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United States v. Whittemore

United States District Court, D. Nevada

June 5, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
F. HARVEY WHITTEMORE, Defendant.

ORDER

LARRY R. HICKS, District Judge.

Before the court is the United States' motion to reconsider the court's December 31, 2013 order granting defendant F. Harvey Whittemore's ("Whittemore") motion for release pending appeal (Doc. #233[1]). Doc. #235. Whittemore filed an opposition (Doc. #236) to which the United States replied (Doc. #237).

I. Facts and Procedural Background

In 2007, defendant Whittemore promised to raise $150, 000 in campaign contributions for United States Senator Harry Reid's re-election campaign for the United States Senate. To make good on his promise Whittemore personally funded over $133, 000 through twenty-nine employees of his real estate development company, various family members, and their respective spouses as conduit donors to the Senator's campaign in order to bypass the individual campaign contribution limits under federal law.

On June 6, 2012, the Grand Jury returned a four (4) count Indictment against defendant Whittemore charging him with: (1) making excessive campaign contributions in violation of 2 U.S.C. § 441a(a)(1) ("Count 1"); (2) making contributions in the name of another in violation of 2 U.S.C. § 441f ("Count 2"); (3) false statement to a federal agency in violation of 18 U.S.C. § 1001(a)(2) ("Count 3"); and (4) false statement to a federal agency in violation of 18 U.S.C. § 1001(a)(2) ("Count 4"). Doc. #1.

On May, 29, 2013, after a two-week jury trial, the jury convicted Whittemore of Counts 1 through 3 of the Indictment. Doc. #163. However, the jury deadlocked on Count 4 and the court ultimately declared a mistrial on that count. Id.

On September 30, 2013, Whittemore was sentenced to twenty-four (24) months incarceration, but was granted until January 31, 2014, to self-surrender. See Doc. ##210, 213. Whittemore subsequently appealed both his conviction and sentence. Doc. #208. Along with his notice of appeal, Whittemore filed a motion for release pending his appeal (Doc. #227) which was granted by the court (Doc. #233). Thereafter, the government filed the present motion for reconsideration of the court's order. Doc. #235.

II. Discussion

In its motion, the government contends that reconsideration of the court's order granting Whittemore's release is warranted because the underlying basis for the court's order granting his release no longer exists. See Doc. #235. In particular, the government argues that with the recent decision in McCutcheon v. Federal Election Commission, S.Ct. No. 12-536, 572 U.S. ____ (2014), Whittemore's appeal fails to raise any substantial questions that are likely to result in a reversal or a new trial, and as such, his release is no longer warranted.

In his opposition, Whittemore raises two arguments. See Doc. #236. First, Whittemore contends that the court is without jurisdiction to consider the present motion for reconsideration. Second, Whittemore argues that regardless of the Supreme Court's decision in McCutcheon, his appeal raises sufficient substantial questions to continue his release during the pendency of his appeal. The court shall address both arguments below.

A. Jurisdiction

Whittemore argues that the court is without jurisdiction to consider the present motion because the court's order constituted a final order by the court, and therefore, the government can only seek review of that order with the Ninth Circuit in accordance with Rule 9(b) of the Federal Rules of Appellate Procedure. See Doc. #236.

The court has reviewed the documents and pleadings on file in this matter and finds that the court has jurisdiction over the present motion. First, Rule 9(b) does not preclude a party from seeking reconsideration of an order concerning release of a defendant with the district court, nor does the rule require review with the Ninth Circuit. See FED. R. APP. P. Rule 9(b) ("A party... may obtain review of a district court order regarding release after a judgment of conviction by filing a notice of appeal....") (emphasis added). Second, even after a conviction and appeal, a district court retains jurisdiction over the person of the defendant for "the limited purposes of reviewing, altering or amending the conditions under which the court released the defendant, and is empowered to revoke or forfeit the defendant's bond during the pendency of an appeal for any of the reasons which would have supported an initial denial of the defendant's application for release." United States v. Black, 543 F.2d 35, 37 (7th Cir. 1976). Several district and appellate court cases are in align. See e.g., United States v. Bascue, 1996 U.S. Dist. LEXIS 1919 (D. Ore. 1996) (reconsidering its prior order of release pending defendant's appeal); United States v. Spadoni, 2012 U.S. Dist. LEXIS 46956, *3 (D. Conn. 2012) ("Simply put, a district court is not divested of jurisdiction to issue orders concerning custody or release of a defendant while his conviction is on appeal."); Stein v. Wood, 127 F.3d 1187, 1190 ...


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