Summary
finding that a notice of appeal precluded the court from adjudicating the defendant's Rule 35 motion, and citing U.S. v. Ransom, 866 F.2d. 574, 575 (2d Cir. 1989)
Summary of this case from United States v. BrownOpinion
96 CR 767 (SJ).
April 8, 2008
BENTON J. CAMPBELL, United States Attorney, Eastern District of New York, Brooklyn, NY, By: Peter A. Norling, Esq., Attorney for the United States.
HAMEED RAMJOHN, #47021-053, MDC Brooklyn, Brooklyn, NY, Defendant, Pro Se.
MEMORANDUM AND ORDER
Presently before the Court is a motion filed by Hameed Ramjohn ("Defendant"), proceeding pro se, for correction of the sentence imposed by this Court on June 22, 2007, pursuant to Rules 35(a) and 45(a) of the Federal Rules of Criminal Procedure ("Rule 35(a)" and "Rule 45(a)"). Also before the Court is Defendant's application for bail pending appeal. Although Defendant's Rule 35 motion was filed timely, Defendant subsequently filed a Notice of Appeal with the United States Second Circuit Court of Appeals, challenging the legality of his sentence. Thus, this Court has no jurisdiction over any substantive matters related to this case and is therefore precluded from addressing the merits of Defendant's Rule 35 motion. See United States v. Ramjohn, 866 F.2d 574, 575 (2d Cir. 1989) (holding that "[a] notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." (internal citations omitted)). Indeed, the court found specifically that "a district court may not grant a Rule 35 motion pending appeal of a judgment, even to correct an illegal aspect of the sentence." Ramjohn, 866 F.2d at 576. Therefore, this Court will not address the Rule 35 motion unless and until the matter is remanded for further proceedings.
It is unclear why Defendant cites Rule 45(a) in his motion, given that this provision simply addresses computation of time. The Court declines to address this aspect of the motion any further.
Defendant's motions for relief pursuant to Rules 35(a) and 45(a) were filed on June 26, 2007, and July 18, 2007, and posted as docket entries 136 and 137, respectively. Defendant's attorney submitted a Notice of Motion and Affirmation on July 1, 2007, posted as docket entry 133. However, Defendant is apparently proceeding pro se from this point forward.
With respect to Defendant's request for a bail package pending his appeal, the party moving for such relief must meet a heavy burden in order to prevail. Under 18 U.S.C. § 3143(b)(1), which governs such applications, the presumption in favor of bail at the pre-trial stage is reversed, given that the defendant, in this instance, has been convicted of the crime(s) in question.See United States v. Randell, 761 F.2d 122, 124-125 (2d Cir. 1985); see also United States v. Miller, 753 F.2d 19, 22 (3d Cir. 1985). The statute makes it clear that a defendant who has been found guilty and sentenced to a period of imprisonment must be detained pending appeal unless the judicial officer 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 under section 3142(b) or (c) of this title; 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 duration of the appeal process. 18 U.S.C. § 3143(b)(1) (emphasis added).
Adopting the language used by the court in United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985), the Second Circuit has defined the term "substantial question of law or fact" as one that is "of more substance than would be necessary to a finding that it was not frivolous," and one that constitutes a "`close' question or one that very well could be decided the other way."Randell, 761 F.2d at 125.
Without rendering a decision as to the merits of Defendant's instant Rule 35 motion, the Court notes that Defendant's sentence was reduced on a previous occasion, in light of the U.S. Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the Court previously rejected Defendant's argument that the amended sentence violated his Sixth Amendment rights, thus leading to Defendant's current appeal to the Second Circuit. See June 22, 2007 Transcript of Sentencing Proceedings at 12. Hence, the Court finds that no substantial question of law or fact exists here.
CONCLUSION
For the reasons stated herein, the Court finds that it is divested of jurisdiction with respect to Defendant's Rule 35 motion and that Defendant has failed to overcome the presumption against bail pending appeal, as articulated in 18 U.S.C. § 3143(b)(1). Therefore, Defendant's application for a bail package pending appeal is DENIED.SO ORDERED.