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United States v. Larkin

United States District Court, D. Nevada

March 21, 2018

MARIA LARKIN, Defendants.


         Presently 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).

         On June 13, 2017, a jury found defendant guilty of tax evasion as charged in count one of the second superseding indictment. (ECF No. 313).

         On 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).

         On February 2, 2018, defendant appealed the district court's judgment imposing sentence. (ECF No. 353).

         In the 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).

         Under 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).

         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 (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.

         a. Flight risk/danger to community

         The 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 Vegas.

         Additionally, 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 sentencing guidelines.

         Accordingly, 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.

         As the 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 reversal.

         b. Substantial question of law

         Defendant's 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 ...

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