United States District Court, M.D. Louisiana
RULING AND ORDER
W. DEGRAVELLES, UNITED STATES DISTRICT JUDGE.
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.
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). (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.)
Bond Pending Appeal Generally
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
(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
(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.
18 U.S.C. 3143(b).
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
(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.).
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.