United States of America, Plaintiff-appellee, v. Dwayne Evans, Defendant-appellant, 993 F.2d 1548 (6th Cir. 1993)

ORDER

The defendant appeals the district court's order denying his motion for release pending sentencing and pending appeal. Briefs have been filed by both the defendant and the government.

The defendant was convicted of conspiracy to distribute cocaine, conspiracy to import cocaine, and unlawful use of a communication facility. Following his conviction, the defendant's bond was revoked. He moved for release pending sentencing and also pending appeal. The motion for bond was denied. The defendant argues that the district court abused its discretion in denying bail by "jump [ing] from the fact of a guilty verdict to the conclusion that if the bail applicant were released pending sentence the public would perforce be at risk."

Section 3143(a) (2) provides that a person who has been found guilty of an offense described in § 3142(f) (1) (C) (including offenses under the Controlled Substance Act for which a maximum term of ten years imprisonment is prescribed) shall be detained pending sentencing unless the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted and the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the community. In the instant case, the district court did not make the necessary findings, but concluded that the defendant posed a danger to the community. The defendant has not demonstrated that this was error.

With respect to bail pending appeal, 18 U.S.C. § 3143(b) (2), added by the Mandatory Detention Act of 1990, applies. Both conspiracy charges are offenses enumerated in § 3142(f) (1) (C). Section 3143(b) (2) provides that such individuals convicted of such charges shall be detained pending appeal. It is provided at 18 U.S.C. § 3145(c) that a person detained under § 3143(b) (2) who meets the conditions of release may be ordered released "if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate." The defendant has not demonstrated exceptional reasons which would entitle him to such release.

It therefore is ORDERED that the district court's decision denying release is affirmed.