United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT DOREEN HENDRICKSON'S MOTION FOR RELEASE PENDING APPEAL (DOC. #132)
VICTORIA A. ROBERTS, District Judge.
Doreen Hendrickson ("Hendrickson") filed a Motion for Release Pending Appeal. The Motion is fully briefed and DENIED.
A jury convicted Hendrickson of criminal contempt under 18 U.S.C. § 401(3), for failing to comply with an injunctive order entered by Judge Edmunds in a 2007 civil action ("Edmunds' Order"). Edmunds' Order required Hendrickson to file corrected tax returns for years 2002 and 2003, and refrain from filing future false returns. On April 9, 2015, the Court sentenced Hendrickson to 18 months in prison.
In this Motion for Release Pending Appeal, Hendrickson raises three arguments: (1) the Court erred by failing to require unanimity on the means by which Hendrickson committed contempt; (2) Hendrickon's Sixth Amendment rights were violated when standby counsel refused to ask her certain questions on direct examination; and (3) the Court incorrectly calculated Hendrickson's sentencing guidelines.
III. STANDARD OF REVIEW
Before releasing a defendant on bond pending appeal, a district court is required to make two findings. United States v. Pollard, 778 F.2d 1177, 1181 (6th Cir. 1985). First, by clear and convincing evidence, the court must find that the convicted person will not flee or pose a danger to the community. 18 U.S.C. § 3143(b)(1)(A). Second, the court must find that the appeal is not to delay, and raises a substantial question of law or fact likely to result in reversal, a new trial, a sentence without a term of imprisonment, or a sentence reduction to a term of imprisonment less than the time already served plus the expected duration of the appeal process. Id. § 3143(b)(1)(B). An "appeal raises a substantial question when the appeal presents a close question or one that could go either way and that the question is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor." Pollard, 778 F.2d at 1182. (citation and quotation marks omitted).
A. Failure to Give Unanimous Specific Jury Instruction
Hendrickson says the Court erred by failing to instruct the jury that it must unanimously agree on the manner in which Hendrickson violated Edmunds' Order. She says Edmunds' Order was really two injunctions containing separate and distinct acts that were marginally related and separated by time. Hendrickson also says the Indictment alleged that she violated Edmunds' Order by committing two contradictory acts: Hendrickson had to actively file two amended tax returns, but refrain from filing false tax returns. Hendrickson says the instruction should have directed the jury to be unanimous as to the conduct that amounted to contempt.
The jury instructions stated:
Your verdict, ladies and gentleman, whether it is guilty or not, must be unanimous... The Indictment accuses the Defendant of committing the crime of Contempt in more than one possible way. The first is that she filed a 2008 U.S. Individual Income Tax Return for single and joint filers with no dependents, Form 1040-EZ which falsely reported that she earned zero wages in 2008. The second is that she failed to file with the IRS amended U.S. Individual Tax Returns for 2002 and 2003. The Government does not have to prove both of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of any one of these ways is enough. In order ...