United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION FOR RELEASE
Oki Mollway United States District Judge
this court is Defendant Matthew Berckmann's Motion For
Release Pending Appeal. See ECF No. 236. Following a
jury trial, Berckmann was convicted of two counts of having
intentionally assaulted his wife, Jessie Fenton. He is
currently serving a prison sentence of 41 months. Berckmann
argues that he should be released pending his appeal because
he satisfies the requirements of 18 U.S.C. § 3143(b)(1).
The court concludes that Berckmann has neither satisfied
§ 3143(b)(1) nor provided any “exceptional
reasons” making detention inappropriate, as required by
18 U.S.C. § 3145(c). Berckmann's motion for release
October 18, 2017, Berckmann was arrested in Haleakala
National Park, following an altercation with Fenton in one of
the park's campgrounds. On December 14, 2017, Berckmann
was charged with “intentionally assaulting Jessie
Fenton with a dangerous weapon, namely a knife, with intent
to do bodily harm to Jessie Fenton, ” in violation of
18 U.S.C. § 113(a)(3). He was also charged with
“intentionally assaulting Jessie Fenton, his spouse, by
strangling her, or attempting to do so, ” in violation
of 18 U.S.C. § 113(a)(8). ECF No. 4. On April 18, 2018,
a jury found Berckmann guilty of both counts. See
ECF No. 146.
Berckmann's trial attorneys moved to withdraw, the court
granted the motion, and new counsel was appointed for
Berckmann on May 18, 2018. See ECF Nos. 151, 155. On
May 22, 2018, Berckmann's new counsel filed a motion for
new trial, arguing that trial counsel had been ineffective in
failing to call Fenton as a witness at trial. See
ECF No. 158, PageID #s 1398-99. On July 18, 2018, Berckmann
filed a reply that raised new arguments, including the
argument that a juror may have engaged in misconduct.
See ECF No. 188, PageID #s 2588-89.
court held a hearing on the motion for new trial on August 6,
2018, at which time Berckmann added the argument that the
court had improperly admitted prior bad acts evidence under
Rule 404(b) of the Federal Rules of Evidence. The hearing was
continued after Berckmann indicated that he wanted to call
Fenton as a witness but could not locate her. See
ECF No. 197.
court later granted Berckmann leave to amend his motion so
that the arguments about the juror and the Rule 404(b)
evidence could be properly briefed, and on August 14, 2018,
Berckmann filed an amended motion for new trial. See
ECF Nos. 200, 206.
court held a continued hearing on September 10, 2018.
See ECF No. 215. Fenton was in the courthouse. At
times Berckmann seemed determined to call her to testify, but
Berckmann ultimately opted not to call Fenton as a witness.
The court later allowed optional briefing on the Rule 404(b)
issue, and the parties filed supplemental briefs on that
issue on October 9, 2018. ECF Nos. 217, 218, 219.
November 2, 2018, the court denied Berckmann's request
for a new trial. ECF No. 221. The court sentenced Berckmann
to 41 months in prison and three years of supervised release.
Judgment was entered on November 16, 2018. ECF No. 225.
Berckmann appealed on November 15, 2018. ECF No. 222.
January 7, 2019, Berckmann filed the present motion for
release. ECF No. 236. After the Government filed its
opposition and before Berckmann's reply was due,
Berckmann filed a motion for new counsel and a motion to stay
the proceedings pending the appointment of new counsel. ECF
No. 240. Both motions were granted, and Berckmann was
appointed new counsel on January 29, 2019. ECF No. 244.
Berckmann's new counsel filed a reply on February 22,
2019. ECF No. 245.
STANDARD FOR RELEASE PENDING APPEAL.
general, persons convicted of federal crimes are not eligible
for release pending appeal unless a 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