Will I Be Free on Bail Pending Appeal? For Governor McDonnell, the Answer Is Yes

When you lose at trial in a white-collar case (read: most of the time), one of your client’s first questions will be, “will I stay out of prison while we appeal?”

This is one time when a white-collar defendant usually has a big advantage over a defendant in a drug or gun case. Former Governor Robert McDonnell is a good example.

The statute governing the decision is 18 U.S.C. 3143(b). It lists four factors for the court to consider:

  • whether the defendant is “not likely to flee”
  • whether the defendant is “not likely to . . . pose a danger to the safety of any other person or the community”
  • whether the “appeal is not for the purpose of delay,” and
  • whether the appeal “raises a substantial question of law or fact likely to result in” a reversal, a new trial, a non-prison sentence or 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.”

In a white-collar case, your client is generally unlikely to flee or be a danger to anyone. The government in the Governor McDonnell case did not even challenge these two elements.

The real challenge is to convince the court that the appeal “raises a substantial question of law or fact.”

Good luck on the “fact” side. Given that the jury reached a verdict, the judge is pretty unlikely to conclude that there will be a serious question as to the facts in the case. Your better bet is to argue the “law” side.

That’s what Governor McDonnell successfully did.

The trial court judge originally denied Mr. McDonnell’s motion to be free on bail pending appeal. He had ordered Mr. McDonnell to report to prison by February 9, 2015.

The defense team immediately appealed to the Fourth Circuit (allowed under Federal Rule of Appellate Procedure 9(b) for all you law geeks out there), which issued a quick ruling.

It concluded that the appeal did raise a substantial issue of law or fact that

‘if decided in favor of the accused,’ is ‘important enough’ to warrant reversal or a new trial.

Mr. McDonnell had argued that trial court had improperly instructed the jury as to the definition of “official acts,” a key element of the offense of conviction.

So, Mr. McDonnell is free through his appeal. The Fourth Circuit—already known for being one of the more efficient circuits—expedited the briefing schedule. Mr. McDonnell’s brief is due on March 2, 2015 and the entire case will be briefed by April 8, 2015. The argument will be held on May 12, 2015.

This is the right decision. The government cannot seriously contend that there are no “substantial issues” of law at play here. (Oh, but it did.) The decision of the trial court judge was surprising, given the extensive briefing and argument of these issues throughout the trial.

The Fourth Circuit is getting more liberal, but winning an appeal there will still be tough. Mr. McDonnell’s defense team will no doubt spend little time savoring this victory before working on the substantive brief. That’s the true battlefield.

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