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United States v. Daley

United States District Court, W.D. Virginia, Charlottesville Division

September 17, 2019

United States of America,
v.
Benjamin Drake Daley, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon Defendants Benjamin Drake Daley, Michael Paul Miselis, and Thomas Walter Gillen's motions for bond pending appeal. (Dkt. 139, 146, 147).

         On October 10, 2018, Defendants were each indicted on one count of Travel with the Intent to Riot under 18 U.S.C. § 2101 and one count of Conspiracy under 18 U.S.C. § 371 for their conduct leading up to and culminating at the August 12, 2017, “Unite the Right” (“UTR”) rally. (Dkt. 8). Defendants Gillen and Daley were denied pretrial release upon their arrest in California. (Dkt. 7-11, 53-2). Defendant Daley unsuccessfully challenged his detention in the Western District of Virginia. (Dkt. 53, 63). Miselis was deemed eligible for pretrial release following arrest in California, but this decision was immediately challenged and overturned before this Court. (Dkt. 65, 66). After unsuccessfully attacking the prosecution on constitutional grounds, each Defendant pled guilty with the aid of a plea agreement to a single count under § 371, and on July 19, 2019, Daley, Miselis, and Gillen were sentenced to 37 months, 27 months, and 33 months, respectively. (Dkt. 157, 159, 161).

         As part of their plea agreements, Defendants reserved the right to attack their convictions on appeal by arguing the unconstitutionality of 18 U.S.C. § 2101. Their joint appeal in the Fourth Circuit is now docketed, (Case. No. 19-4550), and these three Defendants seek release on bond pending appeal.[1] As the individual analyses herein show, release on bond must be denied to these three Defendants.

         Legal Standard

         The Bail Reform Act, codified at 18 U.S.C. §§ 3141-56, governs the issue of when a defendant may be released pending judicial proceedings. Specifically, 18 U.S.C. § 3143(b) governs release pending appeal for a criminal defendant who has already been sentenced. The presumption under § 3143(b)(1) is that the defendant be detained. Section 3143(b)(1) provides that a defendant “who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal”-which is the case here-“shall ... be detained.” A defendant must be released pending appeal, however, if a court finds all four of the following:

(1) “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 ...”;
(2) “that the appeal is not for the purpose of delay”;
(3) “that the appeal ... raises a substantial question of law or fact”; and
(4) “that the appeal is ... 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 ...

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