United States District Court, D. New Mexico
December 16, 2016
UNITED STATES OF AMERICA, Plaintiff,
MATTHEW CHANNON, and BRANDI CHANNON, Defendants.
MEMORANDUM OPINION AND ORDER
matter is before the Court on Mr. Channon's Motion
for Release Pending Appeal [Doc. 376], filed November 1,
2016. The Government has filed a response in opposition to
the motion [Doc. 394]. After considering the facts, the
evidence, and the arguments of the parties, the Court
concludes that the motion should be granted as explained
Law Regarding Release Pending Appeal
18 U.S.C. § 3143(b)(1), unless a defendant has been
convicted of certain crimes not present here, the Court must
presume that a defendant should be detained pending appeal
unless it finds (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,
” and (2) “that the appeal is not for purpose of
delay, ” and (3) the appeal raises a substantial
question of law or fact, and (4) the substantial question of
law or fact is likely to result in” reversal, a new
trial, or a lesser sentence. The statute further provides
that “[i]f the judicial officer makes such findings,
such judicial officer shall order the release of the person
in accordance with section 3142(b) or (c) ...” Section
3142(b) addresses release on personal recognizance or
unsecured appearance bond, while section 3142(c) and its many
subparts provide for release on conditions.
Government does not contend that Matthew Channon is a flight
risk, or that he presses his appeal for the purpose of delay.
Thus, the first and third elements above are not in question.
Further, the Government does not dispute the portion of the
fourth element relating to the consequence of a finding of
error-in other words, the Government concedes that if Channon
succeeds in his claim on appeal, it will likely result in
reversal or an order for a new trial. Thus, the only questions
this Court must consider are whether Channon has shown by
clear and convincing evidence that he is not a danger to the
safety of another person or the community, and whether his
appeal raises a substantial question of law.
Safety of the Community
support of his argument that he poses no danger to the
community, Channon points out that he has been released on
his own recognizance and compliant with those conditions for
more than three years. He contends that “the
possibility that his conviction could be overturned on appeal
provides exceptionally strong motivation for Mr. Channon to
continue his compliance with all conditions of release,
” and that he has “everything to lose and nothing
to gain” by violating those conditions.
response, the Government points to the fraud scheme of which
Channon has been convicted, and accuses him of lying on his
tax returns and embezzling from an employee- conduct which is
alleged but not proven. The Government also argues that
Channon's good behavior while released on his own
recognizance is entitled to little weight because he has not
been required to report to Pretrial Services, which would
have monitored his conduct and provided the Court with more
information upon which to judge his behavior.
Court concludes that Channon's good behavior over the
last three and a half years provides clear and convincing
evidence that he will not be a danger to the community.
Substantial Issue of Law
substantial question 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.” United States v. Affleck, 765 F.2d
944, 952 (10th Cir. 1985) (en banc) (internal quotation marks
omitted). “[W]hether a particular question is
‘substantial' must be determined on a case-by-case
the substantial question asserted by Channon is the
admissibility of many of the exhibits offered by the
Government and admitted into evidence by this Court. These
exhibits took the form of spreadsheets compiling voluminous
data in the possession of OfficeMax. Channon argued that the
spreadsheet constituted summaries under Federal Rule of
Evidence 1006, so that the Government was required to make
the originals or duplicates available; and that the
spreadsheets were prepared in anticipation of litigation and
at the request of the FBI so could not satisfy the business
records exception to the hearsay rule under Fed.R.Evid.
803(6). Ultimately, after great deliberation, the Court ruled
that the spreadsheets were summaries based on original
business records and were therefore admissible at trial. Doc.
307 at 50-53.
the Court ultimately found that the evidence was admissible,
this was not an obvious conclusion in this Court's mind.
Here, the underlying OfficeMax data regarding such things as
in-store transactions and the accumulation of rewards points
existed only electronically in the OfficeMax computer system,
and could be accessed only by creating a spreadsheet. The
creation of such a spreadsheet, and the information it
contained, was subject to a myriad of variables controlled by
the person or persons accessing the electronic data. Outside
of the spreadsheet created from the electronic data by an
OfficeMax employee or FBI agent, Channon had no way to access
the underlying transactional records. This resulted in a
situation that was unique in this Court's experience, and
one regarding which there was very little case law. In light
of the Court's struggle with the issue and the lack of
guidance from other courts, the Court concludes that this
issue is, in fact, a close question or one that very well
could be decided the other way. Thus, it is a substantial
question of law.
Exceptional Reasons Provision of § 3145(c)
argues as an alternative that even if he failed to meet the
criteria for release laid out in § 3143(b)(1), he should
still be released because his case presents
“exceptional reasons” for release under 18 U.S.C.
§ 3145(c). Having found that Channon qualifies for
release under §3143(b)(1), the Court declines to reach
this question. However, the Court will note that
§3145(c), by its very terms, applies to defendants
seeking release pending appeal only when they have been found
guilty of a crime of violence, a crime with a maximum penalty
of life imprisonment or death, a terrorism offense, or a drug
crime as described in 18 U.S.C. § 3142(f)(1)(A), (B),
and (C). See § 3143(b)(2). Since Channon was
not convicted of any of these crimes, it would appear that
Section 3145(c) does not apply.
Conditions of Release
Court has concluded that Channon has met the elements of
§ 3143(b)(1) and is entitled to release while his appeal
is pending. The Government argues that if the Court orders
Channon's release, it should impose conditions of release
designed to protect the public during that time because the
conditions imposed pretrial are insufficient now that he has
been convicted. Thus, the Government suggests that the Court
impose the same conditions of supervised release the Channon
must comply with upon his release from prison. However, the
Court-in consultation with U.S. Probation-concludes that the
conditions of release imposed upon Channon by Judge Molzen on
April 12, 2013 (see Doc. 13) are sufficient and should
continue to apply to Channon during the pendency of his
THEREFORE ORDERED that Mr. Channon's Motion for
Release Pending Appeal [Doc. 376] is GRANTED. IT IS
FURTHER ORDERED that Channon must continue to adhere to the
conditions of release set forth in Doc. 13.
 In determining whether or not the
appeal raises a substantial question, the Tenth Circuit has
adopted the two-step test set forth in United States v.
Miller, 753 F.2d 19, 24 (3d Cir. 1985). The test
requires that the court first decide whether the appeal
raises a “substantial question” of law or fact.
If the court finds in the affirmative, it must then determine
whether the appeal will likely “result in reversal or
an order for a new trial of all counts on which imprisonment
has been imposed” if the “substantial
question” is decided in defendant's favor.
United States v. Affleck, 765 F.2d 944, 952 (10th
Cir. 1985) (citing Miller, 753 F.2d at 24).