United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons below, the Court denies
Defendant's Motion for Bond Pending Appeal .
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 , which the Court now
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.
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
(ii) an order for a new trial,
(iii) a sentence that does not include a term of
(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).
to obtain bond pending appeal, a convicted defendant must
(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 ...