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United States v. Benzer

United States District Court, D. Nevada

July 14, 2015

UNITED STATES OF AMERICA, Plaintiffs,
v.
LEON BENZER, et al., Defendants.

ORDER

Presently before the court is defendant Edith Gillespie’s (hereinafter “defendant”) motion for bail pending appeal. (Doc. # 658). The government filed a response, (doc. # 681), and defendant filed a reply, (doc. # 683).

I. Background

The facts of the instant case are familiar to the court and the parties. On February 25, 2015, defendant proceeded to trial on charges of conspiracy and wire fraud. On March 17, 2015, the jury found her guilty of both counts against her. (Doc. # 537).

On June 17, 2015, defendant was sentenced to 60 months per count to run concurrently, followed by three years of supervised release per count to run concurrently. (Doc. # 662). On June 17, 2015, defendant filed a notice of appeal. (Doc. # 664).

II. Legal Standard

A person who has been found guilty of an offense and sentenced to a term of imprisonment should be detained pending appeal, unless the court finds:

(A) 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 (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, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b).

A defendant has the burden of proving that a substantial question exists. United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985). A substantial question is one that is “fairly debatable” or “fairly doubtful.” Id.

The defendant “need not, under Handy, present an appeal that will likely be successful, only a non-frivolous issue that, if decided in the defendant’s favor, would likely result in reversal or could satisfy one of the other conditions.” United States v. Garcia, 340 F.3d 1013, 1021 n.5 s(9th Cir. 2003).

III. Discussion

The parties agree that defendant is not a flight risk or a danger to the community. Accordingly, the remaining question before the court is whether the appeal raises a substantial question of law or fact such that reversal is likely. 18 U.S.C. § 3143(b)(1)(B).

Defendant’s motion identifies two issues to be raised on appeal. The court will address the parties’ arguments as to each issue in turn, to determine whether defendant has shown a substantial ...


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