United States District Court, D. Colorado
A. BRIMMER, United States District Judge.
matter comes before the Court on defendant Kenneth
Brewington's Motion for Release on Bond Pending Appeal
[Docket No. 288]. The United States has filed a response
opposing the motion. Docket No. 296. On May 18, 2018, a jury
convicted Mr. Brewington of eleven of twelve counts charged
in the Superseding Indictment. Docket No. 250. On August 21,
2018, the Court sentenced Mr. Brewington to 70 months
imprisonment, continued his bond, and ordered him to
self-surrender within 15 days after the Bureau of Prisons
designated the facility in which he is to serve his sentence.
Docket No. 284 at 2.
for release pending appeal are governed by 18 U.S.C. §
3143(b). A person who has been found guilty of a criminal
offense, has been sentenced to imprisonment, and has filed an
appeal must be detained pending appeal unless the court finds
that (1) the defendant is not likely to flee or pose a danger
to the safety of any other person or the community if
released; (2) the appeal will not be filed for the purpose of
delay; and (3) the appeal will raise a substantial question
of law or fact which, if decided favorably to the defendant,
is likely to result in reversal, a new trial, a sentence that
does not include a term of imprisonment, or 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. See 18 U.S.C. § 3143(b)(1); United
States v. Affleck, 765 F.2d 944, 953 (10th Cir. 1985)
(en banc). The defendant has the burden of proving the first
requirement by clear and convincing evidence and the other
requirements by a preponderance of the evidence. Id.
at 953 n.15. The material issues raised by Mr.
Brewington's motion are, first, whether his appeal will
raise a substantial question of law or fact and, second,
whether such substantial question, if decided in his favor on
appeal, would result in reversal or a new
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.” Id. at 952, quoting
United States v. Giancola, 754 F.2d 898, 901 (11th
Cir. 1985). “[W]hether a particular question is
‘substantial' must be determined on a case-by-case
basis.” Id. The defendant argues that
“[v]arious motions to exclude or limit evidence were
filed by the defense and overruled by the Court, to
significant degrees.” Docket No. 288 at 8. After
listing some of these motions, the defendant states that the
“result of the various rulings was a flood of unduly
prejudicial, case changing information admitted against Mr.
Brewington. . . .” Id. In particular, Mr.
Brewington states that he offered the testimony of Ms. Devon
Harrison, “whose testimony was significantly limited by
the Court.” Id.
Ms. Harrison, Mr. Brewington does not identify what testimony
the Court excluded and why the Court's exclusion of that
testimony was arguably erroneous. Without knowing the
specifics of the excluded testimony, it is not possible for
the Court to determine whether its exclusions of such
testimony raise a “substantial question” under
§ 3143(b)(1)(B). Other than Ms. Harrison, defendant
lists a number of motions that the Court denied. Id.
He does not identify what aspect of the motions the Court
denied, what evidence the rulings had the effect of
excluding, or why the rulings were “close” or
could have been decided the other way. Additionally, Mr.
Brewington states that “sentencing issues are also
substantial.” Id. at 9. He does not identify
what sentencing rulings were arguably erroneous. Once again,
without knowing specifically what the Court excluded and why
the rulings were improper, it is impossible for the Court to
determine whether Mr. Brewington's appeal of these issues
will raise a substantial question. Thus, the Court finds that
Mr. Brewington has failed to demonstrate by a preponderance
of the evidence that his appeal will raise a substantial
question pursuant to § 3143(b)(1).
that Mr. Brewington has failed to carry his burden of showing
that his appeal will raise a substantial question, he also
fails to demonstrate by a preponderance of the evidence that
his appeal will likely result in a reversal or a new trial.
In order for the Court to consider this requirement, it is
necessary that the Court identify a substantial question. As
a result of these conclusions, the Court does not find it
necessary to consider whether Mr. Brewington has sustained
his burden of proof as to the first two requirements of
§ 3143(b)(1). Wherefore, it is
that defendant's Motion for Release on Bond Pending
Appeal [Docket No. 288] is denied.
 Mr. Brewington does not argue that his
appeal would result in a sentence other than imprisonment or
a sentence less than the time he has already served plus the