United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, DISTRICT JUDGE.
Brian Block was convicted on all counts of a six-count
indictment following a jury trial in June and July of 2017.
The offenses relate to Block's fraudulent preparation in
2014 of financial statements for American Realty Capital
Properties, Inc. (“ARCP”), a publicly traded real
estate investment trust for which Block served as Chief
has filed a motion for bail pending appeal pursuant to 18
U.S.C. § 3143(b)(1). (Dkt. Nos. 167 & 168.) The
Government has filed a memorandum in opposition to the motion
(Dkt. No. 175), and Block has filed a reply memorandum (Dkt.
No. 176). For the reasons that follow, the motion is denied.
“shall order that a person who has been found guilty of
an offense and sentenced to a term of imprisonment . . . be
detained” pending appeal unless the judicial officer
finds “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 . . . 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, [or] (ii) an order for a new trial . .
. .” 18 U.S.C. § 3143(b)(1) (emphasis added).
“substantial question” is “a close question
or one that very well could be decided the other way.”
United States v. Randell, 761 F.2d 122, 125 (2d Cir.
1985) (quoting United States v. Giancola, 754 F.2d
898, 901 (11th Cir. 1985)) (internal quotation mark omitted).
“If a court does find that a question raised on appeal
is ‘substantial, ' it must then consider whether
that question is ‘so integral to the merits of the
conviction on which [the] defendant is to be imprisoned that
a contrary appellate holding is likely to require reversal of
the conviction or a new trial.'” Id.
(quoting United States v. Miller, 753 F.2d 19, 23
(3d Cir. 1985)).
presents two sets of challenges that he contends raise
substantial questions in connection with an appeal of his
conviction: (1) sufficiency of the evidence; and (2)
evidentiary rulings at trial.
Block argues that the Government's evidence of falsity
and materiality was insufficient to support the jury's
defendant challenging the sufficiency of the evidence to
support a conviction “bears a heavy burden.”
United States v. Finley, 245 F.3d 199, 202 (2d Cir.
2001). The court must “review all of the evidence
presented at trial ‘in the light most favorable to the
government, crediting every inference that the jury might
have drawn in favor of the government.'” United
States v. Walker, 191 F.3d 326, 333 (2d Cir. 1999)
(quoting United States v. Hernandez, 85 F.3d 1023,
1030 (2d Cir. 1996)). All credibility issues must be resolved
“in favor of the jury's verdict.” United
States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001). And
“[t]he jury verdict must be upheld if
‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.'” United States v. Jackson, 335
F.3d 170, 180 (2d Cir. 2003) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
explained in this Court's decision denying Block's
motion for judgment of acquittal under Federal Rule of
Criminal Procedure 29, there was sufficient evidence to
support the jury's convictions on each count under this
deferential standard. (See Dkt. No. 156.) On appeal,
the Second Circuit will apply the same standard de
novo. See United States v. Geibel, 369 F.3d
682, 689 (2d Cir. 2004).
argues that there was insufficient evidence of falsity to
support the convictions. The Court disagrees. The Government
was not required to establish falsity by expert testimony.
And the trial testimony of Ryan Steele and Lisa McAlister was
certainly sufficient―if credited by the jury, as it
was―to support a finding that the “plug
number” and share-count number inserted by Block into
the financial statements were false.
with respect to materiality, several witnesses testified that
Block's misstatements were material. The jury, which was
properly instructed regarding qualitative and quantitative
materiality, had ...