United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
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, this motion must be
DENIED. See 18 U.S.C. §
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.
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.
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
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.
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.
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.
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 ...