United States of America, Plaintiff-appellant, v. Robert M. Leal, Defendant-appellee, 48 F.3d 1220 (6th Cir. 1995)

Before: RYAN and SILER, Circuit Judges; and DOWD, District Judge.^* 

Defendant was convicted of sixteen counts of distribution of controlled substances by filling prescriptions outside the course of legitimate medical practice and for no legitimate medical reason, in violation of 18 U.S.C. § 841(a). The government appeals the order of the district court granting defendant release on bail pending appeal. Defendant seeks affirmance of the district court's release order. By order entered October 4, 1994, the appeal was remanded to the district court for the limited purpose of making findings with respect to whether defendant's appeal raises a substantial question of law or fact and whether defendant poses a danger to others or a risk of flight.

To establish entitlement to release pending appeal, defendant must show 1) by clear and convincing evidence, that he is not likely to flee or pose a danger to the safety of another person or the community, and 2) that the appeal is not for delay and raises a substantial question of law or fact likely to result in reversal, an order for new trial, a reduced sentence, or a sentence that does not include a term of imprisonment. 18 U.S.C. § 3143(b); United States v. Pollard, 778 F.2d 1177, 1181 (6th Cir. 1985). This statute creates a presumption against release pending appeal. United States v. Vance, 851 F.2d 166, 168-69 (6th Cir.), cert. denied, 488 U.S. 893 (1988).

Upon review of the findings of the district court entered on remand, we conclude that the order granting release pending appeal should be affirmed. The district court found that defendant has established by clear and convincing evidence that he is not likely to flee and did not pose a danger to the safety of others or to the community. The court also found that the appeal was not for the purpose of delay and raises a substantial question of law with respect to the duty owed by a pharmacist under the circumstances of the case.

It is ORDERED that the district court's order granting release pending appeal is affirmed.