The Court has denied the bail motion by former Deutsche Bank trader James Vorley, who was convicted of wire fraud in a spoofing lawsuit. The relevant order was signed by the Honorable John J. Tharp, Jr on November 2, 2022.

In June 2021, defendants James Vorley and Cedric Chanu were sentenced to terms of imprisonment of one year and one day following their respective convictions for wire fraud affecting a financial institution; each was ordered to report to the facility designated by the Bureau of Prisons by September 20, 2021.

After sentencing, the defendants jointly moved for release on bond pending appeal of their convictions to the Seventh Circuit. The government opposed the defendants’ motion. The Court granted the motion, however, finding that one of the grounds for appeal identified by the defendants satisfied the criteria for bond during appeal set forth in 18 U.S.C. § 3143(b).

The Seventh Circuit affirmed the defendants convictions in all respects. Defendant Vorley was subsequently ordered to surrender to the designated Bureau of Prisons facility on November 9, 2022.

On October 27, 2022, Vorley filed a motion seeking to remain on bond pending the Supreme Court’s ruling on his petition for a writ of certiorari. Mr. Vorley’s petition seeks review of two issues: (1) whether a “scheme or artifice to defraud” under the wire fraud statute encompasses an “implied misrepresentation,” or whether the wire fraud statute requires an express statement that is either false or misleading; and (2) whether a district court may “cure a Speedy Trial Act violation by making an after-the-fact finding that the ends of justice outweigh the interests of the criminal defendant and the public for a speedy trial, or whether a district court must make the ends-of-justice finding at the time that it grants the continuance.

The government opposes the motion.

Section 3143(b) of Title 18 permits a defendant’s release pending appeal if the court, first, concludes 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 second, finds that “the appeal is not for the purpose of delay and raises a substantial question of law or fact” that, if decided in the defendant’s favor, is likely to result in reversal, a new trial, a sentence without a term of imprisonment, or a reduced sentence of imprisonment less than the total of time served and the duration of the appeals process.

The government does not contend that Mr. Vorley poses a flight risk or a danger to any member of the community should he remain on bond, but argues that his petition for certiorari does not present a “substantial question of law or fact” justifying continued release on bond.

The Court agreed. Issues that are “close” or “that very well could be decided the other way” may present a substantial question of law or fact. The questions presented for review, however, are not “close.” As to the first, this Court’s opinion denying the defendants’ motion to dismiss exhaustively examined the defendant’s contention that a conviction under the wire fraud statute requires an express false statement and concluded that “the defendants’ argument that a wire fraud conviction requires proof of a false statement is inconsistent with both the history of the wire fraud statute and Circuit precedent.”

As for the Speedy Trial Act issue, the Seventh Circuit confirmed that Supreme Court precedent is “clear” that there is no requirement that the trial court must put its ends-of-justice finding on the record at the time a continuance is granted.

To bolster his arguments as to both issues presented in his cert petition, Mr. Vorley maintains that there is a circuit split as to each issue. The Seventh Circuit saw no circuit split as to either issue, however, and for good reason, the Judge said in his order.

In addition, the Illinois Northern District Court also rejected, in its post-trial ruling, the defendants’ argument that they could not be convicted under prevailing law. And the contention that the Seventh Circuit upheld retroactive cures for Speedy Trial Act violations mischaracterizes the Court of Appeals’ ruling; it does not establish that there is a circuit split as to the timing of the court’s articulation of the basis for granting an ends-of-justice continuance.

Mr. Vorley’s motion for bond pending resolution of his petition for a writ of certiorari was denied.