Stay of Execution of Sentence Pending Appeal

Last week, the Houston Chronicle had a little blurb about a doctor who is reporting to FPC Bryan after being convicted of allegedly injecting individuals with fake Botox™.  (Allegedly she and her husband used Botulism Toxin Type A, rather than the FDA-approved Botox™.) (Link.)

Not surprisingly, she is appealing her conviction and sentence, and she had filed a motion to stay the execution of sentence pending appeal, so that she wouldn’t have to report to the facility until the appeal had been addressed.  Staying the execution of sentence pending the appeal is difficult, but not impossible.

As a baseline consideration, the “judicial officer” will order a person who has been convicted and sentenced to a term of imprisonment in a federal court to be detained.  18 U.S.C. § 3143(b).  There are, however, exceptions.  The first hurdle is whether the individual is a danger to the community or a flight risk; if either is the case, then the individual will be detained.  (It should be noted that, though it is not written in the statute, courts have created a presumption of both which the defendant must affirmatively overcome.)  If the defendant is able to affirmatively overcome the presumption, then the “judicial officer” must determine whether the appeal is for the purpose of delay (it rarely is) and whether the appeal raises a substantial matter of law or fact that is likely to result in one of the following:  reversal of the conviction; an order for a new trial; a sentence that does not include a term of imprisonment; or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.  If the judicial officer finds for the defendant, then he shall order his or her release.