Opinion
NO. 01-004
July 17, 2001
ORDER AND REASONS
Before the Court is defendant Cecil Brown's Motion for Release Pending Appeal. For the following reasons, the defendant's motion is DENIED.
BACKGROUND
Cecil Brown was convicted of two counts of extortion conspiracy, one count of interstate travel fraud, one count of interstate wire fraud, and three counts of extortion. He was sentenced to serve a term of imprisonment of 51 months and ordered to self-surrender on July 31, 2001. Brown now asks the Court to allow him to remain on bail pending the appeal of his conviction.
LAW AND ANALYSIS
To obtain release pending appeal, a convicted defendant must establish four factors:
(1) that the defendant 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 trial, in a sentence without imprisonment, or in a sentence with reduced imprisonment.
U.S. v. Clark, 917 F.2d 177, 179 (5th Cir. 1990) (interpreting 18 U.S.C. § 3143 (b)). The Court agrees that the defendant does not pose a flight risk or a danger to others. The Court also finds that the defendant's appeal has not been taken for the purpose of delay. However, the Court does not find that the defendant's appeal raises a substantial question of law or fact.
The Fifth Circuit has defined a "substantial question" as (1) a question that is novel, has not been decided by controlling precedent, or which is fairly doubtful, (2) a close question that could be decided the other way, and (3) a question that raises "a substantial doubt (not merely a fair doubt) as to the outcome of its resolution." United States v. Valera-Elizondo, 761 F.2d 1020, 1023-24 (5th Cir. 1985) (citing United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985) and United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). See also United States v. Cleveland, 1997 WL 714861 (E.D.La. Nov. 14, 1997)(Vance, J.) (relying on the definition used in Valera Elizondo.
Under 18 U.S.C. § 3143, the defendant bears the burden of overcoming the presumption that his conviction is correct. SeeValera-Elizondo, 761 F.2d at 1023-24. In an effort to meet that burden, Brown argues that two issues meet the substantial question test. First, he asserts that a substantial question exists as to the Court's denial of his motion to suppress the fruits of electronic surveillance without an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978). The Court has already analyzed the merits of the defendant's argument and refers the defendant to its Minute Entry docketed on March 6, 2001. See Rec. Doc. No. 41. In addition, the wiretaps at issue have been reviewed by two other district courts, and both courts have also find them to be proper. Because the Court does not find that the defendant's motion to suppress the fruits of the wiretaps could "very well be decided the other way," Valera-Elizondo, 761 F.2d at 1024, the Court does not believe that the wiretap issue raises a substantial question.
See United States v. Edwin Edwards. et al (M.D.La. 98-165) (Polozola, J.) and United States v. Andrew Martin (E.D.La. 99-69) (Barbier, J.).
The defendant also argues that the Court's denial of his motion to dismiss for vindictive prosecution raises a substantial question of law. The Court has previously considered the question of whether the Government's addition "of a RICO charge after the original indictment was dismissed constituted vindictive prosecution. See Rec. Doc. No. 42. The Court first notes that the issue is moot because Brown was acquitted of the RICO allegations. However, even if he had been convicted of that charge, the Court does not find that "substantial doubt" exists as to the denial of Brown's motion to dismiss.
Because the Court does not find that the defendant's appeal raises a substantial question of law or fact, his Motion for Release Pending Appeal is DENIED.