United States District Court, D. Nevada
before the court is defendant Maria Larkin's motion for
release on personal recognizance bond pending appeal. (ECF
No. 361). The government filed an opposition (ECF No. 372),
to which defendant replied (ECF No. 375).
13, 2017, a jury found defendant guilty of tax evasion as
charged in count one of the second superseding indictment.
(ECF No. 313).
January 31, 2018, the district court sentenced defendant to
12 months and 1 day in the custody of the federal bureau of
prisons. (ECF No. 350).
February 2, 2018, defendant appealed the district court's
judgment imposing sentence. (ECF No. 353).
instant motion, defendant requests the court release her on
personal recognizance bond pending the duration of her
appeal. (ECF No. 361). Defendant argues she is not a flight
risk, is not a danger to the community, and that her appeal
raises substantial questions that are likely to result in
reversal and remand for a new trial. Id. The
government refutes each of defendant's contentions in its
objection to her motion. (ECF No. 372).
18 U.S.C. 3143(b)(1), a defendant may not be granted bond
pending appeal unless (1) the defendant proves by
“clear and convincing evidence that [she] is not likely
to flee or pose a danger to the safety of any other person or
the community if released, ” and (2) the
defendant's appeal is not brought 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)(1). The defendant bears the burden to prove by
clear and convincing evidence that she is not a flight risk,
United States v. Handy, 761 F.2d 1279, 1283 (9th
Cir. 1985), and also bears the burden to establish
substantial issue on appeal, United States v.
Montoya, 908 F.2dd 450, 451 (9th Cir. 1990).
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 (9th Cir. 2003). However, as the Ninth Circuit
noted in Handy, “the ‘substantial
question' test is stricter than the ‘not
frivolous' test” and not all appeals that are
“not frivolous” are “substantial.”
Handy, 671 F.2d at 1282 n.1. Further, to show
entitlement to release or bond pending appeal, the defendant
must present a substantial question as to all counts on which
imprisonment has been imposed. Id. at 1283.
Flight risk/danger to community
court agrees with defendant that she is not likely to flee
nor does she pose a danger to the safety of her community.
Since her arrest, defendant has demonstrated exemplary
conduct and fully complied with the requirements of her
presentence supervision. She has not gambled once since her
arrest and has made significant progress in repaying both her
gambling debts and the monies owed to the United States.
Further, she has consistently articulated the importance of
her job and her employees in her life, all located in Las
defendant's family resides in Las Vegas. She has three
children, one of which, her daughter, lives with both mental
and physical handicaps. During and leading up to
defendant's sentencing hearing, defendant repeatedly
underscored the importance of her role in her daughter's
life. In fact, defendant insisted that only she could
adequately care for the needs of her daughter. Defendant
argued that even her husband was unfit to care for the
developing needs of his adolescent daughter. While defendant
spent the several years leading up to her arrest obsessively
and constantly gambling, often for hours on end, the court
recognized the substantial changes defendant had undertaken
since her arrest, particularly a renewed interest in and
desire to care for her children. In consideration, the court
afforded defendant great leniency, sentencing defendant to a
period in custody far below the range recommended by the
as a result of defendant's close ties to her community
and family, particularly her purported irreplaceable role as
her daughter's caregiver, the court does not find that
defendant is likely to flee. Nor is the court concerned
defendant poses any threat to the safety of others, despite
the apparently malicious nature of her voicemail to her
former casino host.
court finds that defendant has satisfied the first
requirement under 18 U.S.C. § 3143(b)(1) necessary for
release on bond pending an appeal, the court will next
consider whether the issues defendant raises on appeal amount
to a substantial question that is likely to result in
Substantial question of law
motion identifies two issues to be raised on appeal. (ECF No.
361). The court will address the parties' arguments as to
each issue in turn to determine whether defendant has shown a
substantial question that is ...