United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR VOLUNTARY
SURRENDER TO THE BUREAU OF PRISONS
H. CLELAND UNITED STATES DISTRICT JUDGE.
Charles B. Rizzo was convicted by his plea of guilty to
conspiracy to commit bribery in violation of 18 U.S.C. §
666 and conspiracy to commit wire fraud in violation of 18
U.S.C. § 1343. (See Dkt. #132.) Following his
conviction, but before sentencing, the government moved to
revoke Defendant's pre-trial bond on the basis that he
had, in violation of a provision of his bond conditions, made
contact with a potential witness in the case. (See
Dkt. #151.) The court granted the motion, and revoked
Defendant's bond. (See Dkt. ##164, 166.)
Defendant was ordered to report to the Marshals Service on
February 13, 2018, an order with which he complied. He has
remained in custody since that time. Defendant was sentenced
on April 23, 2018.
the court now is Defendant's motion for release from
custody pending the commencement of his sentence-he asks that
he be allowed to voluntarily report to the Bureau of Prisons
facility where he will serve the remainder of his sentence.
(Dkt. #182.) The government opposes the motion. (Dkt. #183.)
asks that he be permitted to voluntarily report so that he
may get certain family affairs in order before his
Defendant's eldest son is cognitively disabled and has an
Individualized Education Plan meeting with his school, at
which the school and the Rizzo family will need to discuss
whether Defendant's son will graduate from high school
next year or attend an extended high school program until he
Defendant's youngest son will be attending a new school,
and Defendant seeks freedom to help ease his transition.
Defendant asks for release so that, in light of the monetary
implications of his sentencing, he can help with his
family's financial planning.
defendant's mother is scheduled for significant surgery
in coming weeks.
pending the execution of sentence is governed by 18 U.S.C.
§ 3143(a). Because Defendant was not convicted of a
crime contemplated by § 3142(f)(2)(A)-(C), his request
for release is considered under § 3143(a)(1). The
presumption is that a person awaiting execution of sentence
will remain in custody: the statute provides that “the
judicial officer shall order that a person who has
been found guilty of an offense and who is awaiting
imposition or execution of sentence . . . be detained.”
§ 3143(a)(1) (emphasis added). There is an exception:
the court may order release if it finds, 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” subject to certain
conditions. Id. The burden is on the defendant to
justify release. United States v. Vance, 851 F.3d
166, 169 (6th Cir. 1988). Whether to grant such release is
well within the court's discretion. United States v.
Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002).
request for release is complicated by the fact that the court
revoked Defendant's pretrial bond. As the record amply
demonstrates, the court took action based upon the
defendant's improper contact with a person who could have
been a witness in the sentencing phase of Defendant's own
case, and the court's determination that the contact had
the appearance of being designed. The violation of the no
contact order was accordingly deemed by the court as
aggravated noncompliant behavior. Defendant's case is now
over, so there is no longer a risk of inappropriate contact
with witnesses in his own case. Other cases are not
concluded, however, so there is a general risk of
inappropriate contact until those cases are completed.
to Pretrial Services, Defendant was otherwise compliant while
on pretrial release, and he at no time sought to flee. He
appeared for all proceedings on time, and appears to have
behaved in a suitable manner while pending trial. As the
court noted at Defendant's sentencing, he seems unlikely
government opposes Defendant's request primarily on a
concern for safety, based upon Defendant's isolated
earlier verbal indication that he might pose a danger to
himself. The government points out that, if Defendant were to
be reunited with his family ...