United States District Court, W.D. Virginia, Abingdon Division
M. Myatt, Special Assistant United States Attorney, Abingdon,
Virginia, for United States; Michael J. Khouri, Khouri Law
Firm, Irvine, California, for Defendant Beth Palin.
OPINION AND ORDER
P. Jones United States District Judge.
Beth Palin has moved for a stay of sentence and a
continuation of her release pending appeal. For the following
reasons, I will deny the defendant’s motion.
Federal Rules of Criminal Procedure provide that a sentence
of imprisonment must be stayed if an appeal is taken and the
defendant is released pending disposition of the appeal. Fed.
R. Crim. P. 38(b)(1). The Federal Rules of Appellate
Procedure provide that the decision regarding release must be
made in accord with the applicable provisions of the Bail
Reform Act. See Fed. R. App. P. 9(c). That Act
provides, in pertinent part, that the court:
[S]hall order that a person who has been found guilty of an
offense and sentenced to a term of imprisonment, and who has
filed an appeal or a petition for a writ of certiorari, be
detained, unless the judicial officer 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
(ii) an order for a new trial,
(iii) a sentence that does not include a term of
(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).
am able to make the requisite finding contained in subsection
(A) of § 3143(b)(1), I cannot find that the appeal
raises a substantial question of law or fact, as required in
subsection (B). In this context, a “substantial
question” is “‘a “close”
question or one that very well could be decided the other
way.’” United States v. Steinhorn, 927
F.2d 195, 196 (4th Cir. 1991) (quoting United States v.
Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). Whether a
question is substantial is decided on a case-by-case basis.
case, Palin was convicted following a bench trial of health
care fraud and conspiracy to commit health care fraud. I set
forth my findings of fact in a lengthy written opinion (ECF
No. 297), and I later issued another opinion analyzing and
denying the defendants’ motions for judgment of
acquittal and new trial, (ECF No. 347). Palin was sentenced
on August 15, 2016, to 36 months of imprisonment, a sentence
below the applicable advisory ...