United States District Court, W.D. North Carolina, Asheville Division
Carleton Metcalf, United States Magistrate Judge.
matter is before the Court on Defendant’s Motion for
Temporary Release on Bond to Attend Funeral Services
(“Motion for Temporary Release”) (Doc. 96).
Selected Procedural Background
November 14, 2017, Defendant was charged in a Superseding
Bill of Indictment (Doc. 22) with three counts of engaging in
a sexual act with a minor within Indian territory, in
violation of 18 U.S.C. §§ 2241(c) and 1153, and
three counts of engaging in and causing sexual contact with a
minor within Indian territory, in violation of 18 U.S.C.
§§ 2244(a)(5) and 1153.
7, 2019, Defendant entered a plea of guilty to one count of
engaging in and causing sexual contact with a minor within
is currently awaiting sentencing, which is scheduled for
September 26, 2019.
Motion, which was filed on September 18, 2019, Defendant
requests that the Court temporarily release him on conditions
so that he may attend a funeral service the next day -
September 19, 2019 - for his daughter who passed away
unexpectedly. In particular, he seeks to be released from 9
AM until 3 PM to travel to a church in Cherokee, North
Carolina under the supervision of the staff of the Federal
Motion advises that the Government takes no position with
respect to Defendant’s request.
defendant who has been found guilty of certain types of
offenses must be detained while awaiting imposition or
execution of sentence. 18 U.S.C. § 3143(a)(2). There are
exceptions to this rule, but the only one pertinent here
appears in 18 U.S.C. § 3145(c), which provides that a
“person subject to detention pursuant to section
3143(a)(2) . . . and who meets the conditions of release set
forth in section 3143(a)(1) . . ., may be ordered released,
under appropriate conditions . . . if it is clearly shown
that there are exceptional reasons why such person's
detention would not be appropriate.” 18 U.S.C. §
3145(c). Section 3143(a)(1) requires a finding “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
Courts generally have defined “exceptional
reasons” as circumstances which are “clearly out
of the ordinary, uncommon, or rare.” See United
States v. Larue, 478 F.3d 924, 926 (8th Cir.2007)
(finding defendant's compliance with terms of pretrial
release, lack of criminal record, payment of child support,
and continued employment were not exceptional reasons
warranting release); United States v. Lea, 360 F.3d
401, 403 (2d Cir.2004) (“Exceptional circumstances
exist where there is ‘a unique combination of
circumstances giving rise to situations that are out of the
ordinary.’”) (quoting United
States v. DiSomma, 951 F.2d 494, 497 *2d
United States v. Vilaiphone, No. CRIM 3:08CR232,
2009 WL 412958, at *2 (W.D. N.C. Feb. 18, 2009)
courts do not grant temporary release in every case in which
a criminal defendant who is detained has a relative who
dies.” United States v. Morris, No.
3:18-CR-6-TWP-DCP, 2018 WL 6493640, at *2, n.1 (E.D. Tenn.
Dec. 10, 2018); United States v. Kenney, No.
CR-07-66-B-W, 2009 WL 5217031, *2 (D. Me. Dec. 30, 2009)
(“From the Court's perspective, the death of a
family member, even a close family member, does not
necessarily cross the threshold from common to exceptional.
The death of close family members, though infrequent, is
after all inevitable.”).
the situation presented here - the unexpected passing of
Defendant’s young adult daughter for whom Defendant was
the sole caretaker prior to his arrest ...