United States District Court, D. New Mexico
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 ...