Citation Codes Equivalent Citations citation codes Docket Number Criminal Action No. 04-0298. Motions Motion for bail : Denied Judges Eduardo C. Robreno Acts Crimes And Criminal Procedure — Release And Detention Pending Judicial Proceedings — Criminal Procedure — Release Or Detention Of A Defendant Pending Sentence Or Appeal See more information ... Smart Summary Please sign up to generate summary. UNITED STATES OF AMERICA v. JOHN HEVENER, JR. ORDER EDUARDO ROBRENO, District Judge AND NOW, this 20th day of June, 2005, it is hereby ORDERED that Defendant's motion for bail pending appeal (doc. no. 65) is DENIED. In United States v. Miller, 753 F.2d 19 (3d Cir. 1985), the Third Circuit examined the statutory language of 18 U.S.C. § 3143(b), which sets forth the criteria for granting a defendant bail pending appeal. Under Section 3143(b), a court must find: (1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released; (2) that the appeal is not for purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that if that substantial question is determined favorably to 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. Id. at 24. The defendant carries the burden of meeting these criteria. Id. In the instant case, the Government concedes that the first two criteria — that Defendant is not a flight risk and a danger to the community and that Defendant's appeal is not for the purpose of delay — are satisfied. Accordingly, the Court will not address those requisites. In an effort to establish the third criterion — that the appeal raises a "substantial issue of law or fact" — Defendant has essentially repeated the issues he previously raised in his motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, or, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33 (doc. nos. 47 and 54). Defendant contends: 1. The evidence presented at trial failed to establish that Defendant had an intent to defraud. 2. The mailings charged did not further a scheme to defraud. 3. The prosecutor erred in her opening statement, closing argument, and rebuttal by shifting the burden of proof. 4. The testimony of Dennis Zawacki, a Government witness, was improper expert testimony. 5. The testimony of William Fleming from the Pennsylvania Securities Commission, another Government witness, prejudiced the jury by suggesting that a state law enforcement agency investigated Defendant. Defendant fails to argue how the aforementioned issues are "substantial," novel, or fairly doubtful. Instead, Defendant basically restates his arguments from previous motions, on which the Court has already ruled. As the Government states in its opposition to the motion for bail pending appeal, "[w]hile these issues may be `significant' to the defendant, they are not `substantial' under the law, as that term is used in 18 U.S.C. § 3143(b) and has been defined by the Third Circuit." Gov't Opp'n to Def.'s Mot. for Bail Pending Appeal at 4. At the hearing to consider the motion for bail pending appeal, defense counsel argued that because the Court took an active role in addressing the aforementioned issues at trial, an inference may be drawn that these issues troubled the Court. An equally opposing inference, however, could be drawn that the Court's extensive treatment of the issues during the trial was intended to ensure that they were properly decided. Thus, defense counsel's argument is tenuous. Moreover, it is not apparent that any of the issues asserted by Defendant would result in a reversal or a new trial, even if the Court were to find a substantial question of law or fact. Nor has Defendant cited to any authority or argued, normatively, otherwise. Thus, the fourth criterion under Section 3143(b) cannot be met. The Court recognizes that if the judgment of conviction is vacated and/or a new trial is ordered, then Defendant's time spent in custody cannot be recaptured. This factor is exacerbated by the Defendant's advanced age. Yet, the Court's duty to apply the law as written by Congress dictates that personal sympathy must be put aside and the law applied as enacted, regardless of Defendant's age. AND IT IS SO ORDERED.