Summary
holding that the district court should have excluded from the total value of government contracts the portion of funds that, while fraudulently solicited, reached intended beneficiaries
Summary of this case from United States v. VargasOpinion
No. 12-20773 No. 12-20774
12-21-2012
UNITED STATES OF AMERICA, Plaintiff-Appellee v. GILBERT LOPEZ, Defendant-Appellant UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARK KUHRT, Defendant-Appellant
Summary Calendar
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-342-3
Before WIENER, CLEMENT, and ELROD, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Defendants-Appellants Gilbert Lopez and Mark Kuhrt ("Defendants") were convicted on November 19, 2012 of conspiracy and wire fraud for their roles in Allen Stanford's multi-billion-dollar Ponzi scheme. They had remained free on bond prior to trial, but after conviction the district court remanded them to custody pending sentencing. Defendants filed motions for release pending sentencing, which the district court denied. They appeal the denial of those motions.
A defendant who has been convicted "shall . . . be detained" pending sentencing "unless the judicial officer finds 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." Thus, there is a presumption against release pending sentencing. We review a district court's decision regarding release only for abuse of discretion.
United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006).
Id; see also United States v. Cantu-Salinas, 789 F.2d 1145, 1146 (5th Cir. 1986) ("In such circumstances we cannot say that the court abused its discretion in denying Cantu bail.").
Considering both the burden on the Defendants to show by clear and convincing evidence that they are not likely to flee and our deferential standard of review, we are reluctant to reverse the district court's decision. The district court, having conducted a twenty-five-day trial, was in the better position to assess the Defendants' international contacts and their motive to flee, particularly in light of their co-conspirator's 110-year sentence. We also note that the government ultimately opposed the motions for release despite having initially declined to seek remands to custody. Although the evidence attached to the Defendants' motions may have somewhat mitigated the likelihood that they would flee, we cannot say that the district court abused its discretion in concluding that the evidence failed to do so clearly and convincingly. On de novo review we might reach a different conclusion, but that is not the standard. AFFIRMED.
The Defendants filed the motions as opposed based on communication with the government. The district court denied the motions before the government had an opportunity to file its oppositions.
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