IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

UNITED STATES OF AMERICA PLAINTIFF

CAUSE NO. 3:12-cr-141-KS-FKB

H. CLAIBORNE FRAZIER DEFENDANT


MOTION FOR BAIL PENDING APPEAL

H. Claiborne Frazier was found guilty of one count of conspiracy to
Commit Bank Fraud, Mail Fraud and Wire Fraud in violation of 18 U.S.C.
1349. He was sentenced to serve a term in the custody of the Bureau of
Prisons and other conditions. He was released on bond pending trial and
sentencing. He is now free on bail pending his voluntary surrender to begin
service of his sentence.
The Court has had the benefit of the presentence report and knows
that Mr. Frazier has no prior felony convictions. In addition, the Court is
also aware from the presentence report and other evidence that he has strong
family ties. Mr. Frazier has strong ties to the community. He lives in Holmes
County. He has numerous other family members who are residents of the
community and the state.
Title 18 U.S.C., 3143(b), in part, provides for detention of a
defendant pending appeal
Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 1 of 7
2
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.

By allowing Mr. Frazier to remain free pending his sentencing and
voluntary surrender, the Court has necessarily made the required findings
that he is neither a flight risk nor a risk to other members of the community.
This is so, because 18 U.S.C. 3143(a)(2)(A)(ii) requires that before a
judicial officer may order release pending sentencing, the court must find
by clear and convincing evidence that the person is not likely to flee or
pose a danger to any other person in the community.
Clearly, Mr. Frazier does not pose either a flight risk or a danger to
the safety of another person or to the community. He has demonstrated by
Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 2 of 7
3
his conduct prior to trial and sentencing that he is not likely to flee or be a
danger.
He is further not a flight risk because of his close ties to his family
and community. He would have much to lose by failing to report for the
service of his sentence in the event that his appeal were to be denied.
The second finding the Court must make before ordering release
pending appeal is that the appeal is not for the purpose of delay and raises at
least one substantial question of law or fact that is likely to result in reversal,
a new trial or reduced sentence. 18 U.S.C. 3143(b)(1)(B). This means that
the question is either novel or fairly debatable and if decided in favor of the
defendant would likely result in reversal. United States v. Valera-Elizondo,
761 F.2d 1020, 1023 (5
th
Cir. 1985). A substantial question is one that is
close or that could very well be decided the other way by the appellate
court. United States v. Clark, 917 F.2d 177, 180 (5
th
Cir. 1990). A
substantial issue is one "of more substance than would be necessary to a
finding that it was not frivolous." United States v. Handy, 761 F.2d 1279,
1283 (9
th
Cir. 1985). In other words, in order to grant bail, it is not necessary
that the Court find that the defendants issues are likely to result in reversal,
only that they could be decided in favor of the defendant and are of more
substance than frivolous issues.
Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 3 of 7
4
In this case, the issues which Mr. Frazier intends to raise on appeal are
those previously raised before this Court and those concerning whether his
plea agreement was binding or whether his plea was freely and voluntarily
entered, among other issues. He has briefed these and other fairly
debatable issues in his motion for new trial/jnov previously filed in the case
and adopts those arguments in this motion.
STATEMENT OF CONFERENCE WITH COUNSEL
OPPOSITE: Counsel for Mr. Frazier has conferred with counsel opposite
and counsel opposite opposes this Motion.
CONCLUSION
Mr. Frazier should be released pending appeal. Mr. Frazier believes
that in view of the likelihood that issues in his case are sufficiently close that
they could be decided in a different way. If so, his case would be reversed.
He, therefore, has demonstrated that bail pending appeal would be
appropriate.
Respectfully submitted,

/s/ Cynthia A. Stewart
CYNTHIA A. STEWART
Attorney for H. Claiborne
Frazier



Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 4 of 7
5




CYNTHIA A. STEWART (MB#7894)
Attorney for Defendant
118 Homestead Drive, Suite C
Madison, Mississippi 39110
Phone: (601) 856-0515
Facsimile: (601) 856-0414
Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 5 of 7
6








































Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 6 of 7
7


CERTIFICATE OF SERVICE

I, the undersigned attorney for the Petitioner herein, does hereby
certify that the above and foregoing is being filed with the Clerk of this
Court by electronic filing and will be served via e-mail by the Clerk of this
Court to the following:
Carla.clark@usdoj.gov


DATED, this the 10
th
day of July, 2014.



/s/ Cynthia A. Stewart
CYNTHIA A. STEWART


Case 3:12-cr-00141-KS-FKB Document 142 Filed 07/10/14 Page 7 of 7