Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Litwin

United States District Court, D. Nevada

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID LITWIN, Defendant.

          ORDER

          KENT J. DAWSON, UNITED STATES DISTRICT JUDGE

         Presently before the Court is Defendant's Motion for Bail Pending Appeal (#612). Plaintiff filed a response (#624) to which Defendant replied (#628).

         I. Background

         On March 23, 2017, a jury found Defendant David Litwin (“Defendant”) guilty of multiple felony counts. On September 26, 2017, Defendant was sentenced to 240 months of imprisonment. On October 10, 2017, Defendant filed a Notice of Appeal. Defendant claims he is entitled to bail pending appeal pursuant to Title 18 U.S.C. §§ 3143(b) and 3142(g).

         II. Legal Standard

         A. 18 U.S.C. § 3143(b) Requirements to Rebut Presumption of Detention

         A defendant may be released pending appeal only where the court finds by clear and convincing evidence that (1) “the person is not likely to flee or pose a danger to the safety of any other person or the community if released, ” and (2) “that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in” reversal, a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence. 18 U.S.C. § 3143(b).

         The factors the court considers when making the determination of whether a person is “likely to flee or pose a danger to the safety” of the community are:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; (2) the weight of the evidence against the person; (3) the history of the person, including [] the person's character, physical and mental condition, family ties, employment, financial resources, length of residency in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings . . .; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g). A substantial question is one that is “fairly doubtful.” U.S. v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985). It must be a question “of more substance than would be necessary to a finding that it was not frivolous” and is “debatable among jurists of reason.” Id. at 1282-83. Further, “the burden of establishing these factors is on the convicted defendant.” U.S. v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985).

         B. Drug Offense Requires Additional “Exceptional Reasons” to Merit Release

         Additionally, defendants convicted of drug offenses that impose maximum terms of imprisonment of ten years or more must also show “exceptional reasons” to justify release pending appeal. 18 U.S.C. § 3145(c). Examples of factors the court considers in determining whether exceptional reasons exist include: (1) whether Defendant's crime was an aberration; (2) whether Defendant contributed significantly to society; (3) whether the nature of Defendant's crime is sufficiently dissimilar to others in the same category of crimes identified by the statute; (4) the length of Defendant's sentence (often a proxy for the seriousness of the crime committed); (5) whether there were circumstances that would “render the hardships of prison unusually harsh for a particular defendant;” (6) the benefit of an “uninterrupted course of treatment;” and (7) the effect of incarceration on Defendant's physical or mental health based on his characteristics. U.S. v. Garcia, 340 F.3d 1013, 1019-20 (9th Cir. 2003). These factors are “by no means exclusive, ” and “the district court's familiarity with the full record will enable it, when necessary, to undertake a searching and informed evaluation of all the circumstances of the case, a process that an appellate court would ordinarily be unable to undertake until after the appeal is completed.” Id. at 1021.

         III. Analysis

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.