|IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
District Court Case No. 2:06-CR-186-PMP-PAL
NEVADA, LAS VEGAS
APPELLEE’S RESPONSE IN OPPOSITION TO APPELLANT’S “EMERGENCY MOTION FOR
RELEASE PENDING APPEAL OF REVOCATION OF SUPERVISED RELEASE”
MEMORANDUM OF POINTS AND AUTHORITIES
A. Procedural History
On January 25, 2007, after defendant Fredrick Rizzolo had pled guilty
to a criminal information charging Conspiracy to Defraud the United States,
in violation of 18 U.S.C. § 371, the (U.S.) district court sentenced
him to 12 months and one day of imprisonment, to be followed by three years’
supervised release. Rizzolo’s supervised release included the following
(1) Rizzolo “shall submit a truthful and complete written report” to
his probation officer each month
(2) Rizzolo “shall be prohibited from . . . negotiating or consummating
any financial contracts without the approval of the probation officer,”
(3) Rizzolo “shall cooperate and arrange with the Internal Revenue
Service to pay all past and present taxes,” file accurate tax returns and
“show proof of service of same to the probation officer.”
On or about April 4, 2008, Rizzolo was released from federal custody
and began serving his term of supervised release. On January 3, 2011, the
United States Probation Office filed a petition for summons of offender
under supervision. (the “petition”). The petition alleged that Rizzolo
had violated Standard Condition No. 2 (requiring truthful written reports
each month), and Special Condition No. 4 (requiring approval before any
On April 1, 2011, the Probation Office filed an addendum to the petition.
The addendum cited seven additional violations of Standard Condition No.
2, and two additional violations of Special Condition No. 4. The addendum
also alleged 12 violations of Special Condition No. 6 (requiring cooperation
with and accurate reports to IRS).
On March 29, 2011, and from May 9-11, 2011, the (U.S.) district court
conducted an evidentiary hearing on petition for revocation of supervised
On July 20, 2011, the (U.S.) district court found by a preponderance
of the evidence that Rizzolo had violated the three supervised release
conditions set forth in the petition and addendum. The court revoked Rizzolo’s
supervised release and sentenced him to nine months’ imprisonment, to be
followed by two years of supervised release. The court ordered Rizzolo
(who was not in custody) to surrender to the Bureau of Prisons (“BOP”)
on September 14, 2011.
On July 28, 2011, Rizzolo filed a notice of appeal.
On September 2, 2011, Rizzolo filed in (U.S.) district court an “Emergency
Motion to Stay Surrender . . . Pending Appeal of Revocation of Supervised
Release.” The Government filed an opposition, and, on September 12, 2011,
the (U.S.) district court denied without comment Rizzolo’s
emergency motion for release pending appeal. Later in the day on September
12, 2011, Rizzolo filed in (U.S.) district court an “Emergency Motion for
Reconsideration” of the district court’s denial.
On September 13, 2011, the (U.S.) district court denied without comment
Rizzolo’s emergency motion for reconsideration.
On September 14, 2011, Rizzolo surrendered to BOP (Bureau of Prisons).
On September 16, 2011, Rizzolo filed an “Emergency Motion for Release
Pending Appeal . . . .” in this (Ninth Circuit Appeals) Court.
On September 20, 2011, this Court ordered the (U.S.) district court
to state the reasons why it had denied Rizzolo’s motion, and allowed Rizzolo
ten days to file a supplemental memorandum in response to the district
On September 22, 2011, the (U.S.) district court issued an order stating
its reasons for denying Rizzolo’s motion for release pending appeal.
On October 3, 2011, Rizzolo filed his “Supplemental Memorandum in Support
of Motion for Bail Pending Appeal . . . .”
Rizzolo’s currently projected release date is June 12, 2012.
C. Analytical Framework
Defendants who are convicted and sentenced
to imprisonment are presumptively not entitled to release pending appeal.
Rizzolo has already served his custodial sentence, violated his terms of
supervised release, and been sentenced to another term of imprisonment,
based on those post-release violations. In order to secure release
pending appeal from his supervised release revocation, Rizzolo must make
a “showing of exceptional circumstances.” “Examples of exceptional circumstances
include: (1) raising [a] substantial claims upon which [b] the appellant
has a high probability of success; (2) a serious deterioration of health
while incarcerated; and (3) any unusual delay in the processing of the
Rizzolo Falls Far Short of Establishing the “Exceptional Circumstances”
Required For Release Pending Appeal of His Supervised Release Revocation.
While not claiming his health will “seriously deteriorate” during his
nine-month custodial sentence, Rizzolo nevertheless asserts “exceptional
circumstances” exist because (1) “he raises substantial claims . . . upon
which he has a high probability of success,” and (2) some unspecified form
of “unusual appellate delay” will result in his having served his entire
sentence before appellate disposition.
The (U.S.) district court correctly found that the “circumstances” touted
by Rizzolo were far from “exceptional.” After
a vigorously-contested, four-day evidentiary hearing, the court
was confident that Rizzolo had raised nothing that was either “substantial”
or that stood a “high probability of success”on the merits: The Court denied
Defendant Rizzolo’s request for bail pending appeal because he failed to
meet his burden of demonstrating extraordinary circumstances. Rizzolo has
not raised substantial claims upon which he has a high probability of success.
This Court held an evidentiary hearing and made factual findings regarding
three separate violations of Rizzolo’s terms of supervised release.
. . . . Rizzolo failed to meet his burden
of establishing extraordinary circumstances making bail pending appeal
proper. The Court therefore denied his motion.
The (U.S.) district court also rejected Rizzolo’s attempt to manufacture
“unusual delay in the processing of the appeal”, from speculation that
he might complete his sentence before this Court resolves his appeal: Rizzolo
also has not established any unusual delay in the processing of the appeal
that amounts to an extraordinary circumstance. Although Rizzolo’s appeal
may become moot if it is not resolved before his term of incarceration
is completed, that is the case for any criminal defendant whose supervised
release is revoked but who is not given a lengthy prison term. Rizzolo’s
position would amount to automatic bail for any violation of supervised
release resulting in a relatively short prison term, instead of placing
the burden on the violator to overcome the presumption of no bail pending
appeal by showing extraordinary circumstances. There is nothing
extraordinary about Rizzolo’s situation, nor has Rizzolo identified any
unusual delay with his appeal. Rizzolo’s claim of unusual delay is particularly
unavailing where, in this Court’s view, the likelihood of prevailing on
appeal is low. Furthermore, Rizzolo has other options available to him,
such as requesting expedited review from the Court of Appeals.
Based on the totality of the evidence, therefore, the court discerned
no “exceptional circumstances” to warrant bail pending appeal of a supervised
release revocation. The district court’s stated rationale amply supports
its conclusion – no “extraordinary circumstances” rebut the strict presumption
in favor of Rizzolo’s detention.
To show that his appellate issues are “substantial”
despite the district court’s contrary assessment, (Rizzolo) complains that
the civil plaintiffs (Kirk Henry) in the underlying litigation were permitted
to speak at Rizzolo’s sentencing. Rizzolo summarily protests
that the body of evidence adduced at his four
hearings somehow fails to establish, by a simple preponderance,
a violation of any one of his supervised release conditions.
Moreover, it was perfectly appropriate for the district court – in
fashioning a high-end, but within-guidelines sentence – to
consider the effect Rizzolo’s concealment of assets had upon civil plaintiff
Kirk Henry, who is still seeking money damages for the beating he suffered
in Rizzolo’s strip club over five years ago. (Rizzolo
does not disclose to Probation Officer receipt of $999,000 upon release
from prison), (Rizzolo assigns $789,000 to father without advising Probation
Rizzolo’s appeal thus raises nothing that is “extraordinary” – none
of his straightforward issues are “substantial,” and – given the strong
presumption of detention, the moderate “preponderance of the evidence”
standard, and the “clearly erroneous” standard that governs the district
court’s findings – it is unlikely Rizzolo will ever prevail on the merits.
Dated this 11th day of October, 2011.
DANIEL G. BOGDEN
United States Attorney
ROBERT L. ELLMAN
Chief, Appellate Division
PETER S. LEVITT
Assistant United States Attorney