Touizer v. Attorney General of the United States et al

Filing 58

ORDER Denying 51 EXPEDITED MOTION FOR BOND PENDING APPEAL. Signed by Judge Beth Bloom on 6/4/2021. See attached document for full details. (cds)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-25169-BLOOM
DANIEL JOSEPH TOUIZER,
Petitioner,
v.
ATTORNEY GENERAL OF THE
UNITED STATES, et al.,
Respondents.
____________________________/
ORDER ON EXPEDITED MOTION FOR BOND PENDING APPEAL
THIS CAUSE is before the Court upon Petitioner Daniel Joseph Touizer’s (“Petitioner”
or “Touizer”) Expedited Motion for Release Pending Appeal, ECF No. [51] (“Expedited Motion”),
filed on May 24, 2021. Respondent the Attorney General of the United States (“Respondent” or
“Government”) filed a response, ECF No. [54] (“Response”), to which Touizer filed a reply, ECF
No. [55] (“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 (Count 1), 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. [26]. 2 On May 11, 2018, Touizer pleaded guilty to Count 1 charging
conspiracy to commit mail and wire fraud. Crim. ECF Nos. [92], [150]. On July 24, 2018, the
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Respondent Patricia Mikulan joined and adopted the Government’s Response. See ECF No. [56].

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The Court will refer to docket entries in Touizer’s underlying criminal case as “Crim. ECF No. [x].”

Case No. 20-cv-25169-BLOOM
Court sentenced Touizer to 68 months imprisonment followed by 3 years of supervised release.
Crim. ECF Nos. [156], [161]. Touizer was serving his sentence at FCI Miami Satellite Camp from
September 20, 2017 until May 22, 2020. In the midst of the COVID-19 pandemic, the Bureau of
Prisons (“BOP”) determined that Touizer was at serious risk of sickness or death from COVID-19
if he remained in custody at FCI Miami, and granted him release to home confinement on May 22,
2020. According to Touizer, the Residential Reentry Center where he was housed arbitrarily
imposed communication restrictions on Touizer, and, on November 10, 2020, his home
confinement status was revoked and he was reincarcerated.
This is Touizer’s third attempt to obtain release after he was reincarcerated by the BOP for
communicating with the victims in his underlying criminal case following his release to home
confinement. He commenced this case asserting a claim under 28 U.S.C. § 2241 based on
violations of his First, Fifth, and Eighth Amendment rights, which the Court dismissed. See ECF
No. [45] (“Order”). In addition, Touizer filed a Motion for Compassionate Release in his
underlying criminal case, which the Court recently denied. See Crim. ECF No. [258]. Touizer has
appealed the Order to the United States Court of Appeals for the Eleventh Circuit, which appeal is
currently pending. See ECF No. [47]. 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

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Case No. 20-cv-25169-BLOOM
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.

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Case No. 20-cv-25169-BLOOM
Accordingly, the Expedited Motion, ECF No. [51], 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

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