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United States v. Palin

United States District Court, W.D. Virginia, Abingdon Division

August 22, 2016

UNITED STATES OF AMERICA
v.
BETH PALIN, ET AL., Defendants.

          Janine 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

          James P. Jones United States District Judge.

         Defendant 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.

         The 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 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).

         While I 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. Id.

         In this 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 ...


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