United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE
case is before the Court on Defendant Philip Zodhiates's
motion for bail pending appeal, pursuant to 18 U.S.C. §
3143(b). For the reasons stated below, the motion is granted.
jury trial, Zodhiates was convicted of conspiracy, in
violation of 18 U.S.C. § 371; and international parental
kidnapping, in violation of 18 U.S.C. §§ 1204 and
2. On March 22, 2017, the Court sentenced Zodhiates
principally to concurrent sentences of 36 months'
imprisonment on each count. After sentencing, the Court heard
argument on, and then granted, Zodhiates's bail motion,
noting that it would file a written Decision and Order
stating its reasons for doing so.
Section 3143(b)'s standard for bail pending
defendant who has been sentenced to a term of imprisonment
and who files an appeal “shall . . . be detained,
” 18 U.S.C. § 3143(b), unless he makes two
showings. First, a defendant seeking bail pending appeal must
show “by clear and convincing evidence that [he] is not
likely to flee or pose a danger to the safety of any other
person or the community if released.” Id.
§ 3143(b)(1)(A). And second, the defendant must show
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.” Id. §
text makes clear, § 3143(b)'s second prong requires
the Court to answer two separate and distinct questions. The
Court must first identify a “substantial
question.” Section 3143(b)'s “substantial
question” requirement does not make “bail
dependent upon the willingness of a trial court to certify
that it is likely to be reversed.” United States v.
Randell, 761 F.2d 122, 125 (2d Cir. 1985) (quotation
marks omitted). Instead, a “substantial question”
under § 3143(b) is “one which is either novel,
which has not been decided by controlling precedent, or which
is fairly doubtful.” Id. at 125 (quotation
marks omitted). Put differently, a “substantial
question” is a question “of more substance than
would be necessary to a finding that it was not frivolous. It
is a close question or one that very well could be decided
the other way.” Id. (quotation marks omitted).
defendant identifies a “substantial question, ”
the Court “must then consider whether that question is
so integral to the merits of the conviction on which [the]
defendant is to be imprisoned that a contrary appellate
holding is likely to require reversal of the conviction or a
new trial.” Id. (quotation marks omitted). In
other words, the Court must ask whether the
“substantial question” will “likely . . .
result in” reversal, a new trial, a non-incarcerative
sentence, or a sentence that is less than the sum of the
defendant's current time served and the expected duration
of his appeal. 18 U.S.C. § 3143(b)(1)(B).
Court considers each prong of § 3143(b) in turn.
Zodhiates's risk of flight and danger to the
initial matter, there is absolutely no question that, with or
without conditions, Zodhiates is not a danger to any other
person or to the community.
more difficult question is Zodhiates's flight risk. In
opposition to Zodhiates's motion, the Government notes
that Zodhiates owns a home in Nicaragua; it points to his
significant resources; and it observes that he has friends
and acquaintances in multiple countries. The Court shares
these concerns to some degree, but the Court believes that
they do not give rise to a serious risk of flight.
Zodhiates's foreign connections appear to largely, if not
entirely, result from his extensive charitable work. This
lessens the Court's concern that Zodhiates's foreign
connections might help him flee. And, moreover, Zodhiates has
surrendered his passport to the Clerk of the Court, making it
much more difficult (though, of course, not impossible) for
him to flee the country.
fundamentally, though, the Court does not believe, based on
its experience with Zodhiates for the past six months-and, in
particular, based on an understanding of Zodhiates gained
through the sentencing process-that he will flee. Zodhiates
has been fully compliant with the terms of his release. More
importantly, he has very close ties to his family, to his
community, and to his business, making the risk of flight, in
the Court's view, low. Nonetheless, the Court cannot
ignore the fact that it has imposed a substantial term of
imprisonment, which increases Zodhiates's incentive to
flee. As stated on the record on March 22, 2017, the Court
will therefore require that both Zodhiates and his wife
secure a bond for the value of their residential property in
Waynesboro, Virginia, subject to the terms set forth in the
conclusion of this Decision and Order. The risk of losing his
home is sufficient to satisfy the Court, by clear and
convincing evidence, that Zodhiates will not flee before this
case is resolved.
Zodhiates's anticipated ...