ST. CROIX — Convicted former Office of Management and Budget Director Jenifer O’Neal is asking a federal judge to release her on bail while she appeals her convictions, arguing that her case presents four substantial legal questions.
O’Neal’s new attorney argues one of those questions presents an issue of first impression in the Third Circuit that could overturn all four of her convictions.
The emergency motion for bail pending appeal, filed Thursday by attorney Carl Williams, asks District Judge Mark Kearney to allow O’Neal to remain on her existing home detention while the U.S. Court of Appeals for the Third Circuit considers her appeal.
In the alternative, Williams asked the court to temporarily stay O’Neal’s July 1 self-surrender date while it considers the motion. Later Thursday, Kearney denied without prejudice O’Neal’s request to temporarily halt her July 1 surrender while he considers the bail motion, finding the filing failed to comply with court rules. In denying the request, he noted that her motion did not conform to the court’s formatting requirements, report the government’s position after a meaningful discussion between counsel, or identify where the legal issues raised on appeal were preserved in the trial court record. She can now refile.
Under federal law, a defendant seeking release pending appeal must show by clear and convincing evidence that they are neither a flight risk nor a danger to the community and that the appeal raises a substantial question of law or fact likely to result in reversal, a new trial or a significantly reduced sentence.
Williams argues O’Neal satisfies those requirements because she is a first-time, nonviolent offender who has complied with every condition of her release and because her appeal presents four substantial legal issues that have not been resolved by the Third Circuit.
The motion’s principal argument centers on whether the Supreme Court’s decision in McDonnell v. United States applies to the federal bribery statute under which O’Neal was convicted.
The Supreme Court’s 2016 decision in McDonnell narrowed the definition of an “official act” required to prove federal bribery. O’Neal argues that if the Third Circuit applies that standard to her case, her bribery conviction and the related convictions that stem from it should be vacated.
The motion also argues the evidence was insufficient to establish O’Neal acted with the corrupt intent required by the Supreme Court’s 2024 decision in Snyder v. United States. Williams points to testimony from cooperating witness David Whitaker that he told O’Neal the money she received came personally from her co-defendant, former Police Commissioner Ray Martinez, arguing that she believed she was receiving a personal gift rather than a bribe.
O’Neal also argues prosecutors improperly shifted their theory of the case during trial. The motion contends the government abandoned allegations that she pressured an Office of Management and Budget employee to approve Mon Ethos invoices and instead relied on evidence that she issued a routine administrative directive concerning invoices submitted for payment under the American Rescue Plan Act. Williams argues the change amounted to either a constructive amendment of the indictment or a prejudicial variance requiring reversal.
Finally, the motion challenges the sufficiency of the evidence supporting one of O’Neal’s honest services wire fraud convictions, arguing the government failed to prove she could reasonably foresee an interstate wire transfer after recorded conversations in which she expressed reluctance about wiring funds.
Williams argues the appeal presents “genuine questions of first impression in the Third Circuit” and was not filed simply to delay O’Neal’s imprisonment.
The motion comes three days after Kearney denied O’Neal’s request to postpone her surrender by eight weeks.
Although the judge granted her a brief extension to interview prospective appellate counsel, he concluded she failed to meet the legal standard for delaying her surrender while her appeal proceeds, finding the issues identified by new counsel largely repeated arguments raised during trial and rejected in a lengthy post-trial opinion issued in May.
Kearney also noted O’Neal had agreed to proceed with sentencing after raising concerns about her trial representation and found that health issues cited in support of delaying her surrender had not previously been raised before or during sentencing.
O’Neal’s relationship with trial attorney Dale Lionel Smith deteriorated after her June 11 sentencing. In a June 14 letter terminating Smith’s representation, she criticized his handling of the case, including his failure to seek severance from Martinez before trial and what she described as a pattern of late filings. Smith filed a notice of appeal last Wednesday before withdrawing under the terms of his engagement, which did not include appellate representation. Williams entered a limited appearance the following day.
Kearney ordered O’Neal to self-surrender to the U.S. Marshals Service on St. Thomas by 2 p.m. July 1.
O’Neal was convicted last December of bribery concerning programs receiving federal funds, conspiracy to commit money laundering and two counts of honest services wire fraud. She was sentenced to seven years in prison, followed by three years of supervised release. Kearney also ordered her to pay a $50,000 fine, $34,345.39 in restitution jointly and severally with Martinez, a $400 special assessment, and a forfeiture judgment of $17,730.
This article was updated at 6:53 a.m. on Friday.
