Handbook VIII.C: Motions for Release Pending Appeal

(See 18 U.S.C. § 3143; Fed. R. App. P. 9(b); D.C. Cir. Rule 9(b).)

A defendant who has filed a notice of appeal from a criminal conviction may apply for release while the appeal is pending. The defendant must apply first to the district court for release. If the district court denies the application, or imposes conditions of release, the defendant may then move this Court for release or for modification of the conditions. A new notice of appeal is not necessary. Circuit Rule 9 sets forth the required contents of this motion, which must be prepared in conformity with Federal Rule of Appellate Procedure 27(d)(1) and (2), and must be served on opposing counsel. Staff attorneys give priority to motions for release pending appeal and send them to the special panel for disposition as soon as a recommendation is prepared.

The criteria for release are specified by statute and rule. See Fed. R. App. P. 9. The burden is on the defendant to show that he or she will not flee or pose a danger to others if released, and that the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If this Court denies the motion for release, the defendant may seek Supreme Court review by submitting an application for release on conditions to the Circuit Justice for the District of Columbia Circuit, who is the Chief Justice of the United States. Counsel must file the application with the Clerk of the Supreme Court and serve the opposing party pursuant to Rule 29 of the Rules of the Supreme Court. Such motions are rarely granted.