Am I likely to get release pending appeal from the judge?

A:

No, while you will likely be allowed to remain free awaiting trial and sentencing, unfortunately you will probably have to report to federal prison on the day you are assigned to serve your sentence. One defendant, Bryan Epis, had success with this issue several years ago. Epis was originally imprisoned by Judge Frank Damrell, but the Ninth Circuit Court of Appeals overturned this decision and ordered him released, pending the adjudication of his appeal. However, in more recent cases, other defendants, such as Dr. Mollie Fry and Dustin Costa, have so far been unsuccessful in escaping federal prison while waiting for the decision.

In the ASA Brief Bank, there is an example of a motion for bail pending appeal, which Chief Counsel Joe Elford on behalf of Michael Teague, and which was ultimately unfortunately, unsuccessful. The initial motion for bail pending appeal is made to the federal District Court. If the court denies the motion, an immediate appeal can be filed with the Ninth Circuit.

The reason why most federal defendants are unable to win these types of motions is because the legal presumption shifts against them after sentencing. Prior to sentencing, there is a presumption that a federal defendant is entitled to release, unless the government can demonstrate that the person is a danger to the community or a flight risk. However, after sentencing, especially for drug offenses, the presumption shifts and it now becomes incumbent upon the defendant to demonstrate to the court by clear and convincing evidence that he is not a flight risk and not a danger to the community. The defendant must also show that he or she has some colorable, non-frivolous issue for appeal.