Friday, November 1, 2013

Obtaining Bond Pending Appeal


       Pursuant to the Federal bail statute, 18 U.S.C. § 3143(b)(1), a 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 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 reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or 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. 

Section 3143(b)(1).  Thus, in order to be released on bond pending an  appeal of a federal criminal conviction, the defendant-appellant must establish by clear and convincing evidence first, that he or she is not a flight risk or a danger to the community, second, that his or her  appeal is not for the purpose of delay and  raises a substantial question of law or fact likely to result in reversal or a new trial, or third, that a reduced sentence may result from the appeal that will be less than the time already served  plus the expected duration of the appeal. 18 U.S.C. § 3143 (b)(1); United States v. Bayko, 774 F.2d 516 (1st Cir. 1985); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985), cert. denied, 479 U.S. 1018, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986).  A "substantial question" has been defined as one that is a close question or one that could very well be decided in favor of the defendant and that the claimed error is not frivolous. Bayko, 774 F.2d at 523; Giancola, 754 F.2d at 901.  This “likely to result in a favorable result” standard does not require the District Court to conclude that it is likely to be reversed by the Court of Appeals.  Bayko.  Rather, the Court need only find that there is a close question that very well could be decided the other way and that the claimed error is not harmless. Id.  Whether a question is substantial in this context must be determined on a case-by-case basis. Bayko, supra.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553