Opinion
1:21-cr-2 (MTT)
02-14-2022
UNITED STATES OF AMERICA, v. WIHLY HARPO-BROWN, Defendant.
ORDER
MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
Defendant Wihly Harpo-Brown orally moved for release pending appeal at his sentencing hearing. Doc. 124. For the following reasons, that motion is DENIED.
I. BACKGROUND
Harpo-Brown was convicted of one count of corruptly influencing the due administration of justice in violation of 18 U.S.C. § 1503 and subsequently sentenced to 72 months of imprisonment followed by three years of supervised release on February 9, 2022. Docs. 73; 124. During his sentencing, Harpo-Brown notified the Court of his intent to appeal his final judgment of conviction and sentence and orally moved for a bond in lieu of beginning his jail sentence while his appeal is pending. The Court denied that request, and Harpo-Brown requested a written order on that denial. The Court obliges.
II. STANDARD
Pursuant to 18 U.S.C. § 3143, a district court may grant bail pending appeal if certain conditions are met. In United States v. Giancola, the Eleventh Circuit adopted a four-factor standard for determining whether bail pending appeal is appropriate. 754 F.2d 898, 901 (11th Cir. 1985). Under that standard, the Court must determine: (1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community; (2) that the appeal is not for the purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that if the substantial question is resolved in favor of the defendant, that decision would result in a reversal or an order for a new trial on the counts in which imprisonment has been imposed. Id. A substantial question “is a ‘close' question or one that very well could be decided the other way.” Id. Further, the convicted defendant has the burden of proving these factors by clear and convincing evidence, and the defendant's conviction is presumed to be correct. United States v. Fenwick, 2007 WL 4592241, at *1 (N.D. Fla. 2007).
III. DISCUSSION
At sentencing, Harpo-Brown offered few arguments in support of his oral motion for release pending appeal. Nonetheless, the Court will address each condition in turn. The Court finds that Harpo-Brown is neither a flight risk nor a danger to members of the community. Nor can the Court conclude that Harpo-Brown's pending appeal was made for the purpose of delay. However, Harpo-Brown has failed to raise “substantial questions” of law or fact. In his oral motion for bond, Harpo-Brown points to several issues he intends to raise on appeal, which he believes are “substantial questions;” but, these issues are essentially every issue he raised in his pretrial and posttrial motions. Docs. 61; 77; 112. As discussed in the Court's denial of Harpo-Brown's motion for a judgment of acquittal, or in the alternative, a new trial, overwhelming evidence supports Harpo-Brown's conviction. Doc. 116 at 10-12. Harpo-Brown's other asserted grounds for relief in that motion were similarly baseless. See generally id. Thus, while Harpo-Brown certainly has good faith reasons to pursue his appeal, he has not demonstrated that these issues present “‘close question[s]' or [questions] that very well could be decided the other way.” Giancola, 754 F.2d at 901.
IV. CONCLUSION
For the reasons discussed above, Harpo-Brown's oral motion for release pending appeal is DENIED.
SO ORDERED.