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United States v. Diaz

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

August 24, 2018

UNITED STATES OF AMERICA
v.
ALBERT DIAZ

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         For the reasons below, the Court denies Defendant's Motion for Bond Pending Appeal [138].

         I. Background

         The Court provided the background of this case in its opinion of June 5, 2018. See United States v. Diaz, No. 2:17-CR-31-KS-JCG, 2018 U.S. Dist. LEXIS 94230, at *1-*3 (S.D.Miss. June 5, 2018). A jury found Defendant guilty on sixteen counts related to a conspiracy to defraud a federal health care benefit program. On July 6, 2018, Defendant filed a Motion for Bond Pending Appeal [138], which the Court now addresses.

         II. Discussion

         “A convicted defendant has no constitutional right to bail.” United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006). In fact, any right to bail pending appeal “derives from 18 U.S.C. § 3143, which ‘establishes a presumption against' its being granted.” Id. (quoting United States v. Williams, 822 F.2d 512, 517 (5th Cir. 1987)). In this case, the statute provides two different burdens that Defendant must meet.

         A. Section 3143(b)(1)

         First, with regard to his convictions for conspiracy to commit health care fraud and wire fraud (Count 1), wire fraud (Counts 2-5), conspiracy to obstruct justice (Count 11), and obstruction of justice (Counts 12-16), the statute provides, in relevant part:

Except as provided in paragraph (2), the judicial office 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 circumstances described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.

18 U.S.C. § 3143(b)(1).

         Therefore, to obtain bond pending appeal, a convicted defendant must demonstrate:

(1) that he is not likely to flee or pose a danger to the safety of others; (2) that the appeal is not for purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that the substantial question, if decided favorably to the defendant, is likely to result in reversal, in an order for a new ...

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