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Case3:14-cr-00102-CRB Document239 Filed03/09/15 Page1 of 6

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MARK GOLDROSEN, CSBN 101731


Attorney at Law
255 Kansas Street, Suite 340
San Francisco, CA 94103

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TEL: (415) 565-9600


FAX: (415) 565-9601

Attorney for Defendant


IAN FURMINGER

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO VENUE
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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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IAN FURMINGER,
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Defendant.
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I.

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NO. CR-14-0102-01-CRB
DEFENDANTS MOTION FOR BAIL
PENDING APPEAL
COURT: Hon. Charles R. Breyer

INTRODUCTION

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On February 28, 2014, Mr. Furminger made his initial appearance and was released on a

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$50,000 unsecured bond with U.S. pretrial release conditions. On December 5, 2014, Mr. Furminger

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was found guilty by jury trial of two counts of wire fraud (18 U.S.C. 1343), conspiracy against civil

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rights (18 U.S.C. 241), and conspiracy to commit theft concerning federally funded program (18

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U.S.C. 371). On February 23, 2015, this Court sentenced Mr. Furminger to a term of 41 months

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imprisonment. This Court further ordered that Mr. Furminger surrender to serve his sentence by

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2:00 p.m. on April 3, 2015, and that any motion for bail pending appeal be filed on or before March

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9, 2015. On March 3, 2015, Mr. Furminger filed a timely notice of appeal.

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By this motion Mr. Furminger respectfully requests that this Court permit him to remain out

Case3:14-cr-00102-CRB Document239 Filed03/09/15 Page2 of 6

of custody on the unsecured appearance bond pending appeal. Clear and convincing evidence

establishes that Mr. Furminger is neither a flight risk nor a danger to safety of the community and

the appeal from the judgment will raise substantial questions of fact and law.

II.

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APPLICABLE LAW
Title 18, United States Code section 3143(b)(2) sets forth the circumstances under which a

defendant may remain free on bail while his appeal is pending. The judicial officer must find:
(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.

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In United States v. Handy, 761 F.2d 1279 (9th Cir. 1985), the Ninth Circuit clarified the

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meaning of the phrases substantial question of law or fact, and likely to result in reversal [or] an

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order for a new trial. The Ninth Circuit explained that the term substantial in the first phrase

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defined the level of merit required in the question presented. Id. at 1280. A question is substantial

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if it is fairly debatable or fairly doubtful, that is, it is of more substance than would be necessary

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to a finding that it was not frivolous. Id. at 1283 (internal quotation marks and citations omitted).

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Moreover, the Ninth Circuit expressly rejected the notion that an issue must be a close one in order

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to be substantial. Id. at 1282, n.2.

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The second part of the requirement, that the question be likely to result in a reversal or new

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trial, concerns only the type of question raised. The district court does not actually assess the

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likelihood that a reversal will occur in the particular case. Id. at 1280; United States v. Garcia, 340

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F.3d 1013, 1021 at n. 5 (9th Cir. 2003.) Thus, [t]he defendant . . . need not, under Handy, present

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an appeal that will likely be successful, only a non-frivolous issue that, if decided in the defendants

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favor would likely result in reversal or could satisfy one of the other conditions. United States v.

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Garcia, 340 F.3d at 1021, n. 5.

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18 U.S.C. 3142(g) sets out the factors this Court should take into account in determining
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Case3:14-cr-00102-CRB Document239 Filed03/09/15 Page3 of 6

whether there are conditions that will reasonably assure that the defendant will appear when required

and that the defendant will not pose a danger to the community:

1) the nature and circumstances of the offense charged;


2) the weight of the evidence against the person;
3) the history and characteristics of the person, including(A) the person's character, physical and mental condition, family ties,
employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to drug or
alcohol abuse, criminal history, and record concerning appearance at
court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on
probation, on parole, or on other release pending trial, sentencing, appeal, or
completion of sentence for an offense under Federal, State, or local law; and
4) the nature and seriousness of the danger to any person or the community that
would be posed by the person's release.

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III.

THE DEFENDANT IS ENTITLED TO BAIL PENDING APPEAL

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A.

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Mr. Furmingers substantial community ties and his record of appearing in court establish

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by clear and convincing evidence that he is not a flight risk. Mr. Furminger, who is 48 years old, has

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resided in the Bay Area for most of his life. The only time he lived elsewhere was when he attended

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college in San Diego and then in Minnesota. Both his parents and his brother currently live in the

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Bay Area. Mr. Furminger is very close to his parents, who are both elderly and in poor health. Mr.

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Furmingers father suffers from degenerative discs and urinary tract disorders and his mother suffers

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from severe dehydration and thyroid issues, which cause her to be hospitalized at least once per

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week. Mr. Furminger visits his parents regularly to help care for them. He also brings food and

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helps his father walk and stand. He is their primary caretaker. PIR at 60.

The Defendant Is Not Likely to Flee.

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Mr. Furminger is the father of two children, ages 9 and 15, who live with their respective

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mothers in the Bay Area. Prior to his suspension from the police department, Mr. Furminger

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provided significant financial support to both of his children. He is especially close to his nine-year

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old son and spends a substantial amount of time with him. PIR at 63, 65. Mr. Furmingers son

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will be devastated by his incarceration.

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Additionally, Mr. Furminger is involved in numerous community and school activities. He

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coaches youth sports and volunteers at school functions, book drives and as a physical education

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teacher for his childrens schools, and at fundraisers for crime prevention. PIR at 62.
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Finally, as noted in the PIR, Mr. Furminger has kept all court appearances, complied with

conditions of pretrial release, and is not viewed as a flight risk . . . . The probation officer opined

that Mr. Furminger was a good candidate for voluntary surrender. PIR Sentencing Recommendation

at p. 3. Under the above-described circumstances, there is clear and convincing evidence that Mr.

Furminger is not a flight risk.

B.

Mr. Furminger Does Not Pose a Danger to Any Other Person or the
Community.

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Mr. Furmingers conduct while on bail, the nature of his current offense, and the absence of

any prior criminal record establish by clear and convincing evidence that he is not a danger to

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others. As noted above, Mr. Furminger has been free on an unsecured appearance bond for more

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than one year. During this time, his conduct was exemplary and there were no reports of any

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involvement in criminal activity. In addition, he was not convicted of any crimes of violence or

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crimes that involved the use of weapons. The crimes for which Mr. Furminger was found guilty

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were related to his prior employment as a San Francisco police officer. Since he is no longer so

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employed and will not again be so employed while his appeal is pending, there is no risk of his re-

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offending if allowed to remain free on bail.

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Significantly, until the instant office, Mr. Furminger was a highly-regarded police officer,

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who had worked for the San Francisco Police Department since 1995. He earned numerous medals

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and awards related to his police work including two medals of valor. He also was promoted to

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sergeant, saved several lives and excelled as police officer. PIR at 89.

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Mr. Furminger continues to voluntarily attend counseling sessions with a psychotherapist,

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another factor suggesting he is not a danger to the community. PIR at 72. In the PIR, the probation

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officer agreed that Mr. Furminger is not viewed as . . . danger to the community. PIR Sentencing

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Recommendation at p. 3. Under the above-described circumstances, there is clear and convincing

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evidence that the community will not be endangered by Mr. Furminger remaining free on bail while

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his appeal is pending.

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C.

The Appeal Is Not for the Purpose of Delay and Raises Substantial Questions
of Law or Fact That Are Likely to Result in a Reversal of the Convictions.

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Mr. Furminger was convicted by a jury after a ten-day trial in which numerous legal and

factual issues were vigorously contested by the defense. It is beyond dispute that the purpose of Mr.

Furmingers appeal is not to cause delay, but to contest the validity of his convictions. Moreover,

at least several of the issues to be raised on appeal involve substantial questions of law or fact that

are likely to result in a reversal. These issues include the following:

The district court improperly excluded evidence relevant to the impeachment of two

prosecution witness. Most significantly, the defense was prohibited from introducing evidence that

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would have impeached the credibility of prosecution witness Reynaldo Vargas. Mr. Vargas was a

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co-defendant who agreed to cooperate with the government. His testimony was critical to the

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prosecutions case. The defense sought to impeach Mr. Vargas with evidence that while previously

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working as a police officer he falsely claimed to have worked a certain amount of overtime and to

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have not used violence during an arrest. Had the jury been allowed to hear such evidence it is likely

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that Mr. Vargass testimony incriminating Mr. Furminger would not have been believed.

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In addition, the district court erred in allowing evidence to be admitted over the objection of

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the defense. On one such occasion, the defense objected to the admission of text messages sent by

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Mr. Furminger that constituted irrelevant character evidence and were highly prejudicial.

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Mr. Furminger repeatedly requested that his trial be severed from that of co-defendant

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Edmond Robles on the ground that the evidence against Mr. Robles was far greater than that against

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him. The district court erred in denying the motions, and that error was exacerbated by the fact that

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the testimony of cooperating government witnesses Vargas focused primarily on Mr. Robless

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wrongdoings. Mr. Furminger was prejudiced by the spillover effect in the joint trial.

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Finally, as argued in Mr. Furmingers motion for new trial, the evidence introduced against

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him was insufficient to support the verdicts. There was little evidence relating to any wrongdoing

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by Mr. Furminger. The governments case primarily focused on Mr. Robless criminal activity, and

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Mr. Furmingers convictions could only have been the result of his close association with Mr.

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Robles, rather than evidence of his own guilt.


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The merits of these appellate issues are fairly debatable, and the issues must therefore be

considered substantial. In addition, if the issues are decided in the defendants favor it is likely that

a reversal of the judgment will result. The governments case against the defendant was far from

overwhelming.

IV.

CONCLUSION

Here, Mr. Furminger is not likely to flee, does not pose a danger to any other person or the

community, and will be filing an appeal that raises substantial questions of law or fact that are likely

to result in a reversal of the convictions. Mr. Furminger therefore should be allowed to remain free

on an unsecured appearance bond pending appeal. Indeed, if Mr. Furminger is required to surrender

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he will likely have to serve a substantial part of his 41-month sentence before an appellate decision

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regarding whether to affirm or reverse the judgment is rendered.

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DATED: March 9, 2015

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Respectfully submitted,

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/s/ Mark Goldrosen


MARK GOLDROSEN
Attorney for Defendant Ian Furminger

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