TOUIZER

v.

ATTORNEY GENERAL OF THE UNITED STATES

THIS CAUSE is before the Court upon Petitioner Daniel Joseph Touizer’s (“Petitioner” or “Touizer”) Expedited Motion for Release Pending Appeal, ECF No. (“Expedited Motion”), filed on May 24, 2021. Respondent the Attorney General of the United States (“Respondent” or “Government”) filed a response, ECF No. (“Response”), to which Touizer filed a reply, ECF No. (“Reply”).¹ The Court has carefully considered the Motion, the Response and the Reply, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is denied.

On November 21, 2017, Touizer was charged by indictment with conspiracy to commit mail and wire fraud (Count¹), mail fraud (Counts 2-7), wire fraud (Count 8), conspiracy to commit money laundering (Count 9), and money laundering (Counts 10-11). United States v. Touizer, Case No. 17-cr-60286, ECF No. .2 On May 11, 2018, Touizer pleaded guilty to Count¹ charging conspiracy to commit mail and wire fraud. Crim. ECF Nos. , .

On July 24, 2018, the

In addition, Touizer filed a Motion for Compassionate Release in his underlying criminal case, which the Court recently denied. See Crim. ECF No. . Touizer has appealed the Order to the United States Court of Appeals for the Eleventh Circuit, which appeal is currently pending. See ECF No. . Touizer now seeks release on bond pending appeal, arguing that pursuant to 18 U.S.C. § 3141, this Court must grant his release pending appeal because he is not likely to flee or pose a danger to the safety of the community, the appeal is not for purposes of delay, the appeal raises substantial questions of law and fact, and that the substantial questions are likely to be determined in his favor resulting in reversal of the Order. In response, the Government argues that 18 U.S.C. § 3141 is not available to Touizer in this case.

Moreover, the Government contends that the principal case upon which Touizer relies, United States v. Giancola, 754 F. 2d 898, 901 (11th Cir. 1985), is not analogous and does not support granting the relief he seeks here. Upon review, the Court agrees.

First, 18 U.S.C. § 3141 speaks of release and detention authority generally, stating in pertinent part that (b) PENDING SENTENCE OR APPEAL.—

A judicial officer of a court of original jurisdiction over an offense, or a judicial officer of a Federal appellate court, shall order that, pending imposition or execution of sentence, or pending appeal of conviction or sentence, a person be released or detained under this chapter. 18 U.S.C. § 3141(b) (emphasis added). In this case, Touizer is not appealing his conviction or his sentence, but rather this Court’s Order dismissing his claim for habeas corpus. As such, 18 U.S.C. § 3141(b) does not apply.

Furthermore, to the extent that Touizer relies further on 18 U.S.C. § 3143, that reliance is also unavailing.

Section 3143 by its terms does not explicitly apply to the appeal of a habeas corpus proceeding, nor has Touizer cited to any case applying this section in a habeas proceeding.

Second, the cases relied upon by Touizer do not support relief in this case. For example, in Giancola, the appellants were convicted criminal defendants who requested bail pending appeal at sentencing. 754 F. 2d at 899. Giancola did not involve the appeal of a habeas corpus claim. In Siegel v. United States Parole Comm’n, 613 F. Supp. 127, 128 (S.D. Fla. 1985), the district court granted the petitioner’s request for release on bond pending review of a parole revocation alleged to be in violation of his rights under the Due Process Clause asserted in a habeas proceeding. 613

F. Supp. at 128-29.

However, the petitioner in Siegel had been on parole, as opposed to home confinement, and Seigel does not otherwise address or call into question this Court’s determination that it does not have the authority to order Touizer’s re-release to home confinement. This is especially so as the Court has no authority to order that the BOP release Touizer to home confinement in the first place. Case No. 20-cv-25169-BLOOM

Accordingly, the Expedited Motion, ECF No. , is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, on June 4, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record