posts the government complains about, Ms. Beshara writes, “Nah but seriously guys, this is a sadand tragic situation and I want us to smile and laugh and stay together.”
See Govt Mtn
, Exhibit 3,top of page 3.The government’s other argument is that Ms. Beshara’s postings “demonstrate a clear lack of remorse” regarding illegal conduct.
at 2. Notably, in its motion, the government refersto these internet postings as “actions” and “conduct.”
at 2. They are not. There is a muchmore accurate term: speech. The prosecution is not happy that Ms. Beshara is not as remorsefulas they would like her to be. However, Ms. Beshara’s exercise of her First Amendment right toexpress her displeasure at being sent to jail is not a basis for reconsideration of self-surrender.Copyright infringement is against the law and Ms. Beshara pled guilty. Expressing some anger that she is going to prison for her conduct is speech that is protected by the Constitution.
The cases cited by the prosecution are inapposite as they deal with release pendingappeal, pursuant to 18 U.S.C. §3143(b), not release pending execution of sentence, pursuant to18 U.S.C. §3143(a). The government’s lead citation itself notes “the heavier burden imposed by18 U.S.C. § 3143(b) compared to release pending sentencing under § 3143(a).”
See United Statesv. Nicolo,
706 F. Supp. 2d 330, 332 (W.D.N.Y. 2010) (cited by the prosecution,
at2). This is because subsection (b), regarding release pending appeal, requires a showing by thedefendant that the appeal raises a “substantial question of law or fact” likely to result in relief. 18U.S.C. §3143(b). This was the primary basis on which Defendant Nicolo was denied his motionto for release pending appeal.
706 F. Supp. 2d at 336. No such burden exists in theinstant case as it does not involve release pending appeal.
Case 1:11-cr-00447-AJT Document 106 Filed 01/11/12 Page 3 of 6 PageID# 738