United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Ronnie C.
Rodgers's motion for release pending appeal. [R. 85.]
Because he has not adequately raised a substantial question
of law or fact likely to result in reversal, this motion must
be DENIED. See 18 U.S.C. §
facts of this case have been recited several times over the
course of litigation, but a brief summary is helpful here.
Mr. Ronnie Rodgers was charged on December 7, 2017 with one
count conspiracy to commit mail fraud, wire fraud, and
securities fraud in violation of 18 U.S.C. §§ 1341
and 1343, 15 U.S.C. § 78j(b), and 17 C.F.R. §
240-10b-5. [R. 1.] According to the indictment, from 2007
through 2017, Mr. Rodgers and his associates executed a
scheme to sell oil and gas leases in geographical areas where
Mr. Rodgers knew the leases would not produce enough oil or
gas to provide a return of the investments. See id.
the course of trial, the Government sought to prove Mr.
Rodgers and his associates made materially false
representations to potential investors designed to
“induce investors to invest in oil and gas contracts;
further induce them to provide additional funds after their
first investment; and, to lull and pacify investors when they
complained about a lack of return on their investment.”
[R. 1 at 4.] The jury found Mr. Rodgers guilty of the sole
count in the indictment. [R. 64.] During and after trial, Mr.
Rodgers filed motions for acquittal pursuant to Rule 29. [R.
59; R. 61; R. 74.] All of these motions have been denied. [R.
77.] On January 9, 2019, Mr. Rodgers was sentenced to
forty-eight months imprisonment. [R. 88; R. 90.] He has since
filed a notice of appeal. [R. 93.]
Rodgers now requests release pending appeal pursuant to 18
U.S.C. § 3143(b)(1), citing substantial questions of law
and fact. He raises the same claim as his post-conviction
motion, arguing that the evidence presented by the Government
is insufficient to sustain a conviction, with the added
concern that this Court erred in denying his Rule 29 motion.
The Court has already addressed these issues in a previous
order. [R. 77.] However, Mr. Rodgers asks this Court to grant
release pending appeal because a favorable Sixth Circuit
decision would result in reversal or a reduced sentence.
Bail Reform Act, 18 U.S.C. § 3143(b), creates a
presumption against release pending appeal. United States
v. Vance, 851 F.2d 166, 168 (6th Cir. 1988), cert.
denied, 488 U.S. 893 (1988). In order to be released
pending appeal, a defendant must establish two things: first,
he must show, by clear and convincing evidence, that he is
not likely to flee or pose a danger to the safety of another
person or the community; and second, that the appeal is not
for delay and raises a substantial question of law or fact
likely to result in reversal, an order for new trial, a
sentence that does not include a term of imprisonment, or 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. 18 U.S.C. § 3143(b); United
States v. Chilingirian, 280 F.3d 704, 709 (6th Cir.
2002); Vance, 851 F.2d at 167 (noting that defendant
bears the burden of overcoming statutory presumption of
detention). Because the Court finds no substantial question
of law or fact, and such a finding is dispositive, the Court
declines to address whether Mr. Rodgers is a danger to the
community or a flight risk.
determining whether a question on appeal raises “a
substantial question of law or fact, ” a Court does not
need to find that it committed reversible error. United
States v. Pollard, 778 F.2d 1177, 1181 (6th Cir. 1985).
To determine whether the question is, in fact, substantial,
“a judge must essentially evaluate the difficulty of
the question he previously decided.” United States
v. Sutherlin, 84 Fed.Appx. 630, 631 (6th Cir. 2003)
(quoting United States v. Shoffner, 791 F.2d 586,
589 (7th Cir. 1986)). It must be a “close
question” that can “go either way.”
Pollard, 778 F.2d at 1182 (citations omitted). The
defendant bears the burden of proving the substantiality of
the question. Vance, 851 F.2d at 167.
initial matter, Mr. Rodgers places significant emphasis on
the Court's decision to reserve ruling on the Rule 29
motion at the close of the Government's case. [R. 85 at
2-3.] However, contrary to these assertions, this does not
signify a close question. Rule 29(b) permits a court to
reserve ruling on such a motion, so long as the court decides
the motion on the basis of the evidence presented at the time
the ruling was reserved. Nothing in the rule restricts a
court's ability to reserve ruling only in cases where
there may be a close question, nor does Mr. Rodgers point to
any law establishing a connection between the two. This Court
reviewed Mr. Rodgers's Rule 29 motion under this
framework, applied clear precedent, and determined the
Government had clearly presented sufficient evidence. [R.
Rodgers claims, “Clearly, there was a close question
at best evidence [sic] whether there was sufficient
evidence that an overt act in furtherance of the alleged
conspiracy occurred within the relevant statute of
limitations period.” [R. 85 at 2-3.] He maintains that
the continuation of the alleged conspiracy presents a close
question of fact which an appellate court could use to
determine the conviction is time barred. Id. at 3.
However, the Court has already determined that the jury could
reasonably find Mr. Rodgers continued committing overt acts
in furtherance of a conspiracy to defraud after December 6,
2012. [R. 77 at 10.]
with his argument in his Rule 29 motion, Mr. Rodgers relies
on the fact that Rick-Rod Oil ceased to exist before December
of 2012, and therefore, the conspiracy did not continue
through December 6, 2012. [R. 85 at 3.] The Court relied on
clear Sixth Circuit law to reject this argument, and Mr.
Rodgers presents no additional legal precedent to contradict
this finding. The statute of limitations for this conspiracy
charge is five years. 18 U.S.C. § 3282(a). The five-year
statutory period does not begin to run until the objectives
of the conspiracy have been accomplished or until the
objectives have been abandoned. United States v.
Saadey, 393 F.3d 669, 667 (6th Cir. 2005). A conspiracy
does not require continuity of all co-conspirators.
Co-conspirators can join at any time during the ongoing
conspiracy and still be liable for acts performed before they
join. The evidence connecting Rick-Rod to Big South Resources
to Hydro & Green Global Energy to R&R Plus is the
leadership of Mr. Rodgers himself. United States v.
Robinson, 390 F.3d 853, 882 (6th Cir. 2004).
Co-conspirators can also withdraw from the conspiracy without
defeating the entire conspiracy. Id. The Government
presented ample evidence that Mr. Rodgers was still
recruiting investors and applying for drilling permits well
after 2012. [R. 70; R. 72; R. 73; Government Exhibit 23A;
Government Exhibit 23B; Government Exhibit 23C; Government
Exhibit 23D.] Because the Sixth Circuit has already
determined that a conspiracy may continue without the
continuity of all co-conspirators, Mr. Rodgers's argument
that the overt acts of the conspiracy ended with the closing
of Rick-Rod does not present a “close question”
meriting his release. See Robinson, 390 F.3d at 882.
the Court understands that a favorable decision by the Sixth
Circuit would result in a reversal or a reduced sentence,
such is true for all defendants appearing before this Court.
Mr. Rodgers is also required to demonstrate that the question
of law or fact on appeal is substantial: one that is
“close” and could “go either way.”
Here, on the issue of whether overt acts continued after
December 6, 2012, Mr. Rodgers has failed to meet that burden.
The court finds no substantial questions of law that would
merit release pending appeal. Accordingly, and the ...