United States District Court, D. Colorado
ORDER DENYING BAIL PENDING APPEAL
William J. Martínez United States District Judge.
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.
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.)
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,
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). Defendant has the burden to show she meets
these criteria. Affleck, 765 F.2d at 946.
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
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.”
Danger, Flight Risk, and Delay
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.
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 ...