United States District Court, S.D. New York
THIMAS P. GRIESA, District Judge.
On May 8, 2013, a jury convicted Luba Kramrish of mail fraud and conspiracy to commit mail fraud for her participation in a scheme to defraud the Jewish Claims Conference. On September 10, 2013, the court sentenced Kramrish principally to 37 months' imprisonment. Her surrender date was adjourned from November 4, 2013, at the request of defense counsel and is currently scheduled for February 10, 2014. Kramrish requested a second extension of her surrender date on January 13, 2013, which the court denied.
On January 29, 2014, defendant Kramrish moved for bail pending appeal pursuant to 18 U.S.C. § 3143(b) and requested for a third time an extension of her surrender date.
For the following reasons, the application for bail pending appeal and extension request are denied.
Under 18 U.S.C. § 3143(b), a court shall grant a convicted defendant bail pending appeal if, inter alia, the court finds by clear and convincing evidence that (1) the defendant is not likely to flee or pose a danger to others and (2) "the appeal raises a substantial question of law or fact likely to result in a reversal, a new trial, or a sentence that will be less than the total time already served prior to and during the pendency of the appeal." United States v. Newman, 12 Cr. 121 (RJS), 2013 WL 1943342 (S.D.N.Y. May 7, 2013) (citing 18 U.S.C. § 3143(b)). A defendant must satisfy both prongs of the two-part test to merit bail pending appeal. Here, Kramrish fails to satisfy either prong, and therefore her application is denied.
1. Risk of flight
Defendant bears the burden of proving by clear and convincing evidence that she is not likely to flee. See United States v. Light , 599 F.Supp. 874, 876 (E.D.N.Y. 1984) aff'd, 770 F.2d 158 (2d Cir. 1985). The Government contends that Kramrish poses a risk of flight. Defendant does not address this factor in her application because she incorrectly concludes that the court has already found that Kramrish is not a flight risk.
Although the court allowed Kramrish to voluntarily surrender, that does not necessarily mean she does not pose a flight risk during a significantly longer appeal period. Kramrish is a Canadian citizen (Presentence Investigation Report ("PSR") at 2). She lives in Canada, as does her immediate family. Kramrish also has clear ties to countries other than Canada. She was born in the former Soviet Union (PSR ¶ 90) and has family who currently lives in Israel (Tr. at 2650). Furthermore, Kramrish retains control of her passport, which she needs to enter the United States for court appearances. Given these facts, the court cannot find by clear and convincing evidence that Kramrish is not likely to flee.
However, even if the court were to find that Kramrish does not pose a flight risk, her application would still be denied because she fails to raise a substantial question on appeal.
2. Substantial Question
The Second Circuit defines a "substantial" question as "a close question or one that very well could be decided the other way." United States v. Randell , 761 F.2d 122, 124 (2d Cir. 1985) (internal citations omitted). If the court finds that a question raised on appeal is "substantial, " then it must consider whether that question is "so integral to the merits of the conviction...that a contrary appellate holding is likely to require reversal...or a new trial." Id . at 125. At each of these steps, the defendant bears the burden of persuasion. Id.
Kramrish raises three main issues on appeal: (1) the adequacy of the jury selection process, (2) the sufficiency of the government's evidence at trial, and (3) the ...