MEMORANDUM OPINION AND ORDER
JAMES
E. BOASBERG United States District Judge.
This
past May, a jury convicted Defendant Michael Sang Han of two
counts of tax evasion, for which the Court concurrently
sentenced him in October to 48 months of incarceration with
self-surrender after December 15, 2018. He now moves for
release pending appeal, contending that he is neither a
danger nor a flight risk and that he has raised a substantial
question as to the propriety of his conviction. Disagreeing
with his last position, the Court will deny his Motion.
I.
Legal Standard
Under
18 U.S.C. § 3143(b)(1), the Court must detain a
defendant pending appeal unless it finds: (A) by clear and
convincing evidence that he is not likely to flee or pose a
danger to the safety of any other person or the community if
released; (B) that the appeal is not for the purpose of
delay; and (C) that the appeal raises a substantial question
of law or fact likely to result in: (i) reversal, (ii) an
order for a new trial, (iii) a sentence that does not include
a term of imprisonment, or (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.
Because the Government does not dispute that Han has
satisfied subsections (A) and (B), the sole question here
relates to subsection (C).
An
analysis of that subsection is generally construed as a dual
inquiry: (1) Does the appeal raise a substantial question of
law or fact? (2) If so, would the resolution of that question
in Defendant's favor be likely to lead to any of the
results listed above? See United States v. Perholtz,
836 F.2d 554, 555 (D.C. Cir. 1988). The Government takes its
stand on the first prong.
In
determining whether Defendant has raised a substantial
question, the Court keeps in mind that there is a presumption
of a valid conviction when assessing motions for release
pending direct appeal. Id. at 556. Defendant bears
the burden of rebutting this presumption. United States
v. Libby, 498 F.Supp.2d 1, 3 (D.D.C. 2007); see also
United States v. Shoffner, 791 F.2d 586, 589 (7th Cir.
1986) (finding defendant must “demonstrate that he has
a substantial question to present [on appeal] before he may
be admitted to bail”). To determine whether a
substantial question exists, the Court must inquire whether
the defendant has raised an issue that is “a close
question or one that very well could be decided the other
way.” Perholtz, 836 F.2d at 555-56 (finding
that “close question” standard is “more
demanding” than one that requires the inquiry to be
“fairly debatable, ” “fairly doubtful,
” or simply “not frivolous”); see also
United States v. Adams, 200 F.Supp.3d 141, 144 (D.D.C.
2016) (setting out standard).
II.
Analysis
In
seeking his release, Defendant asserts that his appeal will
raise substantial questions of error that are likely to
result in a new trial. See Mot. at 6-10. Those can
be easily divided into two principal points: (1) The Court
improperly admitted evidence of other wrongdoing under
Fed.R.Evid. 404(b); and (2) The Government failed to prove
that the $22.3 million from Frank Carlucci and James Russell
were investments into Envion, as opposed to personal loans to
Han. Id. “Although, ” as it noted in
Adams, “the Court recognizes that it is far
from infallible, it believes that it appropriately disposed
of these . . . issues and that Defendant's challenges are
insufficient to warrant release.” 200 F.Supp.3d at 144.
As to
the 404(b) question, this was the subject of lengthy pretrial
briefing and argument, thoroughly and ably presented by
previous counsel. The Court considered myriad pieces of
evidence, permitting the Government to introduce some and
precluding it from introducing others. Revisiting those
rulings that went against Han would not present a substantial
question. In addition, while the Court does not believe it
abused its discretion in its rulings, any such error would
not likely lead to a new trial because it would have been
harmless given the weight of the evidence properly admitted
by the Government.
Second,
the proper characterization of the $22.3 million was also a
sharply contested issue at trial, and again, the Court
believes that the jury could properly determine that such
monies were investments into Envion and not personal loans to
Defendant. As a result, this, too, does not raise a
substantial question. Nor could the Court, as requested by
Han, find that his counsel was ineffective in addressing
these sums. See Mot. at 2. His attorneys were
vigorous and zealous throughout their representation, filing
multiple pretrial motions and at all times advancing factual
and legal theories to their client's benefit. This
certainly applies to the question of the $22.3 million, which
was a principal focus of the defense team.
III.
Conclusion
Because
the Court concludes that none of the issues presented by
Defendant constitutes a substantial question of law or fact,
the Court ORDERS that ...