United States v. Rodella (101 F. Supp. 3d 1075, 2015)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion for Release Pending Appeal, filed February 6, 2015 (Doc. 195)(“Motion”). The primary issues are: (i) whether Defendant Thomas R.- Rodella has presented a substantial question that, if answered in his favor, would likely result in a new trial; and (ii) whether Rodella has shown exceptional circumstances, which are required for a violent offender to be released pending appeal. The Court will deny the Motion, because Rodella has not presented a substantial question, and, even if he had, any judicial error or prose-cutorial misconduct was harmless. Further, because Rodella’s strength of appeal, health, offense, former profession, and family situation are not exceptional, the Court will deny the Motion.

FACTUAL BACKGROUND

Given the jury’s verdict, the Court takes the facts from the evidence in a light most favorable to the United States. On March 11, 2014, Michael Tafoya pulled his car out of a driveway and onto the road, while a green jeep was traveling down the same road. Thomas R. Rodella, Jr., who was driving the jeep, began flashing the jeep’s headlights and began tailgating Tafoya’s car for the next quarter mile. Tafoya slowed down his car and pulled over to the side of the road to allow the jeep to pass. Once stopped, Tafoya raised his hands and said: “What the hell?” The jeep passed Tafoya’s car, but then stopped in the middle of the road and backed up, until it parked about twenty-five feet' in front of Tafoya’s car. Rodella and Rodella, Jr. got out the jeep and began walking towards Tafoya’s car while motioning for Tafoya to get out of his car and saying “come on.” Because Tafoya thought that Rodella and Rodella, Jr. wanted to fight, and because he did not know whom they were, he was afraid. Wanting to avoid a confrontation, Tafoya drove away, and Rodella and Ro-della, Jr. got back into the jeep and began chasing him.

Tafoya sped up, and eventually turned onto a private dirt road to escape from Rodella and Rodella, Jr. When Tafoya reached the end of the dirt road, he tried to turn his car around while Rodella got out of the jeep with a gun in his hand. Tafoya backed up his car until it hit a pole that was behind it. Rodella opened the passenger door of Tafoya’s car and jumped in with his gun in his hand. Rodella attempted to point the gun at Tafoya’s face, and Tafoya begged for Rodella not to kill him. While Tafoya was begging Rodella not to kill him, Rodella twice yelled: “It’s too late.” From the driver’s side of the car, Rodella, Jr. grabbed Tafoya by his arm and shirt, pulled him out of the car, and threw him to the ground. Rodella, Jr. held Tafoya on the ground and told Tafoya that Rodella was the sheriff. Tafoya asked to see Rodella’s badge, and Rodella pulled Tafoya’s head up by his hair and said: “You want to see my badge mother fucker? Here’s my badge.” Rodella then struck Tafoya in his face with the badge. Before being hit in the face with the badge, Tafoya did not see Rodella display his badge and did not know that he was the sheriff. The Rio Arriba County Deputy Sheriffs arrived, and Tafoya was handcuffed and arrested.

PROCEDURAL BACKGROUND

After a five-day trial, Rodella was convicted of violating Tafoya’s constitutional rights by using unreasonable force and for conducting an unlawful arrest. See Verdict at 1, filed September 26, 2014 (Doc. 127)(“Verdict”). Rodella was also convicted of using a firearm during the commission of a crime of violence. See Verdict at 2. The Court sentenced Rodella to 121-months imprisonment. See Memorandum Opinion and Order, filed February 5, 2015 (Doc. 184)(“Sentencing MOO”). Before trial, the United States moved to offer evidence of three events that included evidence of other wrongs or acts pursuant to rule 404(b) of the Federal Rules of Evidence. See Amended Motion in Limine to Introduce Evidence Pursuant to Federal Rule of Evidence 404(b), filed September 10, 2014 (Doc. 56)(“404(b) Motion”).

1. The 404(b) Incidents and Trial.

The Court has previously summarized the three incidents:

In August, 2013, Lisa Gonzales, a Los Alamos, New Mexico, resident, and her husband were driving south on Highway 285 in Rio Arriba County. A vehicle pulling a camper was in front of them and was driving below the speed limit. There was not enough room to pass the vehicle, so Gonzales’ husband continued to drive behind the vehicle. A pickup, with no law enforcement markings, pulled onto the highway behind Gonzales, caught up to her vehicle, and began tailgating her. The vehicle with the camper turned off the highway, so Gonzales’ husband increased his speed to the speed limit of fifty-five miles-per-hour. The pickup continued tailgating in an aggressive manner for a long time. Emergency lights, which were not visible earlier, were activated on the pickup. Gonzales’ husband prepared to pull over because of the emergency lights, but the road was too narrow and did not have a shoulder. Gonzales’ husband saw a dirt road ahead, and prepared to pull over onto the dirt road by slowing down and engaging his turning signal. Before reaching the dirt road, the pickup “aggressively pulled up alongside” Gonzales’ vehicle, occupying the left-hand lane that is designated for traffic coming from the other direction. Through the passenger-side window of the pickup, Rodella yelled for Gonzales to “pull the fuck over,” while pointing his finger at them. Gonzales’ husband “proceeded to the dirt road and pulled over as soon as possible.”

Rodella parked the pickup in front of Gonzales’ vehicle. Rodella parked the pickup in a manner that blocked in Gonzales’ vehicle and partly obstructed Highway 285 with the back end of the pickup. Rodella exited the pickup, wearing plain clothes, and not displaying a badge or other law enforcement markings. Rodella wore a holster with a gun at his hip and walked toward Gonzales’ vehicle with his hand on the gun. Gonzales was terrified, because a man with a gun had blocked their vehicle from accessing Highway 285, and because there was no indication — other than the “mul-ti-colored lights on the visor” of the pickup — that Rodella or the vehicle were affiliated with law enforcement. When Rodella reached the window of the vehicle, he displayed his badge. Rodella asked why Gonzales’ husband did not pull over when Rodella told him to do so, and Gonzales’ husband told Rodella that it was not safe to pull over until he reached the dirt road. Gonzales’ husband handed Rodella his license and registration, which indicated that he lived in Los Alamos. Rodella told Gonzales’ husband: “You don’t speed in my county.” Rodella did not issue Gonzales or her husband any citation.

On or about March 28, 2013, Jacob Ledesma, a forty-year-old engineering consultant from Las Cruces, New Mexi-co, was driving on Highway 84 in Rio Arriba County. Ledesma was driving the speed limit when a brown SUV, with no law enforcement markings, turned onto the highway in front of oncoming traffic and Ledesma. The SUV drove slowly and caused the traffic to slow down. Passing was permitted in that part of the highway, and Ledesma moved into the other lane and passed the SUV. The SUV activated emergency lights, which were concealed in the vehicle’s front grill. Ledesma pulled over to the side of the road, and the SUV pulled over behind him.

Rodella stepped out of the SUV, wearing plain clothes without a badge displayed. Rodella asked Ledesma: “Do you know who I am?” Ledesma told Rodella that he did not, so Rodella pulled out his driver’s license and handed it to Ledesma. Ledesma responded by stating: “So? I have a driver’s license, too.” Rodella became angry, reached into his pocket, pulled out his badge, and threw it at Ledesma. Le-desma told Rodella that he did not know who Rodella was, that Rodella was not in a marked police unit, and that, if Rodella did not get a marked police unit there immediately, he was going to leave. Rodella summoned a sheriff deputy, who arrived in a marked unit and wrote Ledesma tickets “for passing in a no-passing zone and failing to sign his registration.” Ledesma protested to the deputy, and the deputy replied: “He’s my boss.” The tickets were dismissed two weeks later. Ledesma revisited the area and confirmed that passing was prohibited on that stretch of highway.

Yvette Maes is a fifty-two year-old woman from Rio Arriba County. In January, 2014, Maes was driving home at night when a vehicle rapidly approached her vehicle from behind and began tailgating her. The vehicle passed Maes, and she flashed her high-beam headlights at it. The vehicle activated emergency lights, and Maes pulled over to the side of the road. The other vehicle pulled over on the side of the road, a short distance in front of Maes’ vehicle.

Rodella exited the vehicle, appearing visibly shaken, and approached Maes’ vehicle.

Rodella asked Maes what “she thought she was doing by flashing her lights at him” and told her that “flashing high beams is a form of road rage.” Maes responded by telling Rodella that tailgating is also a form of road rage. Rodella asked Maes why she did not pull over on the side of the road, and Maes told him that “it was dark and she could not tell who was driving behind her.” Rodella informed Maes that he was responding to an emergency, and Maes said that if there was an emergency, Rodella “should have turned on his emergency lights and passed her.” Ro-della “asked Maes if she should go to jail,” and Maes said that, if Rodella “though it was appropriate, then he should take her to jail.” Rodella then walked back to his car and drove away.

Memorandum Opinion and Order at 3-7, filed September 21, 2014 (Doc. 93)(“404(b) MOO”)(alterations omitted) (citations omitted)(footnote omitted)(headings omitted).

The Court granted the 404(b) Motion, permitting the United States to introduce evidence of the three prior incidents. See 404(b) MOO at 37. To ensure that the United States used the evidence for appropriate purposes — proving that the Rodella acted willfully — the Court required the United States to specifically state, during closing arguments, the purposes for which the jury could use the evidence of the three prior incidents. See 404(b) MOO at 37.

The Court further orders ... the United States to state verbatim, during closing arguments:

(i) Rodella’s motive and intent for pursuing Tafoya was to express his road rage, punish disrespect, and force Tafoya to submit to his authority and not to enforce any traffic law.

(ii) Rodella had a plan to drive in a threatening manner towards other motorists, and if he succeeded in provoking any disrespectful act, force the motorist to submit through a display of his authority. The traffic encounters are part of a common plan Rodella had to require the citizens of Rio Arriba to submit to his authority.

(iii) Rodella did not make a mistake or accidently forget that his identity was not apparent to all motorists when he pursued Tafoya in a private Jeep.

404(b) MOO at 37 (emphasis in original). Finally, the Court noted that, if Rodella requested, it would provide the jury with an appropriate limiting instruction. See 404(b) MOO at 37 (“Additionally, upon Rodella’s request, the Court will give the jury an appropriate limiting instruction.”). Ro-della never proposed a limiting instruction. See Stipulated Jury Instructions, filed Sep-* tember 10, 2014 (Doc. 59)(“Stipulated Jury Instructions”); Defendant’s Proposed Jury Instructions, filed September 10, 2014 (Doc. 63)(“Rodella Jury Instructions”). Rodella, however, stated that he wanted the Court to include in the jury instructions the limiting instruction, which the Court drafted. See Transcript of Trial at 1003:2-10 (taken Sept. 25, 2014)(Oliveros, Court), filed January 23, 2015 (Doc. 177)(“Trial Day 4 Tr.”).

At trial, the United States briefly mentioned the three prior incidents during its opening statement.

And the United States is going to bring three other witnesses, three other victims of the violence of this defendant. They have stories to tell you. At the end of the trial, you’ll be instructed why they were brought. One purpose that is permissible is that the defendant’s motive and intent for pursuing Michael Ta-foya was to express his road rage, punish, disrespect — remember that — what the hell are you doing, window gesture, that he made — and forced Tafoya to submit to his authority, and not to enforce any traffic law.

That wasn’t the intent. And that is why those three people will come to testify to you. That is — the evidence is going to show you, very simply put, that the defendant knew he was doing wrong, and he chose to do wrong anyhow.

Transcript of Trial at 36:15-37:5 (taken Sept. 22, 2014)(Neda), filed January 23, 2015 (Doc. 174). The United States called sixteen witnesses in the following order: (i) Tafoya, the victim; (ii) Vince Crespin, a Rio Arriba County Under-Sheriff; (iii) Randy Sanchez, a New Mexico State Patrolman; (iv) Andy Gutierrez, a New Mexico State Police Sergeant; (v) Mark Thompson, a witness to the incident; (vi) Veronica Quintana, a 911 dispatcher; (vii) Andrea Salazar, a senior secretary at the First Judicial District Attorney’s Officer; (viii) David Backlund, a Federal Bureau of Investigation (“FBI”) agent; (ix) Tiffany Smith, an FBI Forensic Examiner; (x) John W. Howard, an FBI agent; (xi) Eliot Guttmann, a Department of Public Safety law-enforcement instructor; (xii) Brian Cross, another law-enforcement instructor; (xiii) Maes; (xiv) Ledesma; (xv) Rene Dominguez, a friend of Tafoya; and (xvi) Gonzales. Clerk’s Minutes Before District Judge James O. Browning at 4-14, filed September 22, 2014 (D.oc. 185)(“Clerk’s Minutes”).

Maes, Ledesma, and Gonzales gave testimony that was substantially similar to the United States’ summary of the incidents in the 404(b) Motion. Rodella cross-examined each witness. During their direct and redirect examinations, Rodella made eight objections, none of which challenged the propriety of the 404(b) evidence. See Transcript of Trial at 621:9-622:1 (taken Sept. 24, 2014)(Neda, Gorence, Court), filed January 23, 2015 (Doc. 176)(“Trial Day 3 Tr.”)(objecting to publication of newspaper article); id. at 634:10-18 (Neda, Gorence, Court)(objeeting to hearsay statement); id. at 635:12-17 (Peña, Gorence, Court)(objecting to hearsay); id. at 637:4-12 (Peña, Gorence, Court)(objecting to hearsay); id. at 638:19-20 (Gorence, Court)(objecting to relevance of Ledesma returning to scene of the incident); id. at 686:13-18 (Neda, Gorence, Court)(objecting to hearsay); id. at 694:20-24 (Neda, Gorence, Court); id. at 695:14-19 (Gorence, Court)(objecting to lack of foundation). By and large, Rodella did not object at trial to the substance or details of their testimony.

The parties agreed that the Court would give its final instructions to the jury before the parties’ closing arguments. The Court gave the following limiting instructions to the jury:

INSTRUCTION NO. 2

You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless, to its ears,

You have heard evidence of other act or wrongs engaged in by Mr. Rodella. You may consider that evidence only as it bears on Mr. Rodella’s motive, intent, plan, knowledge, absence of mistake or accident, and for no other purpose. Specifically, the government contends that this evidence proves:

(i) Mr. Rodella’s motive and intent for pursuing Michael Tafoya was to express his road rage, punish disrespect, and force Mr. Tafoya to submit to his authority and not to enforce any traffic law.

(ii) Mr. Rodella had a plan to drive in a threatening manner towards other motorists, and if he succeeded in provoking any disrespectful act, force the motorist to submit through a display of his authority. The traffic encounters are part of a common plan that Mr. Rodella had to require the people of Rio Arriba County to submit to his authority.

(iii) Mr. Rodella did not make a mistake or accidently forget that his identity was not apparent to all motorists when he pursued Mr. Tafoya in a private Jeep.

Of course, the fact that Mr. Rodella may have previously committed an act similar to the one charged in this case does not mean that Mr. Rodella necessarily committed the act charged in this case.

INSTRUCTION NO. 18

You are here to decide whether the government has proved beyond a reasonable doubt that Mr. Rodella is guilty of the crimes charged. Mr. Rodella is not on trial for any act, conduct, or crime not. charged in the indictment_,

Court’s Final Jury Instructions (Given)(without citations) at 3, 9, 27, filed September 26, 2014 (Doc. 130)(“Jury Instructions”).

During closing arguments, the United States discussed the three incidents. In its initial closing argument, the United States began by stating that Rodella has a distorted ego that results in uncontrollable aggression; it then described the Maes incident. See Transcript from Trial at 1036:19-1037:4 (taken Sept. 26, 2014)(Neda), filed January 23, 2015 (Doc. 178)(“Trial Day 5 Tr.”).

Members of the jury, I began my opening statement with you by telling you that you’re going to learn that the defendant is a man who criminally abuses his power, disrespects the badge. He’s a man who lets his distorted ego lead to aggression he cannot control.

And then you met Yvette Maes, the woman who was traveling with her 15-year-old daughter, dead of night in the middle of nowhere, frightened to death by this man. And what did she say about him? “This man’s ego is unbelievable.”

Trial Day 5 Tr. at 1036:19-1037:4 (Neda). The United States then described the incident for which Rodella was charged and stated how it was similar to the Maes incident.

Now, March 11 was just a regular day. [Tafoya] had worked that day. And after work he visited his grandfather. And as he left his grandfather’s, going down the dirt lane that he’s always done, looked down the shoulder, like he’s always done, and he knows the distances. And he saw an SUV in an area at a distance where he knew it was safe for him to enter because it’s 35 miles per hour. And as he got onto 399, that SUV he had seen, all of a sudden bam, on his tail. Boy, is that familiar, considering what else you’ve heard. Remember Ms. Yvette Maes?

Trial Day 5 Tr. at 1088:24-1039:10. At this point, five minutes into the United States’ closing argument, Rodella objected to the United States’ reference to the Maes incident and requested the Court to instruct the jury that the United States could not compare the two incidents. See Trial Day 5 Tr. at 1039:15-1040:3 (Gorence, Court). The Court was reluctant to start instructing the jury, five minutes into the United States’ closing argument, especially considering that the United States had the rest of its closing to follow the Court’s instructions in the 404(b) MOO. The Court thus did not provide the jury with an instruction, but told the United States to be careful with its use of the prior incidents, to tie the incidents to the willfulness element, and to clean up its closing. See Trial Day 5 Tr. at 1039:17-1040:5 (Gorence, Court).

Later in its closing, the United States mentioned the Ledesma and Gonzales incidents when it argued that a law enforcement officer should not pull alongside a car that he or she is pursuing. See Trial Day 5 Tr. at 1051:18-20 (Neda)(“[The pursuit expert] also taught [Rodella], you’re never to pull alongside a car in a pursuit. Do you remember — we’ll get to Ms. Lisa Gonzales in a moment.”). Rodella did not object at this point. The United States’ initial closing lasted forty-two minutes. See Trial Day 5 Tr. at 1065:17-23 (Neda, Court). At the end of the United States’ closing, Rodella objected to the United States’ mentioning the prior incidents and asked the Court to declare a mistrial. See Trial Day 5 Tr. at 1062:2-1063:17 (Gorence). Rodella argued that the United States’ use of the prior incidents was improper, that the United States did not attempt to clean up its closing argument, and that the United States disregarded the Court’s order by not stating the three purposes which the Court said it must state. See Trial Day 5 Tr. at 1062:2-1063:17 (Gorence).

MR. GORENCE: Two things, Your Honor, first, I would ask for a judicial instruction that Ms. Neda’s comments about what happened with Ms. Gonzales was improper and violated your ruling. She didn’t remotely, quote, “clean it up.” She was using that to say that prior— you have very strict parameters about what it can be used for. Her statement: Does that sound familiar, to establish if a constitutional violation is exactly the type of character evidence that 404(b) prohibits. I was expecting that cleanup — but it never occurred — to say you can’t consider the fact that allegedly the Sheriff pulled up next to him. Of course, that wasn’t even a chase. But she was using that for a complete improper purpose. And it wasn’t cleaned up. And I’m asking the Court to do that.

Next — and I know she has a rebuttal — she hasn’t remotely stated the three things in her closing which she has to; particularly, I would say that one is close, the first one. The second one about this was a part of a common plan Rodella had to require the citizens of Rio Arriba to submit to his authority. And she didn’t remotely say anything about mistake or accidentally forget that the identity was not apparent to all motorists.

The problem is I haven’t heard — and I’d like to be able to respond — because, of course, that’s my one opportunity in closing, and it seems like it’s an apparent disregard for the Court’s order to save this for rebuttal, when I can’t even rebut or comment on what she said, it’s fundamentally unfair.

So at this point I think you can cure the first through an instruction. There was an improper statement about what happened to. Ms. Gonzales and Maes. She actually said that started later on with Ms. Maes, as well as Mr. Olson just pointed out.

At this point, I’m moving for a mistrial based on the improper use of 404(b), and the disregard Ms. Neda had for the Court’s order that now can’t be fixed. Because even to say it in rebuttal doesn’t allow me the chance to comment on it.

Trial Day 5 Tr. at 1062:2-1063:17 (Gorence).

The Court noted that it was concerned with the United States’ closing argument and that the United States did not follow its instructions from the 404(b) MOO. See Trial Day 5 Tr. at 1063:18-19 (Court). The United States responded by stating that it would — in rebuttal — clear up its argument and follow the Court’s order by stating the evidence’s three purposes. See Trial Day 5 Tr. at 1063:20-1064:14 (Neda, Court). The Court rejected the United States’ plan and told the United States that it needed to tell the jury the three purposes for which it could use the evidence before Rodella presented his closing argument. See Trial Day 5 Tr. at 1064:3-1 (Court); id. at 1064:15-23 (Neda, Court). The Court noted that, if the United States did not clean up its closing and tell the jury the proper purposes for which it could use the prior incidents, the Court would need to give a limiting instruction. See Trial Day 5 Tr. at 1064:25-1065:2 (Court); id. at 1065:9-16 (Court).

THE COURT: And make it clear [the jury],can use [the other incidents] only for purposes of determining willfulness. You can turn it into argumentative— after you do what you’ve got to do to clean it up, you can make it argumentative. I’m not taking that away from you. But if you don’t give them that, then I’m going to have to come back, given what you said in the opening portion, and give them a limiting instruction.

Trial Day 5 Tr. at 1065:9-16 (Court). The Court brought the jury back into the courtroom, and the United States told the jury that it could use evidence of the prior incidents only for specific purposes and then read the purposes from the 404(b) MOO. See Trial Day 5 Tr. at 1067:16-1069:7 (Neda). The United States put the Court’s Instruction Number 7 on the ELMO so that the jury could read the instruction while hearing it. The United States said, in full:

MS. NEDA: Thank you, Your Honor. Members of the jury, in rebuttal I will discuss Ms. Maes, Gonzales, and Ledesma, Mr. Jacob Ledesma. But I mentioned Ms. Maes in my opening — I’m sorry,'my initial closing. So I want you to look at Instruction No. 7, so you know what you’re allowed to consider when you’re considering the testimony of Ms. Maes, Ms. Gonzales, and Mr. Ledesma.

The Court has instructed you already. You heard evidence of other acts of wrong engaged in by Mr. Rodella. You may consider that evidence only as it bears on Mr. Rodella’s motive, intent, plan, knowledge, absence of mistake, or accident, and for no other purpose.

Specifically, the Government contends that this evidence proves — and there are three ways the United States is permitted to use the evidence of those three people, Ms. Gonzales, Mr. Ledesma, and Ms. Maes, and they are as follows: Mr. Rodella’s motive and intent for pursuing Michael Tafoya was to express his road rage, punish, disrespect, and force Mr. Tafoya to submit to his authority, and not to enforce any traffic law.

Mr. Rodella had a plan to drive in a threatening manner towards other motorists. And if he succeeded in provoking any disrespectful act, force the motorist to submit, through a display of his authority. The traffic encounters are part of a common plan that Mr. Rodella had to require the people of Rio Arriba County to submit to his authority. Mr. Rodella did not make a mistake or accidentally forget that his identity was not apparent to all motorists, when he pursued Mr. Tafoya in a private vehicle.

And, of course, the fact that Mr. Ro-della may have previously committed an act similar to the one charged in this case, does not mean Mr. Rodella necessarily committed the act charged in this case. You’ll hear that again — or see it at least — and I read it to you now because I will be discussing those three people.

Trial Day 5 Tr. at 1067:16-1069:6

During Rodella’s closing, he discussed the other incidents to explain how his conduct was not unconstitutional. See Trial Day 5 Tr. at 1101:18-11:03:11 (Gorence). He stated that, in the Maes incident, he drove behind Maes until he could pass her, and that, when she flashed her bright headlights into his car, he pulled her over, told her she “can’t do that,” and gave her a warning. Trial Day 5 Tr. at 1102:12-18 (Gorence). Concerning the Ledesma incident, Rodella asserted that Ledesma did not complain to anyone about his ticket, but, instead, admitted his guilt and paid the fine. See Trial Day 5 Tr. at 1102:19-24 (Gorence). For the Gonzales incident, Rodella told the jury that he saw Gonzales speeding, attempted to stop her, and, when she refused to pull her vehicle onto the side of the road, he used some harsh language to get her to stop the car. See Trial Tr. at 1102:25-1103:6 (Gorence). He also addressed the United States’ assertion that Rodella had a plan to commit road rage and subject other drivers to his authority by calling the United States’ assertion “ludicrous.” Trial Day 5 Tr. at 1096:7-9 (Gorence)(“The Government says it’s an ongoing plan to terrorize the community that’s elected him. That’s kind of ludicrous to begin with.”). Rodella told the jury that it could use the evidence of the other incidents only for a limited purpose. See Trial Day 5 Tr. at 1102:9-11 (Gorence)(“And that’s why you have this very strict limiting instruction, which is— and Ms. Neda read it, and you can go over it again.”); id. at 1103:7-11 (Gorence)(“But for the very limited purpose you have, you can see that that doesn’t constitute a plan by the sheriff to terrorize the citizens that have elected him in the county. But it is what it is, and it certainly doesn’t reflect in this case.”).

After Rodella gave his closing argument, during the rebuttal, the United States brought up the three incidents again. The United States talked about the charged incident involving Tafoya and then transitioned to the three prior incidents by saying: “What about the defendant’s other victims?” Trial Day 5 Tr. at 1128:4 (Neda). The United States first summarized the three incidents without discussing how they relate to the current case. See Trial Day 5 Tr. at 1128:5-1132:21 (Neda). After the United States related the events from the three incidents, it tied them to the current case in the following manner:

So when you’re thinking about Michael Tafoya, I’m going to ask you to think about Yvette Maes, and think about Lisa Gonzales. It’s been months and months, a year to Lisa Gonzales. And a gun wasn’t pointed at their heads. How do you think Michael Tafoya felt? Lisa Gonzales and her husband were so upset after that, they had to sit in their car for five minutes, if you remember, before they could even continue on their drive home.

He said he’s not concerned about the community. That’s his mindset. Not concerned about Maes, her daughter; Mr. Ledesma, his family; Lisa Gonzales; certainly not Michael Tafoya, willing to put a gun to his head to satisfy his ego. His ego trumps all. And this time it has caught up to him.

Trial Day 5 Tr. at 1132:22-1133:11 (Neda). During the rebuttal, Rodella did not object to the United States’ use of the three prior incidents. The United States’ rebuttal took about twenty minutes. See Clerk’s Minutes at 20. When the United States finished its rebuttal, the Court looked at Rodella’s counsel to see if he would object or .ask for an instruction. He did not; instead, he looked at his co-counsel and shrugged. The Court would have given the limiting instruction at that moment once more if Rodella requested it. The Court was reluctant, however, to, sua sponte, raise the three prior incidents without a request from Rodella; he might not want the last words the jury hears in the courtroom to be about these three incidents. Rodella obviously did not want to bring up these three previous incidents, and the Court did not want to hurt Rodel-la’s case on its own. Rodella has one of the district’s best criminal defense lawyers, and he objects frequently; if he was not going to object at this point, the Court should not try to help him with another limiting instruction.

After closing arguments, on the fifth day of trial, the Court sent the jury to deliberate at 11:23 a.m. See Clerk’s Minutes at 20. The Court provided the jury with a hard copy of the jury instructions to take back to deliberations. The Court received a note from the jury at 3:53 p.m. to which the Court responded. See Clerk’s Minutes at 20. The note asked the Court whether a badge is sufficient to identify an officer as an officer of the law. See Clerk’s Minutes at 22. The Court responded by telling the jury that, if the question was important to their deliberations, they would need to resolve the question themselves, and by directing the jury to Instruction Number 13, which concerned a law enforcement officer’s requirement to be in uniform to perform certain duties. See Clerk’s Minutes at 22; Jury Instructions at 16. At 5:44 p.m., the jury informed the Court that it reached a verdict, which the Court read at 5:51 p.m. See Clerk’s Minutes at 20-21.

On January 12, 2015, the Court sentenced Rodella to 121-months imprisonment. See Sentencing MOO at 95-96. The Court worked hard to finish writing opinions explaining its rulings in the case, and, on February 6, 2015, the Court entered judgment. See Judgment in a Criminal Case, filed February 6, 2015 (Doc. 192). The Court acted quickly to enter the judgment so that Rodella could appeal, and so that he could be designated to a Bureau of Prisons (“BOP”) facility, which usually takes place sixty days after the Court enters judgment. Rodella filed his notice of appeal on the same day that the Court entered judgment. See Notice of Appeal, filed February 6, 2015 (Doc. 194).

2. The Motion.

Rodella filed the Motion on February 6, 2015, requesting the Court to release him from custody pending his appeal. See Motion at 1. Rodella argues that his appeal presents at least one substantial question concerning the Court’s admission of evidence of the prior incidents at trial and the United States’ use of those incidents during closing argument. See Motion at 1. He contends that, if the United States Court of Appeals for the Tenth Circuit decides in his favor on either of those two issues, his conviction will likely be reversed. See Motion at 1. He also contends that his case presents exceptional reasons for release, including the strength of his appeal, his poor health, the low risk that he will commit further acts of violence if released, the danger he faces while incarcerated, and his family’s needs. See Motion at 1.

Rodella asserts that a defendant must ordinarily show four things to be released pending appeal: (i) that he is not likely to flee or pose a danger to any other person or to the community if released; (ii) the appeal is not for the purpose of delay; (iii) the appeal raises a substantial question of law or fact; and (iv) a favorable decision on that substantial question would likely result in a reversal or an order for a new trial. See Motion at 2 (citing United States v. Affleck, 765 F.2d 944, 953 (10th Cir.1985) (en banc); United States v. Vigil, No. CR 05-2051 JB, 2007 WL 766345 (D.N.M. Feb. 16, 2007) (Browning, J.); 18 U.S.C. §§ 3142(f)(1)(A), 3142(b)(2), 3145(c)). Rodella maintains that he is not a flight risk. See Motion at 2. He contends that he has deep ties to northern New Mexico, and that he appeared at every hearing and every day of trial despite facing a substantial sentence. See Motion at 2. He notes that he is willing to wear a tracking device if the Court so orders. See Motion at 2-3. Rodella argues that he is not a danger to the community, as the absence of a criminal history and the support letters the Court received in connection with his sentencing shows. See Motion at 3. He asserts that he will not be able to commit a similar crime, because he is no longer a law enforcement officer. See Motion at 3. Rodella also argues that his appeal is not for .the purpose of delay, which the fact that he pleaded not guilty, raised a number of issues at trial, and plans to vigorously pursue his appeal, shows. See Motion at 3.

Rodella argues that the Court’s admission of the prior incidents and the United States’ misuse of the evidence in closing present a substantial questions that, if resolved in his favor, would result in a reversal. See Motion at 3. He contends that a substantial question is one of substance, and that is close or that could be decided the other way. See Motion at 3. Rodella contends that a substantial question must be so integral to the merits of the conviction that a contrary appellate holding will likely require reversal or a new trial. See Motion at 4. He asserts that the Court does not need to find that it committed reversible error, but only that the question is close and could go the other way. See Motion at 4.

Concerning evidence of the three prior incidents, Rodella argues that the limitations that the Court placed on the evidence were inadequate, because the issues of motive, intent, plan, and absence of mistake or accident were either not in dispute or were linked to inferences that depended on propensity. See Motion at 4-5. Rodella maintains that 404(b) evidence must be relevant to a disputed issue other than propensity and that it is not enough for the United States “to recite a non-propensity purpose for the evidence.” Motion at 5. He asserts that 404(b) evidence is admissible only if it is relevant to a permissible purpose and the relevance does not depend on the defendant likely acting in conformity with an alleged character trait. See Motion at 5 (citing United States v. Commanche, 577 F.3d 1261, 1267 (10th Cir.2009); United States v. Gomez, 763 F.3d 845, 856 (7th Cir.2014) (en banc)).

Addressing the purposes of motive and intent, Rodella argues that courts have cautioned against admitting 404(b) evidence to prove intent, because intent may blend with propensity. See Motion at 6 (citing United States v. Stacy, 769 F.3d 969, 974 (7th Cir.2014); United States v. Miller, 673 F.3d 688, 700 (7th Cir.2012)). He argues that the link between his motive and intent during the Tafoya incident, and the prior incidents, impermissibly depended on him acting in conformity with an alleged character trait. See Motion at 6. Rodella contends that the intent that the prior incidents show is merely that he acted one way before the charged incident, therefore he acted the same way again, which is not a permissible purpose. See Motion at 7. He asserts that intent is not a permissible purpose in this case, because it impermissibly relies on a propensity inference. See Motion at 7.

Concerning the United States’ asserted purpose of showing a plan, Rodella argues that there was no evidence of a plan, because plan evidence must show that the defendant was part of a pre-arranged plan or scheme. See Motion at 8-9 (citing United States v. Smalls, 752 F.3d 1227, 1239 n. 5 (10th Cir.2014)). He contends that there was nothing pre-arranged about his encounters with Tafoya, Maes, Ledesma, or Gonzales, and that “[w]hat the government called a ‘plan’ was just propensity by another name.” Motion at 8. Rodella asserts that the Court’s description of the word “plan” could be replaced by the word “propensity” without changing its meaning, and that the jury understood the word plan to mean that Rodella had a propensity for driving in a threatening manner and acting like a jerk toward other motorists if they acted disrespectfully. Motion at 8. In regards to absence of mistake or accident, Rodella contends that he never asserted that he made a mistake about Tafoya or that he accidently forgot that his identity as a law enforcement officer was not apparent. See Motion at 8 (citing United States v. Johnson, 458 Fed.Appx. 727, 731-32 (10th Cir.2012) (unpublished)). Rodella argues that the United States cannot erect a straw man as a pretext for introducing highly prejudicial evidence under rule 404(b). See Motion at 8.

Rodella argues that the Court should have excluded the other-act evidence under rule 403 of the Federal Rules of Evidence, because the evidence was extraordinarily prejudicial. See Motion at 9. He contends that 404(b) -evidence tends to distract the trier of fact from the main question of what actually happened on a particular occasion. See Motion at 9 (citing United States v. Caldwell, 760 F.3d 267, 284 (3d Cir.2014); United States v. Briley, 770 F.3d 267, 277 (4th Cir.2014)). Rodella asserts that the United States increased the prejudice from the other-act evidence in several ways. See Motion at 9. First, Rodella contends that the United States placed the evidence at the end of its case, where it would have the greatest impact under the recency principle. See Motion at 9 (citing Ryan Patrick Alford, Catalyzing More Adequate Federal Habeas Review of Summation Misconduct: Persuasion Theory and the Right to an Unbiased Jury, 59 Okla. L.Rev. 479, 513-15 (2006)). Second, Rodella asserts that the United States elicited unnecessary details about how Maes, Ledesma, and Gonzales felt when Rodella accosted them. See Motion at 9-10. Third, Rodella argues that the United States misused the evidence in closing argument. See Motion at 10. Ro-della notes that, while the Court attempted to mitigate the evidence’s prejudice through a limiting instruction, the instruction had little effect, especially considering the fact that the jury could not consider the 404(b) evidence without drawing an impermissible propensity-based inference. See Motion at 10 (citing Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring)).

Rodella also argues that the evidence had little probative value. See Motion at 10. Rodella asserts that the three incidents were dissimilar to the Tafoya incident, because they did not involve the use of force, they did not involve a private vehicle, they did not involve a civilian driver, and they did not lead to an arrest. See Motion at 10. He contends that the only similarity between the prior incidents and the Tafoya incident is that they all show that Rodella acted like a jerk. See Motion at 10-11. Rodella argues that the purposes for the 404(b) evidence were largely undisputed and that, if an issue is not seriously disputed, evidence that risks unfair prejudice should not be admitted. See Motion at 11 (citing United States v. Trent, 767 F.3d 1046, 1050 (10th Cir.2014)). He maintains that he did not contend that his conduct concerning Tafoya was the result of a mistake or accident. See Motion at 11. He argues that the United States’ plan argument is not a serious argument, because there is no evidence of a plan to accost motorists, and because the United States never used the word plan during closing, outside of reading the Court’s script from the 404(b) MOO. See Motion at 11. Rodella concedes that — unlike mistake, accident, or plan — motive and intent were at issue in the trial, but that those issues were of secondary importance. See Motion at 11. He argues that the central dispute at trial concerned the factual issues of what happened during the charged incident. See Motion at 11-12. Rodella argues that, if the jury found that he acted in the manner that Tafoya contended he did, “the jury could readily have inferred that he acted willfully.” Motion at 12. He asserts that he did not directly contest willfulness, but, instead, that he presented a different factual scenario than Tafoya’s and that, although willfulness was a contested issue, it was subsumed in the fight over the underlying facts. See Motion at 12. Rodella contends that the prior incidents wer.e unnecessary for the jury to have a complete understanding of the charged incident, “because there was ample direct evidence of the Tafoya incident.” Motion at 12.

Rodella asserts that, during closing arguments, the United States disregarded the limitations that the Court placed on the evidence. See Motion at 13 (citing United States v. Richards, 719 F.3d 746, 763-65 (7th Cir.2013)). Rodella argues that the United States emphasized the other-act evidence by highlighting it at the beginning of its closing and at the end of its rebuttal. See Motion at 13. He contends that the United States began its closing argument by stating that Rodella had a distorted ego that leads to aggression before discussing the Maes incident to show his ego and then contrast it with Tafoya’s character. See Motion at 13. Rodella argues that the United States’ use of the Maes incident to contrast Tafoya’s character was a forbidden purpose. See Motion at 14. He asserts that, when the United States referenced the Maes incident again, he objected, and that the Court admonished the United States to clean up its closing and to tie the prior incidents to willfulness. See Motion at 14. Rodella argues that the United States ignored the Court’s directive by using the Gonzales incident to make a propensity argument. See Motion at 14.

Rodella contends that, after the United States’ first closing, he objected to the United States’ use of the other-act evidence, requested an instruction that the United States’ comments were improper, and moved for a mistrial. See Motion at 14. He asserts that the Court did not give the requested instruction or grant a mistrial, but instead directed the United States to clean up its closing before Rodella’s closing by telling the jury the purposes for which it could use the prior incidents. See Motion at 14-15. Rodella states that, during rebuttal, the United States ignored the United States’ limitations that it placed on the evidence by referring to Maes, Ledes-ma, and Gonzales as other victims, and then focusing on Rodella’s character and the effect that his conduct had on Maes, Ledesma, and Gonzales. See Motion at 15. He argues that the United States’ argument did not have anything to do with the purposes for which the other-act evidence could be admitted and that it served only to paint Rodella as a bad person who needlessly inflicted emotional distress on Maes. See Motion at 15-16. He maintains that the United States’ closing argument was merely an exhortation to the jury to punish Rodella, because he is a bad person who inflicts emotional trauma on motorists in Rio Arriba County. See Motion at 16-17.

Rodella argues that admission of the 404(b) evidence was not a harmless error and that a ruling in his favor on that issue will result in a new trial. See Motion at 17. He contends that introduction of the other-act evidence influenced the outcome of the trial, because of the United States’ reference to Maes, Ledesma, and Gonzales as victims, because of the United States’ use of the recency effect, because of the emotional testimony that Maes, Ledesma, and Gonzales gave, and because of the propensity-based arguments that the United States made. See Motion at 17. Ro-della maintains that the jury reached a guilty verdict so swiftly that it could not possibly have carefully weighed the evidence related to the Tafoya incident. See Motion at 17-18.

Rodella maintains that, because he was convicted of a crime of violence, he must also show exceptional circumstances that are clearly out of the ordinary, uncommon, or rare. See Motion at 18 (citing United States v. Mutte, 383 Fed.Appx. 716, 718 (10th Cir.2010) (unpublished); United States v. Ganadonegro, No. CR 09-0312 JB, 2012 WL 1132166 (D.N.M. Mar. 14, 2012) (Browning, J.); United States v. Jager, No. CR 10-1531 JB, 2011 WL 831279 (D.N.M. Feb. 17, 2011) (Browning, J.)). He asserts that there are a wide range of factors that a Court may consider in determining if exceptional circumstances exist and there are five exceptional reasons in this case. See Motion at 18. First, Rodel-la contends that he has an unusually strong chance of obtaining a reversal on appeal. See Motion at 18-19. Second, he argues that his poor health constitutes an exceptional reason for being released pending appeal. See Motion at 19. He asserts that his health has deteriorated since sentencing and that, while the BOP may be capable of providing him with necessary treatment, he is currently detained in the Torrance County Detention Facility, where he will remain for some time until he is designated and transported to a federal prison. See Motion at 19. Third, Ro-della asserts that the nature of the Tafoya incident constitutes an exceptional circumstance, because the violence rose out of his role as a law enforcement officer, and, because he is no longer an officer, it is unlikely that he is a danger to anyone. See Motion at 19-20. Rodella contends that, because he poses a low risk of future danger, he is not the person for whom Congress intended the mandatory detention rule to apply. See Motion at 20 (United States v. Garcia, 340 F.3d 1013, 1019 (9th Cir.2003)). Fourth, Rodella argues that, because he is a former law enforcement officer, he is exposed to exceptional risks and that he has received threats since being incarcerated. See Motion at 20 (citing United States v. Koon, 6 F.3d 561, 568 (9th Cir.1993) (Reinhardt, J., dissenting)). Fifth, Rodella maintains that his family circumstances weigh in favor of release. See Motion at 20 (citing United States v. Kaquatosh, 252 F.Supp.2d 775, 778-79 (E.D.Wis.2003); United States v. Franklin, 843 F.Supp.2d 620, 623-24 (W.D.N.C.2012)). He contends that the important role that he plays in the lives of his mother and wife will cause his incarceration to be difficult for his family. See Motion at 21. Rodella argues that the combination of these five factors constitute exceptional reasons which make it unreasonable to incarcerate him while his appeal is pending. See Motion at 21.

The United States responded on February 23, 2015. See United States’ Response to Defendant’s Motion for Release Pending Appeal (Doc. 195), filed February 23, 2015 (Doc. 209) (“Response”). The United States argues that a violent offender should be detained pending appeal except when a defendant can satisfy 18 U.S.C. § 1343(b)(1)’s requirements and make a clear showing of exceptional reasons why his detention would be inappropriate. See Response at 1. The United States asserts that Rodella has not raised a substantial question that would likely result in a reversal and has not clearly shown that there are exceptional reasons why his detention is not appropriate. See Response at 1.

The United States argues that Rodella has not identified a substantial question. See Response at 2. It contends that the Court’s admission of the 404(b) evidence and the United States’ closing argument are two events, but are not questions. See Response at 2. The United States notes that a substantial question must be one that can properly be raised on appeal and that an event cannot.be raised on appeal. See Response at 2 (citing United States v. Affleck, 765 F.2d at 952 n. 13). It contends that United States v. Farr, 457 Fed.Appx. 757 (10th Cir.2012) (unpublished), is similar and that the Tenth Circuit held that, in determining whether a person should be granted bail pending appeal because of improperly admitted 404(b) evidence, the question is whether the district court abused its discretion in admitting the evidence. See Response at 2. The United States asserts that the proper standard of review is dispositive to resolving the Motion. See Response at 2.

The United States maintains that the Court did not abuse its discretion at trial, and that the Court does not abuse its discretion as long as its ruling is not arbitrary, capricious, or whimsical. See Response at 2 (citing United States v. Mares, 441 F.3d 1152, 1156 (10th Cir.2006)). It contends that the Court’s ruling was not arbitrary, capricious, or whimsical. See Response at 2-3. The United States asserts that in United States v. Farr the Tenth Circuit held that, because the district court recognized the burden which the United States had to prove to show willfulness, it did not abuse its discretion in admitting evidence under rule 404(b). See Response at 3. The United States states that the Court based its decision in part on the burden that the United States had to prove willfulness. See Response at 3. It notes that Rodella did not cite a single case in which a court found that the admission of 404(b) evidence raised a substantial question. See Response at 3. The United States argues that evidentiary rulings are normally not substantial questions. See Response at 3. It contends that, based on the number of evidentiary rulings a judge must make at trial, he or she will make some rulings with which another judge could differ, but that another judge may differ on a ruling is insufficient to raise a substantial question. See Response at 3 (citing United States v. Powell, 761 F.2d 1227, 1233 (8th Cir.1985)).

The United States argues that it is rare for a court to release a defendant pending appeal based on an issue that will be reviewed for abuse of discretion or plain error. See Response at 3-4. It contends that the Motion is merely a second-guessing' of the 404(b) MOO, which the parties briefed and argued, and the Court wrote. See Response at 4. The United States argues that Rodella has not raised any new arguments to support the exclusion of the other incidents other than restating his arguments in a way that gives the slanted impression that rule 404(b) excludes evidence that shows propensity. See Response at 4. The United States contends that Rodella’s assertion is contrary to law, because, as long as 404(b) evidence is introduced for a permissible purpose, it may have some propensity side effects. See Response at 4 (citing United States v. Moran, 503 F.3d 1135, 1145 (10th Cir.2007); United States v. Romero, No. CR 09-1253 JB, 2011 WL 1103862, at *12 (D.N.M.2011) (Browning, J.)). It argues that, even though 404(b) evidence may have a propensity effect, if the evidence satisfies the four factors from Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), it is properly admitted, yet Rodella never once mentions those factors, see Response at 5 (citing United States v. Cherry, 433 F.3d 698, 701 n. 3 (10th Cir.2005)).

The United States contends that the only new issue in the Motion is that Rodel-la is able to state, with the hindsight of trial, what issues were contested. See Response at 5. It contends that Rodella did not raise the issue of what was contested at trial or during closing arguments, and did not ask the Court to revisit its rulings from the 404(b) MOO. See Response at 5. The United States asserts that Rodella asked for each proper purpose to be given to the jury so that he could comment on them in closing. See Response at 5-6. It argues that, “rather than take the position that the United States could only argue certain purposes based on the evidence presented, Defendant made the tactical decision that he wanted the United States to present all the proffered purposes to the jury so that Defendant could critique them.” Response at 6.

The United States maintains that, even if Rodella raises a substantial question, he must prove that, if a decision is answered in his favor, the decision is likely to result in a reversal or a new trial, which means that harmless errors do not justify release pending appeal. See Response at 6. (citing United States v. Bilanzich, 771 F.2d 292, 299 (7th Cir.1985); United States v. Bayko, 774 F.2d 516, 522 (1st Cir.1985)). The United States asserts that, if it resolves the 404(b) issue in Rodella’s favor, it should apply the nonconstitutional harmless error standard, which means the Court should grant a release only if the improperly admitted evidence had a substantial influence on the outcome of the trial or if it generates a grave doubt concerning whether it had such an influence. See Response at 6. The United States contends that, in making this determination, the Court should review the entire record, including the context, timing, and use of the evidence and compare it to other properly admitted evidence. See Response at 6-7 (citing United States v. Blechman, 657 F.3d 1052, 1067 (10th Cir.2011)).

The United States argues that Rodella has not met his burden of comparing the 404(b) evidence with other properly admitted evidence and that Rodella’s main argument at trial was for the jury to believe Rodella, Jr. over Tafoya. See Response at 7. The United States maintains that Rodel-la, Jr.’s credibility was thoroughly impeached at trial while Tafoya’s remained intact. See Response at 7. It contends that the jury would have convicted Rodella regardless of the 404(b) evidence. See Response at 7.

The United States argues that the Court should review its closing argument for plain error. See Response at 8 (citing United States v. Taylor, 514 F.3d 1092, 1097 (10th Cir.2008)). It asserts that Rodella objected after the first portion of the United States’ closing argument and that the Court required the United States to immediately tell the jury the purposes for which it could use the 404(b) evidence. See Response at 8. The United States maintains that, after that point, Rodella did not object to the Court’s resolution of its first objection or to the United States’ discussion of the prior incidents on rebuttal. See Response at 8. It contends that Rodella was satisfied with the Court’s ruling and was not troubled by the rebuttal, because he did not give the Court another opportunity to address the 404(b) issue. See Response at 8. The United States asserts that the question which the Court must consider to be substantial is whether it was plain error for the Court to fail to issue a limiting instruction sua sponte. See Response at 8-9. It contends that plain error requires “(1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Response at 9 (quoting United States v. Baldridge, 559 F.3d 1126, 1135 (10th Cir.2009)). The United States asserts that, in reviewing improper remarks under a plain error standard, the Court should view the remarks in the context of the entire trial. See Response at 9. The United States argues that Rodella fails to show that, in light of the entire trial, the United States’ closing argument would likely cause a reversal or a new trial. See Response at 9. It argues that each of the cases to which Rodella cites involved an abuse-of-discretion review and involved more egregious facts. See Response at 9.

The United States maintains that Rodel-la cannot show exceptional circumstances that would justify his release pending appeal. See Response at 10. It contends that Rodella’s five reasons, individually or collectively, do not constitute exceptional circumstances. See Response at 10. The United States asserts that, while unusually strong chances of reversal may constitute exceptional circumstances, those chances involve issues that an appellate court has not previously decided or that involve a situation in which the conviction would be overturned on the grounds that the retroactive extension of a statute of limitations was unconstitutional. See Response at 10. The United States contends that those examples are distinguishable from the current case, which does not concern a constitutional question, and which involves an issue that the Tenth Circuit has considered on a number of occasions. See Response at 10.

The United States argues that Rodel-la’s health does not rise to the level of an exceptional reason, because the Tenth Circuit requires a severe illness or injury and because Rodella’s health is fine, as the facts that he physically attacked Tafoya and ran for a second four-year term as sheriff show. See Response at 11. It notes that Rodella’s nurse practitioner reports that Rodella does not have significant needs and that his health has improved since his incarceration. See Response at 11. The United States asserts that the Tenth Circuit has stated that it is rare for a health condition to constitute an exceptional reason. See Response at 11. It contends that a chronic medical condition that is controlled by medication is not an exceptional circumstance. See Response at 11 (citing United States v. Varney, No. CR 12-0009 ART/HAI, 2013 WL 2406256, at *1-2 (E.D.Ky. May 31, 2013) (Thapar, J.)). In addressing the nature of the violent act, the United States argues that the circumstances with which courts are concerned include a violent act that lacked an intent to injure, and did not involve a threat or injury to a person or circumstances, which were highly unusual, such as a mercy killing. See Response at 12. It contends that Rodella’s crime involved a high-speed chase, an assault with a firearm, and a threat, and that violating another’s constitutional rights under the color of law is not highly unusual. See Response at 12. The United States argues that Rodella’s risk-of-future-violence argument is inapplicable and that Rodella was not reacting to an unusually provocative circumstance. See Response at 12.

The United States maintains that Rodella’s status as a law enforcement officer does not present an exceptional circumstance, because it is not exceptional for law enforcement officers to be sent to prison for civil rights offenses. See Response at 12. It asserts that law enforcement officers should not be shielded from the otherwise universally applicable effects of incarceration. See Response at 13. The United States contends that Rodella’s reliance on a dissenting opinion from United States v. Koon is misplaced, because tha