Cite as U.S. v. Lemmon, 804 F.Supp. 102 (D.Ore. 1992)

              United States of America, Plaintiff,

                               v.

                    Alfred Lemmon, Defendant.

                        CR No. 91-362-FR.

            United States District Court, D. Oregon.

                          Oct. 6, 1992.

     Charles H. Turner, U.S. Atty., John F. Deits, Asst. U.S. Atty,
Portland, Or., for plaintiff.

     Robert A. Goffredi, Reese & Goffredi, Portland, Or., for
defendant.

                             OPINION

     FRYE, District Judge:

     The matter before the court is the motion of defendant, Alfred
Lemmon, to continue release status pending appeal (# 74).

                           BACKGROUND

     Lemmon was found guilty by jury of three offenses involving
unlawfully making, transferring and possessing silencers, and
possessing a sawed-off shotgun. Lemmon was sentenced to serve a
term of imprisonment of thirty months to commence on September 30,
1992. In order to allow the court time in which to consider the
merits of this motion, the date that Lemmon must surrender himself
to a designated penitentiary has been moved to October 13, 1992.

     Lemmon now moves the court pursuant to 18 U.S.C. section
3143(b) for an order continuing his release from custody during the
pendency of the appeal of his conviction. Lemmon contends that the
inclusion of evidence concerning "auto sears" during the trial and
the use of this evidence during closing argument constituted
reversible error and will likely result in a new trial. The
government contends that the evidence of Lemmon's guilt was
overwhelming, and that the evidence of the "auto sears," even if it
was error for this court to allow it, is not likely to result in a
reversal of all counts.

                         APPLICABLE LAW

     18 U.S.C. section 3143(b)(1) provides, in part, as follows:

     [T]he judicial officer shall order that a person who has been
     found guilty of an offense and sentenced to a term of
     imprisonment, and who has filed an appeal ... be detained,
     unless the judicial officer finds--

               (A) 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.... and

               (B) that the appeal is not for the purpose of delay
          and raises a substantial question of law or fact likely
          to result in --

          (i) reversal,

          (ii) an order for a new trial,

          (iii) a sentence that does not include a term of
          imprisonment....

     A substantial question under section 3143(b) is one that is
"fairly debatable" or "one of more substance than would be
necessary to a finding that it was not frivolous." United States v.
Handy, 761 F.2d 1279, 1283 (9th Cir.1985).

                            ANALYSIS

     Lemmon is not a person who is likely to flee or who poses a
danger to the community. There are no facts to support a finding
that Lemmon has filed the appeal for the purpose of delay. The only
issue is whether there is a substantial question of law or fact
likely to result in reversal, an order for a new trial, or a
sentence that does not include a term of imprisonment.

     The jury rejected Lemmon's defense of good faith to the
charges of unlawfully making a silencer. The only contention on
appeal that Lemmon identifies is that it was error for this court
to have admitted into evidence "autosears," devices which were made
by Lemmon for another defendant that are used to convert semi-
automatic weapons into illegal machine guns. Given that Lemmon was
being charged with the illegal manufacture of firearms and that his
defense was a good faith reasonable belief that the firearms he
manufactured were legal, the offer into evidence of the "autosears"
was relevant to rebut this defense.

     In any event, Lemmon did not present a good faith defense to
the charge of possession of a sawed-off shotgun, and there is no
error identified which would likely result in a reversal of that
count.

                           CONCLUSION

     The court concludes that Lemmon cannot meet the requirements
of 18 U.S.C. section 3143(b)(1) for release pending appeal. 
Lemmon's motion to continue release status pending appeal (# 74) is
denied.