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Argued February 25, 2008

Before: TATEL and GARLAND, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Appellant Brittian Perry Day was indicted on multiple counts of mail fraud, wire fraud, and theft/embezzlement in violation of federal law, and one count of first degree fraud in violation of the District of Columbia Code. He was charged with stealing more than $1.5 million by defrauding various employee benefit plans and one charity after he was retained by these institutions as an insurance broker. Day claimed that he lacked the requisite mens rea, because physical and emotional damage to his body and brain had rendered him unable to form the intent to defraud or deceive, and he proffered expert testimony to support this defense. The District Court, however, declined to admit certain of this expert testimony. United States v. Day, Crim. No. 04-0358, slip. op. (D.D.C. Mar. 29, 2005); United States v. Day, Crim. No. 04-0358, slip. op. (D.D.C. Feb. 25, 2005). On April 20, 2005, after a jury trial, appellant was found guilty on six counts of mail fraud under 18 U.S.C. § 1341; ten counts of wire fraud under 18 U.S.C. § 1343; five counts of theft or embezzlement from an employee benefit plan under 18 U.S.C. § 664; and one count of fraud in the first degree under D.C. Code §§ 22-3221 and 22-3222. See United States v. Day, 433 F. Supp. 2d 54 (D.D.C. 2006). The District Court denied the Government’s request to subject appellant to criminal forfeiture for his mail and wire fraud offenses, and refused to order a forfeiture money judgment on the theft/embezzlement offenses. United States v. Day, 416 F. Supp. 2d 79 (D.D.C. 2006). Appellant was sentenced to an aggregate term of imprisonment of 108 months, after which the District Court denied his motion for release pending appeal. 433 F. Supp. 2d at 55 (denying Day’s motion “because his appeal . . . [did] not raise a substantial question of law or fact likely to result in reversal, a new trial, or a reduced sentence of imprisonment”).

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