United States District Court, M.D. Florida, Jacksonville Division
ORDER DENYING MOTION FOR RELEASE PENDING
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE.
it is customary for a first time, non-violent white collar
offender such as Corrine Brown to be allowed to voluntarily
surrender to the Bureau of Prisons following sentencing, it
is not customary for such an offender to remain free pending
appeal. In fact, the law presumes that a person who stands
convicted and sentenced will begin service of her sentence
unless she can meet certain criteria. For Ms. Brown to be
entitled to release pending appeal, the Court must find by
clear and convincing evidence that she is not likely to flee
or pose a danger to the community if released; the appeal is
not for purposes of delay; and the appeal raises a
substantial question of law or fact likely to result in
reversal or an order for a new trial. See 18 U.S.C.
§ 3143(b)(1). Ms. Brown has filed a motion explaining
why she believes she meets these criteria (Doc. 250). The
government agrees that Ms. Brown is unlikely to flee, she
poses no danger, and her appeal is not taken for purposes of
delay. However, the government does not agree that her appeal
raises a substantial question of law or fact (Doc. 254).
The Eleventh Circuit has defined a “substantial
question” as one of more substance than would be
necessary to a finding that it was not frivolous. It is a
“close” question or one that very well could be
decided the other way. Further, there are no blanket
categories for what questions do or do not constitute
“substantial” ones. Whether a question is
“substantial” must be determined on a
United States v. Giancola, 754 F.2d 898, 901 (11th
Cir. 1985) (footnote omitted). Ms. Brown bears the burden of
establishing that her appeal presents a substantial question
of law or fact. Id.
appeal, Ms. Brown intends to argue that the Court erred in
denying her motion for new trial which was based on the
Court's dismissal of a juror during
deliberations. The circumstances which led to the
dismissal of the juror and the legal basis for doing so are
fully recounted in the Court's Order denying Ms.
Brown's motion for new trial. See Doc. 200. In
essence, the Court dismissed a juror who it found was unable
to follow the law. The Court applied the governing legal
standard to the facts, finding beyond a reasonable doubt that
there was no substantial possibility that the juror was able
to base his decision only on the evidence and the law as the
Court had instructed. See id. at 14 (recounting
findings made on the record at Doc. 182 at Tr. 60-61);
United States v. Godwin, 765 F.3d 1306, 1316,
1318-19 (11th Cir. 2014); United States v. Abbell,
271 F.3d 1286, 1302-04 (11th Cir. 2001). The Court therefore
dismissed the juror, replaced him with an alternate, and
directed that the jury start the deliberations anew. After
eleven hours of deliberations over two days, the
reconstituted jury returned a verdict finding Ms. Brown
guilty of 18 counts involving mail, wire and tax fraud and
not guilty on four counts. The Court then denied Ms.
Brown's motion for new trial (Doc. 200), and sentenced
her (Doc. 246).
the issue of whether to replace a deliberating juror comes up
relatively infrequently, when it does, there is Eleventh
Circuit precedent that guides the Court in its
decision-making. The Court followed that precedent. Having
applied the Eleventh Circuit standard, the Court's
factual findings are reviewed under a deferential
“clear error” standard, which is “seldom
easy to establish.” Godwin, 765 F.3d at 1318.
Thus, while Ms. Brown is free to appeal this issue, she has
not presented a “substantial question of law or
fact” that would warrant permitting her to remain on
release pending appeal. 18 U.S.C. § 3143(b)(1)(B);
Giancola, 754 F.2d at 901.
Brown has been accorded all the consideration she is due, she
has not met the standard to remain on release pending appeal,
and it is in the interest of justice that she begin serving
her sentence. However, Ms. Brown may seek release pending
appeal from the Eleventh Circuit Court of Appeals. The Court
will set a report date that gives Ms. Brown time to do so. If
Ms. Brown chooses to seek relief from the Eleventh Circuit,
she must file her motion no later than December 29,
it is hereby
1. Defendant Corrine Brown's motion for release pending
appeal (Doc. 250) is denied.
2. Ms. Brown shall report to the institution designated by
the Bureau of Prisons on January 29, 2018 by
noon unless the Eleventh Circuit orders otherwise.