The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant's motion and supplemental motion to stay execution of sentence pending appeal [Docs. 76 and 86]. The government has responded [Docs. 77 and 87]. A hearing was held on September 14, 2006 and the matter is now ripe for disposition.
Defendant was convicted by a jury on March 9, 2006, of Counts Two and Three of a superseding indictment returned by the federal grand jury on November 8, 2005.*fn1 Count Two charged that the defendant made a false material declaration as a deponent in a civil case in violation of 18 U.S.C. § 1623. Count Three charged the defendant with witness tampering in violation of 18 U.S.C. § 1512(b)(1)&(3). On July 10, 2006, the defendant was sentenced to 24 months imprisonment,*fn2 three years of supervised release and a $200.00 special assessment. On that same date, the defendant filed his notice of appeal to the United States Court of Appeals for the Sixth Circuit and his appeal is currently pending in that court.
Pursuant to 18 U.S.C. § 3143(b), a defendant who has been found guilty of an offense and sentenced to a term of imprisonment must be detained pending appeal unless the court finds: (1) 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; and (2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in a reversal, an order for a new trial, or a sentence which does not include imprisonment or a lesser term than that already served. 18 U.S.C. § 3143(b); United States v. Pollard, 778 F. 2d 1177, 1181 (6th Cir. 1985). The statute creates a presumption in favor of detention pending appeal. United States v. Vance, 851 F. 2d 166, 168-169 (6th Cir.), cert. denied, 488 U. S. 893, 109 S.Ct. 231, 102 L.Ed. 2d 220 (1988). The burden of proving each of the prerequisites for release pending appeal pursuant to § 3143(b) is upon the defendant.
At the hearing of this matter on September 14, 2006, the defendant offered no proof and elected to stand upon his brief and the evidence of record in the case in support of his motion. For the reasons which follow, the defendant has failed to meet his burden of proof and his motion will be DENIED.
As set forth above, a defendant seeking release pending appeal must show by: (1) 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; and (2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in a reversal, an order for a new trial, or a sentence which does not include imprisonment or a lesser term than that already served. The Court will address the proof before it on each of these factors briefly.
Risk to Flee or Danger to the Community
In addressing this factor, the defendant asserts that "Johnny Black is neither a flight risk nor a danger to the community." (Defendant's motion at 4). The defendant relies heavily upon the fact that the Magistrate Judge released the defendant on bond pending his trial in this matter and that this Court allowed the defendant to self report to the Bureau of Prisons after the birth of his child, concluding that "both this Honorable Court and the Honorable Magistrate Judge Dennis H. Inman have had ample opportunity to deem Mr. Black a flight risk or a danger to the community, and neither has done so." (Defendant's motion at 4-5). Defendant's argument in this regard, however, overlooks the obvious. A person who has been convicted of an offense and sentenced to a term of imprisonment is presumed by the statute to be a danger to the community and the defendant must overcome this presumption. Vance, 851 F. 2d at 168. As observed by this Court at the hearing on this matter, the risk of flight and danger to the community increase after a defendant's conviction and this Court cannot, upon the record before it, conclude by clear and convincing evidence that the defendant is neither a risk of flight nor a danger to any other person or the community if released pending appeal.*fn3 Even if this Court were to so assume, however, the defendant cannot meet the second prerequisite to release pending appeal pursuant to § 3143(b)(1)(B).
Substantial Question of Law or Fact
This Court will assume for the purposes of this motion that the appeal in this case is not for the purpose of delay and will instead focus on the question of whether or not the appeal raises a substantial question of law or fact likely to result in a reversal, an order for a new trial, 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. An issue is "substantial" if it presents a "close question or one that could go either way . . ." and the court finds that the question is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor. United States v. Watts, 812 F. 2d 1409 (6th Cir. 1987) (unpublished).
In this case, defendant asserts that he has shown a substantial question of law or fact with respect to the sufficiency of the evidence to sustain his conviction and, in his supplemental motion, an alleged erroneous jury instruction with respect to Count Three of the superseding indictment.
1. Sufficiency of the Evidence
The defendant asserts that the evidence is insufficient to sustain his conviction as to either count of the superseding indictment. Evidence is sufficient to sustain a conviction if "viewing the evidence in the light most favorable to the prosecution, any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U. S. 307, 319 (1979). In considering the evidence, the appellate court allows the government the benefit of all reasonable inferences and does not independently "weigh credibility so long as it is not facially insubstantial or incredible. United States v. Welch, 97 F. 3d 142, 148-151 (6th Cir.), cert. denied, 519 U.S. 1134 (1997).
At the outset, the Court notes that it is a rare case where a conviction is reversed based on a claim that the evidence is insufficient to support a jury's verdict. As noted by the government, a defendant challenging the sufficiency of the evidence "bears a heavy burden . . ." United States v. Jefferson, 149 F. 3d 444, 445 (6th Cir. 1998). In support of his argument, the defendant suggests that the jury could have drawn other inferences from the evidence introduced at trial and points out that this Court, in deciding the Rule 29 motion made at the conclusion of the government's proof, "in fact suggested that this case could very well be decided another way." The defendant relies on this Court's statement in the denial of his ...