Case 1:18-cr-10364-DPW Document 328 Filed 10/12/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
No. 18-cr-10364-DPW
v.
JASIEL F. CORREIA, II
MOTION FOR CONTINUED RELEASE PENDING APPEAL
Defendant Jasiel F. Correia, II, respectfully requests that the Court permit his continued
release pending his appeal from the judgment and sentence in this case.
ARGUMENT
Under 18 U.S.C. § 3143, Mr. Correia is entitled to release pending appeal if the Court finds:
(A) by clear and convincing evidence that [he] 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
....
18 U.S.C. § 3143(b)(1). The First Circuit has interpreted section (b)(1)(B) to contain two prongs:
“(1) that the appeal raise a substantial question of law or fact and (2) that if the substantial question
is determined favorably to defendant on appeal, that decision is likely to result in reversal or an
order for a new trial of all counts on which imprisonment has been imposed.” United States v.
Bayko, 774 F.2d 516, 522 (1st Cir. 1985). Notably, this standard “does not require a showing that
the defendant would ‘probably’ win.” United States v. Schwartz, 86 F. Supp. 3d 25, 29-30 (D.
Mass. 2015). A substantial question is simply “a close question or one that very well could be
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decided the other way.” Bayko, 774 F.2d at 523 (internal quotation marks omitted). Such a question
is likely to result in reversal if the “claimed error” is not “harmless or unprejudicial.” Id.
Because Mr. Correia readily satisfies the statutory criteria, he is entitled to continued
release pending appeal.
I. Mr. Correia is not a flight risk or danger to the community.
Mr. Correia has complied with release conditions during the years his case was pending,
has no criminal history, and poses no danger to the community. The government does not argue
otherwise. See D.E. 317 (Government’s Memorandum Regarding Stay of Sentence Pending
Appeal, hereinafter “Gov. Mem.”). Indeed, by allowing Mr. Correia to self-surrender, the Court
has already confirmed that Mr. Correia satisfies the requirements of § 3143(b)(1)(A). See United
States v. Zimny, 857 F.3d 97, 99 (1st Cir. 2017) (explaining that because the defendant “remained
out on bail during trial” and the district court “allowed him to self-report to prison following his
conviction and the imposition of sentence,” the defendant had “met his § 3143(b)(1)(A) burden”).
II. Mr. Correia is not appealing for the purpose of delay.
Mr. Correia intends to exercise his constitutional and statutory rights to pursue a direct
appeal of his conviction following a lengthy, complex trial. He will proceed with that appeal
whether or not he is permitted to remain released on conditions.
In his Renewed Motion for Judgment of Acquittal or, Alternatively, a New Trial, D.E. 281,
300-1, Mr. Correia identified numerous issues warranting judgments of acquittal and/or a new
trial. Even though the Court ultimately ruled against him on some of those issues, § 3143 “cannot
be read to mean that bail is not to be granted unless the district court is willing to say that it will
probably be reversed.” Bayko, 774 F.2d at 522. “Judges do not knowingly leave substantial errors
uncorrected, or deliberately misconstrue applicable precedent. Thus, it would have been capricious
for Congress to have conditioned bail only on the willingness of a trial judge to certify his or her
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own error.” Id. (internal citation omitted). Simply put, “close questions” remain to be adjudicated
by the Court of Appeals in this case. And counsel’s review of the trial record to identify additional
appellate issues is ongoing.
III. Mr. Correia’s appeal will raise substantial issues of law that, if decided in his favor,
would require acquittal or a new trial.
A. Prejudicial spillover from acquitted counts requires a new trial.
Of 24 original charged counts, the jury acquitted Mr. Correia of 3, and the Court has now
acquitted him of 10 more, including 6 of 9 wire fraud charges and all 4 tax fraud charges. In other
words, Mr. Correia has been acquitted by the jury or this Court of more than half the charges that
the prosecution brought against him (13 of 24). The prejudicial spillover from these acquitted
counts warrants a new trial. Since that issue only became ripe upon this Court’s entry of the
acquittals, it cannot possibly be deemed waived or forfeited.
When a court “reverses some but not all counts of a multi-count conviction, the court must
determine if prejudicial spillover from the evidence introduced in the support of the reversed
count[s] requires the remaining convictions to be upset.” United States v. Rooney, 37 F.3d 847,
855 (2d Cir. 1994). Here, the evidence admitted to prove the charges of which Mr. Correia has
been acquitted was highly prejudicial and “necessarily spilled over into the jury’s consideration of
[ ] guilt on other charges.” United States v. Mubayyid, 658 F.3d 35, 72 (1st Cir. 2011). In effect,
the “acquittal[s] produced a ‘retroactive misjoinder.’” Id. (citing United States v. Hamilton, 334
F.3d 170, 181-82 (2d Cir. 2003)).
Put another way, all the arguments that Mr. Correia has advanced in his post-trial motion
about spillover prejudice, see D.E. 281 at 37-41, misjoinder of charges ab initio (see D.E. 281 at
41-46; 300-1 at 16-20), and severance (see D.E. 281 at 46-50), militate even more strongly in favor
of a new trial now that judgments of acquittal have entered on 10 of the 13 “fraud” counts.
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B. A new trial is required because offenses were misjoined from inception and
should have been severed.
In his post-trial motion, Mr. Correia argued that the “fraud” and “corruption” cases were
misjoined from the start and should have been severed to avoid unfair prejudice. See D.E. 281 at
41-50; 300-1 at 14-17. In its Memorandum, the government largely repeats the arguments it made
in opposition to Mr. Correia’s post-trial motion while ignoring the responses in Mr. Correia’s
reply. As Mr. Correia explained at length:
All of the relevant factors under United States v. Taylor, 54 F.3d 967, 973
(1st Cir. 1995) point toward misjoinder: the charges involved different
statutes, victims, modes of operation, and timeframes.
The argument that evidence from the fraud case would have been admissible
to prove Mr. Correia’s state of mind in the corruption case, Gov. Mem. at
12, is contrary to the Rule 404(b) bar against propensity evidence. Purported
intent to defraud investors, to misuse corporate funds, and/or to evade taxes
has nothing probative in common with intent to “shake down” marijuana
vendors.
By painting Mr. Correia as a selfish, greedy fraudster and tax cheat, the
prosecution invited the jury to convict him of corruption based on the
uncorroborated, dubious testimony of admitted criminal liars.
The government’s continued insistence, Gov. Mem. at 12-13, that there was
“significant overlap” between the evidence on the fraud and corruption
counts is overblown. Although Costa and Camara both invested in SnoOwl,
their testimony to that effect consisted of a few minutes of inconsequential
evidence during a 4-week trial. Neither their status as investors nor their
reasons for supposedly needing money were material to the corruption case.
As also explained in his reply, Mr. Correia did not waive this issue. See D.E. 300-1 at 13-
16. While failing to object to joinder or request severance prior to trial may have constituted
forfeiture, that does not preclude the Court of Appeals from applying plain error criteria, which
Mr. Correia satisfies. See id. at 15-16. And, as explained above, any pre-trial waiver or forfeiture
does not extinguish the necessity to consider prejudice anew in light of the post-trial acquittal on
all but three of the “fraud” counts.
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C. Evidence was insufficient to sustain remaining wire fraud and extortion
conspiracy counts.
In his post-trial motions, Mr. Correia challenged the sufficiency of the three surviving wire
fraud counts (B, C, F). Specifically, he argued:
No evidence proved an “investor agreement” emailed to Martinez (Count
F), see D.E. 281 at 9-10; and
Mr. Correia did not make material misrepresentations to investors (Counts
B, C, F); see D.E. 281 at 15-18.
Mr. Correia also challenged sufficiency of three Hobbs Act charges (Counts R, S, T). Specifically,
he argued:
Mr. Correia did not conspire with another to extort Pichette or Saliby
(Counts R, T), see D.E. 281 at 25-35; D.E. 300-1 at 10-13;
Mr. Correia did not extort Pichette (Count S), see D.E. 281 at 35-6.
While the Court ruled against Mr. Correia on these issues, each one presents a “close
question.” And while the government notes that certain Hobbs Act extortion counts (Counts N, O,
P, Q, U) “would remain undisturbed even if one or more of those claims were to prove successful
on appeal,” Gov. Mem. at 5, each additional acquittal—in particular, acquittal on any of the 3
remaining “fraud” counts—would provide an additional compelling reason to find prejudicial
spillover and to order a new trial.
CONCLUSION
For the foregoing reasons, the Court should permit Mr. Correia to remain on release
conditions pending adjudication of his appeal.
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Respectfully submitted,
JASIEL F. CORREIA, II
By his attorneys,
/s/ William W. Fick
William W. Fick, Esq. (BBO #650562)
Daniel N. Marx, Esq. (BBO #674523)
FICK & MARX LLP
24 Federal Street, 4th Floor
Boston, MA 02110
(857) 321-8360
[email protected] [email protected] CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically
to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper
copies will be sent to those indicated as non-registered participants on October 12, 2021.
/s/ William W. Fick
