ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on:

Defendant Joel Streinz moves for release pursuant to 18 U.S.C. Sec. 3143(b) and Fed. R. App. 9(b). Defendant Streinz has also filed a Supplemental Motion, in which Defendant asserts that this Court has jurisdiction to rule on Defendant's Motion, although the mandate has not issued.

On June 22, 2015, the Eleventh Circuit Court of Appeals reversed Defendant's conviction, and remanded for a new trial. Prior to the reversal of Defendant's conviction, the Eleventh Circuit denied Defendant's motion for bond pending appeal, without prejudice, subject to Defendant filing a renewed motion for bond pending appeal in the district court.

The Government does not oppose Defendant's Motion for release on the same conditions previously imposed in this case, a $25,000 signature bond.

I. Discussion

A. Jurisdiction

Defendant Streinz has relied on the advisory committee note to Fed. R. App. P. 9(b):

Defendant Streinz further relies on United States v. Kvzvke, 857 F.2d 1089, 1091 (6th Cir. 1989)(district court retains jurisdiction to set conditions of release after appellate court's decision on the merits but before mandate is issued) and United States v. Giancola. 754 F.2d 898 (11th Cir. 1985)(remanding case to district court to determine if defendant qualified for bail pending appeal).

The Court has examined the docket to determine where Defendant Streinz is held in custody, but was unable to do so. The Court assumes that Defendant Streinz is in custody in this district.

Because the Eleventh Circuit Court of Appeals denied Defendant's motion for bond pending appeal without prejudice, the Court concludes the Court has jurisdiction to rule on Defendant's motion prior to the issuance of the mandate.

B. Release Pending Appeal

Defendant Streinz is entitled to release pending appeal if he satisfies two requirements. The Court must find by clear and convincing evidence that Defendant Streinz is not a flight risk, and does not pose a danger to public safety. See 18 U.S.C. Sec. 3143(b)(1)(A). The Court must further find by a preponderance of the evidence that "(1) the defendant is appealing for purposes other than delay, (2) the appeal `raises a substantial question of law or fact,' and (3) a favorable appellate ruling on that substantial question would likely result in a reversal," or an order for new trial. See 18 U.S.C. Sec. 3143(b)(1)(B).

(1) 18 U.S.C. Sec. 3143 (b)(1)(A)

Defendant Streinz was previous granted release, subject to conditions. (Dkt 43). Defendant Streinz executed an appearance bond (Dkt. 42), which has not been exonerated. Defendant Streinz has surrendered his passport (Dkt. 63).

After trial, the Court denied Defendant's Motion for Continuation of Release Pending Appeal, finding that the appeal did not raise a substantial question of law or fact. (Dkt. 997). The Court did not find that Defendant posed a risk of flight or was a danger to the community.

After consideration, the Court finds Defendant Streinz has demonstrated by clear and convincing evidence that Defendant Streinz does not pose a risk of flight and is not a danger to the community.

(2) 18 U.S.C. Sec. 3143 (b)(1)(B)

The Eleventh Circuit Court of Appeals has reversed Defendant's conviction and remanded for a new trial.

After consideration, the Court finds that Defendant Streinz has met the requirements of 18 U.S.C. Sec. 3143(b)(1)(B).

The Court grants Defendant's Unopposed Motion for Bond Pending Appeal, subject to the same conditions previously imposed. The Court attaches and incorporates by reference the Order of Release and Appearance Bond. (Dkts. 42, 43). The Court directs the Attorney General of the United States and the Bureau of Prisons to release Defendant Joel Streinz pending appeal pursuant this Order and Defendant's Appearance Bond. Accordingly, it is

ORDERED that Defendant Streinz' Unopposed Motion for Release Pending Appeal (Dkt. 1341) and Supplemental Motion (Dkt. 1344) are granted. The Court directs the Attorney General of the United States and the Bureau of Prisons to release Defendant Streinz pending appeal.

DONE and ORDERED.

APPEARANCE BOND

PERSONAL APPEARANCE: I, the undersigned acknowledge that I am bound to pay to the United States of America the sum of $25,000.00 PERSONAL APPEARANCE.

The conditions of this bond are that the Defendant, JOEL A. STREINZ, appear before this court and at such other places as the defendant may be required to appear, in accordance with any and all orders and directions relating to the Defendant's appearance in this case, including appearance for violation of a condition of Defendant's release as may be ordered or notified by this court or any other United States District Court to which the Defendant may be held to answer of the cause transferred. The Defendant is to abide by any judgment entered in such matter by surrendering to serve any sentence imposed and obeying any order or direction in connection with such judgment.

It is agreed and understood that this is a continuing bond (including any proceeding on appeal or review) which shall continue until such time as the undersigned are exonerated.

If the Defendant appears as ordered or notified and otherwise obeys and performs the foregoing conditions of this bond, then this bond is to be void, but if the Defendant fails to obey or perform any of these conditions, payment of the amount of this bond shall be due forthwith. Forfeiture of this bond for any breach of its conditions may be declared by any United States District Court against each debtor jointly and severally for the amount above stated, together with interest and costs, and execution may be issued and payment secured as provided by the Federal Rules of Criminal Procedure and any other laws of the United States.

This bond is signed on March 2, 2011, at Tampa, Florida.

ORDER OF RELEASE

It is hereby ORDERED:

1. That the conditions of release are established as set forth below.

2. That upon the Defendant's agreement, in writing, to comply with the following conditions of release, the United States Marshal's Service is directed to release the above-named Defendant.

DONE AND ORDERED.

CONDITIONS OF RELEASE FOR DEFENDANT, JOEL A. STREINZ

1. You must appear before the Court in accordance with all notices.

2. Your travel is enlarge to the United States while your case is pending.

3. You must not change your present address without first advising the Clerk of the Court for the Middle District of Florida in writing.

4. You shall not commit a federal, state, or local crime during the period of your release. You shall inform the Pretrial Service Office immediately if arrested or otherwise charged with any offense. You are specifically advised that federal law prohibits conduct relating to intimidation of witnesses, jurors, and officers of the court (18 U.S.C. § 1503); conduct relating to obstruction of criminal investigations (18 U.S.C. § 1510); conduct involving tampering with witnesses, victims, or informants (18 U.S.C. § 1512); and conduct involving retaliation against a witness, victim, or informant (18 U.S.C. § 1513), as well as attempts to commit any of the foregoing crimes.

5. SPECIAL CONDITIONS OF YOUR RELEASE (Only those applicable to you are checked.)

6. A violation of any of the above conditions may result in the immediate issuance of a warrant for your arrest and may result in a forfeiture of the bond previously given. Further, upon re-arrest, you may be detained in jail without the setting of new conditions of release or, if new conditions of release are established, those conditions will, in all likelihood, be significantly greater than the conditions previously established. Moreover, if you violate your conditions of release you may be prosecuted for contempt of Court.

7. CONSEQUENCES OF FAILURE TO APPEAR AND/OR FAILURE TO SURRENDER FOR SERVICE OF SENTENCE: A defendant commits a separate offense against the laws of the United States if, after having been released under these conditions, he or she knowingly fails to appear before a Court as required by the conditions of release, or knowingly fails to surrender for service of a sentence pursuant to a court order. If a person fails to appear in connection with —

Because of the charge(s) lodged against you at the present time, the penalties that would apply to you for failure to appear are those found in subparagraph (b). Any term of imprisonment for failure to appear is required by law to be consecutive to the sentence of imprisonment for any other offense. Furthermore, federal law provides that if you commit an offense while you are released under these conditions of release, you would be sentenced, in addition to the sentence prescribed for the offense, to a term of imprisonment of not more than 10 years if the offense is a felony; or a term of not more than one year if the offense is a misdemeanor.

ACKNOWLEDGMENT

I acknowledge that I have read the above or that the above has been read to me, that I fully understand the conditions of my admission to bail and the possible penalties for the violation of any of those conditions, and I agree to comply with the conditions of my release. I further acknowledge that I have been given a copy of this instrument as well as a copy of the bail bond to which it is attached.

IMPORTANT INFORMATION

1. The Middle District of Florida consists of the following Florida counties: Baker, Bradford, Brevard, Charlotte, Citrus, Clay, Collier, Columbia, DeSoto, Duval, Flagler, Glades, Hamilton, Hardee, Hendry, Hemando, Hillsborough, Lake, Lee, Marion, Manatee, Nassau, Orange, Osceola, Pasco, Pinellas, Polk, Putnam, Sarasota, St. Johns, Seminole, Sumter, Suwanee, Union, and Volusia.

2. The telephone number and mailing address for the Clerk of the United States District Court for the Middle District of Florida, Tampa Division, is: (813) 301-5423 and 801 North Florida Avenue, 2ND Floor, United States Courthouse, Tampa, Florida 33602.

3. The telephone number of the United States Marshal's Office for the Middle District of Florida, Tampa Division, is: (813) 274-6401.

4. The telephone number and mailing address of the United States Attorney's Office for the Middle District of Florida, Tampa Division, are: (813) 274-6000; 400 North Tampa Street, Tampa, Florida 33602.

5. The commercial telephone number of the United States Pretrial Services Agency, is (813) 225-7648, and the toll-free number is (800) 782-2893.

6. NOTICE TO COUNSEL AND DEFENDANT: In cases assigned to United States Magistrate Judge Mark A. Pizzo, any requests to travel outside the area set forth in this document must be submitted at least three (3) days prior to the date upon which travel is expected to begin. Failure to comply with this requirement will result in automatic denial of the request unless a showing is made that an actual emergency situation exists, such as serious illness in the family.