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Case 6:21-cr-10073-EFM Document 121 Filed 06/23/23 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
vs. Case No. 21-CR-10073-EFM
MICHAEL R. CAPPS,
Defendant.
MEMORANDUM AND ORDER
Defendant Michael R. Capps was found guilty of 12 different counts related to a scheme
to fraudulently obtain COVID-19 relief payments. The Court then sentenced Capps to 27 months’
imprisonment, to be followed by two-year period of supervised release. Capps moved for a new
trial, arguing in part that the Court had erred in declining to re-instruct the jury after closing
arguments. The Court denied the motion. Capps now requests that he be allowed to remain at
liberty during the pendency of his appeal, pursuant to 18 U.S.C. § 3143(b). The Government
opposes the Motion.
Because Capps does not present a danger to the community or a flight risk, and his appeal
raises a substantial question of law that, if decided in his favor, would result in a new trial, the
Court grants Capps’ Motion (Doc. 115).
Case 6:21-cr-10073-EFM Document 121 Filed 06/23/23 Page 2 of 7
I. Factual and Procedural Background
On September 8, 2021, the grand jury indicted Capps on 19 counts related to a fraudulent
COVID-19 relief scheme. Capps appeared by summons two weeks later and entered a plea of not
guilty. Magistrate Judge Birzer ordered Capps released on a $25,000 unsecured bond, at which
time Capps surrendered his passport. Capps has been on bond since that time, and the Court is not
aware of any instance in which he violated the conditions of his release.
The Government dismissed one count prior to trial, and Capps proceeded to trial on the
remaining 18 counts. The trial began on December 12, 2022. The Court, consistent with its recent
practice, read the substantive jury instructions to the jury that morning, prior to opening statements.
Each juror received a copy of the instructions in their notebook. On December 19, near the close
of trial, Capps’ trial counsel filed a written motion requesting that the Court re-read certain
instructions to the jury, including the burden of proof and presumption of innocence instructions.
The Court denied counsel’s request, reasoning that it would be error to single out instructions to
re-read. The Court also declined to re-read the instructions in their entirety. The case was
submitted to the jury that day. Two days later, the jury returned a verdict finding Capps guilty on
12 counts.
Capps filed a motion for a new trial out of time, arguing in part that the Court had erred by
not re-instructing the jury after closing arguments by counsel. The Court denied Capps’ motion.
It relied in part on the untimeliness of Capps’ motion, but also noted its opinion that instructing
the jury prior to opening statements without repeating the process after closing arguments was not
in error.
In preparation for Capps’ sentencing, the Court directed the United States Probation Office
to prepare a Presentence Investigation Report (“PSR”) on Capps. That report included reference
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Case 6:21-cr-10073-EFM Document 121 Filed 06/23/23 Page 3 of 7
to a Confidential Human Source (“CHS”) who reported, on September 10, 2021, to the FBI that
Capps had traveled to Panama to obtain dual citizenship and referred to Panama as his “Plan B.”
The Assistant United States Attorney represents that Capps’ trial counsel emailed her in February
2023 to inform her that Capps is a legal resident of Panama, and that he had to return at least once
every two years in order to maintain his status.
The Court sentenced Capps to 27 months’ imprisonment, to be followed by two years of
supervised release. Capps is also required to pay $318,647.21 in restitution to the victims. The
Court ordered Capps’ to surrender to the Bureau of Prisons designated facility as directed by the
United States Marshal. Capps’ timely appealed. He has since been notified that he is to report to
the El Reno Satellite Camp on June 27, 2023.
II. Legal Standard
Generally, “a person found guilty of an offense and sentenced to a term of imprisonment”
shall be detained even if that person has filed an appeal.1 But the statute permits release pending
appeal if the judge 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.2
1
18 U.S.C. § 3143(b).
2
Id. § 3143(b)(1)(A)-(B).
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A “substantial question” is a question “of more substance than would be necessary to a
finding that it was not frivolous.”3 “It is a ‘close’ question or one that very well could be decided
the other way.”4 A question may be “substantial” because it is novel, has not been decided by
controlling precedent, or is “fairly doubtful.”5 An issue that has not been decided by controlling
precedent, however, may not necessarily be substantial.6 For instance, the issue may be patently
meritless or one as to which there is no reason to conclude the Tenth Circuit would depart from
the unanimous resolution of the issue by other circuits.7 Ultimately, whether a question is
“substantial” must be determined on a case-by-case basis.8
III. Analysis
A. Risk of Flight
The Government concedes that Capps does not pose a danger to the community if allowed
to remain on release. Under subsection (A) of § 3143(b)(1), then, the only remaining question is
whether Capps is a flight risk. Defendant must prove by clear and convincing evidence that he is
not likely to flee during the pendency of his appeal.9
Capps has met his burden. During the approximately 22-month period between his
indictment and the present, Capps has demonstrated his ability to comply with conditions of
release. At no point during that time was there any concern that Capps was a flight risk. The
3
United States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985).
4
Id. (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)).
5
Id. (quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir.1985)).
6
Id.
7
Id. (quoting Giancola, 754 F.2d at 901).
8
Id.
9
United States v. Gregory, 2021 WL 1978630, at *1 (D. Kan. 2021); see 18 U.S.C. § 3143(b)(1)(A).
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Government argues that different incentives are at play now, as Capps now has a 27-month federal
sentence looming over his head, in conjunction with over $300,000 in restitution. But this has
been the case since his sentencing in early May. Additionally, Capps appears to have strong ties
to the community. He was born in Wichita and has lived here since 2005. He has family ties in
the community, including his son, with whom he has a strong bond. As he states, he is “not likely
to throw away his whole life by fleeing” to avoid a 27-month prison term.
The Government also raises the possibility that Capps presents a flight risk because he has
legal status in Panama. The PSR reports that a CHS told the FBI that Capps viewed Panama as
“Plan B.” Whether or not Capps said this, he later surrendered his passport, making a flight to
Panama much less likely. In addition, given the family and community ties discussed above, the
Court does not find it likely that Capps would cuts ties in Wichita and flee to Panama for the rest
of his days. In sum, the Court finds by clear and convincing evidence that Capps is neither a
danger to the community nor a flight risk.
B. Substantial Question of Law
There is no suggestion that Capps’ appeal is for the purpose of delay. That leaves only the
question under subsection (B) whether the appeal “raises a substantial question of law or fact likely
to result in . . . an order for a new trial.”10 The only potentially “substantial question” raised is the
Court’s decision to instruct the jury prior to opening statements and to not re-instruct the jury at
the close of evidence or after closing arguments. The Court found that this decision was not in
error when it ruled on Capps’ motion for a new trial.
10
18 U.S.C. § 3143(b)(1)(B).
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That ruling, however, does not decide the issue. As the Court noted in that ruling, several
other courts have held that a trial court errs when it employs the approach the Court followed in
Capps’ trial.11 None of these are controlling precedent, but they lend credence to Capps’ position
that the question is a close one. And though the Tenth Circuit in United States v. Starks12 declined
to adopt a “one-size-fits-all categorical rule,” as the aforementioned courts did, it certainly did not
endorse what it referred to as the Court’s “unconventional approach.”13 The court in Starks
ultimately concluded that the timing of the instructions “may have undermined the capacity of the
(already unhelpful) generalized instructions to mitigate the strong potential for prejudice—and
actual prejudicial effects—of the government’s” erroneous statement in closing arguments as to
the presumption of innocence.14
Capps’ trial presented a different set of facts, as the Court noted in ruling on the motion for
a new trial. There was no suggestion that the prosecutors had injected some prejudice into the
proceeding that could have been cured by post-evidence reading of the jury instructions. Further,
the Court provided each juror with a written set of instructions at the outset of the trial, and at the
conclusion of the trial, instructed the jury to begin its deliberations by re-reading the instructions
11
See, e.g., State v. Woolcock, 518 A.2d 1377, 1389 (1986) (holding that “[i]ntroductory remarks are no
substitute” for “detailed instructions give immediately before the jury’s deliberation”); State v. Nelson, 587 N.W.2d
439, 444 (S.D. 1998) (“[p]reliminary instructions serve to inform jurors of their ‘function,’ ” but their use “never
relieves the court of its duty to comprehensively inform jurors of the law at the close of the evidence,” and the idea
“[t]hat jurors will remember instructions given at the beginning of a case may presume too much” (quoting State v.
Eagle Star, 558 N.W.2d 70, 74 (S.D. 1996))); United States v. Ruppel, 666 F.2d 261, 274 (5th Cir. 1982) (concluding
that the district court erred in instructing the jury on the presumption of innocence at the beginning of the trial but
failing to repeat the instructions at the close of trial eleven days later); State v. Romanosky, 859 P.2d 741, 742 (1993)
(holding that the judge’s failure to re-instruct the jury regarding the reasonable doubt standard at the end of the
evidence was reversible error).
12
34 F.4th 1142 (10th Cir. 2022).
13
Id. at 1163.
14
Id. at 1166.
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(although the Court did not re-read the instruction to the jury at that time). For these reasons, the
Court concluded Starks did not control, and that no other argument on this topic was persuasive,
when it denied Capps’ motion for a new trial. But the Tenth Circuit’s statements in Starks, as well
as the precedent from other jurisdictions, suggest that this question remains a “close” one. The
Court therefore concludes Capps has identified a “substantial question of law,” which, should he
prevail, would likely result in a new trial. Having made the required findings under 18 U.S.C. §
3143(b), the Court grants Capps’ Motion to remain on release during the pendency of his appeal.
Capps will remain subject to the same conditions of release that have governed his behavior while
on bond.
IT IS THEREFORE ORDERED that Defendant’s Motion for Release from Custody
Pending Appeal (Doc. 115) is GRANTED.
IT IS SO ORDERED.
Dated this 23rd day of June, 2023.
ERIC F. MELGREN
CHIEF UNITED STATES DISTRICT JUDGE
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