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United States v. Hall

United States District Court, E.D. Kentucky, Southern Division, London

July 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SHARON HALL, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge.

         This matter is before the Court on the Defendant's motion for release pending appeal. [R. 148.] Because she has not adequately raised a substantial question of law or fact likely to result in reversal[1], this motion must be DENIED. See 18 U.S.C. § 3143(b).

         I

         In February 2017, Sharon Hall was indicted on eleven counts of bank fraud, in violation of 18 U.S.C. § 1344(1) and (2), and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). [R. 1.] The Indictment set forth a scheme by which Hall used the names of various family members, who were students at different colleges and institutions, to apply for student loans from several lending institutions between August 2007 and August 2009. Id. The Government alleged that Ms. Hall made false representations and pretenses with regard to the loan documents by providing a certain family member's name and personal information in representing that the person was a co-signor to the loan, forging that person's signature on the loan documents, misrepresenting the relationship of borrower and parent on certain forms, forging the signatures of various student borrowers, falsifying pay stubs in support of the loan documents, and forging the signature of certain payees on loan proceeds checks. Id. at 2-3. According to the Indictment, “Sharon Hall submitted approximately forty false loan applications to approximately ten lending institutions. On many occasions, her loan applications were denied and no loan was funded. On approximately nine occasions, the fraudulent loan applications were approved and funds in the approximate amount of $101, 120 were obtained.” Id. at 3. While the first ten counts of the Indictment reference ten separate loan applications, Count 11 references a request for forbearance. See Id. at 4. Furthermore, Count 12 charges Sharon Hall with knowingly using the identification of another in connection with the forbearance alleged in Count 11. Id.

         In January 2018, Sharon Hall stood trial for all charges. At the trial, the Government presented substantial evidence that Ms. Hall submitted loan documents that contained inauthentic signatures to several lending institutions. Additionally, the Government's evidence showed Hall submitted, in connection with certain loan documents, pay stubs that had been altered. Ms. Hall's primary defense was that she lacked the requisite knowledge and intent to commit fraud, and she had permission from the student-borrowers and co-signers to sign their respective names to certain loan documents. The jury ultimately found Ms. Hall guilty on all twelve counts. Following the jury verdict, Hall filed a Motion for Judgment of Acquittal. [R. 60.] That motion was denied. Ms. Hall was then sentenced on March 26, 2019, to three years in prison. She now seeks release pending her appeal. But that motion must be DENIED.

         II

         A

         The Bail Reform Act, 18 U.S.C. § 3143(b), creates a presumption against release pending appeal. United States v. Vance, 851 F.2d 166, 168 (6th Cir. 1988), cert. denied, 488 U.S. 893 (1988). In order to be released pending appeal, a defendant must establish two things: first, he must show, by clear and convincing evidence, that he is not likely to flee or pose a danger to the safety of another person or the community; and second, that the appeal is not for delay and raises a substantial question of law or fact likely to result in reversal, an order for new trial, a sentence that does not include a term of 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. Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002); Vance, 851 F.2d at 167 (noting that defendant bears the burden of overcoming statutory presumption of detention).

         In determining whether a question on appeal raises “a substantial question of law or fact, ” a Court does not need to find that it committed reversible error. United States v. Pollard, 778 F.2d 1177, 1181 (6th Cir. 1985). To determine whether the question is, in fact, substantial, “a judge must essentially evaluate the difficulty of the question he previously decided.” United States v. Sutherlin, 84 Fed.Appx. 630, 631 (6th Cir. 2003) (quoting United States v. Shoffner, 791 F.2d 586, 589 (7th Cir. 1986)). It must be a “close question” that can “go either way.” Pollard, 778 F.2d at 1182 (citations omitted). The defendant bears the burden of proving the substantiality of the question. Vance, 851 F.2d at 167.

         B

         Sharon Hall argues there are four sufficiently close questions justifying her release pending appeal. Those issues are as follows: (i) a duplicitous indictment; (ii) denial of the Rule 33 motion; (iii) the impropriety of the Prosecution's closing argument; and (iv) forbearance cannot support a conviction on Counts 11 or 12. But Ms. Hall is incorrect, and these are not close questions. The Court explains each in turn.

         1

         Sharon Hall begins with her duplicitous indictment. Because Ms. Hall failed to object to the indictment at trial, Ms. Hall must show her Fifth Amendment rights were violated. And, her Fifth Amendment rights were only violated if her jury verdict risked a lack of unanimity because of juror confusion. But, the risk of a non-unanimous verdict can be cured by: (i) an election by the prosecution as to which theory to pursue; (ii) a particularized jury instruction which advances only one theory; or (iii) an unanimity instruction. United States v. Shumpert Hood, 210 F.3d 660, 663 (6th Cir. 2000).

         At trial the government pursued only one theory-that is, Ms. Hall created a scheme to defraud banks. For each count, the Prosecution's proof was that Ms. Hall deceived the banks because they did not know that the signatures of the borrowers on the notes were not genuine, or that the supporting documentation was fake. The jury instructions then redounded on that theory and charged the jury only to convict if they were certain beyond a reasonable doubt that Ms. Hall intended on defrauding the bank. By selecting one theory, the Prosecution eliminated the risk of a non-unanimous jury. United States v. Kakos, 483 F.3d 441 (6th Cir. 2007). Indeed, this case is distinguishable from Gordon, cited by Ms. Hall, where jury confusion was obvious. United States v. Gordon, 844 F.2d 1397, 1401 (9th Cir. 1988). In Gordon, the jury was given a single count with two conspiracy theories: conspiracy to defraud the United States or conspiracy to obstruct justice. Id. at 1401. After retiring for deliberations, the jury sent a note whether they needed to convict on both objects of the count. Id. Rather than answering the question, the judge simply repeated the general conspiracy instructions. Id. Implicitly this allowed ...


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