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United States v. Fairley

United States District Court, S.D. Mississippi, Eastern Division

July 21, 2017

UNITED STATES OF AMERICA
v.
KENNETH E. FAIRLEY

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Supplemental Motion for Bond Pending Appeal (“Supplemental Motion”) [143] filed by Defendant Kenneth E. Fairley. After considering the submissions of the parties, the record, and the applicable law, the Court finds that this motion is not well taken and should be denied.

         I. BACKGROUND

         In March 2016, Defendant Kenneth E. Fairley (“Defendant”) was indicted along with his co-conspirator, Artie Fletcher for conspiring to defraud the United States - specifically, to steal government money in violation of 18 U.S.C. § 641. Fletcher pleaded guilty to a separate information, while Defendant proceeded to trial on three counts: conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, and two counts of theft of government money in violation of 18 U.S.C. § 641. After a six-day trial in September 2016, a jury of Defendant's peers returned guilty verdicts on all three counts. On December 19, 2016, the Court sentenced Defendant, and on December 22, 2016, the Court entered a Judgment. Defendant filed a Motion for Bail Pending Appeal [112], which the Court denied on February 8, 2017. Defendant renewed his motion with the Fifth Circuit, who denied it without prejudice finding that Defendant raised a claim that was not previously presented to this Court and that he had exceeded the page limit of his motion by incorporating by reference his appellate brief. Subsequently, Defendant filed his Supplemental Motion [143] on June 5, 2017, which the Court now considers.

         II. DISCUSSION

         “A convicted defendant has no constitutional right to bail.” United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006). Therefore, for convicted defendants, “any putative right to bail derives from 18 U.S.C. § 3143, which establishes a presumption against its being granted.” Id. The statute provides, in relevant part:

[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 or a petition for a writ of certiorari, 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 under section 3142(b) or (c) of this title; 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, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the ...

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