A man sentenced to 28 years in prison for burglary and other crimes won’t be released on bail pending his appeal, after the Ninth Circuit issued a split ruling Thursday that he didn’t make a strong enough showing that he wouldn’t flee or pose a danger to the community.
One dissenting judge said he should have been released because he had a good chance of winning his appeal and Covid-19’s presence inside his prison threatened his well-being.
John Ernest Dade was convicted on five counts, including Idaho burglary, battery, and assault, misdemeanors according to the state’s laws. He received an enhanced sentence because he traveled from Utah to Idaho to commit the crimes, and has already served 18 years.
Dade sought to vacate his sentence under 28 U.S.C. § 2255, but the district court denied that motion. The defendant appealed and sought release on bail while the appeal continues.
The U.S. Court of Appeals for the Ninth Circuit rejected Dade’s motion, which was based on the argument that three counts of his conviction impermissibly relied on 18 U.S.C. Section 16(b), saying the standard requires more than just the likelihood of success.
Dade claimed Supreme Court precedent invalidated the convictions. But Dade failed to meet the standards for a release during a collateral appeal, which is reserved for “extraordinary cases,” according to the panel.
That standard for release pending such an appeal “requires an appellant to make a ‘heightened’ showing beyond what would be required to warrant release on a direct criminal appeal,” the order says. “Dade has not made this showing.”
Citing the government’s declaration that it intends to recharge and retry Dade if he succeeds on appeal, as well as his lack of explanation about his post-release behavior, the appellate panel held that he failed to show his release was appropriate.
The panel further rejected Dade’s argument that the Covid-19 pandemic represents a “special circumstance” under which he should be released. Dade has a history of respiratory issues and is considered at increased risk.
Judge Daniel P. Collins and Judge Jennifer Choe-Groves, sitting by designation from the U.S. Court of International Trade, joined in the decision.
Judge Marsha S. Berzon dissented, saying Dade had established both a high probability of success and a “special circumstance” due to the spread of Covid-19 at the institution.
Dade is represented by the Federal Defender Services and the Federal Public Defender’s Office. The government is represented by itself.
The case is United States v. Dade, 9th Cir., No. 19-35172, 5/21/20.