Bond Pending Appeal in Federal Criminal Cases -
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Bond Pending Appeal in Federal Criminal Cases

federal appeal

Call the Federal Attorneys at Oberheiden, P.C. Today to Discuss Your Appeal and How to Introduce New Hope into Your Case

No one wants to go to prison and no one should go to prison unjustly and unfairly. Bond pending appeals are often the last straw a convicted defendant can grasp to avoid an otherwise ordered prison term. When the trial is lost, and all post-conviction motions denied, federal law grants a defendant an important tool to stay free subject to certain legal requirements. The purpose of this article is to outline these requirements as well as the arguments skilled defense attorneys should make to secure your freedom in bond pending appeals cases.

If you find yourself in this situation, you should contact the federal lawyers and federal appeals attorneys at Oberheiden, P.C. for a free consultation. Our attorneys have substantial appeals experience and they are intrinsically familiar with the federal trial process, in particular in seemingly hopeless cases. Speak with attorney Dr. Nick Oberheiden today, free of charge.

The Legal Requirements for Bond Pending Appeal

Bond pending an appeal is difficult but not impossible to obtain. It is difficult to obtain because, procedurally, the case is over, and the verdict is out. The defendant lost his or her trial resulting in the jury returning a guilty verdict. Similarly, post-conviction motions have been denied. Now asking the same judge for yet another reconsideration of relief creates a challenge and requires counsel to have and to demonstrate a profound understanding of both, the appeals process as well as the analysis of trial records and transcripts. The conditions under which a judge is authorized to release a convicted defendant pending appeal are outlined in 18 U.S.C. Section 3143(b). The statute reads in its pertinent parts:

[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….to 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 new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentenced to a term of imprisonment less than the total of the time already served plus the expected duration of the appeals process.

What the Government Will Argue

In contested bond appeal cases, where the defense requests bond and the government oppose such motion, the government will argue that the defense did not meet its burden of proof. The starting point for virtually all government arguments is the fact the presumption of innocence and, with it, constitutional privileges and protections guaranteed to a defendant prior to a guilty verdict no longer apply. In fact, all federal courts of appeals have held that a convicted defendant has no constitutional right to bail and is not per se entitled to release pending appeal. See, for example, United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006). Similarly, courts have emphasized that mentioned presumption in favor of a defendant before a conviction will turn into a presumption against the grant of bail. See, for example, United States v. Williams, 822 F.2d 512, 517 (5th Cir. 1987). Because the defendant lacks constitutional entitlement to release, the law lifts the burden of proof from the government (to prove the defendant’s guilt beyond a reasonable doubt) onto the defendant. Thus, it is the defendant who must prove by clear and convincing evidence:

  • That the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
  • That the appeal is not for the purpose of delay;
  • That the appeal raises a substantial question of law or fact; and
  • That if that substantial question is determined favorably to the defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

Because a defendant carries the burden of proof with respect to all of these factors, the failure to meet that burden for any one of them is sufficient to deny bond. In most cases, the first two factors are uncontested, and the focus lies on whether the defendant is likely successful on appeal and whether the appeal raises a substantial question of law or fact. A “substantial question” in this context means “that the issue presented must raise a substantial doubt (not merely a fair doubt) as to the outcome of its resolution.” United States v. Valdera-Elizondo, 761 F.2d 1020, 1024 (5th Circuit 1985).

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney


Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

How the Best Defense Attorney Can Help

The job of the best federal defense attorney is to cast as much doubt as possible on the conviction in an effort to persuade the court to order a release of the defendant during the appeals process. This can be accomplished in two ways: by introducing evidence of factual errors or by arguing violations of the law. Either way, the attorney must avoid the most common mistake in bond pending appeals cases, which is to simply copy and paste and re-argue the already failed arguments the lawyer raised in the post-conviction motions. Instead, the attorney must offer the presiding judge a fresh, new perspective as to why an appeal is likely to be successful and why there is something unique, different, unusual about the defendant’s situation resulting in a “substantial” question of facts or law. Not following that advice, will force the judge to simply confirm her previous denials, often without even granting a hearing.

The Law Has Changed. A common avenue to approach appeal bonds is to show how a change of the law might justify a case reconsideration. Thousands of federal appeals are filed each year and it is not uncommon that those appeals that result in detailed written decisions reveal new views on the law, more nuanced legal interpretations, or even a departure from existing precedent. Only the best appeal lawyers will know about these decisions, will be able to introduce filtered excerpts as arguments, and, ultimately, can point to the court why, for example, a given jury instruction was violative of this new legal standard.

No Harmless Error Objection. Defense counsel must scrutinize the trial transcript—as well as testimony in pretrial motion hearings—to identify prosecutorial outreach, false jury instructions, misconduct, or unreasonably denied objections by defense trial counsel. If a government witness unjustly painted the defendant as a career criminal or the court allowed the government to introduce alleged evidence from outside the statute of limitations, then defense counsel must show how these erroneous rulings are more than just harmless errors. In this context, the Fifth Circuit Court of Appeals, for example, has defined harmless error “as any error, defect, irregularity or variance that does not affect substantial rights.” United States v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007). It is the government who has “the burden of proving beyond a reasonable doubt that the error was harmless.” Id.

Sentencing Considerations. Because sentencing outcomes are typically decided after the court denies a Rule 29 Acquittal motion, good, new arguments can originate from signaling to the judge that the sentencing order itself, rather than the grounds for a conviction, will be subject to an appeal. Contested sentencing hearings, in which government and defense often debate a defendant’s exact level of culpability, can offer a wide range of arguments. For example, the alleged damage amount or the attributed role of the client within a conspiracy may simply not match the indictment or factual reality.

Policy Arguments. Even though not as powerful as true legal or factual arguments, the best defense lawyers should consider reasonable policy arguments. For example, a lawyer may remind a judge of successful appeals in recent times within the court’s district and how these cases exemplified the possibility of unnecessary incarceration. For example, it can be argued that delaying the reporting date and suspending the self-surrender date does not hurt society along the lines of: “We would create a travesty of justice if the court denies the motion, but the appeal is successful; the defendant may spend two or three years in prison before getting rescued by the final appeal. By contrast, society nor the justice system suffer any harm if the defendant stays free and the appeal fails.” This reasoning applies in particular for short sentences that may result in the defendant spending the full term in prison before learning that the trial appeal was granted.

Questions? Contact Oberheiden, P.C. Attorneys to Discuss Your Federal Appeal— TODAY

Oberheiden, P.C. is a federal defense law firm. We assist clients in federal criminal trials and appeals proceedings offering you decades of experience and the help of lawyers who have spent their entire careers in the federal criminal justice system. If you call us, we will take the time to address your concerns and assess your situation without any payment obligation for you for such consultation.

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