United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant Kenneth
Brewington's Second Motion for Release on Bond Pending
Appeal [Docket No. 302]. The United States has filed a
response opposing the motion. Docket No. 305. 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. After the Bureau of Prisons designated
Mr. Brewington to USP Lompoc (SCP North), the Court ordered
him to surrender by 2:00 p.m. on September 27, 2018. Docket
September 5, 2018, Mr. Brewington filed a Motion for Release
on Bond Pending Appeal [Docket No. 288]. The Court denied
this motion on September 13, 2018. Docket No. 297.
noted in the Court's order denying the defendant's
first motion, requests 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
defendant bases his motion on the Court's rulings as to
two categories of evidence: the testimony of Ms. Devon
Harrison and certain Fed.R.Evid. 404(b) rulings.
Ms. Harrison, Mr. Brewington argues that the Court improperly
limited her testimony at trial. In particular, Mr. Brewington
Ms. Harrison's complete proposed testimony, as provided
in the offer of proof when she was called, was relevant to
the jurors' consideration of the many statements made in
recordings and testimony about everything from bankers, to
proofs of funds, to Shannon Johnson, to ABN-AMRO, to overseas
funds, and to Mr. Brewington believing in all of it. The
government characterized everything Mr. Brewington said about
such things as out and out fraud. Since he was found guilty,
both the government and the Court have assumed that the
jurors did not believe what Mr. Brewington told them about
Docket No. 302 at 5.
Mr. Brewington announced that he was calling Ms. Harrison as
a witness, the Court held a bench conference, where the
government objected that Mr. Harrison's testimony, which
involved contact with Shannon Johnson years earlier and under
different circumstances, was irrelevant to Mr.
Brewington's state of mind. Mr. Brewington then made an
offer of proof regarding Ms. Harrison's testimony. The
Court ruled that Ms. Harrison could testify generally that
she met Mr. Johnson and what period of time she dealt with
him, she saw his house, she discussed investments with him,
Mr. Johnson was someone who purported to be wealthy, she
traveled with him, and the money Mr. Johnson promised her
never materialized. Ms. Harrison testified within the scope
of this ruling, describing Mr. Johnson's lavish
lifestyle, that he invested in her business, that she
“full heartedly relied on his representations, ”
that such representations never came to fruition, and that
she did not get any of the funding she was expecting from
Brewington asserts that the Court limiting her to general
testimony prejudiced him because the “details of her
‘business' experience with Shannon Johnson are what
would allow jurors to actually confirm the reality of Johnson
and that he had the energy, imagination, and acumen to pull
an unknowing Ken Brewington into a victimizing fraud.”
Docket No. 302 at 5. The government responds by stating that
the issue for the jury was Mr. Brewington's intent, not
“an unrelated victim's state of mind, ”
Docket No. 305 at 2, and that the excluded testimony
“may well have improperly shifted the jury's
attention away from defendant's knowledge and
intent.” Id. at 3.
Court finds that Mr. Brewington has failed to demonstrate by
a preponderance of the evidence that his appeal of the
Court's limitation on Ms. Harrison's testimony will
raise a substantial question pursuant to § 3143(b)(1).
First, Mr. Brewington has not raised a “substantial
question” in regard to the Court's ruling on the
scope of Ms. Harrison's testimony. The details that Mr.
Brewington wanted to introduce were not relevant to the
charges, given that they involved different types of
investments made at a different time period. See United
States v. Puckett, 692 F.2d 663, 671 (10th Cir. 1982).
Moreover, the Court finds that Mr. Brewington has not shown
that, had the Court allowed the testimony as proposed in the
offer of proof during trial, such testimony was “likely
to result in reversal, an order for 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.” 18 U.S.C. § 3143(b)(1). Mr. Brewington
testified at length about what Mr. Johnson told him and the
circumstances that caused Mr. Brewington to trust Mr.
Johnson. Even if the Court had allowed Ms. Harrison to
recount the details that were excluded, ultimately the jury
had the task of assessing the defendant's credibility.
Ms. Harrison's excluded details would have formed but a
tiny piece of evidence that spanned seven days. It is highly
unlikely that Ms. Harrison's more detailed testimony
would have caused the jury to believe Mr. Brewington, which
the verdict shows it did not. The Court allowed Ms. Harrison
to confirm Shannon Johnson's existence, to corroborate
that he appeared to have lots of money, to testify that she
trusted him enough to enter into a business deal with him,
and that, in the end, his promises were not fulfilled and she
did not receive any money from him. This enabled Mr.
Brewington, in his closing argument, to claim that Shannon
Johnson duped Mr. Brewington with his appearance of wealth
just like he had duped Ms. Harrison. Thus, Mr. Brewington was
not precluded from introducing and arguing the salient points
of Ms. Harrison's evidence.
Brewington also argues that the Court erred in allowing the
government to introduce evidence regarding the company Ten X.
Docket No. 302 at 7. At the January 4, 2018 motions hearing,
the Court allowed the government to introduce that evidence
through both Rule 404(b) and as intrinsic evidence to explain
the nature of the relationship between Mr. Elrod and Mr.
Brewington. The defendant provides no convincing explanation
for that ruling raising a substantial question. Moreover, the
defendant fails to show by a preponderance of the evidence
that the verdict would likely have been different if the
Court had ruled differently.
Brewington claims that the Court should have excluded the
testimony of witness D.A. about giving Mr. Brewington $700,
000 in order to enable Shannon Johnson to open a line of
credit to access Mr. Brewington's 500 million Euros in an
ABN AMRO account. At the January 4, 2018 hearing, the Court
allowed the government to present this evidence under Rule
404(b) as pertinent to the government being able to
demonstrate that Mr. Brewington's representations
regarding his wealth were false, given that this story
differed from the story that Mr. Brewington told to investors
and witnesses regarding the charges in the case. The Court
provided a contemporaneous Rule 404(b) limited purpose
admonition to the jury about this testimony. Although the
defendant renews his argument that the testimony had nothing
to do with the charges, the Court believes otherwise and
therefore finds that ...