UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA,
v. ) Crim. No. 16-0180 (ESH)

BRYNEE BAYLOR,

Defendant. )

 

MEMORANDUM OPINION AND ORDER

Defendant Brynee Baylor has filed a motion for release on bond or, in the alternative, for
home detention pending appeal pursuant to 18 U.S.C. § 3143(b). On April 29, 2019, Baylor was
convicted by a jury of conspiracy to commit securities fraud pursuant to 18 U.S.C. § 371 and 15
U.S.C. §§ 78)(b), 78ff(a); securities fraud pursuant to 15 U.S.C. §§ 78)(b), 78ff(a); and five
counts of fraud in the first degree pursuant to 22 DCC §§ 3221(a), 3222(a), and 1805. The jury
acquitted Baylor of one count of obstruction of justice pursuant to 18 U.S.C. § 1503, and it hung
on one count of fraud in the first degree. Following her trial, Baylor pled guilty to one count of
failure to file a tax return and pay tax pursuant to 26 U.S.C. § 7203. The Court sentenced Baylor
on September 12, 2019, to twenty-five months of imprisonment on the securities fraud counts
and twelve months on the remaining counts, all to run concurrently. (See Judgment at 3 [ECF
154].)

Baylor filed a notice of appeal and has indicated that she plans to raise the same
arguments before the Court of Appeals that she brought before this Court in her motion for a new

trial. She now seeks either an appeal bond or to be placed in home detention pending appeal,
both of which the government opposes. The relevant statute provides that:
[The Court] 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 by clear and
convincing evidence that the person is not likely to flee or pose a danger to. . . the
community .. . and 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.

18 U.S.C. § 3143(b)(1). Although the government concedes, and the Court agrees, that Baylor
does not present a risk of flight or a danger to the community (see Gov’t Resp. at 3 [ECF 161]),
she has not raised a substantial question of law or fact as defined by 18 U.S.C. § 3143(b)(1).
Therefore, the Court will deny Baylor’s motion.

Upon conviction, “[t]he law has shifted from a presumption of release to a presumption
of valid conviction.” United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1988) (per curiam).
In light of this shift, a “demanding” standard must be met for a Court to find a substantial
question pursuant to § 3143(b)(1); there must be “a close question or one that very well could be
decided the other way.” Jd. at 556 (internal quotation marks omitted).

Baylor rests her motion on the same arguments previously set forth in her motion for a
new trial. (See Def.’s Motion for Home Detention at 2 [ECF 158] (“Counsel remains adamant
that for the reasons stated in Defendant’s Motion for New Trial . . . either reversal or an order for
new trial will likely be granted on appeal.”).) The Court has already considered each of these

arguments and has rejected them.! Baylor’s motion for a new trial included the following

 

' Baylor suggests in her reply that she is not limited to the arguments in that motion, and “will
show [on appeal] there are other substantial questions that could have easily been decided the
other way.” (Reply at 5 [ECF 162]). However, the Court is unable to analyze the potential
substantiality of those questions in deciding this motion, as Baylor has provided the Court with
no suggestion of what they might be.
arguments: (1) the verdict was against the weight of the evidence; (2) the Court erred in its
selection of an alternate juror; (3) certain exculpatory evidence was not disclosed before trial; (4)
Baylor’s statements to the SEC should have been suppressed because they violated her Fourth
Amendment rights; and (5) the prosecution improperly speculated during closing arguments.
(See Mem. Op. & Order at 3-4 [ECF 145].) In rejecting these arguments in its August 2, 2019
Memorandum Opinion, the Court observed that “this case was not close.” (See id. at 19.) In
response, Baylor suggests in her reply that “the standard under § 3143 looks at each question
individually, not the case in its entirety.” (Reply at 5 [ECF 162].) Nevertheless, each question
considered on its own also fails under § 3143’s substantial question standard.

First, the Court of Appeals will review Baylor’s challenge to the weight of the evidence
against the demanding standard of “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Boyd, 803 F.3d 690, 692 (D.C. Cir.
2015) (internal quotation marks omitted). In previously rejecting the sufficiency argument,
however, the Court found that “extensive” and “compelling” evidence supported the finding that
Baylor acted with the necessary mens rea to be commit the crimes of which she was convicted.
(Mem. Op. & Order at 4.) Second, the Court has already concluded that Baylor’s Fourth
Amendment claim is both waived and without merit—Baylor’s argument on this issue did not
present even a “rationale for a contrary interpretation that is supported by arguably applicable
legal authority,” as was found sufficient in United States v. Quinn. 416 F. Supp. 2d 133, 136

(D.D.C. 2006). Third, the Court sees no reason why the remaining issues would be deemed

 

? Quinn itself has been criticized by other judges in this Court for articulating Perholtz’s standard
in this way, as it might be construed as requiring a lower showing than what was mandated by
the D.C. Circuit in Perholiz. See, e.g., United States v. Davis, 664 F. Supp. 2d 86, 89 n.1

3
anything other than “harmless or unprejudicial,” and thus necessarily insubstantial. See Quinn,
416 F. Supp. 2d at 136; see also Perholtz, 836 F.2d at 560—61 (concluding that even defendant’s
“not frivolous” arguments were not sufficiently close to meet § 3143(b)’s standard).

Lastly, the Court notes that, even assuming arguendo that the circumstances noted by
Baylor in her motion—namely, the declining health of her mother and the primary custody of her
four adolescent daughters (see Def.’s Motion at 2—3)—are “extraordinary,” they do not fit within
the ambit of the statutory section she cites. First, release on consideration of “exceptional
circumstances” under this subsection still requires a defendant to satisfy the conditions of release
under § 3143(b)(1). See 18 U.S.C. § 3145(c) (allowing for release of a person who, inter alia,
“meets the conditions of release set forth in section 3143[(b)(1)]”). Second, § 3145(c) only
applies to someone subject to detention “pursuant to section 3143(a)(2) or (b)(2)”; these
subsections both require detention of defendants convicted of certain offenses described in
several subparagraphs of § 3142(f)(1), none of which apply to Baylor’s case. See id.
§ 3142(f)(1)(A)-(C) (listing included offenses such as crimes of violence, crimes for which the
maximum sentence is life imprisonment or death, and crimes for which the maximum sentence is
ten years or more under the Controlled Substances Act). Although Baylor admits in her reply
that she does not fit within § 3145(c)’s reach, she nevertheless argues “‘it is still appropriate for
the Court to consider such circumstances, though not required.” (See Reply at 6.) However,
Baylor cites no authority to support such extra-statutory considerations. As a result, the

potentially exceptional circumstances in Baylor’s life can play no part in the Court’s decision,

 

(D.D.C. 2009); see also Perholtz, 836 F.2d at 566 (rejecting case law in other circuits requiring
only a “fairly debatable” or more than “not frivolous” question (internal quotation marks
omitted).) Nevertheless, the Court need not address any disparity between these two
formulations of the “substantial question” standard, as Baylor’s arguments do not meet even an
arguably less stringent test.
which must be guided by the Code’s requirements. See 18 U.S.C. § 3143(b)(1) (ordering that a
Court “shall order that a person who has been found guilty of an offense and sentence to a term
of imprisonment . . . be detained” unless the requirements of the section are met (emphasis
added)).
CONCLUSION

For the foregoing reasons, it is hereby ORDERED that defendant’s motion for appeal
bond or in the alternative home detention pending appeal (ECF Nos. 158, 160) is DENIED.
Baylor’s motion for leave to file a reply to the government’s opposition to her motion is

GRANTED.

Fine Abie:

=e” ELLEN S. HUVELLE
United States District Judge

 

 

Date: November 25, 2019
