United States District Court, Northern District of California
For USA, Plaintiff: Carolyn Silane, LEAD ATTORNEY, United States Attorney's Office, San Francisco, CA; Kyle F. Waldinger, LEAD ATTORNEY, Office of the United States Attorney, Criminal Division, San Francisco, CA; Stephanie M. Hinds, Assistant United States Attorney, San Francisco, CA.
ORDER DENYING DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL
THELTON E. HENDERSON, United States District Judge.
Defendant Livia Lill has filed a motion for release from custody pending an appeal of her conviction and sentencing. For the reasons articulated below, the Court DENIES Defendant's motion, and ORDERS her self-surrender for service of her sentence on November 12, 2014.
Livia Lill was arrested February 22, 2013, on a criminal complaint alleging that on February 11-12, 2013, she knowingly and intentionally trafficked in access devices during a one-year period to obtain $1, 000 or more. (Docket Nos. 1, 3). At her bail hearing on March 1, 2013, Lill was released on $75, 000 unsecured bond cosigned by two of her friends, with one of them serving as a court-appointed custodian. She was placed under a curfew and electronic monitoring until her bail review hearing, at which time the Government agreed to remove the curfew and electronic monitoring conditions. (Docket Nos. 10, 16). To date, her release has been without incident.
On July 9, 2013, Livia Lill was indicted for Conspiracy to Commit Access Device Fraud (Count One), Unlawful Use of Access Devices to Obtain $1, 000 or More (Count Two), and Unlawful Possession of Fifteen or More Access Devices (Count Three). (Docket No. 21). On May 12, 2014, Lill entered a plea agreement with the Government, pleading guilty to Counts Two and Three, and generally waiving her right to appeal her conviction, the judgment, and any aspect of her sentence. (Docket No. 47). Count One was subsequently dismissed by the Government.
The Plea Agreement set forth the factual basis for the plea. On February 11, 2013, Lill made three purchases on a fraudulent credit card for merchandise valued at approximately $1, 900. During a search of her apartment three days later, law enforcement subsequently recovered additional credit card numbers, which Lill agreed she had used to purchase approximately $21, 000 in merchandise. When she was arrested on February 22, she had eleven counterfeit credit cards in her possession. Additionally, the Presentence Report notes that electronic media, receipts, and other items seized from her apartment contained credit card numbers used to fraudulently purchase merchandise from 47 different corporate victims, resulting in a total actual loss of $118, 160.42. Presentence Report (" PSR"), ¶ 24. Lill's Plea Agreement stipulated to a loss amount of more than $70, 000 but less than $120, 000, which resulted in an eight-level sentencing enhancement. She also agreed to pay restitution of not less than $118, 000.
On September 8, 2014, the Court issued a within-guidelines sentence of 18 months' incarceration, in addition to payment of restitution and supervised release. (Docket No. 59). After her attorney withdrew, the Court allowed for the appointment of new defense counsel (Docket No. 62), and Lill filed a timely notice of her intent to appeal the judgment and conviction. (Docket No. 66). She filed the present motion for release from custody pending appeal on October 10. (Docket No. 76). Without objection, the Court granted a continuance of her self-surrender date until November 7, so that this motion could be considered. (Docket No. 75). The Government filed a timely Opposition, to which Lill replied on October 27. (Docket Nos. 79, 84).
Motions for bail pending appeal are governed by 18 U.S.C. § § 3142 and 3143. Where a defendant is convicted and sentenced to prison, she must surrender for service of her sentence unless she shows that: (1) by clear and convincing evidence, she does not pose a flight risk or a danger to the community; (2) the appeal is not for the purpose of delay; and (3) the appeal raises a substantial question of law or fact that is likely to result in reversal, an order for new trial on all counts for which she received a sentence of imprisonment, a sentence of no imprisonment, or 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. 18 U.S.C. § 3143(b); United States v. Wheeler, 795 F.2d 839, 840 (9th Cir. 1986).
Under the third prong of this test, the Ninth Circuit has held that " substantial" defines the level of merit required of the question raised on appeal, and " likely to result in reversal" defines the type of question that must be presented. United States v. Handy, 761 F.2d 1279, 1280 (9th Cir. 1985). A " substantial question" is one that is " fairly debatable." Id. at 1283. " Likely to result in reversal" means that " if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial." Id. Thus, the third prong asks whether the error, if it exists, would be harmless. Id.
The Court will first resolve the issues of flight risk and delay before moving to the more substantive question of whether Lill's appeal raises questions of law or fact that are substantial in merit and likely to result in a reversal, an order for a new trial, or a sufficiently reduced sentence.
I. Lill does not pose a flight risk or a danger to the community's safety.
Before granting Lill's release from custody pending her appeal, the Court must find by clear and convincing evidence that she is " not likely to flee or pose a danger to the safety of any other person or the community if released" on bail or under other supervisory conditions. 18 U.S.C. § 3143(b)(1)(A).
The Court finds that Lill has shown by clear and convincing evidence that she is not a flight risk and does not pose a danger to the safety of the community. The Government unconvincingly argues that, while they agreed to allow Lill to remain at large both before and after her sentencing, and even recently allowed her to continue her self-surrender date so that this motion could be heard, she is in fact a flight risk. Opp'n at 2-3 (Docket No. 79). This argument is disingenuous. Lill has surrendered her passport, making international travel exceedingly difficult. Further, just as during the period between her initial bail hearing and bail review hearing, Lill can be equipped with electric monitoring while the appellate court considers her appeal.
While it would be reasonable to believe that Lill poses a greater flight risk after being sentenced to 18 months' imprisonment than she did before the sentencing judgment, the Government's argument that she now poses an undue risk of flight is contradicted by the Government's decision at the sentencing hearing to allow Lill to self-surrender, and again when the Government agreed to allow Lill to continue her self-surrender date so that the Court could consider the present motion. Lill did not flee during the more than year-long pendency of her case, she did not flee in the immediate aftermath of her sentencing, and there is no evidence to suggest that she will flee while she pursues her appeal. Further, the acquiescence of the Government to the lax release conditions up to this date, coupled with Lill's unblemished compliance with her release conditions, provides clear and convincing evidence that she is not a flight risk. Finally, Lill does not have a history of violence that would suggest she poses a risk to the community's safety.
For the foregoing reasons, the Court finds that Lill is not a flight risk and does not pose a danger to ...