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United States v. Berckmann

United States District Court, D. Hawaii

February 28, 2019



          Susan Oki Mollway United States District Judge


         Before 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 is denied.

         II. BACKGROUND.

         On 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.

         Thereafter, 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.

         The 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.

         The 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.

         The 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.

         On 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.

         On 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.


         In 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 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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