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United States v. Zodhiates

United States District Court, W.D. New York

March 24, 2017




         This 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.


         After a 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.

         1. Section 3143(b)'s standard for bail pending appeal

         A 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. § 3143(b)(1)(B).

         As its 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).

         If a 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).

         The Court considers each prong of § 3143(b) in turn.

         1. Zodhiates's risk of flight and danger to the community

         As an 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.

         The 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.

         More 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.

         2. Zodhiates's anticipated ...

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