court must find that
“if that substantial question is determined favorably
to defendant on appeal, [then] that decision is likely to
result in reversal or an order for a new trial of all counts
on which imprisonment has been imposed.” Id.
(quoting United States v. Miller, 753 F.2d 19, 24
(3d Cir. 1985)). The Tenth Circuit has described what
constitutes a “substantial question” this way:
“[O]ne 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.” Id. (quoting United States v.
Giancola, 754 F.2d 898, 901 (11th Cir. 1985)).
Pflum does not meet at least one aspect of §
3143(b)'s requirements. The first subsection of the
statute requires Mr. Pflum to demonstrate by clear and
convincing evidence that he “is not likely to
flee.” 18 U.S.C. § 3143(b)(1)(A). Mr. Pflum has
made no such showing. Indeed, the court's experience with
Mr. Pflum suggests just the opposite. For the majority of the
time that this case was pending against Mr. Pflum, he was on
release. He appeared for most (but not all) court-related
hearings and events. But on the day his trial was to begin,
Mr. Pflum did not appear. Doc. 156. The court issued a bench
warrant, Doc. 157, the United States Marshals Service
apprehended Mr. Pflum, and the court revoked his pretrial
release. Doc. 164. Specifically, the court found it
“unlikely that defendant would abide by any added
condition or combination of conditions of release that would
reasonably assure defendant's appearance as
required.” Id. Given this series of events and
the court's earlier findings, it cannot conclude that he
“is not likely to flee” now that he has been
convicted on two felony charges. This alone requires the
court to deny his motion for release. But there is more.
second subsection of the statute requires Mr. Pflum to
establish that his appeal “raises a substantial
question of law or fact likely” to produce a reversal,
a new trial, a sentence with no custody component, or a
custody sentence likely shorter than the anticipated life of
the appeal. 18 U.S.C. § 3143(b)(1)(B). Now that Mr.
Pflum is representing himself, it is difficult to predict the
arguments that he might make on appeal. But the post-trial
arguments mustered by his former counsel - an accomplished
criminal lawyer with significant trial experience - presented
no such questions. See Doc. 182. Mr. Pflum's pro
se post-trial filings have produced far less. See,
e.g., Doc. 188 (rehashing the oft rejected
“missing credentials” and racketeering
arguments), Doc. 189 (claiming “American
National” status and thus immunity from federal income
taxes “per 8 U.S.C. §§ 1101(a)(21) and
1452”), and Doc. 196 (arguing for release and dismissal
of indictment because government had “defaulted in
responding to the mandatory notice of Docket #188 per FREV
201(c)(2) (mandatory judicial notice)”). These
arguments, among many, many others, raise no
“substantial question” of the kind required by
§ 3143(b), and the court finds no reason to conclude
that Mr. Pflum is likely to succeed on appeal.
court holds that Mr. Pflum is not entitled to release pending
appeal under 18 U.S.C. § 3143(b). ...