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United States v. Yurek

United States District Court, D. Colorado

April 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DARYL FRANCIS YUREK 2. WENDY MARIE YUREK Defendants.

          ORDER DENYING BAIL PENDING APPEAL

          William J. Martínez United States District Judge.

         This matter is before the Court on Defendant Wendy Marie Yurek's (“Defendant” or “Ms. Yurek”) Motion for Bail Pending Appeal. (ECF No. 367 (the “Motion”).) For the reasons explained below, the Motion is denied.

         I. BACKGROUND

         Ms. Yurek was indicted together with her husband, Daryl Francis Yurek (“Daryl Yurek, ” or “Mr. Yurek”). (ECF No. 1.) They were jointly charged in Count One with tax evasion, 26 U.S.C. § 7201, and in Count Two with bankruptcy fraud, 18 U.S.C. § 157(1). (ECF No. 1.) Mr. Yurek was also charged in Counts Three, Four, and Five. (Id.) The background has been set out in previous orders and is not repeated here. (See, e.g., ECF Nos. 142, 174, 195, 196.)

         The Court denied Ms. Yurek's request for separate trials, United States v. Yurek, 2017 WL 2834545 (D. Colo. June 30, 2017) (ECF No. 196), and following a nine-day joint trial, both Defendants were convicted on all counts. (ECF Nos. 252, 253.) Ms. Yurek then moved for a new trial, arguing she had been prejudiced by the joint trial. (ECF No. 261.) The Court also denied this request, United States v. Yurek, 2017 WL 4805173 (D. Colo. Oct. 25, 2017) (ECF No. 273), and has since imposed a sentence that includes a prison term (ECF No. 352). Defendant has appealed, and now requests release pending resolution of her appeal. (ECF Nos. 359, 367.)

         II. LEGAL STANDARD

         “There is no constitutional right to bail pending appeal.” United States v. Affleck, 765 F .2d 944, 948 (10th Cir. 1985) (en banc). Rather, the “general rule” is that a defendant who has been convicted will be detained on his or her sentence pending an appeal. See United States v. Fisher, 613 Fed.Appx. 748, 749 (10th Cir. 2015). Release pending appeal is governed by 18 U.S.C. § 3143(b), under which the Court “shall order” Defendant to be detained, unless it finds both: (1) that Defendant is not likely to flee or pose a danger to the community; and also, (2) that her appeal “is not for the purpose of delay and raises a substantial question of law or fact” that is likely to result in reversal or other substantial relief on appeal. See § 3143(b)(1).[1] Defendant has the burden to show she meets these criteria. Affleck, 765 F.2d at 946.

         To apply § 3145(b), the Tenth Circuit prescribes a “two-step analysis.” Id. at 952. “First, the court must decide that the appeal raises a ‘substantial' question of law or fact.” Id. “[A] ‘substantial question' is one 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. “Whether a particular question is ‘substantial' must be determined on a case-by-case basis.” Id.

         Second, the Court asks “if that substantial question is determined favorably on appeal, ” would that result be “likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.” Id. This part of the analysis bears on “the significance of the substantial issue to the ultimate disposition of the appeal.” Id. (quoting United States v. Miller, 753 F.2d 19, 24 (3d Cir. 1985)). Thus, a question “may be substantial but may, nonetheless, in the circumstances of a particular case, be considered harmless.” Id. To justify release, the question raised must be “so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.” Id.

         III. ANALYSIS

         A. Danger, Flight Risk, and Delay

         The Court has previously found Defendant does not pose a flight risk and does not pose a danger to the community. The Government does not dispute those findings, and the Court does not revisit them. The Court also finds under § 3143(b)(1)(8) that Defendant's appeal is not for the purpose of delay.

         B. Substantial Question

         The Court agrees with both parties that the controlling issue is whether Ms. Yurek has raised a “substantial question” of law or fact. Ms. Yurek argues the denial of her request for separate trials raises a substantial question. (ECF No. 367 at 3-8.) However, she only re-raises arguments the Court has twice before rejected. Indeed, much of Defendant's present motion is a near-verbatim copy of her motion requesting a new trial, adding nothing new. (Compare ECF No. 261 at 2-8 with ECF No. 367 at 3-8.) The Court adopts and incorporates the analysis of its prior orders ...


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