Since the opinion in Miller was issued, the statute has been expanded to allow a stay if the appeal presents a substantial issue likely to result in reversal, 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 expected duration of the appeal process. 18 U.S.C. § 3143(b)(1)(B). Case 1:05-cr-00370-PLF Document 140 Filed 10/31/2006 Page 4 of 21 5 Furthermore, Mr. Safavian has diligently made every scheduled appearance in Court and has fully complied with this Court’s release Orders.

Hecker Should Be Released Because He Is Does Not Present A Risk of Flight Or A Danger To Public Safety. Should this Court view 18 U.S.C. § 3143(a) as the appropriate governing statute, Hecker respectfully asks this Court to find by clear and convincing evidence that he is neither a flight risk nor a threat to public safety. Because Judge Ericksen imposed conditions of release on September 7, 2010, this Court is bound, at a minimum, by her finding that on September 7, 2010, there was clear and convincing evidence that Hecker did not present a risk of flight or a threat to public safety.

The trial court, in instructing the jury, advised them that they did not have to find that defendant “knew he was engaged in export activities requiring a license from the Treasury Department’s Case 1:05-cr-00370-PLF Document 143 Filed 11/08/2006 Page 6 of 9 Defendant’s other arguments fail as well. Even if defendant were to ultimately prevail in4 his arguments to overturn his false statements convictions – an outcome the government, for the reasons outlined in its previously filed pleadings, believes is exceedingly unlikely – this result would have a minimal effect on defendant’s overall sentence for terms of 18 U.S.C. § 3143(b)(1)(B)(iv). The false statement convictions are not the base offense level, but instead only add two levels to the grouping analysis.

If so, bail is “not simply discretionary but mandatory.” United States v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004); see also 18 U.S.C. § 3143(b)(1) (providing that court “shall order” bail pending appeal if statutory conditions are met). A substantial question is one that, if resolved in the defendant’s favor, would result in reversal or a new trial.

Finally, the government’s contention that the false statement and sentencing issues are not likely to result in a reduced sentence to a term of imprisonment less than the expected duration of the appeal process is erroneous. See 18 U.S.C. § 3143(b)(1)(B)(iv). First, as stated above, the same statements that form the basis for the false statement charge (in Count Three) also form the basis of the obstruction charge (in Count One).

Nonetheless, given the current hearing date of January 4, 2011, the government will presume that the issue of detention will be addressed, with the defendant being permitted to introduce evidence as appropriate. Pursuant to 18 U.S.C. § 3143, as the defendant acknowledges (at p. 6 of his motion), “the burden of persuasion shifts to the defendant after a guilty plea.” The government, relying on evidence in the record, contends that the defendant’s continued detention is warranted by not just the evidence of Hecker’s more recent release violations but by his entire course of conduct.

Conclusion Based on the above, Hecker asks that this Court order his release and not grant the Government’s request for a last minute detention hearing. Doing so comports with the procedures laid out in the Bail Reform Act of 1984 at 18 U.S.C. § 3143; 3148, and affords proper CASE 0:10-cr-00032-JNE -XXX Document 250 Filed 01/03/11 Page 8 of 9 9 deference to Judge Ericksen’s conditional release order. In the alternative, should the detention hearing proceed, Hecker asks this Court to find that he has not committed a violation of his release conditions since September 7, 2010, and order his release accordingly.

Likewise, Snipes has not met his burden of overcoming the presumption that he should be incarcerated by showing that his petition for panel or en banc rehearing will raise “a substantial question of law or fact.” See 18 U.S.C. § 3143(b); Giancola, 754 F.2d at 900-01. The standards for panel rehearing are high, see Fed. R. App. P. 40; 11th Cir. I.O.P. 2 (“A petition for rehearing is intended to bring to the attention of the panel claimed errors of fact or law in the opinion.

Under the presentth d law, however, a court must detain a defendant pending appeal of his conviction unless the defendant shows that the appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial. The presumption that the conviction is correct, implicit in the Bail Reform Act of 1984 and particularly in 18 U.S.C.A. § 3143(b)(2), places the burden on the defendant to overcome that presumption. A ‘substantial question’ “is a ‘close’ question or one that very well could be decided the other way.”

CERTIFICATE OF SERVICE I hereby certify that on July 29, 2016, the foregoing has been served on counsel of record by Notice of Electronic filing via CM/ECF, in accordance with the Federal Rules of Criminal Procedure. /s/ Samuel Louis SAMUEL J. LOUIS Case 4:15-cr-00654 Document 74 Filed in TXSD on 07/29/16 Page 7 of 10 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA § § v. § CRIMINAL ACTION: H-15-654-1 § ROBERTO ENRIQUE § RINCON-FERNANDEZ § ORDER GRANTING UNOPPOSED MOTION FOR RELEASE ON BOND On this the _______ day of ________________, 2016 came on to be considered Defendant’s Unopposed Motion for Release on Bond, pursuant to 18 U.S.C. § 3143 and said Motion is hereby GRANTED. The Defendant shall be released on the terms specified in the Motion, which is restated as follows: a. Defendant shall post a bond of $5 million that is co-signed by his spouse, Maria Lila Rincon and his children, Alexandra Carolina Cautilli Rincon, Roberto Rincon, and Ricardo Rincon.