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United States v. Xie

United States District Court, M.D. Louisiana

February 28, 2019

UNITED STATES OF AMERICA
v.
TINGHUI XIE, also known as KELLY XIE, also known as KELLY LIU

          RULING AND ORDER

          JOHN W. DEGRAVELLES, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant Kelly Liu's Opposed Motion for Bail Pending Appeal. (Doc. 239.) The United States opposes the motion. (Doc. 258.) Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, Defendant's motion is denied.

         I. Relevant Background

         Following a thirteen-day jury trial, Defendant Kelly Liu was convicted of one count of conspiracy to commit securities fraud (insider trading) and two counts of security fraud (insider trading).[1] (Doc. 230.) Defendant was given a downward variant sentence of 16 months incarceration on all three counts, to run concurrently. (Docs. 229, 230.) Defendant timely appealed. (Doc. 234.)

         II. Bond Pending Appeal Generally

         Defendant now applies for a bond pending appeal; such applications are governed by 18 U.S.C. 3143(b). United States v. Clark, 917 F.2d 177, 179 (5th Cir. 1990); United States v. Calmes, No. CR 11-150, 2013 WL 12092235, at *2 (M.D. La. Jan. 30, 2013). This statute provides in relevant part:

(b) Release or detention pending appeal by the defendant.-(1). . . [T]he 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 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.

18 U.S.C. 3143(b).

         According to Fifth Circuit precedent, “[t]o obtain release pending appeal” under this statute, “a convicted defendant must establish four factors:

(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 trial, in a sentence without imprisonment, or in a sentence with reduced imprisonment.”

Clark, 917 F.2d at 179 (citing Fed. R. App. P. 9(c); 18 U.S.C. § 3143(b)); Calmes, 2013 WL 12092235, at *2 (citing Clark, supra.).

         Here, the Government agrees that the first two factors are not at issue. (Doc. 258 at 1.) Thus, the Court will focus only on the last two.

         III. ...


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