Case 0:08-cr-00072-PJS-SRN Document 135 Filed 02/16/2009 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA 08-072 (01) (PJS/SRN) United States of America, ) ) Plaintiff, ) ) DEFENDANT S MOTION FOR ) RELEASE PENDING APPEAL v. ) ) Timothy Contrad Rehak, ) ) Defendant. ) * * * * * * * * * * * * * * * * * * * The defendant, Timothy Conrad Rehak, through and by his lawyers, Kevin Short and Paul Engh, and in accordance with 18 U.S.C. 3143, and United States th v. Powell, 761 F.2d 1227, 1234 (8 Cir. 1985), moves for an Order directing Officer Rehak be released pending his appeal. The Standard Title 18 U.S.C. 3143 (b) imposes two criteria. First, we must prove by clear and convincing evidence that he will not flee or pose a safety risk if released. Id. at (b)(a). That much is not in dispute. He has made all court appearances and has been allowed to voluntarily surrender. Second, we must show that the appeal is not frivolous and raises a substantial question of law or fact likely to result in: 1) reversal; 2) order for a new trial; 3) a sentence that does not include a term of imprisonment; or 4) a reduced 1
Case 0:08-cr-00072-PJS-SRN Document 135 Filed 02/16/2009 Page 2 of 7 sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. Id. at (b)(b)(i-iv). Our Circuit in Powell set out two elements defining what a substantial question must be. First, the issue has to present a close question that is, a question that could go either way. 761 F.2d at 1233. It is not enough, of course, to simply show that reasonable judges could differ in their opinion. Id. at 1234. But at the same time, we need not show that it is likely Officer Rehak will prevail on appeal. Id. No litigant can predict what a Court will necessarily do. Second, and the heart of the matter, we must show that the substantial question is so integral to the merits of conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor. Id. The Merits Our appeal raises a question not heretofore addressed by the Eighth Circuit whether or not Officer Rehak can be convicted of depriving rights under color of law pursuant when the entity being deprived does not exist, and indeed could not. Title 18 U.S.C. 241 provides: If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States... shall be fined or imprisoned... (emphasis added). 2
Case 0:08-cr-00072-PJS-SRN Document 135 Filed 02/16/2009 Page 3 of 7 Officer Rehak allegedly conspired to violate someone s property right, to wit: the right to keep cash proceeds tainted by narcotics. He was convicted of taking money from an imaginary drug dealer s room. Officer Rehak s understanding, assuming the Government s facts to be true, was that this money had been acquired through illegal sales. The informant, Mr. Arvin, never suggested that the occupant was innocent, brave, the noble, virtuous, decent, kind, loving, upstanding, or made his money from tips at an East St. Paul Applebee s, or the Payne Reliever bar. By uncontested fact and set law, the dealer s money belonged to the Government, not to a him. Title 21 U.S.C. 881 provides, in part: ( a ) S ubject property. The following shall be subject to forfeiture to the United States, and no proterty shall exist in them: * * * ( 6 ) A ll moneys, negotiable instruments, securities, or things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this title, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this title. * * * (h) Vesting title in United States. All right, title, and interest in property described in subsection (a) shall vest in the United States upon commission of the act giving rise to forfeiture under this section. ( e m p hasis added). Thus, under the premises of the sting operation and the statute, the money belonged to the Government before the Mr. Rehak could have ever have conspired 3
Case 0:08-cr-00072-PJS-SRN Document 135 Filed 02/16/2009 Page 4 of 7 to take it. Put another way, the imaginary drug dealer had no right, title, or interest whatsoever. This point was settled twenty years ago in Caplin & Drysdale, Chartered v. U.S., 491 U.S. 617 (1989). There the Supreme Court held that drug money subject to forfeiture could not be used to pay attorneys fees for a drug dealer s criminal defense. The Court stated: In [21 U.S.C. 853 (c), the civil-forfeiture counterpart to 881], the socalled relation-back provision, Congress dictated that [a]ll right, title and interest in property obtained by criminals via the illicit means described in the statute vests in the United States upon commission of the act giving rise to the forfeiture. [citation omitted] As Congress observed when the provision was adopted, this approach, known as the taint theory, is one that has long been recognized in forfeiture cases. * * * In sum, 553 (c) reflects the application of the long-recognized and lawful practice of vesting title to any forfeitable assets, in the United States, at the time of the criminal act giving rise to forfeiture. Concluding that [the drug dealer] cannot give good title to such property to [his attorneys] because he did not hold good title is neither extraordinary or novel. Id. at 627 (emphasis added). The Eighth Circuit will be bound by Caplin when it construes the deprivation of rights theory of 18 U.S.C. 241. There is, quite simply, no due process right attached to money which is not owned. With no deprivation, there is no concomitant civil rights violation available to justify imprisonment, thirty-five months no less. 4
Case 0:08-cr-00072-PJS-SRN Document 135 Filed 02/16/2009 Page 5 of 7 Remember, too, that Officer Rehak cannot be convicted under that statute unless prior case law gives him fair warning that his conduct is in violation of a federal civil right. See U.S. v. Lanier, 520 U.S. 259, 266-271 (1997) (discussing the history and application of 242, which is similar to 18 U.S.C. 241 and read in pari materia). There has never been a case like this, probably because other prosecutors decided, years ago, not to use a statute designed for Klu Klux Klan prosecutions to create a de minimis civil right that isn t even recognized. To the extent there is an ambiguity such a right exists, that ambiguity must be resolved in our favor. U.S. v. Santos, 128 S. Ct. 2020, 2025 (2008). And since there is law both in the statutes and in Supreme Court jurisprudence the question we raise is necessarily close, ergo substantial. Powell, 761 F.2d at 1237. The analysis is much the same for the temporary theft count. Whether Officer Rehak can be convicted of stealing money that could not be owned by the occupant is also an open question. This Court erred in imposing the same time on this Count in any event. The Guidelines calculation didn t come near thirty-five months, but rather suggested a range near akin to a probationary sentence. Where is the published case which opines $6,000.00 never permanently taken should cause a three-year sentence? The theft guideline is driven higher by amount. Ours 5
Case 0:08-cr-00072-PJS-SRN Document 135 Filed 02/16/2009 Page 6 of 7 is low and static, and funds were returned for no loss. Where is that published case that justifies a departure on these facts? There is only a lacuna. Officer Rehak ought not be made to sit in prison before the issues are decided. The appellate process on a complex case like this one can take up to two years. By then, Officer Rehak will at time-served. Dated: February 16, 2009 Respectfully submitted, /s/paul Engh PAUL ENGH Suite 215, Pillsbury Center 220 South Sixth Street Minneapolis, MN 55402 Telephone: (612) 252-1100 KEVIN SHORT Suite 3400 150 South Fifth Street Minneapolis, MN 55402 612.333.9006 Attorneys for Officer Rehak 6
Case 0:08-cr-00072-PJS-SRN Document 135 Filed 02/16/2009 Page 7 of 7 7