USA v. Masuisui et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I
UNITED STATES OF AMERICA,
Plaintiff,
v.
KIRISIMASI MASUISUI,
Defendant.
Case No. 14-cr-00173-DKW-1
ORDER DENYING EMERGENCY
MOTION FOR BAIL PENDING
APPEAL
Defendant Kirisimasi Masuisui moves for bail pending the appeal of his
judgment of conviction, arguing that he is not likely to flee, he is not a danger to
the community, his appeal will raise substantial questions of law or fact, and
extraordinary circumstances exist justifying his release on bail. 	In its opposition,
the government argues that this Court lacks jurisdiction to address the instant
motion, Masuisui is a danger to the community, and extraordinary circumstances
do not exist.
As an initial matter, for the reasons discussed below, the Court finds that it
has jurisdiction to decide Masuisui’s motion for bail. 	Nonetheless, because
Masuisui fails to explain why a substantial question will be raised on his appeal
and fails to provide clear and convincing evidence that he is not likely to flee, his
motion for bail is DENIED.
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RELEVANT BACKGROUND
On October 2, 2019, Masuisui was sentenced to 292 months imprisonment
after pleading guilty to (1) conspiracy to distribute and possess with the intent to
distribute 50 grams or more of methamphetamine and 5 kilograms or more of
cocaine, and (2) possession of 50 grams or more of methamphetamine with intent
to distribute. 	Dkt. No. 507. 	Among other things, Masuisui’s offenses of
conviction carried a mandatory minimum term of imprisonment of ten years and a
maximum term of life. 	21 U.S.C. § 841(b)(1)(A).
On October 7, 2019, Masuisui appealed his judgment of conviction. 	Dkt.
No. 511. 	Based upon the record before the Court, that appeal remains pending.
On June 25, 2020, Masuisui filed the instant motion for bail pending appeal.
Dkt. No. 546. 	The government has filed a response in opposition to the motion
for bail, Dkt. No. 549, and Masuisui has filed a reply, Dkt. No. 552. 1 	This Order
now follows.
1 Both parties also filed motions to seal certain exhibits. 	Dkt. Nos. 547, 550. 	As for Masuisui’s
motion to seal, Dkt. No. 547, contrary to Local Rule 5.2, he has failed to provide the Court with
a “copy of the proposed sealed filing….” 	Local Rule 5.2(c)(1). 	Nonetheless, Masuisui’s
counsel describes the sealed filing as “confidential medical records and information.” 	Dkt. No.
547 at 2. 	On that basis, and without government objection, the Court GRANTS Masuisui’s
motion to seal. 	Masuisui shall file the sealed information forthwith. 	As for the government’s
motion to seal, having provided the Court with the proposed sealed information, and the same
appearing to be confidential, with no objection, the government’s motion to seal, Dkt. No. 550, is
GRANTED. 	The government is instructed to file the sealed exhibits consistent with Local Rule
5.2.
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LEGAL STANDARD
Pursuant to Section 3143(b)(1) of Title 18, a court must order the detention
of a person found guilty of an offense and sentenced to a term of imprisonment
who has filed an appeal, unless the court 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;
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.
18 U.S.C. § 3143(b)(1). 	In addition, when a person’s offense of conviction has a
maximum sentence of life imprisonment, a court may only order his release “if it is
clearly shown that there are exceptional reasons why such person’s detention
would not be appropriate.” 	18 U.S.C. § 3145(c); 18 U.S.C. § 3143(b)(2); 18
U.S.C. 	§ 3142(f)(1)(B). 	A defendant bears the burden of showing that he is
not a flight risk or a danger to the community and that his appeal raises a
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substantial question of law or fact. 	United States v. Montoya, 908 F.2d 450, 451
(9th Cir. 1990); United States v. Wheeler, 795 F.2d 839, 840 (9th Cir. 1986).
DISCUSSION
The Court first addresses the government’s contention that jurisdiction does
not exist to address the motion for bail, and, then, the merits of the motion.
I. 	Jurisdiction
In its opposition to the motion for bail, in one brief sentence, the government
asserts that “[t]his Court does not have jurisdiction to grant bail pending appeal
while a direct appeal is pending.” 	Dkt. No. 549 at 1. 	While Masuisui does not
concede that the Court lacks jurisdiction, he notes that, to the extent the Court does
lack jurisdiction, an indicative ruling should be made on the motion. 	Dkt. No.
546-1 at 4 n.1. 	Neither party, however, provides citation to any authority for the
proposition that this Court lacks jurisdiction over the instant motion.
Based upon the Court’s independent research, jurisdiction exists to address
the merits of the motion for bail, irrespective of the pending appeal. 	While the
Ninth Circuit Court of Appeals does not appear to have directly spoken on this
issue, the Tenth Circuit has, concluding that, “[a]lthough the filing of a notice of
appeal usually divest [sic] the district court of further jurisdiction, the initial
determination of whether a convicted defendant is to be released pending appeal is
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to be made by the district court.” 	United States v. Meyers, 95 F.3d 1475, 1488 n.6
(10th Cir. 1996). 	This Court is not aware of any Court of Appeals to hold
otherwise. 	Further support for the Court’s jurisdiction over the motion for bail
comes from the commentary to the pertinent Federal Rule of Criminal Procedure.
Specifically, the commentary to Rule 46, which concerns “[r]elease from
[c]ustody,” explains that “the district court retains jurisdiction to decide whether
the defendant should be detained, even if a notice of appeal has been filed.”
Fed.R.Crim.P. 46 cmt. (2002 amendments).
As a result, the Court turns to the merits of the motion for bail.
II. 	Merits
The Court finds that the motion for bail should be denied because Masuisui
has failed to meet his burden of showing either a substantial question of law or fact
that may be raised on his appeal or clear and convincing evidence that he is not
likely to flee. 2 	The Court addresses each of those findings in turn.
First, Masuisui makes only a cursory attempt to show that a substantial
question may exist on his appeal. 	More specifically, Masuisui simply states the
issues he may raise and, then, conclusorily asserts that they are non-frivolous and
2 The Court thus need not and does not address any of the other findings that a defendant must
establish in order to justify release pending an appeal.
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“fairly debatable.” 	Dkt. No. 546-1 at 9-10. 3 	No attempt, however, is made to
provide any explanation for why the identified issues are substantial. 	In that
regard, the Court notes that three of the four issues solely concern offense-level
points that were calculated in reaching Masuisui’s guideline sentencing range.
Therefore, even if all of those issues were resolved successfully for Masuisui, they
would only result in resentencing. 	Moreover, at best, even on resentencing,
Masuisui would still be subject to a mandatory minimum sentence of ten years
imprisonment.4 	Therefore, given that there is no reason to believe that Masuisui’s
appeal will last for years into the future, none of the sentencing issues he may raise
on appeal would qualify as a “substantial question” for purposes of Section
3143(b)(1)(B). 	The only other issue Masuisui contends he may raise on appeal is
the denial of his motion to withdraw his guilty plea. 	As discussed, however, there
is no explanation for why that issue constitutes a “substantial question” under
Section 3143(b)(1)(B). 	Therefore, Masuisui has failed to meet his burden in this
regard. 	See Montoya, 908 F.2d at 451.
3 Masuisui acknowledges that his opening brief on appeal has yet to be filed. 	As a result, the
Court has no assurance as to what the appeal will actually look like.
4 More accurately, even if all of the sentencing issues Masuisui may raise were resolved
favorably for him, he would receive a total offense level of 33. 	With a criminal history category
of I, that would result in a guideline imprisonment range of 135 to 168 months.
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Second, Masuisui provides little more explanation for why he is not likely to
flee. 	He states that “[t]his court has already found that defendant is not likely to
flee when it denied the government’s initial motion to detain [him]” and “it is even
less likely” he will flee in light of the coronavirus and his request for home
confinement. 	Dkt. No. 546-1 at 7. 	Masuisui ignores, however, that
circumstances have changed dramatically since the government’s initial motion to
detain in 2014.5 	Specifically, Masuisui has now been convicted and sentenced to
a 292-month term of imprisonment–one which, even Masuisui has described as a
“life sentence….” 	10/2/19 Tr. at 8:20-22, Dkt. No. 523. 	In addition, Masuisui
provides no explanation for how home confinement or the coronavirus would make
it less likely that he would flee. 	For example, even if GPS monitoring was
imposed during home confinement, something which Masuisui does not address,
that alone would not stop him from fleeing. 	Equally, the coronavirus itself does
not prevent flight. 	Ultimately, in light of the sentence imposed in this case, the
Court finds that Masuisui has failed to show by clear and convincing evidence that
he is not likely to flee.
5 With respect to the government’s 2014 motion to detain, the Court notes that the motion was
initially denied by a Magistrate Judge. 	Dkt. No. 12. 	Thereafter, this Court reversed the
Magistrate Judge’s determination and revoked Masuisui’s bail after the Court found that
Masuisui had, at the very least, attempted to influence potential testimony from a cooperating
witness. 	Dkt. No. 104.
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CONCLUSION
For the reasons set forth herein, Masuisui’s motion to seal, Dkt. No. 547,
and the government’s motion to seal, Dkt. No. 550, are GRANTED. 	Because
Masuisui has failed to show that a substantial question will be raised on his appeal
or clear and convincing evidence that he is not likely to flee, the emergency motion
for bail pending appeal, Dkt. No. 546, is DENIED.
IT IS SO ORDERED.
DATED: July 22, 2020 at Honolulu, Hawai‘i.
United States of America v. Kirisimasi Masuisui; Cr 14-00173 DKW-1; ORDER
DENYING EMERGENCY MOTION FOR BAIL PENDING APPEAL
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