FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   March 11, 2010
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 10-4016
                                                (D.C. No. 2:08-CR-00808-TS-1)
    DOUGLAS LEE FROWNFELTER,                               (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, EBEL, and GORSUCH, Circuit Judges.



         Defendant Douglas Lee Frownfelter appeals the district court’s denial of

his 18 U.S.C. § 3143(b) motion for release pending appeal. The Government

opposed the motion in the district court and has filed an opposition brief on

appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145, and

we reverse.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I.

      The case against Frownfelter stems from his receipt of adoption subsidy

payments through the Utah Division of Child and Family Services (“DCFS”) that

were funded in part by the United States Department of Health and Human

Services. In 1995, Frownfelter and his wife adopted a son with special needs.

Three years later, the couple divorced, sharing joint-custody of their son. In

March 2001, however, the son began living primarily with Frownfelter. Based on

this arrangement, in September 2002, Frownfelter applied for and was granted

adoption subsidy assistance through DCFS. In December 2002, he began

receiving monthly payments in the amount of $559. In January 2003, the child

went to live with his mother, but Frownfelter did not notify DCFS of this fact and

continued to receive the monthly adoption subsidy. As a result, from February

2003 to October 2006, when DCFS discovered the situation and terminated the

payments, Frownfelter received over $24,000 in adoption subsidy payments to

which he was not entitled.

      On December 3, 2008, Frownfelter was charged in an eleven-count

indictment of stealing government funds in violation of 18 U.S.C. § 641. The

background section of the indictment detailed the scheme and explicitly stated

that Frownfelter ultimately stole over $24,000. The counts comprised a separate

section, which, in an opening paragraph, putatively incorporated the background




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allegations. The next paragraph recited the language of § 641; accused

Frownfelter of failing to notify DCFS of his changed circumstances; and alleged

that the total amount stolen exceeded $1,000. Finally, the indictment set forth a

chart enumerating eleven separate counts. Each count corresponded to the date of

a specific adoption subsidy payment and the amount of that particular payment.

Count Eleven charged Frownfelter with receiving $559 on October 2, 2006.

       Frownfelter pled guilty to Count Eleven, and the remaining counts were

dismissed. He later argued to the district court that based on the amount charged

in Count Eleven, he had pled guilty only to a misdemeanor and should be

sentenced as such. The court rejected that argument, however, concluding at

sentencing that Count Eleven incorporated the introductory paragraphs of the

indictment, including its allegation that Frownfelter had unlawfully obtained over

$24,000. Thus, it found the indictment was sufficient to allege a felony under

§ 641, and that Frownfelter had knowingly pled guilty to the felony in his

Statement in Advance of Plea. The court imposed a sentence of one year plus one

day.

       Frownfelter filed an appeal in this court challenging the legality of his

sentence on the grounds that he pled guilty to a misdemeanor rather than a felony.

Based on the same grounds, he also filed a motion in the district court seeking

release during the pendency of his appeal. It is the district court’s denial of that

motion that is presently under review.

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                                         II.

      Under § 641, theft of government property with a value in excess of $1,000

is a felony punishable by a maximum term of imprisonment of ten years. “[B]ut

if the value of such property in the aggregate, combining amounts from all the

counts for which the defendant is convicted in a single case, does not exceed the

sum of $1,000,” the violation is a misdemeanor, punishable with a fine or a term

of imprisonment not to exceed one year, or both. 18 U.S.C. § 641.

      The district court concluded Frownfelter had pled guilty to a felony because

it found that the value of the property he took “in the aggregate, combining

amounts from all the counts for which the defendant is convicted in a single case,

in this case Count 11, was over $1,000.” App. at 111 (internal quotation marks

omitted). This is confusing because Frownfelter was only convicted on Count

Eleven, which alleged a theft of $559. As the district court construed the

indictment, however, Count Eleven incorporated by reference the background

allegation charging Frownfelter with stealing over $24,000. The court cited

Federal Rule of Criminal Procedure 7(c), which states that “[a] count may

incorporate by reference an allegation made in another count.” It acknowledged

that this rule does not explicitly authorize incorporation of language contained in

introductory paragraphs of the indictment, but it pointed out that at least two

circuits have allowed such practice. See United States v. Vanderpool, 528 F.2d




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1205, 1206 (4th Cir. 1975) (permitting incorporation by reference of matter set

forth in indictment’s introduction); United States v. McGuire, 

, 319

(2d Cir. 1967) (holding that “introductory paragraphs not part of another count

and specifically referring to the counts involved are considered part of the

numbered counts following them”). Based on these cases and the lack of contrary

Tenth Circuit authority, the court concluded Frownfelter had pled guilty to

stealing over $1,000 in government funds, a felony under § 641. It further

concluded that Frownfelter’s appeal failed to raise a substantial question as to this

issue, thereby precluding relief under § 3143(b). We review the court’s decision

de novo, giving due deference to its purely factual findings. United States v.

Kinslow, 

, 557 (10th Cir. 1997).

      Requests for relief under § 3143(b) should be granted only if the court

finds, in addition to factors not relevant here, that the appeal “raises a substantial

question of law or fact likely to result in (i) a reversal; (ii) an order for a new

trial; (iii) a sentence that does not include a term of imprisonment; or

(iv) a reduced sentence to a term of imprisonment less that the total of the time

already served plus the expected duration of the appeal process.” 18 U.S.C.

§ 3143(b)(1)(B). “[A] ‘substantial question’ is one of more substance than would

be necessary to a finding that it was not frivolous. It is a ‘close’ question or one

that very well could be decided the other way.” United States v. Affleck, 

, 952 (10th Cir. 1985) (internal quotation marks omitted).

                                           -5-
      In our view, whether Frownfelter pled guilty to a felony or a misdemeanor

is such a close question. That is not to say we disagree with the holdings of

Vanderpool and McGuire. But in those cases the only issue was whether the

indictments contained sufficient details of the alleged crimes. Those courts did

not consider the propriety of sentencing a defendant based on aggregating

amounts stolen at different times, as alleged in separate counts, or based on an

amount referred to only in an introductory paragraph of the indictment. More

importantly, the background allegations in those cases did not independently

determine the level of the offense charged. By contrast, if we were to ignore the

background allegations in the indictment against Frownfelter, we would be left

with an indictment charging eleven separate misdemeanors, ten of which were

ultimately dismissed. Accordingly, it is not clear to us from the four corners of

this indictment that each individual count constituted a felony charge, which must

be the case if Frownfelter’s sentence is to be sustained.

                                          III.

      For the foregoing reasons, we conclude that Frownfelter’s appeal raises a

substantial question of law that is likely to result in a reduced sentence as set

forth in § 3143(b)(1)(B). We therefore REVERSE the district court’s order of




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January 7, 2010, and return this matter to the district court on a limited REMAND

with instructions to set appropriate conditions for Frownfelter’s release pending

resolution of his appeal.


                                      Entered for the Court
                                      Per Curiam




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