USA v. GOGUEN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
v. 	) 	No. 1:16-cr-00167-JAW-1
) 	No. 1:11-cr-00003-JAW-1
ROBERT GOGUEN 	)
ORDER DENYING DEFENDANT’S MOTION FOR RELEASE PENDING
APPEAL
The Court rejects a defendant’s motion for release pending appeal because it
concludes that he has not sustained his burden to prove by clear and convincing
evidence that he does not pose a danger to any other person or the community under
18 U.S.C. § 3143(b)(1)(A), that his appeal does not raise any substantial issues of
material fact or law as required by 18 U.S.C. § 3143(b)(1)(B), and that the defendant
is in any event subject to the mandatory detention provisions of 18 U.S.C. §
3143(b)(2).
I. 	BACKGROUND
A. 	United States v. Robert Goguen – 1:11-cr-00003-JAW
On January 12, 2011, a federal grand jury indicted Robert Goguen for violating
the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250(a). Indictment
(ECF No. 1) (1:11-cr-00003-JAW-1). 	The indictment alleged that Mr. Goguen had
been convicted of a sex offense in the state of Connecticut in 1996 and had failed to
register as a sex offender in the state of Maine beginning no later than August 31,
2009. 	Id. 	On July 14, 2011, Mr. Goguen appeared before the Court and entered a
plea of guilty to the charged offense, Min. Entry (ECF No. 43), and on September 14,
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2012, the Court sentenced Mr. Goguen to thirty-seven months of imprisonment, three
years of supervised release, a $100 special assessment, and no fine. J. (ECF No. 80);
Am. J. (ECF No. 90). 	Mr. Goguen did not appeal his conviction or sentence to the
Court of Appeals for the First Circuit.
On August 16, 2013, the Government filed a warrant and summons for
violations of supervised release, alleging Mr. Goguen violated his sex offender
treatment condition by downloading pornographic movies at the Penobscot County
Judicial Center’s law library. 	Pet. for Warrant or Summons for Offender under
Supervision (ECF No. 96). 	On September 23, 2013, Mr. Goguen admitted the
violation, and the Court sentenced him to five months of incarceration and thirty-one
months of supervised release. 	Revocation J. (ECF No. 113). 	Mr. Goguen appealed
this revocation judgment to the First Circuit, which summarily affirmed it. J. of Ct.
of Appeals for the First Circuit (ECF No. 142).
On November 13, 2015, the Government filed a second petition for revocation,
this time alleging that Mr. Goguen violated two conditions of supervised release by
possessing child pornography on his computer. 	Pet. for Warrant or Summons for
Offender under Supervision (ECF No. 144). 	Mr. Goguen admitted the violations on
September 15, 2017. Min. Entry (ECF No. 193). On September 20, 2021, the Court
sentenced Mr. Goguen to twenty-four months of incarceration consecutive to the
sentence imposed in 1:16-cr-00167-JAW-1. 	Revocation J. at 2 (ECF No. 404). 	Mr.
Goguen appealed to the Court of Appeals on September 21, 2021. 	Notice of Appeal
(ECF No. 406).
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B. 	United States v. Robert Goguen – 1:16-cr-00167-JAW-1
On December 14, 2016, a federal grand jury indicted Robert Goguen for
possession of child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B), on
November 10, 2015. Indictment (ECF No. 1) (1:16-cr-00167-JAW-1). On September
15, 2017, Mr. Goguen pleaded guilty to the charge. 	Min. Entry (ECF No. 64). 	On
September 20, 2021, the Court sentenced Mr. Goguen to 168 months of incarceration
with twenty years of supervised release to follow, a $100 special assessment, and no
fine. Revocation J. at 2 (ECF No. 205). Mr. Goguen appealed to the Court of Appeals
on September 21, 2021. Notice of Appeal (ECF No. 207).
II. 	THE PARTIES’ POSITIONS
A. 	Robert Goguen’s Motion for Release Pending Appeal
Citing 18 U.S.C. § 3143(b)(1)(A), Mr. Goguen moves for release pending appeal,
arguing that he is neither a flight risk nor a danger to the community. 	Mot. for
Release Pending Appeal (ECF No. 213 – 1:16-cr-00167-JAW-1; ECF No. 426 – 1:11-
cr-00003-JAW-1)). 	Mr. Goguen says that his appeal is not for delay but raises
“substantive questions of law likely to result in reversal or in the very least, a
sentence much less than the time served – plus the expected duration of the appeal
process.” Id. at 2. Mr. Goguen writes that he intends to raise on appeal:
1) Did the 	district 	court 	commit 	judicial misconduct 	or abuse 	its
discretion 	when 	denying 	the 	motion 	to 	dismiss 	for 	vindictive
prosecution and the pro se motion to withdraw the guilty plea and
admission;
2) Whether the Judge abused his discretion in failing to recuse; and
3) Whether the sentence was imposed without due process.
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Id.
B. 	The Government’s Opposition
On November 28, 2022, the Government filed its opposition to the motion for
release. Gov’t’s Resp. to Def.’s Mot. for Release Pending Appeal (ECF No. 216) (Gov’t’s
Opp’n). The Government first objects to Mr. Goguen’s release on the ground that he
has failed to show by clear and convincing evidence that he would not pose a threat
to the community if released. 	Id. at 2-5. 	Next, the Government contends that Mr.
Goguen has also failed to demonstrate that his appeal raises a substantial question
of law under 18 U.S.C. § 3143(b)(1)(B). Id. at 5.
III. 	THE LAW
Section 3143(b) provides:
(b) Release or detention pending appeal by the defendant.
(1) Except as provided in paragraph (2), the judicial officer shall order
that a person who has been found guilty of an offense and sentenced to
a term of imprisonment, and who has filed an appeal or a petition for a
writ of certiorari, be detained, 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 [18 U.S.C. §
3142(b) or (c)]; 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.
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If the judicial officer makes such findings, such judicial officer shall
order the release of the person in accordance with section 3142(b) or (c)
of this title [18 U.S.C. § 3142(b) or (c)] except that in the circumstance
described in subparagraph (B)(iv) of this paragraph, the judicial officer
shall order the detention terminated at the expiration of the likely
reduced sentence.
(2) The judicial officer shall order that a person who has been found
guilty of an offense in a case described in subparagraph (A), (B), or (C)
of subsection (f)(1) of section 3142 [18 U.S.C. § 3142] and sentenced to a
term of imprisonment, and who has filed an appeal or a petition for a
writ of certiorari, be detained.
18 U.S.C. § 3143(b).
As § 3143(b)(1)(A) states, the burden to prove that he is not likely to flee or
pose a danger to the safety of any other person rests with the defendant and must be
shown by “clear and convincing evidence.” United States v. Bayko, 774 F.2d 516, 520
(1st Cir. 1985). 	The First Circuit has also explained the meaning of the term,
“substantial question,” as it appears in § 3143(b)(1)(B): 	a “substantial question” is
one that “very well could be decided the other way” and, if so, would not be “harmless
or unprejudicial.” 	Id. at 523. 	In other words, the legal or factual issues must be
“close.” Id.
Finally, in § 3143(b)(2), there is a reference to § 3142(f), which provides in part:
(f) Detention hearing. 	The judicial officer shall hold a hearing to
determine whether any condition or combination of conditions set forth
in subsection (c) of this section will reasonably assure the appearance of
the person as required and the safety of any other person and the
community –
(1) upon motion of the attorney for the Government, in a case that
involves –
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(E) any felony that is not otherwise a crime of violence that
involves a minor victim . . . or involves a failure to register
under section 2250 of title 18, United States Code . . ..
18 U.S.C. § 3142(f).
IV. 	DISCUSSION
First, based on this record, the Court cannot conclude that Mr. Goguen does
not present a danger to the safety of any other person or the community. Mr. Goguen
has a serious criminal history. According to the Presentence Investigative Report in
1:16-cr-00167-JAW-1, he has eleven prior adult convictions. Presentence Investigative
Report ¶¶ 28-36. Some convictions are for relatively minor offenses, such as operating
a motor vehicle with a suspended license; others are manifestly serious. Mr. Goguen
has a 1996 conviction for sexual assault in the second degree for which he was
sentenced to ten years of state incarceration in the state of Connecticut with four
years to serve and five years of probation. Id. ¶ 31. He has a 2006 commonwealth of
Massachusetts conviction for failure to register as a sex offender. Id. ¶ 33. He has a
2006 Massachusetts conviction for possession of cocaine. Id. ¶ 34. He has the 2010
federal conviction for failure to register as a sex offender. Id. ¶ 36. Mr. Goguen now
has a second federal conviction, this time for possession of child pornography. 	Id.
Significantly, Mr. Goguen committed the child pornography crime while on federal
supervised release and thereby violated the conditions of his supervised release. Id.
Moreover, in an earlier incident, again while on supervised release, Mr. Goguen
downloaded 	pornography 	at 	the 	Penobscot 	County 	Law 	Library, 	and 	thereby
demonstrated an unusual degree of recklessness. In making this determination, the
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Court has considered the fact that at least one of his sexual crimes involves
sexualizing children, an especially vulnerable group of victims. Based on his criminal
history, the Court concludes that Mr. Goguen has not sustained his burden to
demonstrate by clear and convincing evidence that he does not pose a danger to others
or the community.
Second, the Court does not conclude that Mr. Goguen’s appeal raises any
substantial questions of law or fact as the First Circuit has defined the term. 	The
Court has written extensively on almost all the issues that Mr. Goguen proposes to
present to the Court of Appeals and for the reasons set forth in those decisions the
Court does not consider them meritorious. 	Order on Def.’s Mot to Withdraw Guilty
Plea (ECF No. 293; ECF No. 120)1; Order on Mot. to Withdraw Guilty Plea and
Admission (ECF No. 350; ECF No. 159); Order on Def.’s Mot. to Recuse (ECF No. 323;
ECF No. 144); Order on Mot. to Dismiss for Vindictive Prosecution and Mot. for Disc.
(ECF No. 195).
The one seemingly new issue is his contention that the Court’s sentence
violated his due process rights. Def.’s Mot. at 2. Mr. Goguen’s motion only states that
he intends to raise on appeal “whether the sentence was imposed without due
process.” Id. To understand Mr. Goguen’s due process argument, the Court reviewed
the Government’s appellate brief, which outlines Mr. Goguen’s contentions and the
Government’s response. See Gov’t’s Opp’n Attach. 1, Br. of Appellee United States of
Am. at 61-65. The Court also reviewed the transcript of Mr. Goguen’s September 20,
1 	Where a filing has been docketed in both 1:11-cr-0003-JAW-1 and 1:16-cr-00167-JAW-1, the
Court has listed first the docket entry for 1:11-cr-0003-JAW-1 and for 1:16-cr-00167-JAW-1.
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2021 sentencing hearing, paying particular attention to the colloquy about Mr.
Goguen’s 1996 conviction in Connecticut for sexual assault in the second degree. Tr.
of Proceedings, 15:14-24:6 (ECF No. 211) (Sentencing Tr.).2 	Based on this record, the
Court concludes that he has not raised a substantial question of law or fact on his
violation of due process claim. 	See Gov’t’s Opp’n Attach. 1, Br. of Appellee United
States of Am. at 61-65.
Third, Mr. Goguen’s possession of child pornography conviction in 1:16-cr-167-
JAW-1 is a “crime that involves a minor victim” under 18 U.S.C. § 3142(f), and
therefore his request for release pending appeal is barred by 18 U.S.C. § 3143(b)(2).
See § 3143(b)(2) (“shall order that such person . . . be detained”).3 	Mr. Goguen has
not addressed the potential applicability of § 3143(b)(2) and why his most recent
conviction does not fall within the ambit of the statutory prohibition against release
pending appeal.
V. 	CONCLUSION
The Court DENIES Robert Goguen’s Motion for Release Pending Appeal (ECF
No. 213 – 1:16-cr-00167-JAW-1; ECF No. 426 – 1:11-cr-00003-JAW-1).
2 	At his sentencing hearing on September 20, 2021, Mr. Goguen observed that his jurisdictional
challenge to his 1996 Connecticut conviction was before the Supreme Court of Connecticut. Sentencing
Tr. 16:4-5. On December 23, 2021, the Supreme Court of Connecticut dismissed his appeal. Goguen
v. Comm’r of Corr., 341 Conn. 508, 267 A.3d 831 (2021).
3 	Mr. Goguen may also be barred from release pending appeal under § 3143(b)(2)’s reference to
§ 3142(f)(1)(E) and its language, which captures convictions that “involve[] a failure to register under
section 2250 of title 18, United States Code.” It is possible that this language applies to a revocation
petition under a § 2250 conviction, but the Court does not reach that question because he is otherwise
not subject to release.
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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of December, 2022
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