United States v. Joan R. LaPlante

2011 DNH 203

• Court: District Court, D. New Hampshire
• Decided: December 1, 2011
• Docket: 10-CR-036-SM
• Status: Published

Opinion

United States v . Joan R. LaPlante 10-CR-036-SM 12/1/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case N o . 10-cr-36-1-SM Opinion N o . 2011 DNH 203 Joan R. LaPlante

O R D E R

Defendant has appealed her criminal mail fraud conviction,

and the 47 month sentence imposed, to the United States Court of

Appeals for the First Circuit. The government proved to a jury

that defendant fraudulently induced others to lend her

substantial sums of money based upon false representations that

the loan proceeds would be used to purchase accounts receivable

at a substantial discount, after appropriate due diligence was

exercised to assure that those accounts could be collected, and

that the purchased accounts receivable would provide reliable

security for the loan proceeds. Over an extended period of

years, however, defendant did not purchase any accounts

receivable, notwithstanding her representations to the contrary.

Rather, she used newly loaned funds to pay interest and return

principal to earlier lenders, a process that continued until the

fraud was exposed. Defendant now moves for an order releasing her on bail

pending consideration of her appeal. 18 U.S.C. § 1341.

The general rule applicable to bail pending appeal is that a

person who has been found guilty of a criminal offense and

sentenced to a term of imprisonment, and who has filed an appeal,

is to be detained, unless a judicial officer finds:

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released, and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal, an order for a 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.

See 18 U.S.C. § 3143(b)(1).

In this case, there is little reason to think that, if

released pending appeal, the defendant would flee or pose a

danger to the safety of others or the community. It is also

unlikely that the appeal was filed for the purpose of delay.

But, nothing in the defendant’s motion suggests that her

appeal raises a substantial question of law or fact likely to

2 result in reversal, an order for a new trial, or a sentence that

does not include a term of imprisonment. Defendant was sentenced

to 47 months of imprisonment, and the appellate process is

unlikely to require more than a year. S o , there is also little

risk at this point that a reduced sentence (which is itself

unlikely given that defendant was sentenced at the bottom of the

advisory guideline range) might be less than the total time

served plus the expected duration of the appeal process.

Defendant’s motion is based, substantially, upon her

contention that the evidence presented at trial was insufficient,

as a matter of law, to support her conviction. I cannot find

that that appellate issue is “likely to result” in reversal or a

new trial. The evidence of defendant’s guilt was strong and

fully supported the jury’s conclusion that she intentionally

misrepresented critical facts to prospective lenders as part of

an ongoing fraudulent scheme to obtain their money. “The ‘likely

to result’ standard is applied flexibly - a question that can be

regarded as ‘close’ will often suffice.” United States v . Colon-

Munoz, 292 F.3d 1 8 , 20 (1st Cir. 2002) (citing United States v .

Bayko, 774 F.2d 516, 523 (1st Cir. 1985)). But, defendant’s

insufficiency of the evidence argument does not meet that

flexible standard — whether the evidence was sufficient to

support defendant’s conviction is not a close question.

3 Defendant also suggests that her current counsel is

“actively investigating” a claim of ineffective assistance of

trial counsel, but offers nothing substantive to support such a

claim. That appellate issue, if it is one, also cannot be

regarded, at this point, as “likely to result” in a reversal, new

trial, or sentence that does not include a period of

incarceration. Defendant also suggests that counsel is

“investigating allegations of violations of the Court’s

sequestration order by a lay witness and inconsistent statements

and impeachment evidence concerning lay witnesses.” Again, no

appellate issue has been identified that is “likely to result” in

a reversal, new trial, or sentence that does not include a period

of incarceration.

Finally, defendant expects to challenge the imposed sentence

on appeal as “unreasonable.” That issue is also not likely to

result in a sentence that does not include a term of

imprisonment, since her sentence is entirely consistent with the

properly calculated (and uncontested) applicable advisory

guidelines sentencing range - indeed, the court imposed a

sentence consistent with the bottom of the advisory guideline

range.

4 Conclusion

As defendant has not shown that her appeal raises a

substantial question of law or fact likely to result in reversal,

an order for a 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, the motion for release on bail

pending appeal (document n o . 46) is denied.

SO ORDERED.

McAuliffe Inited States District Judge

December 1 , 2011

cc: Robert M. Kinsella, Esq., AUSA Mark E . Howard, Esq.