No.

07-60748

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,
v.

JOHN H. WHITFIELD,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi
Cause No. 3:03crl20-HTW-JCS

APPELANT WHITFIELD'S MOTION FOR REVIEW OF THE

DISTRICT COURT'S DENIAL OF RELEASE PENDING APPEAL,
MOTION FOR RELEASE PENDING APPEAL,
AND FOR AN EXPEDIATED RULING

DREW M. MARTIN (MB #101045)

MELISSA S. MARTIN (MB #100990)
Martin Law Firm, PLLC
1635 Lelia Drive, Ste 102
Jackson, MS 39216
Telephone: (601) 366-8410
Facsimile: (866) 945-9168

DAVID NEIL McCARTY (MB #101620)

David Neil McCarty Law Firm, PLLC
1635 Lelia Drive, Ste 102
Jackson, MS 39216
Telephone: (601) 366-8410
Counsel for Appellant, John H. Whitfield
 CERTIFICATE OF INTERESTED PERSONS

Pursuant to 5th Circuit Rule 28.2.1,1 certify that the following listed persons have
an interest in the outcome of this case:

1. Plaintiff-Appellee: United States of America, in particular trial counsel,

AUSA Ruth Morgan, David Fulcher, and DOJ Public Integrity counsel,
Peter Ainsworth and Natashia Tidwell. DOJ appellate counsel, Elizabeth
Collery, also has an interest in this case.

2. Defendant-Appellant: John Whitfield and his appellate counsel, David Neil

McCarty, Drew McLemore Martin and Melissa Selman Martin; and, trial
counsel, Michael Crosby.

3. Co-defendant, Paul Minor, and his counsel, Abbe David Lowell, Obiamaka
P. Madubuko, and Christopher D. Man of McDermott Will & Emery LLP.
Mr. Minor's 2007 trial counsel, J. Bradley Pigott and Dennis Sweet also
have an interest in this case, as does attorney Hiram Eastland.

4. Co-defendant, Walter W. Teel, and his counsel, S. Dennis Joiner and George
Lucas of the Public Defender's Office.

5. The People's Bank and its attorneys, Paul Minor, Jim Reeves and Mark
Lumpkin of the law firm of Minor & Associates.

6. Archie Marks and his attorneys, Paul Minor, Jim Reeves and Mark Lumpkin
of the law firm Minor & Associates.

7. United States Fidelity & Guaranty Company and its attorneys, Patrick
Buchanan and the law firm of Brown, Watt & Buchanan P.A. and Wayne
Drinkwater and the law firm of Bradley, Arant, Rose & White LLP.

8. Diamond Offshore Company and its attorneys, Richard Salloum and the
lawfirm of Franke Rainey & Salloum.

Respectfully submitted,

Melissa Selman Martin

 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS i

TABLE OF CONTENTS ii

PROCEDURAL BACKGROUND 2

LEGAL STANDARD FOR RELEASE ON BOND PENDING APPEAL 4

ARGUMENT 5

I. There are substantial questions of law and fact that could be decided in
favor of Judge Whitfield resulting in reversal of his conviction, mandating his
release on Donu.......».<»».*»..»....»••»..•»...•«•••<<»»««»«....«...............•.»•••«.««<» »o

A. Mr. Whitfield raised substantial questions of law or fact 7

B. The District Court applied the wrong standard regarding the

sentence result criteria in the statute 12

C. The denial of bond is contrary to the statute and established

precedent 14

II. Judge Whitfield's legal arguments have suffered from the failure of the
District Court to rule for 7 months 17

III. Mr. Whitfield's Motion for Release Pending Appeal should be given
expedited review by this Court 18

.•••••••••.•.•.........•.■.........................■...............••••.••••••..•••

11
 APPELLANT WHITFIELD'S MOTION FOR REVIEW OF THE
DISTRICT COURT'S DENIAL OF RELEASE PENDING APPEAL,
MOTION FOR RELEASE PENDING APPEAL,
AND FOR AN EXPEDITED RULING

The Defendant/Appellant, John H. Whitfield, respectfully requests that this

Court review the District Court's July 13, 2009, Order [USDC Docket #764]

denying his Motion for Release. Order attached as Exhibit "A." Mr. Whitfield

further respectfully requests that this Court order his immediate release pending

the disposition of his underlying appeal on the same terms and conditions of his

pretrial release. This Motion is made pursuant to Federal Rule of Appellate

Procedure 9(b), Fifth Circuit Rules 9.2 and 9.3, and 18 USC §3143(b)(l). Mr.

Whitfield would further respectfully request that this Court decide his motion in

the expedited fashion provided for in Federal Rule of Appellate Procedure 27 and

Fifth Circuit Rule 27.2.6.

In denying Mr. Whitfield's release, the District Court made several legal

errors. Critically, the District Court did not correctly apply the governing legal

standard. The District Court did not apply the Release Statute or applicable Fifth

Circuit precedent in ruling. Moreover, the District Court disregarded its own

ruling made in a related civil case. The Government has admitted that Mr.

Whitfield is neither a flight risk nor a danger to society. The deciding factor is

whether Mr. Whitfield's arguments contain enough arguable merit that he should

be freed while his appeal is considered. In addition to the substantial issues for
appeal raised in Mr. Whitfield's Appellant's Brief, this Court has now requested

supplemental briefing twice, regarding the § 666 conviction and the application of

double jeopardy to Mr. Whitfield's case. This Court's decision on either of these

two issues in Mr. Whitfield's favor would require reversal of his conviction.

Undoubtedly, Mr. Whitfield has raised substantial questions of law on appeal

likely to result in a reversal.

Procedural Background

Mr. Whitfield, a former Mississippi Circuit Judge and managing partner at

Phelps Dunbar, LLP, was indicted on July 23,2003, on a wide-ranging series of

counts as a result of a relationship with Mississippi Gulf Coast attorney Paul

Minor. Also indicted for connections with Mr. Minor were former Mississippi

Supreme Court Presiding Justice Oliver E. Diaz, Jr., and former Chancellor Wes

Teel. The four were tried in the Southern District of Mississippi before the

Honorable Henry T. Wingate.

At the conclusion of the first trial, the jury returned verdicts on August 12,

2005, ranging from full acquittal (for Mr. Diaz) to fully hung (for Mr. Teel), with

both Mr. Whitfield and Mr. Minor being acquitted on some counts and the jury

hanging on others. The Government sought a retrial and obtained a Third

Superseding Indictment, relying on the same factual allegations as the Second

Superseding Indictment on which Mr. Whitfield was tried and on some counts
acquitted. At the second trial, the Government was allowed to introduce evidence

that was previously excluded from trial. At this second trial, the jury convicted

Mr. Whitfield of conspiracy, mail fraud, honest services fraud, and bribery

involving a federally-funded program. Mr. Whitfield promptly appealed.

Additionally, Mr. Whitfield filed a Motion for Bond Pending Appeal

[USDC docket # 631] on October 19, 2007, which was summarily denied [USDC

docket #730] on December 21, 2007, only days before Mr. Whitfield reported to

the Bureau of Prisons on December 27, 2007. Mr. Whitfield subsequently filed a

Motion for Release Pending Appeal with this Court on August 15,2008 [USCA

document #0051181152]. This Court denied the Motion without prejudice and

directed Mr. Whitfield to seek relief with the District Court [USCA document

#0051216105]. Pursuant to this Court's Order, Mr. Whitfield filed a Motion for

Release and Expedited Ruling with the District Court on January 7,2009 [USDC

docket #755]. Subsequent to this filing, this Court requested supplemental

briefing on a jurisdictional element of § 666 on April 22, 2009 [USCA document

#0051754963]. Mr. Whitfield's Supplemental Brief was submitted on June 4,

2009 [USCA document #0051831323]. On June 18, 2009, the United States

Supreme Court announced its decision in Yeager, and upon Motion by Co-

Defendant/Appellant Paul Minor, this Court granted the parties the opportunity to

brief the application of double jeopardy to the case at hand under the new rule
announced in Yeager [USCA document #0051879632]. Mr. Whitfield's Second

Supplemental Brief was submitted on July 15, 20091. On July 13, 2009, the

District Court finally issued a ruling on Mr. Whitfield's Motion for Release, after

repeat attempts by counsel to get a ruling [USDC docket #764]. The District

Court denied Mr. Whitfield's Motion finding that it would adhere to its previous

rulings favorable to the Government on the issues that Mr. Whitfield has raised on

appeal. See Exhibit "A".2

The Legal Standard for Release on Bond Pending Appeal

Federal statute controls when a person may be released on bond after his

conviction and pending the resolution of their appeal.

[T]he judicial officer shall order that a person who has been found
guilty of an offense and sentenced to a term of imprisonment, and
who has filed an appeal or a petition for a writ of certiorari, be
detained, unless the judicial officer finds—
(A) by clear and convincing evidence that the person is not likely to
flee or pose a danger to the safety of any other person or the
community if released under section 3142(b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a
substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) 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.

1 Federal Express reflects that Mr. Whitfield's Second Supplemental Brief was delivered to the
Court; however, it is not yet reflected on the docket.
As there was no hearing conducted on the Motion, there is no transcript to attach pursuant to
Fifth Circuit Rule 9.3.
 If the judicial officer makes such findings, such judicial officer shall
order the release of the person ....

18 U.S.C.A. § 3143(b). As the Fifth Circuit has interpreted it:

To obtain release pending appeal, a convicted defendant must

establish four factors: (1) that he is not likely to flee or pose a danger
to the safety of others; (2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and (4)
that the substantial question, if decided favorably to the defendant, is
likely to result in reversal, in an order for a new trial, in a sentence
without imprisonment, or in a sentence with reduced imprisonment.

U.S. v. Clark, 917 F.2d 177, 179 (5th Cir. 1990). The appeals court is "obligated

to independently assess the strength of [a] motion for release ...." Id. at 179-80.

Argument

The Government has conceded that Mr. Whitfield is neither a flight risk nor

a risk to the community. See Government's Opposition to Motion of Defendant-

Appellant John H. Whitfield for Release Pending Appeal at page 3, filed with this

Court on September 11,2008 [USCA document 30051235193]. This appeal is not

for the purpose of delay. Therefore, the issue before the Court is simply whether

Mr. Whitfield's appeal of his conviction raises substantial questions, that if

decided in his favor would result in a reversal of his conviction, an order for a new

trial or a substantial reduction in his sentence. Mr. Whitfield has raised just such

substantial questions.

The plain language of the statute requires that a judicial officer shall release

a defendant who fits the four requirements of the statute. The District Court
applied the wrong standard in examining release in contravention of established

Fifth Circuit precedent and ignored the fact that the Fifth Circuit has twice ordered

supplemental briefing on key issues.

In addition, the District Court's months-long delay in resolving the question

of release left Mr. Whitfield in legal limbo, and actively caused prejudice to the

pursuit of his appeal, including prohibiting him from having oral argument before

this Court.

I. There are substantial questions of law and fact that could be decided
in favor of Mr. Whitfield resulting in reversal of his conviction,
mandating his release on bond.

Under the clear language of the statute, and under established Fifth Circuit

precedent, Mr. Whitfield has raised substantial questions of fact and law that cast

doubt upon his conviction, and mandate that he be freed on bond pending the

resolution of this appeal. Mr. Whitfield incorporates herein by reference the

arguments related to twelve (12) issues currently on appeal and fully briefed in his

August 15, 2008, Motion for Release filed with this Court [USCA document

#0051181152], his October 10, 2008, Motion for Clarification, or in the

Alternative Reconsideration, Amending Motion for Release Pending Appeal

[USCA document #0051609984] and his January 7,2009, Motion for Release

filed with the District Court [USDC docket #755]. Subsequent to the January 7,
2009, Motion, Mr. Whitfield has fully briefed two additional issues, a finding in

his favor on either, would result in a reversal of his conviction.

In its review of Mr. Whitfield's Motion for Release, the District Court

applied the wrong standard in two instances, resulting in a flawed ruling that is

clearly erroneous.

A. Mr. Whitfield raised substantial questions of law or fact.

In examining what constitutes a "substantial question," the oft-repeated

language is that it must be "one which is either novel, which has not been decided

by controlling precedent, or which is fairly doubtful." U.S. v. Miller, 753 F.2d 19,

23 (3rd Cir. 1985) (adopted by the Fifth Circuit in U.S. v. Valera-Elizondo, 761

F.2d 1020, 1024 (5th Cir. 1985)).

As the Eleventh Circuit has put it, "a 'substantial question' is one of more

substance than would be necessary to a finding that it was not frivolous," such as

"one that very well could be decided the other way." U.S. v. Giancola, 754 F.2d

898, 901 (1 lth Cir. 1985). "[T]here are no blanket categories for what questions

do or do not constitute 'substantial' ones, as courts will have to determine this "on

a case-by-case basis." Id.

The standard does not require Mr. Whitfield to concretely establish that the

lower court was in error, for that is the purpose of his primary appeal. Nor is he

required to show that the appeals court will agree with him in every instance.
Instead, the arguments raised by the defendant must be such that such issues could

be decided in the defendant's favor.

The District Court used a different standard. It based its ruling on the fact

that Mr. Whitfield was convicted—not that a substantial question was raised, but

that those questions had already been resolved by the conviction. Such a standard

would eliminate the possibility of any defendant ever being released on bond

pending an appeal, as it is nothing more than a recognition that a criminal

conviction has occurred.

After a passing examination of law focusing almost exclusively on Valera-

Elizondo, the District Court lapsed into a conclusory analysis that because Mr.

Whitfield was convicted, he cannot be freed on bond. Only one paragraph of the

five-page Order contains the entirety of the analysis (and conclusion) of the

District Court:

In various pre-trial and post-trial motions, this court has denied the
defendant's motions for dismissal, for judgment and for new trial on
some of these issues, concluding that, viewedfavorably to the
Government, the evidence supported the verdict rendered. In light of
what the defendant presents in support of his request to be released,
this court must adhere to its previous rulings. Additionally, this court
holds that the defendant has not demonstrated a substantial question
of law or fact under the standard explained in Valera-Elizondo.
Finally, this court is not persuaded that the defendant has submitted
any substantial question of law which would result in reversal or a
new trial on all counts for which the defendant has been sentenced to
prison.
Exhibit "A" at 5 (emphasis added). This ipse dixit examination of the issues falls

far short of the requirements of Section 3143(b) and Fifth Circuit law, as the

District Court troublingly focuses its attention not on the statute or precedent

regarding release pending appeal, but on the fact that Mr. Whitfield was

convicted, in essence "pre-judging" the results of the appeal.

It is true; he was convicted. Yet Congress would not have passed Section

3143(b) if there were not some instances in which the convicted could be freed

while on appeal. The statute is a regulation on bail, not a prohibition. Under the

District Court's reductive and simplistic syllogism, any person who was convicted

could not make bail because the conviction was simply correct. Under such

reasoning no person would ever be free on bond.

This is not the standard. The question is whether there is a point of law or

fact that could be decided the other way by the appeals court, and if so, whether

those points of law would result in a lesser penalty, or reversal.

In the case at hand, and as the District Court noted, Mr. Whitfield originally

raised,pro se, twelve substantial questions in his August 15, 2008, Motion for

Release and his October 10, 2008, Motion for Clarification, or in the Alternative

Reconsideration, Amending Motion for Release Pending Appeal filed with this

Court and his January 7, 2009, Motion for Release filed with the District Court.

Each of these motions is incorporated herein by reference and argument. Further,

since the time he filed those motions, three major events have occurred. First, the

Fifth Circuit ordered supplemental briefing on the jurisdictional issue of the

Section 666 charges. Secondly, this Court ordered further supplemental briefing

on the application of double jeopardy under Yeager v. U.S., — U.S. --, 129 S.Ct.

2360 (2009). And finally, the District Court itself ruled on the relevant issues in an

analogous civil case. See USF&G Co. v. The Peoples Bank, et al., Civ. No.

l:08cv0242HTW-LRA (S.D. Miss. 2008).

The District Court, while informed of the supplemental briefing, ignored

them completely in its Order. On its face, Mr. Whitfield's pending appeal raises

substantial question of law and fact. If this Court finds the nexus required by

Section 666 lacking, regarding the "in connection with" language of the statute,

the lack of federal funding, or the agency element, then the District Court never

had jurisdiction in this case and Mr. Whitfield's conviction must be reversed.

Similarly, if under Yeager, this Court determines that his acquittal in the first trial

served to bar the second trial under the doctrine of double jeopardy, again his

conviction must be reversed.

Importantly, in an interrelated case, the District Court has already ruled that

there are substantial questions of fact and law. After the convictions of Mr. Minor

and Mr. Teel, the defendant in the civil case underlying the Government's

prosecution filed a civil case against both Mr. Minor and Mr. Teel. See USF&G

10
Co. v. The Peoples Bank, et al., Civ. No. 1:08cv0242HTW-LRA (S.D. Miss.

2008). The same District Court which presided over the criminal trial in this case

presides in that civil case as well, and Mr. Minor filed a motion to stay the case

pending the disposition of this Court's decision in the criminal matter. Simply

put, Mr. Minor argued, if the Fifth Circuit finds him not guilty of a criminal

offense, the civil action would necessarily fail. Mr. Minor argued a stay was

proper pending the decision of this Court.

The District Court agreed, and on January 16,2009, stayed all litigation

"until the Fifth Circuit Court of Appeals rules on the criminal conviction of

defendants Paul Minor, Walter S. Teel, and John Whitfield." Order [docket #126]

attached as Exhibit "B."3

In other words, the District Court has already implicitly recognized in

related civil litigation that there are "substantial questions of law or fact" pending

on appeal which might materially affect any related proceedings. This Order

staying the USF&G case was also not referenced in the Order denying Mr.

Whitfield's motion for release, even though the logic and arguments resulting in

the stay in the civil case are intimately related to the Defendant's release on bond

pending appeal.

Mr. Whitfield is not a party to that case, but his conviction and that of Mr. Minor are
necessarily intertwined.

11
 There are substantial questions of law and fact that warrant Mr. Whitfield's

release pending the appeal, and indeed even the District Court has found these

exist.

B. The District Court applied the wrong standard regarding the

sentence result criteria in the statute.

In addition to raising a substantial question of law or fact, Mr. Whitfield has

also demonstrated that these arguments are likely to reduce or eliminate his

sentence or result in a new trial.

The clear language of the statute reads that any successful argument for

release pending appeal must:

raise[] a substantial question of law or fact likely to result in~

(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) 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.

18 U.S.C.A. § 3143(b). Therefore, once the defendant has proffered a substantial

question to the appeals court, it must be "likely" to result in one of four positive

outcomes. "Likely" simply means "plausibly," or as one case puts it "more

probable than not." Valera-Elizondo, 761 F.2d at 1025.

The District Court rewrote the statute to make the bar higher than Congress

intended. In a conclusory one-sentence analysis, it held that "this court is not

persuaded that the defendant has submitted any substantial question of law which

12
would result in reversal or a new trial on all counts for which the defendant has

been sentenced to prison." Exhibit "A" at 5 (emphasis added).

In the District Court's flawed analysis, a defendant must prove that the

appeal will result in a full reversal or a new trial, the creation of a new disjunctive

phrase not present in the statute. This analysis only addresses the difficult-to-

obtain subparts (i) and (ii) of the statute—indeed, it even alters and makes more

difficult part (ii), which under the statute only requires "an order for a new trial."

In the District Court's formulation, one must prove that one will receive "a new

trial on all counts for which the defendant has been sentenced to prison."

This is not the law. Courts "are to read a statute as a whole, so as to give

effect to each of its provisions without rendering any language superfluous." U.S. v.

$92,203.00 in U.S. Currency, 537 F.3d 504, 509-10 (5th Cir. 2008) (internal

quotations omitted and emphasis added); U.S. v. Robinson, 367 F.3d 278, 293 (5th

Cir. 2004) ("It is a cardinal principle of statutory construction that a statute ought,

upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant") (internal quotations omitted); see

also U.S. v. Dison, - F.3d -, 2009 WL 1759029, *2 (5th Cir. June 23, 2009) ("When

the plain language of a statute is unambiguous and does not lead to an absurd result,

our inquiry begins and ends with the plain meaning of that language") (internal

quotations, alterations, and footnotes omitted). The District Court created its own

13
higher bar, which Congress did not intend, and which only the rarest of criminal

appeals could meet.

Like the conclusory analysis regarding substantial questions, the District

Court has created a warped syllogism where because a defendant was convicted

there is never a chance of success on appeal, because there was a conviction. This

is not only poor logic—it is not the law. The District Court cannot pick parts of a

statute it wishes to rely upon, while ignoring the very next lines.

Mr. Whitfield has shown that he has a plausible chance at obtaining a

reversal, an order for a new trial, a sentence with no jail time, or a reduced

sentence.

C. The denial of bond is contrary to the statute and established

precedent.

The Bail Reform Act of 1984 was created to minimize what had previously

been a much more lenient process in obtaining bond pending appeal. See Thomas

W. Cushing, Raising A "Substantial Question:" The Key to Unlocking the Door

under the 1984 Bail Reform Act, 62 Notre Dame L. Rev. 192, 192, n.2 (1987)

(new statute "reversed the presumption in favor of granting bail pending appeal

which had existed under prior law," as "Congress was clearly concerned");

Bennett v. U.S., 36 F.2d 475,476 (5th Cir. 1929) ("It is the settled law in the

federal courts that a person who has been convicted on a criminal charge is

14
likewise entitled to bail pending his appeal, except where it is plainly made to

appear that an appeal is frivolous or taken only for delay").

Yet it is clear that the statute did not eliminate or prohibit bail—it only

creates a series of requirements one must meet before bail is granted. Indeed, the

statute clearly states that when its criteria are met, the "judicial officer shall order

the release of the person "18 U.S.C.A. § 3143(b) (emphasis added).

In this case, Mr. Whitfield has met the requirements of the statute. For the

District Court to refuse bond to Mr. Whitfield thrusts him into a hardened class of

criminal conduct of which even the Government never accused him. See U.S. v.

Peden, 891 F.2d 514, 520 (5th Cir. 1989) (denying bond on appeal to a

"compulsive pedophile"); U.S. v. Milhim, 702 F.2d 522, 526 (5th Cir. 1983)

(denying bond on appeal where the appellant committed a series of assaults and

violated the conditions of his pretrial bond); Young v. Hubbard, 673 F.2d 132,

134 (5th Cir. 1982) (denying bond for an appellant who committed three acts of

armed robbery resulting in a 100 year sentence).

Mr. Whitfield's convictions are related to an alleged scheme of bribery, not

some violent, dangerous crime resulting in a 100 year sentence. In fact, the

Government concedes that Mr. Whitfield is neither a flight risk nor a danger to

society. See Government's Opposition to Motion of Defendant-Appellant John H.

Whitfield for Release Pending Appeal at page 3, filed with this Court on

15
September 11,2008 [USCA document 30051235193]. The statute was created to

regulate the requirements of bond and to place barriers on its automatic grant, not

detain the convicted indefinitely. The statute creates standards, not a prohibition.

Mr. Whitfield has met the standards Congress crafted to eliminate an automatic

grant of bond, and should not be treated as a violent and dangerous criminal.

Mr. Whitfield's case is much closer to that of former Alabama Governor

Don Siegelman. In that case, as almost exactly here, "[t]he district court found—

and the government does not contest—that Siegelman has presented sufficient

evidence to establish that be is not likely to flee or pose a danger to the safety of

others and that the appeal is not for purpose of delay." See Order in U.S. v. Don

Eugene Siegelman, et al., No. 07-131-163-B (1 lth Cir. Mar. 27, 2008), attached as

Exhibit "C." The Eleventh Circuit found there were substantial questions of law

and fact that could result in a lesser sentence, and because Governor Siegelman

was not a flight risk or a danger to society, allowed him bond. Ultimately,

portions of the Siegelman's sentence were reversed and his ultimate sentence

reduced. U.S. v. Siegelman, 561 F.3d 1215,1232 (1 lth 2009).

In light of the above, Mr. Whitfield should be free pending the disposition

of his appeal on the same terms and conditions of his pretrial release.

16
 II. Mr. Whitfield's legal arguments have suffered from the failure of
the District Court to rule for 7 months.

The failure of the District Court to rule on Mr. Whitfield's Motion for

Release for 7 months resulted in great prejudice to the Defendant. During the time

period in which the District Court refused to rule, Mr. Whitfield filed a pro se

Reply Brief, and the Court heard oral argument in Austin, Texas, on April 1, 2009.

As he was not at that time represented by counsel and was not free on bond, the

argument proceeded without Mr. Whitfield.

Afterwards, the Court requested supplemental briefing on Section 666

regarding the jurisdictional required nexus of the alleged bribery scheme and the

business of an agency receiving federal monies, long a key argument of Mr.

Whitfield's theories at trial and on appeal. Although by this time he had retained

the undersigned, he could not coordinate with counsel except via U.S. mail; there

was simply not time for the drafts to travel, and therefore the Defendant once

again was forced to proceed pro se.4

The District Court, in its Order, made clear that "likelihood of better access

to clerical assistance" did not weigh on its decision. Exhibit "A" at 2.5 Yet such

4 The Defendant was granted leave to receive a facsimile from his counsel in the most recent
briefing regarding Yeager, which helped the process considerably.
5 Curiously, the District Court makes a reference to the "medical issues" of Mr. Whitfield's
attorney. Exhibit "A" at 2. This reference must be to his prior counsel, who no longer
represented the Defendant as of July 17,2008. As a result of a procedural motion to
acknowledge the undersigned, representation by the previous attorney terminated by order of the

17
concerns are obviously inherent in weighing the release of a Defendant on bond.

The District Court's refusal to rule for 7 months abrogated the statutory and

Constitutional rights of Mr. Whitfield, and harmed his ability to present and

participate in his defense on appeal.

III. Mr. Whitfield's Motion for Release Pending Appeal should be given
expedited review by this Court.

Mr. Whitfield has been fighting for release pending his appeal since October

of 2007. He has filed three motions seeking release on the same terms and

conditions of his pretrial bond during this time period. His most recent motion sat

languishing in the District Court for seven (7) months before he received a ruling

and only after numerous requests by counsel for such a ruling. Mr. Whitfield has

already served 19 months of his 110 month sentence; a sentence which may very

well be reversed on appeal. Mr. Whitfield has minor children at home, and being

able to see them off to the new school year would mean a great deal to him.

While the Government has expressed that it will oppose this Motion,

Federal Rule of Appellate Procedure 27 authorizes this Court to decide the instant

Motion in an expedited manner. Rule 27 provides that the Court may require a

shorter response time in order to allow it to grant motions under Rule 9 prior to the

running of the response period. Additionally, Fifth Circuit Rule 27.2.6 allows a

Magistrate Judge on June 18,2009 [763]. The termination of Mr. Whitfield's previous attorney
was therefore almost a month before the District Court's Order.

18
single judge to review motions for release to aid in the expeditious disposition of

such motion. The Government has opposed this Motion twice, the second simply

incorporating the response filed in this Court. [USDC docket #756]. The

Government's arguments are well briefed; meanwhile a man's freedom hangs in

the balance.

Conclusion

In light of the multiple substantial questions of law and fact raised by Mr.

Whitfield, the two supplemental briefings requested by this Court, the District

Court's stay of litigation in the USF&G civil litigation, the likelihood of a reversal

or sentence reduction if the appeal is resolved in favor of the Defendant, and the

substantial prejudice suffered by the Defendant from the failure to rule on the

motion, the ruling of the District Court denying bond pending appeal must be

reversed.

The Appellant prays that upon review of the matters contained herein, this

Court will grant his Motion for Release Pending Appeal, ordering his immediate

release on the same terms and conditions of his pre-trial release, as the Appellant

has met and fully satisfied this Court's requirement for the same.

RESPECTFULLY SUBMITTED, this the 22lld day of July, 2009.

Melissa Selman Martin

19
 CERTIFICATE OF SERVICE

I hereby certify that in accordance with Fed. R. App. P. 27 (d)(3), the

original, 3 paper copies, of the attached Motion were dispatched to the Clerk of

this Court on July 22, 2009 via Federal Express Overnight Delivery. I also certify

that 1 paper copy of this motion was served via hand delivery and electronic mail

to the following counsel:

David Fulcher
Office of the U.S. Attorney
188 East Capitol Street, Suite 500
Jackson, MS 39201
Fax:(601)965-4409

20
 I also certify that a copy of this motion was served via electronic mail to the

following counsel:

Elizabeth D. Collery Obiamaka P. Okwumabua

U.S. Department of Justice McDermott Will & Emery, LLP
Criminal Division, Appellate Section 340 Madison Avenue
950 Pennsylvania Ave, NW, Ste 1264 New York, NY 10173-192
Washington, DC 20530 Email: omadubuko@mwe.com
Email: liza.collei-y@usdoj.gov
Ruth Morgan Hiram Eastland
Office of the U.S. Attorney 307 Cotton Street
1575 20th Avenue Greenwood, MS 38930
Gulfport, MS 39501 Email: eastlandlaw@bellsouth.ne
Email: ruth.morgan@usdoj.gov
Abbe David Lowell George L. Lucas
Christopher D. Man Federal Public Defender
McDermott Will & Emery, LLP Southern District of Mississippi
600 Thirteenth Street, NW 200 South Lamar Street, Ste 200 N
Email: adlowell@mwe.com Jackson, MS 39201
cman@mwe.com Email: george_lucas@fd.org

?a Selman Martin

21
 CERTIFICATE OF COMPLIANCE

The undersigned certifies that this motion consists of 19 pages of argument

and law as authorized by this Court pursuant to its Order. The Certificate of

Service and this Certificate of Compliance are attached to the motion but are

exempt from the 19 page count under Rule 27(d)(2).

This motion also compiles with the typeface requirements of Rule 32(a)(5)

and the type style requirements of Rule 32(a)(6), as the motion (excluding

footnotes) has been prepared in 14-point Times New Roman font. Footnotes have

been prepared in 12-point Times New Roman font.

Melissa Selman Martin

22
 Case 1:08-cv-00242-HTW-LRA Document 126 Filed 01/16/2009 Page 1 of 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

UNITED STATES FIDELITY AND

GUARANTY COMPANY, and
FIDELITY GUARANTY INSURANCE
UNDERWRITERS, INC. PLAINTIFFS

VS. Civil Action No. l:08cv0242 HTW-LRA

THE PEOPLES BANK, BILOXI, MISSISSIPPI,

PAUL S. MINOR, MINOR AND ASSOCIATES, P.A.,
and WALTER W. TEEL DEFENDANTS

ORDER

This court hereby clarifies its Order to stay this litigation. This litigation is stayed

until the Fifth Circuit Court of Appeals rules on the criminal conviction of defendants

Paul Minor, Walter S. Teel, and John Whitfield. Following the Fifth Circuit's decision on

those criminal appeals, this court will hold a status conference with the parties.

Plaintiff herein has settled with defendant The Peoples Bank. The defendants

wish to have copies of the Settlement Agreement. Peoples Bank has no objection to

this request. Therefore, within ten (10) days of today's date, counsel for Peoples Bank

shall make available said Settlement Agreement to all parties.

SO ORDERED, this the 16th day of January, 2009.

s/HENRY T.WINGATE
CHIEF UNITED STATES DISTRICT JUDGE

Exhibit "A"
 Case 1:08-cv-00242-HTW-LRA Document 126 Filed 01/16/2009 Page 1 of 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

UNITED STATES FIDELITY AND

GUARANTY COMPANY, and
FIDELITY GUARANTY INSURANCE
UNDERWRITERS, INC. PLAINTIFFS

VS. Civil Action No. l:08cv0242 HTW-LRA

THE PEOPLES BANK, BILOXI, MISSISSIPPI,

PAUL S. MINOR, MINOR AND ASSOCIATES, P.A.,
and WALTER W. TEEL DEFENDANTS

ORDER

This court hereby clarifies its Order to stay this litigation. This litigation is stayed

until the Fifth Circuit Court of Appeals rules on the criminal conviction of defendants

Paul Minor, Walter S. Teel, and John Whitfield. Following the Fifth Circuit's decision on

those criminal appeals, this court will hold a status conference with the parties.

Plaintiff herein has settled with defendant The Peoples Bank. The defendants

wish to have copies of the Settlement Agreement. Peoples Bank has no objection to

this request. Therefore, within ten (10) days of today's date, counsel for Peoples Bank

shall make available said Settlement Agreement to all parties.

SO ORDERED, this the 16th day of January, 2009.

8/ HENRY T.WINGATE
CHIEF UNITED STATES DISTRICT JUDGE

Exhibit "B"
 JN THE XJNTTEI) STATES COURT OF APPEALS

FOR THE ELEVENTH <pRCOTJs mMV APPEALS

eiEyENTccrr

MAK27Z008
07-13163-B

THOMAS JtKAHN.
CIERK
UNITED STATES OF AMERICA,

Plaintiff-Appellee-
Cross-AppeUast,

versus

DON EUGENE SIEGELMAN,

RICHARD SCRUSHY,

Cross-Appellees.

On Appeal from tibte United States District Owrt for the

Middle District ofAtebema

BEFORE: BLACK and MARCUS, Circuit Judges.

BY XTffi COURT:

This matter is now before the Court on Appellant Siegelman's "Motion fin-

Review ofthe District Court's Januaiy 2, 2008 Opinion Denying Release Pending

Appeal, and Motion for Release Pending Appeal by this Court"

We have had occasion to consider tills motion, in varying forms, twice befoie.

Exhibit "C"
 pending appeal on August 10T2007. On

September 27, 2007, we remanded on a limited basis Siegelman's motion, with

instructions to the district court to consider and dispose ofthe motion expedrtiousry

and to enter an order explaining the reasons for its ruling. Following the district

court's order of October 4, 2007, denying Siegekaan's motion, Siegalman again

moved this Court fbrrdeasepending appeal. Because ofthe complexity ofthe issues

raised by the motion, on November 7, 2007, this Court again remanded Siegelman's

motion, for the limited purpose ofhaving the district court provide a more detailed

explanation of its decision. On January 2,200$, the district court issued an order

detailmgitsrationalefbrdenymg$iegemian*8niotion. Siegelmanhasagamrenewed

his motion for release pending appeal, and the matter is now properly before us.

Under 18 U.S.C. § 3143(bXl), a defendant may be released from prison

pending appeal only if the court finds by clear and convincing evidence that the

defendant is not likely to flee or pose a danger to the safety ofany other person or the

community ifreleased; the appeal is not for purpose of delay; aaA the appeal raises

a substantial question oflaw or feet likely to result in reversal, an order foranewtrial

of all counts on which imprisonment has been imposed, a sentence that does not

iodude a tonnofiii^msoiunent, ora educed sentence to a tenn ofimprisonment less

than the total of the time already served phis the expected duration of the appeal
PKOCOS& £s&!8 ILS,C. § 3143(bXl)(A) andfln: see also United Slates v. Giancnkr

754 F.2d 898,901 (1 lth Cir. 1985).

While nanfinning that a lack ofcontrolling precedent is not enough to render

a legal issue "substantial," this Court has explained that, for purposes of Section

3143(b), "a 'substantial question1 is one ofmore substance than would be necessary

to a finding that it was not frivolous. It is a 'dose' question or one that very well

could be decided the other way." QfcneoJa, 754 F.2d at 901. We emphasized that

Section 3143(b)'s "substantial question" does not mean that a court may grant bail

oitfy if it find* tlurt its own rulings aieUke^ "We...ate

unwilling to attribute to Congress the intention to deny bail pending appeal unless a

district court judge found that he or she had committed error but was obstinately

imwilliogtognurtanewtriidoTotherreH I£at900. Plainly,

a defendant who is sentenced to a tenn ofimprisonment has the burden ofshowing

that he is entitled to release pending appeal. 14111901.

The district court found — and the government does not contest — mat

Siegelman has presented sufficient evidence to establish that he is not likely to flee
or pose a danger to the safely of others, and mat the appeal is not for purpose of

delay. Accordingly, the essential question before us today is whether Siegehnaa has

satisfied his burden ofestablishing thathis appeal raises substaim^ojierionsoflaw

-3-
or ^likely to resuft in reversal or an order for a n^

imprisonment has been imposed. SfiS 18 U.S.C. § 3l43(b)(l)(B).

In reviewingthe district court'sdenial ofSiegebnan's motion, we examine the

districtcourt'sfi«rtu£deteimmatioiui for clear error- gprtlnited States v.Abiihainffl.

389F.3d309,317(2dCir.2OO4), However,vrewvwwdftaflmwiylefialq11"^008.

iing^ethCT the defitodartimsos a subatantui question. Sfifr United fitaE'ilV

Pollard. 778 F.2d 1177,1182 (6th Or. 198S).

After thorough review ofthis complex imd protracted record, we conclude that

Siegebnan has satisfied the criteria set out in the statute, and has specifically met his

burden of showing that his appeal raises substantial questions of law or feet, as

required by 18 U.S.C § 31430>X1XA) and (B). We therefore GRANT the renewed

motion to release Siegeknan on bond pending disposition ofhis appeal. Segelman

shall be released on the same tenns and conditions as those governing his release

pending sentencing.

Siegdmao's January 2,2008 "Motion for Immediate Release ..."is DENIED

AS MOOT.