Update: On June 1, the 10th Circuit Court of Appeals granted federal prosecutors’ request that Kepa Maumau remain incarcerated while their appeal is pending. The appellate court fast-tracked the case, and arguments are expected to be held in September.
Kepa Maumau is not a free man just yet — despite a federal judge’s ruling last week that he be released four decades earlier than anticipated after being convicted in several gang-related robberies.
Federal prosecutors have appealed U.S. District Court Judge Tena Campbell’s decision to grant Maumau an early release, and they have asked the 10th Circuit Court of Appeals to hold off on letting him out until they have a ruling.
The 10th Circuit judges didn’t go quite that far, but they did grant a preliminary injunction that will keep Maumau behind bars until attorneys can argue in court papers over whether he should be released pending the appeal.
Maumau had been convicted of three armed robberies as part of a sweeping prosecution of the Tongan Crip Gang, and faced a mandatory sentence of 55 years.
He’s been locked up for nearly 12, and he would have remained imprisoned until 2057 if Congress didn’t pass the First Step Act. That 2018 overhaul of the federal sentencing system gave Campbell the flexibility she lacked in 2011 when she reluctantly sentenced Maumau the first time.
But federal prosecutors argue that Maumau should never have been eligible for compassionate release, saying he’s not elderly or terminally ill or meets any of the traditional requirements. Campbell had ruled that she had the power to grant him compassionate release based on the First Step Act, but prosecutors argue Congress never gave her that resentencing power.
Prosecutor Ryan Tenney wrote in court papers that Maumau has a dangerous criminal history, and was involved in fights while he was in prison. Given that there’s so much at stake, Tenney wrote prosecutors worry Maumau will skip town if given the chance to get out now.
“If the government’s appeal is successful ... the original sentence will be re-imposed, which would then result in another 44 years of incarceration,” Tinney wrote. “Because of this, Maumau has a pronounced incentive to flee while this appeal is pending.”
Maumau was supposed to be released on Friday, when he will no longer be quarantined for the coronavirus at the Salt Lake County jail.
His attorney, John Gleeson, argued in court papers filed Monday that his client’s risk of getting COVID-19 while in jail is just one reason why he should be released. He also said Maumau wouldn’t be a flight risk, since all of his family and community ties are in Salt Lake City.
“Maumau’s family and the community of Salt Lake City are prepared to welcome him back and support his reentry,” Gleeson wrote, “and he has already earned opportunities to contribute positively upon his release.”
Prosecutors have until Wednesday to file their reply, then the 10th Circuit Court of Appeals is expected to rule on whether Maumau will be released this week or if he’ll remain incarcerated while the appeal plays out in court.
In 2010, Utah’s federal prosecutors used the federal RICO Act, which stands for Racketeer Influenced and Corrupt Organizations, in an attempt to decimate the Tongan Crip Gang. Maumau was one of 17 young men charged.
Many of the men charged took plea deals, getting sentences of a decade or so in exchange for cooperating with the government. Maumau, too, had an offer to plead guilty and spend 10 years in federal prison.
He decided to go to trial, taking a risk most people charged in federal court don’t — 97% of federal criminal cases end in plea deals, the National Association of Criminal Defense Lawyers reported in 2018. Many defendants choose a plea deal to avoid a substantially more severe penalty if convicted at trial. And that’s what happened to Maumau.
He was convicted by a jury of racketeering conspiracy, robbery, assault with a dangerous weapon and multiple counts of using or carrying a firearm during a violent crime.
Even after winning an appeal that shaved two years off his original sentence, Maumau had expected to spend 55 years behind bars, a requirement of tough mandatory minimum sentencing laws.
Maumau was one of 12 accused Tongan Crip Gang members who either pleaded guilty or was convicted at trial — and was given one of the harshest sentences.
The last person to go to trial for his alleged ties to the gang, Siale Angilau, was shot and killed by a federal marshal after he grabbed a pen and a mechanical pencil and ran toward a witness who had started testifying about the gang.
Maumau’s second chance came years later, when in 2018, President Donald Trump signed the First Step Act, a sweeping criminal justice reform co-written by Utah Sen. Mike Lee. It aimed to reduce the burgeoning federal prison population, lower mandatory minimum sentences for drug crimes, expand job training and boost early-release opportunities.
It allows defense attorneys to argue that lengthy sentences don’t match the crime. Maumau’s attorneys asked for his 55-year sentence to be reduced further, a motion that Campbell granted in February.