Judge Michael W. Mosman of the U.S. District Court for Oregon ruled that Villagomez, his sister Joaquina V. Santos, and her husband, former Commerce Secretary James A. Santos should be detained pending appeal as required by Section 3143 of the United States Code.
The defendants’ lawyers argued that based on the 44-page “Memorandum Opinion and Order Settling Record on Appeal” penned by Federal
Judge Mark W. Bennett of the Northern District of Iowa, the public was totally excluded during the jury selection.
Citing Prestley v. Georgia, defense lawyers pointed out that such circumstances constitute structural error.
They said they have clearly raised a “substantial question.”
The first motion filed by the defense was denied without prejudice. The court said the motion was premature.
A second motion was filed but was denied on the merits.
The third motion was also denied on the merits, since the defendants did not raise “a substantial question of law or fact” in their claim that their Sixth Amendment right to a public trial was violated when then-Chief Judge Alex R. Munson refused to open to the general public unoccupied seats in the courtroom reserved for visiting students.
Saying that the federal court denied access to the public during the jury selection, the defense invoked Rule 10 (e) of the Federal Rules of Appellate Procedure to conduct evidentiary hearing to determine whether the record was in fact wrong or incomplete on this point, and if so, to issue a corrective “settling” order.
The federal government responded that the reconsideration order was wrong; the Settling Order itself is unreasonable and will be stricken by the Ninth Circuit; the text of the settling order does not support the statement of facts the defendants ascribed to it; and the motion really turns on contested questions of law that the Ninth Circuit is best positioned to resolve.
“Because I determine that the Settling Order is, at least in part, unreasonable, I only reach the first two arguments,” Mosman said.
He said there is a general prohibition on district court action during appeal to which Rule 10 (e) is an exception designed to aid the appellate court.
“The appellate court job,” Mosman said, “is to review the decisions of the trial court; it cannot help the appellate court do its job to supplement the record with material that had no bearing on those decisions, Here, though, the court supplemented the record which a good deal of such material.”
In sum, Mosman said the text of Rule 10 and the relevant case-law and commentary “lead me to conclude that the factual findings in the settling order (beyond the No-Order Finding) cannot be viewed as the legitimate by-product of Rule 10 (e) proceeding.”
“When I consider that conclusion in light of the overall function of Rule 10 (e) and its role in the machinery of appellate review, the only available inference is that those findings are without legal support and clearly erroneous,” Mosman said.
He added, “Once the Rule 10 (e) findings are reduced to their proper scope, the defendants are left without any factual basis from which to argue that the public was excluded [during jury selection]. Absent that factual basis, they have not raised a ‘substantial question of law or fact’ in their appeal. And without a ‘substantial question of law or fact,’ Section 3143 requires their incarceration pending appeal.”
Villagomez and the Santos couple were convicted of bribery, theft and wire fraud charges in April 2009.
They have appealed their conviction to the U.S. Court of Appeals for the Ninth Circuit.
Villagomez, 48, is serving his sentence of seven years and three months in Tucson, Arizona.
Mrs. Santos, 51, and her 49-year-old husband each received a sentence of six years and six months in prison.
She is an inmate in Dublin, California while her husband is in jail in Atwater, also in California.
