The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
Pending before the Court is Vanessa Cattanea's ("Cattanea") Motion for Release Pending Appeal (Docket No. 130). Having reviewed the record and briefs of the parties, and being otherwise fully informed, the Court enters the following Order denying the Motion for the reasons set forth below.
Cattanea and co-Defendant Ronald Bret Hamilton ("Hamilton") were charged with 84 counts of health care fraud and aiding and abetting health care fraud arising out of billings to the State of Idaho, Department of Health and Welfare, by Teton Family Services, Inc. Cattanea's primary defense was lack of intent to defraud.
Cattanea had moved to sever from Hamilton's trial on the grounds that Hamilton's testimony was necessary to explain and refute the allegations in the Indictment and that he was likely to assert his right not to testify or incriminate himself at a joint trial. Motion to Sever (Docket No. 27). The Government contended that Cattanea failed to demonstrate prejudice from joinder, failed to show that Hamilton had offered to testify on her behalf or would do so in a separate trial, and that judicial economy weighed heavily against severance. Response (Docket No. 28).
The Court denied the Motion citing Cattanea's failure to make any showing that Hamilton would in fact testify on her behalf if the severance was granted and deeming the failure to show that he offered or agreed to do so as "fatal" to the Motion. Memorandum Decision and Order at 3 (citing United States v. Castro, 887 F.2d 988, 998 (9th Cir. 1989)) (Docket No. 42).
Following nine days of trial and three days of deliberation, a jury returned a verdict of guilty against Cattanea on 76 of 84 counts and against Hamilton on 55 of 72 counts. Both defendants filed post-trial motions for acquittal and new trial which the Court denied. Memorandum Decision and Order (Docket No. 111).
One of the grounds Cattanea offered in support of her motion was the prejudice she suffered from the Court's denial of her Motion to Sever. Memorandum at 6-7 (Docket No. 96). In addressing that specific ground, the Court again found that she had not made the required showing that Hamilton would have in fact testified on her behalf if the severance had been granted. Memorandum Decision and Order at 4 (Docket No. 111).
Hamilton died prior to sentencing resulting in dismissal of the Indictment against him. The Court sentenced Cattanea to twenty months imprisonment, three years of supervised release, restitution of $1,054,259.53, and a special assessment of $7,600 and found Cattanea to be a suitable candidate for self surrender. The Bureau of Prisons set July 13, 2010 as her report date. The Court recently extended that date to mid- to late-September upon motion of Cattanea and concurrence of the Government. Order (Docket No. 135). Cattanea has been compliant with terms of release.
Cattanea moves for release pending appeal on the grounds that she is raising two substantial questions on appeal that will likely result in reversal or an order for a new trial. Those questions pertain to the Court's denial of her motion to sever the trial and denial of her request for a good faith jury instruction.
In order to be released pending appeal, a defendant must demonstrate that he or she meets the statutory requirements for release set forth at 18 U.S.C. § 3143(b)(1).*fn1 The Ninth Circuit has considered the operative statutory phrase "a substantial question of law or fact likely to result in a new trial" and concluded "that the word 'substantial' defines the level of merit required in the question raised on appeal, while the phrase 'likely to result in reversal' defines the type of question that must be presented." United States v. Handy, 761 F.2d 1279, 1282 (9th Cir. 1985). Handy adopted the "well-established, customary meaning" of "substantial question" and concluded that an issue is substantial if it is "fairly debatable" or "fairly doubtful" or "of more substance than would be necessary to a finding that it was not frivolous." Id. at 1282-83 (internal quotation marks and citations omitted).
The Court essentially found by clear and convincing evidence at the sentencing hearing that Cattanea is not a flight risk or a danger to any other person or the community. The Government agrees with that assessment and also states that it does not believe the appeal is brought for the purpose of delay. See Opposition at 3 (Docket No. 131). Therefore, the Court need only decide whether Cattanea meets the ...