Opinion
Case No. 2:08-cr-00135-LDG (RJJ)
12-21-2011
UNITED STATES OF AMERICA, Plaintiff, v. GEORGE NOLAN, Defendant.
ORDER
The defendant, George Nolan, moves for bail pending appeal (#119). The United States opposes the motion (#121). Having considered the arguments and the record, the Court will deny the motion.
Defendants who are convicted and sentenced to imprisonment are presumptively not entitled to bail pending appeal. United States v. Garcia, 340 F.3d 1013, 1015 (9th Cir. 2003); United States v. Koon, 6 F.3d 561, 567 n.1 (9th Cir. 1993); United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985); 18 U.S.C. § 3143(b)(1) (absent exception, person convicted and sentenced to imprisonment "shall . . . be detained"). To rebut Section 3143(b)(1)'s "decidedly stringent" standard, United States v. Colletta, 602 F. Supp. 1322, 1326 (E.D. Pa. 1985) (discussing United States v. Miller, 753 F.2d 19, 23 (3rd Cir. 1985), and S. Rep. No. 225, 98th Cong., 1st Sess. at 26 (1983)), a convicted defendant must establish: by clear and convincing evidence that he "is not likely to flee or pose a danger to the safety of any other person or the community if released[;]" and that "the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in . . . reversal." 18 U.S.C. § 3143(b)(1).
In light of Nolan's conduct while on pre-trial release, the Court cannot conclude that he has shown by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the community if released. Further, in light of the defendant's waiver of his right to appeal, the Court cannot conclude that he has met his burden of showing that his appeal is not for the purpose of delay, or that he has raised on appeal a question or issue that is fairly debatable. Accordingly,
THE COURT ORDERS that Defendant's Motion for Bail Pending Appeal (#119) is DENIED.
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Lloyd D. George
United States District Judge