Release Pending Sentence Or Appeal

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Chapter 5: Release & Detention

18 USC § 3143

Release Pending Sentence Or Appeal


18 U.S.C. § 3143(a)(2) maintains that a person who has been found guilty of a child pornography offense and is awaiting sentencing must be detained unless:

  1. The judicial officer finds that there is a substantial likelihood that a motion for acquittal or new trial will be granted, or an attorney for the government has recommended that no sentence of imprisonment be imposed on the person, and

  2. There is clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

18 U.S.C. § 3143(b)(2) maintains that a person who has been found guilty of a child pornography offense and has filed an appeal or a petition for a writ of certiorari must generally be detained. However, for such cases, § 3143(b)(1) “supplies the threshold requirements” which, once satisfied, authorize the court to then “consider the presence of exceptional circumstances.”

Some district courts have questioned whether they have jurisdiction to consider whether exceptional reasons exist.[1] However, all circuits to have addressed the issue agree that district courts do have jurisdiction to consider this issue.[2]

18 U.S.C. § 3143(c) maintains that in a case pending appeal by the Government under § 3731 (Appeal by United States), the defendant should be released or detained in accordance with § 3142 (see above), unless they are otherwise subject to a release or detention order. In a case pending appeal by the Government under § 3742 (Review of a Sentence), the judicial officer is instructed to follow the procedure outlined in 18 U.S.C. § 3143(b).

18 U.S.C. § 3145(a) and (b) grant defendants the right to file a motion for the amendment of the conditions of their release of a motion for revocation or amendment of their detention order. § 3145(c) states that an appeal from a release or detention order is to be determined promptly, and that a person subject to detention pursuant to § 3143(a)(2) or (b)(2), and who meets the conditions of release in § 3143(a)(1) or (b)(1), may be ordered released under appropriate conditions “if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.”

Furthermore, it is unclear as to whether satisfying both 18 U.S.C. § 3143(b) and 18 U.S.C. § 3145(c) is required for determining whether a defendant may remain on bond pending appeal. Some courts have treated these statutes as alternatives,[3] and others have considered both together.[4]

[1] United States v. Harrison, 430 F.Supp.2d 1378, 1385 (M.D.Ga.2006); United States v. Chen, 257 F.Supp.2d 656, 659 (S.D.N.Y.2003)

[2] United States v. Christman,596 F.3d 870, 871 (6th Cir.2010); United States v. Goforth, 546 F.3d 712, 715 (4th Cir.2008); United States v. Garcia, 340 F.3d 1013, 1014, n. 1 (9th Cir.2003); United States v. Mostrom, 11 F.3d 93, 95 (8th Cir.1993); United States v. Jones, 979 F.2d 804, 806 (10th Cir.1992); United States v. Herrera–Soto, 961 F.2d 645, 647 (7th Cir.1992); United States v. DiSomma, 951 F.2d 494, 496 (2d Cir.1991); United States v. Carr, 947 F.2d 1239, 1240 (5th Cir.1991)

[3] United States v. Fussell, No. 5:08-CR-5-OC-19GRJ, 2008 WL 4925639, at *1 (M.D. Fla. Nov. 14, 2008)

[4] United States v. Watkins, No. 3:10-CR-73-J-32JBT, 2012 WL 1599836, at *1 (M.D. Fla. May 7, 2012)


Notwithstanding the mandatory-detention provisions of § 3143, a defendant may be released pending sentencing “under appropriate conditions … if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.”[5] Such exceptional reasons are those that are “clearly out of the ordinary, uncommon, or rare.”[6] In addition to demonstrating the existence of exceptional reasons, the defendant must also demonstrate evidence that they are not likely to flee or pose a danger to the safety of any other person or their community.[7] Such instances are extremely rare, so there is not a wide breadth of case law on the matter.

Furthermore, the court must first find by clear and convincing evidence that the defendant meets the requirements of § 3143(b)(1): (1) the defendant is not likely to flee or pose a danger to others, and (2) the appeal is not for delay and raises substantial questions of law and fact. Once these requirements are met, the court may consider whether there are exceptional reasons that warrant release.

The Ninth Circuit offers the following examples of “exceptional reasons:” (1) whether defendant’s crime was an aberration; (2) whether he contributed significantly to society; (3) whether the nature of the crime is sufficiently dissimilar to others in the same category of crimes identified by the statute; (4) the length of the sentence; (5) whether there were circumstances that would “render the hardships of prison unusually harsh for a particular defendant;” (6) the benefit of an “uninterrupted course of treatment;” and (7) the effect of incarceration on the defendant’s physical or mental health based on his characteristics.[8] However, “hardships that commonly result from imprisonment do not meet the standard,” and it is only “in truly unusual circumstances will a defendant whose offense is subject to the statutory provision be allowed to remain on bail pending appeal.”[9]

The COVID-19 pandemic warranted exceptional circumstances in some but not all cases. The D.C. district court found the pandemic warranted an exceptional reason for a defendant’s release where his detention pending trial was a “close case” even before the pandemic developed and was subject to strict release conditions.[10] However, the Minnesota district court found that the pandemic was not an exceptional reason for release where a defendant failed to demonstrate that his particular health risks were out of the ordinary and that he was unlikely to flee (he failed to appear for a previous court proceeding).[11]

The following are examples of district courts who released a defendant convicted of child pornography-related offenses for sufficient “exceptional reasons:”

United States v. Winsor, 890 F. Supp. 2d 1257, 1260 (D. Or. 2012): Defendant’s possession of images occurred over seven years ago, the government delayed the indictment for over two years and did not consider a conditional plea earlier in the litigation, defendant has spent his time attending therapy and volunteering, defendant is 66 years old and “is a passive person who may be a target in prison,” he cooperated with the government, his actual conduct was non-violent, he had no criminal history, and no history of child abuse as confirmed by polygraph. The defendant was released on bail pending appeal.

United States v. Watkins, No. 3:10-CR-73-J-32JBT, 2012 WL 1599836, at *4 (M.D. Fla. May 7, 2012): Defendant disclosed his viewing and downloading of child pornography to law enforcement unprompted, was a 67 year old veteran, had lived in the same home for the past 30 years, his wife had serious health issues, he had no criminal history, his crime did not involve sexual contact nor communication with a child, psychological testing reveals that he presents no signs of deviant sexual interest or other high-risk indicators, and had appeared for every court appearance and cooperated with officers. Furthermore, he was subject to strict conditions of release, if he was detained he would serve a substantial portion of his 60 month sentence before receiving an appellate ruling, and his crime did not involve violence. The defendant was released pending appeal.

United States v. Reboux, No. 5:06-CR-451 (FJS), 2007 WL 4409801, at *3 (N.D.N.Y. Dec. 14, 2007): Defendant had demonstrated through his faith community and work environment that he had a support system to “aid him in a course of self-improvement,” his community benefited from his personal growth, and continued detention would have “prematurely extinguish these mutual benefits.” Furthermore, the defendant’s conduct was not violent, the delay in his rest and prosecution demonstrates that he was not a flight risk nor a danger to the community, and he had been unusually cooperative with authorities. The defendant was released pending sentencing.

United States v. Syzmanski, No. 3:08 CR 417, 2009 WL 1212249, at *3 (N.D. Ohio Apr. 30, 2009): Defendant’s arguments on appeal raised constitutional questions that the Sixth Circuit needed to resolve, defendant fully cooperated with the Government by admitting guilt immediately and enabling further investigation, posed an exceptionally low risk of danger because he did not have a criminal history or history of child abuse and his current offense did not involve confrontation with a child, he stopped viewing images before the FBI discovered them, his psychologist did not find him to pose a risk to others and that this was an aberrational act due to the defendant’s taking of large quantities of pain medication, he is employed and cares for his wife and mother-in-law, and the length of the expected prison sentence (60 months) was disproportionate to the crime under those circumstances. The defendant was released pending appeal.

[5] 18 U.S.C. § 3145(c)

[6] United States v. Little, 485 F.3d 1210, 1211 (8th Cir. 2007)

[7] 18 U.S.C. § 3145(c), 18 U.S.C. § 3143(a)(1)

[8] United States v. Garcia, 340 F.3d 1013 (9th Cir. 2003); United States v. Winsor, 890 F. Supp. 2d 1257, 1258 (D. Or. 2012)

[9] United States v. Garcia, 340 F.3d 1013 (9th Cir. 2003)

[10]United States v. Harris, 451 F. Supp. 3d 64 (D.D.C. 2020)

[11] United States v. Myhre, 514 F. Supp. 3d 1090 (D. Minn. 2021)


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