United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL (Docket No. 320)
EDWARD M. CHEN, District Judge.
Pending before the Court is Defendant Bassam Yacoub Salman's motion for release pending appeal. Docket No. 320. For the following reasons, the Court DENIES Defendant's motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2013, a jury convicted Defendant on four counts of securities fraud and one count of conspiracy to commit securities fraud. Docket No. 253. Defendant moved for a new trial based, in part, on the argument that the Court erred by instructing the jury on the concept of "deliberate ignorance." The Court denied Defendant's motion for a new trial on December 17, 2013. United States v. Salman, No. CR-11-0625 EMC, 2013 WL 6655176 (N.D. Cal. Dec. 17, 2013). On April 11, 2014, the Court sentenced Defendant to 36 months in prison, followed by a three-year term of supervised release. Docket No. 286. Defendant has now moved for release pending appeal. Defendant's motion focuses solely on the propriety of the deliberate ignorance jury instruction and largely restates the arguments made in his motion for a new trial. Defendant argues that it is, at very least, "fairly debatable" whether giving the deliberate ignorance instruction was correct based on the evidence presented at trial. Docket No. 320, at 7.
A. Legal Standard
Under 18 U.S.C. § 3143(b), a defendant convicted of an offense is to be detained pending appeal unless the court determines (1) that the person is not likely to flee or pose a danger; and (2) that the appeal is "not for the purpose of delay and raises a substantial question of law or fact likely to result" in reversal, a new trial, a non-custodial sentence, or a term of imprisonment less than the total time expected to take the appeal. 18 U.S.C. § 3143(b). A "substantial question" is one that is "fairly debatable" or "fairly doubtful" and involves "more substance than would be necessary to a finding that it was not frivolous." See United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985); see also United States v. Miller, 753 F.2d 19, 22 (3d Cir. 1985) ("[A] court must determine that the question raised on appeal is a substantial' one, i.e. it must find that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful."). The burden is on the Defendant to overcome the presumption that he should be detained while his appeal is pending. See United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990).
B. Defendant Has Failed to Demonstrate the Existence of a "Substantial Question" as to Whether the Deliberate Ignorance Instruction Was Properly Given
The Court instructed the jury on the concept of deliberate ignorance as follows:
JURY INSTRUCTION NO. 38 COUNTS TWO THROUGH FIVE - DELIBERATE IGNORANCE
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:
1. was aware of a high probability that he obtained information that had been disclosed in violation of a duty of trust and confidence, and
2. deliberately avoided learning the truth. You may not find such knowledge, however, if you find that the defendant actually believed that the information he obtained was not disclosed in violation of a duty of trust and confidence, or if you find that the defendant was simply careless or reckless. Docket No. 245, at 43. As the Court noted in its order denying Defendant's motion for a new trial, this instruction, modeled after Ninth Circuit Model Jury Instruction 5.7, is an accurate statement of the law. See United States v. Heredia, 483 F.3d 913, 924 (9th Cir. 2007). Additionally, the instruction provided by the Court goes ...