H. Claiborne Frazier was found guilty of one count of conspiracy to Commit Bank Fraud, Mail Fraud and Wire Fraud in violation of 18 U.S.C. 1349. He was sentenced to serve a term in the custody of the Bureau of Prisons and other conditions. He was released on bond pending trial and sentencing. He is now free on bail pending his voluntary surrender to begin service of his sentence. The Court has had the benefit of the presentence report and knows that Mr. Frazier has no prior felony convictions. In addition, the Court is also aware from the presentence report and other evidence that he has strong family ties. Mr. Frazier has strong ties to the community. He lives in Holmes County. He has numerous other family members who are residents of the community and the state. Title 18 U.S.C., 3143(b), in part, provides for detention of a defendant pending appeal Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 1 of 7 2 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 a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(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.
By allowing Mr. Frazier to remain free pending his sentencing and voluntary surrender, the Court has necessarily made the required findings that he is neither a flight risk nor a risk to other members of the community. This is so, because 18 U.S.C. 3143(a)(2)(A)(ii) requires that before a judicial officer may order release pending sentencing, the court must find by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person in the community. Clearly, Mr. Frazier does not pose either a flight risk or a danger to the safety of another person or to the community. He has demonstrated by Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 2 of 7 3 his conduct prior to trial and sentencing that he is not likely to flee or be a danger. He is further not a flight risk because of his close ties to his family and community. He would have much to lose by failing to report for the service of his sentence in the event that his appeal were to be denied. The second finding the Court must make before ordering release pending appeal is that the appeal is not for the purpose of delay and raises at least one substantial question of law or fact that is likely to result in reversal, a new trial or reduced sentence. 18 U.S.C. 3143(b)(1)(B). This means that the question is either novel or fairly debatable and if decided in favor of the defendant would likely result in reversal. United States v. Valera-Elizondo, 761 F.2d 1020, 1023 (5 th Cir. 1985). A substantial question is one that is close or that could very well be decided the other way by the appellate court. United States v. Clark, 917 F.2d 177, 180 (5 th Cir. 1990). A substantial issue is one "of more substance than would be necessary to a finding that it was not frivolous." United States v. Handy, 761 F.2d 1279, 1283 (9 th Cir. 1985). In other words, in order to grant bail, it is not necessary that the Court find that the defendants issues are likely to result in reversal, only that they could be decided in favor of the defendant and are of more substance than frivolous issues. Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 3 of 7 4 In this case, the issues which Mr. Frazier intends to raise on appeal are those previously raised before this Court and those concerning whether his plea agreement was binding or whether his plea was freely and voluntarily entered, among other issues. He has briefed these and other fairly debatable issues in his motion for new trial/jnov previously filed in the case and adopts those arguments in this motion. STATEMENT OF CONFERENCE WITH COUNSEL OPPOSITE: Counsel for Mr. Frazier has conferred with counsel opposite and counsel opposite opposes this Motion. CONCLUSION Mr. Frazier should be released pending appeal. Mr. Frazier believes that in view of the likelihood that issues in his case are sufficiently close that they could be decided in a different way. If so, his case would be reversed. He, therefore, has demonstrated that bail pending appeal would be appropriate. Respectfully submitted,
/s/ Cynthia A. Stewart CYNTHIA A. STEWART Attorney for H. Claiborne Frazier
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CYNTHIA A. STEWART (MB#7894) Attorney for Defendant 118 Homestead Drive, Suite C Madison, Mississippi 39110 Phone: (601) 856-0515 Facsimile: (601) 856-0414 Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 5 of 7 6
Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 6 of 7 7
CERTIFICATE OF SERVICE
I, the undersigned attorney for the Petitioner herein, does hereby certify that the above and foregoing is being filed with the Clerk of this Court by electronic filing and will be served via e-mail by the Clerk of this Court to the following: Carla.clark@usdoj.gov
DATED, this the 10 th day of July, 2014.
/s/ Cynthia A. Stewart CYNTHIA A. STEWART
Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 7 of 7