Full text
Case 6:21-cr-10073-EFM Document 115 Filed 06/12/23 Page 1 of 6
IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(WICHITA DOCKET)
THE UNITED STATES OF AMERICA, )
)
Plaintiff, ) Case No. 6:21-cr-10073-EFM
v. )
)
MICHAEL R. CAPPS, )
)
Defendant, )
____________________________________)
MOTION FOR RELEASE PENDING APPEAL
Michael Capps, through counsel, respectfully moves this Court for an order continuing
his release on bond pending the disposition of his direct appeal. 1 Release under 18 U.S.C.
§ 3143(b)(1) is warranted because (1) Mr. Capps is not likely to flee or pose a danger and (2) his
appeal is not for purposes of delay and raises a substantial question of law that, if successful, is
likely to result in a new trial. 2
Background
On September 8, 2021, a grand jury indicted Mr. Capps on nineteen counts charging
fraud-related crimes. (Indictment, ECF No. 1.) Mr. Capps appeared by summons on September
22, 2021, and pled not guilty. (ECF No. 6.) Judge Birzer ordered Mr. Capps released on a
$25,000 unsecured bond, and Mr. Capps surrendered his passport. (ECF No. 5-7.) Mr. Capps has
been released on bond ever since, and he “has complied with all Court ordered conditions of
release.” (PSR at 10, ECF No. 87.)
1
The Tenth Circuit appointed undersigned counsel to represent Mr. Capps in his direct appeal. Under Fed. R. App. P.
9(b), an appellant moving for release pending appeal must first seek relief in the district court.
2
The government opposes this motion.
Case 6:21-cr-10073-EFM Document 115 Filed 06/12/23 Page 2 of 6
A jury trial began on December 12, 2022. Consistent with this Court’s recent practice,
this Court instructed the jury prior to opening statements, including substantive instructions as to
the elements of the offenses charged, the burden of proof, and the presumption of innocence.
(See Mem. and Order 3, ECF No. 84.) On December 18, Mr. Capps moved for this Court to re-
read certain instructions at the close of evidence, including the burden of proof and the
presumption of innocence. (See id.) This Court declined the motion. (See id.) The next day, the
case was submitted to the jury. On December 21, the jury returned a guilty verdict on 12 counts.
(See id.) Mr. Capps remained on bond pending his sentencing hearing.
On January 9, 2023, Mr. Capps filed a motion for new trial based in part on this Court’s
allegedly erroneous decision not to re-read his requested instructions after the close of evidence.
(Motion for New Trial 1, 4-5.) This Court denied the motion. (Mem. and Order.) In doing so, this
Court acknowledged that the Tenth Circuit had recently called pre-evidence instructions
“unconventional,” but it did not “declare that such a procedure was, by itself, in error.” (Id. at
10.) Moreover, this Court “respectfully disagree[d]” with this those courts who have adopted a
categorical rule mandating the reading of instructions after the close of evidence. (Id.)
Accordingly, this Court declined to grant a new trial.
Six months later, this Court sentenced Mr. Capps to 27 months of imprisonment and
ordered him to surrender to the BOP-designated facility as notified by the United States Marshal.
(Judgment 3, ECF No. 98.) Mr. Capps timely appealed. (Notice of Appeal, ECF No. 101.)
Mr. Capps has since been notified that he is to report to the El Reno Satellite Camp on June 27,
2023. He now moves for an order granting his continued release on bond pending disposition of
his direct appeal.
2
Case 6:21-cr-10073-EFM Document 115 Filed 06/12/23 Page 3 of 6
Legal Standard
Under 18 U.S.C. § 3143(b), a district court shall order the release of a defendant pending
appeal if it finds
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger
to the safety of another person or the community if released under section 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 . . . an order for a new trial.
Mr. Capps satisfies each prong.
First, as evidenced by his successful release on bond for nearly two years, he is clearly
not likely to flee, nor does he pose a danger to the safety of any person or the community.
Second, his appeal is not for purposes of delay and raises a substantial question of law—
whether a trial court errs by denying a defendant’s request to re-read jury instructions after the
close of evidence. To be sure, this Court has already denied a new trial on this ground, and it
strongly disagrees with Mr. Capps that it erred in doing so. Nevertheless, this issue plainly meets
the relatively low bar for what constitutes a “substantial question,” see United States v. Affleck,
765 F.2d 944, 952 (10th Cir. 1985). Indeed, as both this Court and the Tenth Circuit have
acknowledged, several courts have held the failure to re-instruct is reversible error. See United
States v. Starks, 34F.4th 1142, 1163 (10th Cir. 2022) (collecting cases).
Because Mr. Capps meets the requirements of § 3143(b), he is entitled to release pending
disposition of his appeal.
I. Mr. Capps is not likely to flee nor does he pose a danger
At every step of this process, the government and the court have trusted Mr. Capps not to
flee or pose a danger to any person or the community—he first appeared on a summons, Judge
3
Case 6:21-cr-10073-EFM Document 115 Filed 06/12/23 Page 4 of 6
Birzer released him on bond, and this Court permitted him to remain on bond pending
sentencing. And for good reason.
First, Mr. Capps has strong ties to the community. He was born and raised in the Wichita
area and has been living in Wichita since 2005. He has long been active in the local political
community, including as a state legislator. And he has received substantial support from his
friends and family in the area. Indeed, Mr. Capps intends to stay in Wichita after his case runs its
course in order to be close to his grandmother and aunt who live in Valley Center. (See PSR at
29.)
Second, Mr. Capps has no other criminal convictions, nor any history of violence or
substance abuse. Apart from traffic tickets, this is Mr. Capps’ first offense—indeed, he had zero
criminal history points.
Finally, Mr. Capps has a demonstrated history of complying with his conditions of release
and making court appearances. As noted above, Mr. Capps has been released on an unsecured
bond for nearly two years without incident. This is as strong a demonstration as any that he is not
likely to flee nor does he pose a danger to any person or the community. Accordingly, he satisfies
the first prong by clear and convincing evidence.
II. The appeal is not for delay and raises a substantial issue likely to result in a new
trial.
As a threshold matter, there is no reason to think that Mr. Capps’ appeal is for the purpose
of delay. Rather, consistent with his approach in district court, Mr. Capps is appealing his
judgment in order to reverse his convictions, obtain a new trial, or reduce his sentence.
Mr. Capps’ appeal will also raise a substantial question of law that, if successful, is likely
to result in a new trial—i.e., whether a district court errs by refusing to re-instruct the jury at the
close of evidence. While the Tenth Circuit has declined to offer a precise definition of
4
Case 6:21-cr-10073-EFM Document 115 Filed 06/12/23 Page 5 of 6
“substantial question,” it is not a particularly high bar. It is not, for example, a substantial
likelihood of success on the merits. See Affleck, 765 F.2d at 953 n.14 (clarifying a defendant need
not show the district court is “likely to be reversed on appeal”). Instead, a substantial question is
“one which is either novel, which has not been decided by controlling precedent, or which is
fairly doubtful.” Id. at 952. However, it cannot be “frivolous” or “patently without merit.” Id.
Moreover, if it has been unanimously resolved by other circuits, there must be some “real reason
to believe that [the Tenth] circuit would depart from [this] unanimous resolution.” Id. Ultimately,
“whether a particular question is ‘substantial’ must be determined on a case-by-case basis, under
the[se] general guidelines.” Id.
Based on this standard, it is clear that the issue to be presented in Mr. Capps’ appeal—
whether a trial court errs by refusing to re-instruct the jury after the close of evidence—is a
“substantial” one. First, it “has not been decided by controlling precedent,” as the Tenth Circuit
expressly acknowledged the issue but left it open in Starks, 34 F.4th at 1163. Nor is it frivolous,
patently without merit, or unanimously resolved against Mr. Capps. On the contrary, as the Tenth
Circuit noted in Starks, and this Court acknowledged in its Memorandum and Order, several
courts have held that the failure to re-instruct is error. The Fifth Circuit, for example, has
longstanding “clear and unmistakable authority that a federal judge in [its] circuit instruct the
jury on the presumption of innocence at the close of the case.” United States v. Ruppel, 666 F.2d
261, 274 (5th Cir. 1982). Thus, while the court’s practice of instructing the jury prior to taking
any evidence was not itself error, the “subsequent failure to repeat those instructions” was. Id.
Furthermore, if the Tenth Circuit rules in Mr. Capps’ favor on this legal question, then it
is reasonably likely to grant a retrial. See Affleck, 765 F.2d at 953 (holding that this part of the
inquiry “assum[es] that the ‘substantial question is determined favorably to defendant on
5
Case 6:21-cr-10073-EFM Document 115 Filed 06/12/23 Page 6 of 6
appeal’” (citation omitted)). Indeed, as several courts have held, the failure to re-instruct the jury
is reversible error warranting a retrial. See, e.g, State v. Romanosky, 859 P.2d 741, 744 (Ariz.
1993).
Accordingly, Mr. Capps’ appeal is not taken for the purpose of delay, and it raises a
substantial question of law likely to result in a new trial.
Conclusion
Because Mr. Capps meets the requirements of 18 U.S.C. § 3143(b)(1), this Court should
issue an order continuing Mr. Capps’ release on bond pending disposition of his direct appeal.
Respectfully submitted,
VIRGINIA L. GRADY
Federal Public Defender
/s/ Jacob Rasch-Chabot
Jacob Rasch-Chabot, CA Bar #295705
Assistant Federal Public Defender
633 Seventeenth Street, Suite 1000
Denver, CO 80202
(303) 294-7002
Email: Jacob_Rasch-Chabot@fd.org
Counsel for Defendant Michael Capps
CERTIFICATE OF SERVICE
The undersigned certifies that on June 12, 2023, the above and foregoing was filed utilizing
this Court’s ECF System and that a copy was served via this Court’s system for electronic
distribution on all counsel and parties of record.
/s/ Jacob Rasch-Chabot
Jacob Rasch-Chabot, CA Bar #295705
6