United States District Court, D. Minnesota
J. MacLaughlin and Benjamin F. Langner, Assistant United
States Attorneys, United States Attorney's Office,
Minneapolis, MN, on behalf of Plaintiff.
Comisky, Esq., and Patrick J. Egan, Esq., Fox Rothschild LLP,
Philadelphia, PA, on behalf of Defendant.
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Scott Phillip Flynn's
(“Flynn”) Motion for Bail Pending Appeal [Docket
No. 143]. Flynn requests release from prison pending his
appeal from this Court's January 24, 2019 Judgment of
Conviction and Sentence. Plaintiff United States of America
(the “Government”) has filed a Response [Docket
No. 148] opposing the Motion.
December 21, 2016, a grand jury indicted Flynn with
conspiracy to defraud the United States in violation of 18
U.S.C. § 371, tax evasion in violation of 26
U.S.C.§ 7201, and filing false tax returns in violation
of 26 U.S.C. § 7206(1). See generally
Indictment [Docket No. 1]. After several continuances of the
trial date, trial was set for June 11, 2018. On June 4, 2018,
just one week before trial was scheduled to begin, Flynn
reached a Plea Agreement with the Government and entered a
plea of guilty to Count 1 (conspiracy to defraud the United
States) and Count 3 (false tax return - 2007) of the Second
Superseding Indictment (“SSI”) [Docket No. 83].
See Plea Agreement [Docket No. 90]; Min. Entry
[Docket No. 89]; Plea Tr. [Docket No. 93].
December 11, 2018, more than half a year after his guilty
plea and just nine days before he was scheduled to be
sentenced, Flynn reversed course and, through new counsel,
moved to continue his sentencing and withdraw his guilty
plea. The Court denied Flynn's motion to withdraw the
guilty plea, and sentenced him to 60 months imprisonment on
Count 1 and 27 months on Count 3, for a total prison term of
87 months. Sentencing J. [Docket No. 139] at 2. The Court
also ordered Flynn to pay restitution of $5, 392, 442.87.
Id. at 6. At the sentencing hearing, the Court
granted the Government's motion to have Flynn taken into
custody. See Hr'g Tr. [Docket No. 151] at
February 5, 2019, Flynn appealed his conviction and sentence.
Also on February 5, Flynn filed the instant Motion for Bail
defendant's release pending appeal is governed by 18
U.S.C. § 3143(b)(1). The statute falls within the Bail
Reform Act of 1984, which “made it much more difficult
for a convicted criminal defendant to obtain his release
pending appeal, ” and has led to the intended result of
“fewer convicted persons remain[ing] at large while
pursuing their appeals.” United States v.
Marshall, 78 F.3d 365, 366 (8th Cir. 1996) (per curiam).
“[R]elease pending appeal now requires that the
district court . . . find (A) by clear and convincing
evidence that the defendant is unlikely to flee or pose a
danger to others, and (B) that his appeal ‘raises a
substantial question of law or fact' that is likely to
result in reversal, new trial, or reduction to a sentence
that would be served before disposition of the appeal.”
Id. (quoting 18 U.S.C. § 3143(b)(1)).
Likely to Flee
has not met his burden of showing by clear and convincing
evidence that he is unlikely to flee. As the Court noted at
the sentencing hearing, Flynn has demonstrated a pattern of
using last-ditch efforts to delay the day of reckoning for
his crimes. He entered a guilty plea on the eve of trial and
then attempted to withdraw that plea on the eve of
sentencing. Flynn also has the knowledge and means to flee.
He travels ...