1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 2:24-cv-02148-JAD-DJA Bryce Tyrone Verhonich, 4 Appellant Order Denying Appellant’s Motion for 5 v. Release on Bond Pending Appeal
6 United States of America, [ECF No. 26]
7 Appellee
9 Bryce Tyrone Verhonich was charged with three misdemeanors following a 2022 jet-ski 10 accident on Lake Mead that caused the death of his passenger. After a two-day bench trial, 11 Magistrate Judge Daniel J. Albregts found Verhonich guilty of failing to wear a life jacket, 12 failing to attach a safety lanyard used to turn off a jet ski when its driver falls off, and negligently 13 operating a jet ski. The judge imposed a six-month prison sentence followed by two years of 14 supervised release. Verhonich appealed his conviction and sentence to the district court, and I 15 affirmed both.1 Verhonich has now escalated that appeal to the Ninth Circuit,2 and he seeks an 16 order releasing him on bond until that court can take up his appeal.3 Because Verhonich does not 17 raise substantial questions likely to result in a new trial or acquittal, I deny his motion. 18 Discussion 19 18 U.S.C. § 3143 provides that a court must detain a defendant “who has been found 20 guilty of an offense and sentenced to a term of imprisonment” while his appeal is pending unless 21 22 1 ECF No. 21. 23 2 ECF No. 23. 3 ECF No. 26. 1 the court finds by clear and convincing evidence that the defendant is not a flight or safety risk 2 and “the appeal is not for the purposes of delay and raises a substantial question of law or fact 3 likely to result in reversal, an order for a new trial, a sentence that does not include a term of 4 imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time 5 already served plus the expected duration of the appeal process.”4 Federal Rule of Appellate
6 Procedure 9(a) requires the district court to “state in writing, or orally on the record, the reasons 7 for an order regarding the release or detention of a defendant in a criminal case.”5 8 The government does not dispute that Verhonich is not a flight or safety risk or that his 9 appeal is not for the purposes of delay.6 The parties primarily disagree about whether 10 Verhonich’s issues on appeal are substantial. “[P]roperly interpreted, ‘substantial’ defines the 11 level of merit required in the question presented and ‘likely to result in reversal or an order for a 12 new trial’ defines the type of question that must be presented.”7 A substantial question “is one 13 that is fairly debatable,” or “one of more substance than would be necessary to a finding that it 14 was not frivolous.”8 To meet this standard, the defendant “need not . . . present an appeal that
15 will likely be successful, only a non-frivolous issue that, if decided in the defendant’s favor, 16 would likely result in reversal” or a new trial.9 17 Verhonich’s appeal focuses on three allegations of error that he contends are substantial: 18 (1) the magistrate judge improperly admitted evidence that should have been excluded under 19
20 4 18 U.S.C. § 1343. 21 5 Fed. R. App. P. 9(a). 6 See ECF No. 28. 22 7 United States v. Handy, 761 F.2d 1279, 1280 (9th Cir. 1985). 23 8 Id. at 1283 (cleaned up). 9 United States v. Garcia, 340 F.3d 1013, 1020 n.5 (9th Cir. 2003). 1 404(b); (2) insufficient evidence supported his negligent-operation charge; and (3) the magistrate 2 judge impermissibly considered anecdotal evidence when imposing a custodial sentence.10 3 Those arguments are discussed in detail in my prior order denying Verhonich’s appeal and I 4 incorporate my findings, as well as my summary of facts at issue in this case, by reference.11 5 And I conclude that Verhonich has not met his burden to show that his rejected arguments raise a
6 substantial question of law or fact. 7 A. Verhonich’s Rule 404(b) arguments aren’t substantial. 8 Verhonich contends that the trial judge erred when he admitted video evidence of 9 Verhonich (1) not wearing a life jacket four hours before the jet-ski accident; and (2) not 10 attaching the safety lanyard hours after the accident.12 He contends that both videos constitute 11 other-bad-acts evidence, and that the government didn’t give notice under Federal Rule of 12 Evidence 404(b) that it would be introducing that evidence. I previously concluded that the life- 13 jacket evidence was inextricably intertwined with Verhonich’s charge for failing to wear a life 14 jacket, noting that the government’s complaint specifically referenced that video as proof of his
15 failure to wear a life jacket in the hours leading up to the accident.13 Because that video 16 constitutes evidence of the crime charged, and Verhonich does not raise any substantial question 17 of law that would suggest otherwise, I do not find fairly debatable Verhonich’s argument that it 18 should have been excluded under Rule 404(b). 19 Verhonich’s argument concerning the after-the-fact video of his failure to attach a safety 20 lanyard fares no better. Though I previously concluded that this evidence was not inextricably 21 10 ECF No. 26 at 6–14. 22 11 See ECF No. 21. 23 12 ECF No. 26 at 6. 13 ECF No. 21 at 8–9. 1 intertwined with Verhonich’s charges, I found that he could not show on plain-error review that 2 any potential error in admitting that video affected his substantial rights.14 Given the 3 overwhelming evidence of Verhonich’s guilt on the safety-lanyard charge, Verhonich’s 4 arguments that excluding it under Rule 404(b) would have affected the outcome of his trial on 5 this count are not substantial.
6 B. Verhonich’s negligent-operation charge was supported by sufficient evidence. 7 Verhonich argues that there wasn’t sufficient evidence to support his negligent-operation 8 charge.15 He contends primarily that the trial court wasn’t permitted to consider his failure to use 9 a life jacket or safety lanyard to convict him on that charge because the negligent-operation 10 regulation is focused only on “how a person caused the vessel to function.”16 I rejected that 11 argument on appeal, pointing to subsections of the regulation that similarly prohibit operating a 12 watercraft in the presence of “external situations that would make driving the vessel inherently 13 unsafe.”17 And I concluded that there was sufficient evidence to convict Verhonich even if the 14 trial court did not consider evidence of his failure to use a life jacket or a safety lanyard.18 I find
15 that Verhonich’s interpretation of the negligent-operation regulation is not fairly debatable 16 because he fails to account for those subsections that directly contradict it. So Verhonich has not 17 shown that his insufficient-evidence argument raises a substantial question. 18 19 20
21 14 Id. at 9–11. 15 ECF No. 26 at 9. 22 16 Id. at 11. 23 17 ECF No. 21 at 14. 18 Id. 1 C. Verhonich’s allegation of error at sentencing is not substantial.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 2:24-cv-02148-JAD-DJA Bryce Tyrone Verhonich, 4 Appellant Order Denying Appellant’s Motion for 5 v. Release on Bond Pending Appeal
6 United States of America, [ECF No. 26]
7 Appellee
9 Bryce Tyrone Verhonich was charged with three misdemeanors following a 2022 jet-ski 10 accident on Lake Mead that caused the death of his passenger. After a two-day bench trial, 11 Magistrate Judge Daniel J. Albregts found Verhonich guilty of failing to wear a life jacket, 12 failing to attach a safety lanyard used to turn off a jet ski when its driver falls off, and negligently 13 operating a jet ski. The judge imposed a six-month prison sentence followed by two years of 14 supervised release. Verhonich appealed his conviction and sentence to the district court, and I 15 affirmed both.1 Verhonich has now escalated that appeal to the Ninth Circuit,2 and he seeks an 16 order releasing him on bond until that court can take up his appeal.3 Because Verhonich does not 17 raise substantial questions likely to result in a new trial or acquittal, I deny his motion. 18 Discussion 19 18 U.S.C. § 3143 provides that a court must detain a defendant “who has been found 20 guilty of an offense and sentenced to a term of imprisonment” while his appeal is pending unless 21 22 1 ECF No. 21. 23 2 ECF No. 23. 3 ECF No. 26. 1 the court finds by clear and convincing evidence that the defendant is not a flight or safety risk 2 and “the appeal is not for the purposes of delay and raises a substantial question of law or fact 3 likely to result in reversal, an order for a new trial, a sentence that does not include a term of 4 imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time 5 already served plus the expected duration of the appeal process.”4 Federal Rule of Appellate
6 Procedure 9(a) requires the district court to “state in writing, or orally on the record, the reasons 7 for an order regarding the release or detention of a defendant in a criminal case.”5 8 The government does not dispute that Verhonich is not a flight or safety risk or that his 9 appeal is not for the purposes of delay.6 The parties primarily disagree about whether 10 Verhonich’s issues on appeal are substantial. “[P]roperly interpreted, ‘substantial’ defines the 11 level of merit required in the question presented and ‘likely to result in reversal or an order for a 12 new trial’ defines the type of question that must be presented.”7 A substantial question “is one 13 that is fairly debatable,” or “one of more substance than would be necessary to a finding that it 14 was not frivolous.”8 To meet this standard, the defendant “need not . . . present an appeal that
15 will likely be successful, only a non-frivolous issue that, if decided in the defendant’s favor, 16 would likely result in reversal” or a new trial.9 17 Verhonich’s appeal focuses on three allegations of error that he contends are substantial: 18 (1) the magistrate judge improperly admitted evidence that should have been excluded under 19
20 4 18 U.S.C. § 1343. 21 5 Fed. R. App. P. 9(a). 6 See ECF No. 28. 22 7 United States v. Handy, 761 F.2d 1279, 1280 (9th Cir. 1985). 23 8 Id. at 1283 (cleaned up). 9 United States v. Garcia, 340 F.3d 1013, 1020 n.5 (9th Cir. 2003). 1 404(b); (2) insufficient evidence supported his negligent-operation charge; and (3) the magistrate 2 judge impermissibly considered anecdotal evidence when imposing a custodial sentence.10 3 Those arguments are discussed in detail in my prior order denying Verhonich’s appeal and I 4 incorporate my findings, as well as my summary of facts at issue in this case, by reference.11 5 And I conclude that Verhonich has not met his burden to show that his rejected arguments raise a
6 substantial question of law or fact. 7 A. Verhonich’s Rule 404(b) arguments aren’t substantial. 8 Verhonich contends that the trial judge erred when he admitted video evidence of 9 Verhonich (1) not wearing a life jacket four hours before the jet-ski accident; and (2) not 10 attaching the safety lanyard hours after the accident.12 He contends that both videos constitute 11 other-bad-acts evidence, and that the government didn’t give notice under Federal Rule of 12 Evidence 404(b) that it would be introducing that evidence. I previously concluded that the life- 13 jacket evidence was inextricably intertwined with Verhonich’s charge for failing to wear a life 14 jacket, noting that the government’s complaint specifically referenced that video as proof of his
15 failure to wear a life jacket in the hours leading up to the accident.13 Because that video 16 constitutes evidence of the crime charged, and Verhonich does not raise any substantial question 17 of law that would suggest otherwise, I do not find fairly debatable Verhonich’s argument that it 18 should have been excluded under Rule 404(b). 19 Verhonich’s argument concerning the after-the-fact video of his failure to attach a safety 20 lanyard fares no better. Though I previously concluded that this evidence was not inextricably 21 10 ECF No. 26 at 6–14. 22 11 See ECF No. 21. 23 12 ECF No. 26 at 6. 13 ECF No. 21 at 8–9. 1 intertwined with Verhonich’s charges, I found that he could not show on plain-error review that 2 any potential error in admitting that video affected his substantial rights.14 Given the 3 overwhelming evidence of Verhonich’s guilt on the safety-lanyard charge, Verhonich’s 4 arguments that excluding it under Rule 404(b) would have affected the outcome of his trial on 5 this count are not substantial.
6 B. Verhonich’s negligent-operation charge was supported by sufficient evidence. 7 Verhonich argues that there wasn’t sufficient evidence to support his negligent-operation 8 charge.15 He contends primarily that the trial court wasn’t permitted to consider his failure to use 9 a life jacket or safety lanyard to convict him on that charge because the negligent-operation 10 regulation is focused only on “how a person caused the vessel to function.”16 I rejected that 11 argument on appeal, pointing to subsections of the regulation that similarly prohibit operating a 12 watercraft in the presence of “external situations that would make driving the vessel inherently 13 unsafe.”17 And I concluded that there was sufficient evidence to convict Verhonich even if the 14 trial court did not consider evidence of his failure to use a life jacket or a safety lanyard.18 I find
15 that Verhonich’s interpretation of the negligent-operation regulation is not fairly debatable 16 because he fails to account for those subsections that directly contradict it. So Verhonich has not 17 shown that his insufficient-evidence argument raises a substantial question. 18 19 20
21 14 Id. at 9–11. 15 ECF No. 26 at 9. 22 16 Id. at 11. 23 17 ECF No. 21 at 14. 18 Id. 1 C. Verhonich’s allegation of error at sentencing is not substantial.
2 Verhonich contends that the magistrate judge erred when he imposed a six-month 3 sentence plus a two-year term of supervised release because the court relied on “his personal 4 anecdotal experience” to conclude that a custodial sentence was appropriate here.19 But as I 5 explained when affirming Verhonich’s sentence, the caselaw that he relies on to assert error on 6 that basis is inapposite, and Verhonich cites no persuasive authority or argument to suggest that 7 the judge’s comments were an abuse of his discretion.20 So I cannot conclude that Verhonich’s 8 argument is “one of more substance than would be necessary to a finding that it was not 9 frivolous.”21 10 Verhonich also argues that the trial court should have sentenced him to a noncustodial 11 sentence based on evidence he submitted showing that a handful of defendants charged with 12 vehicular manslaughter were not given custodial sentences.22 But Verhonich hasn’t shown that 13 those cases are similar enough to substantially support his argument.23 Even if he had, the Ninth 14 Circuit has specifically held that “a [trial] court does not commit procedural error in its 18
15 U.S.C. § 3553(a) analysis if it does not consider disparities between state and federal sentences 16 for the same criminal conduct.”24 So, Verhonich’s attempt to rely on dissimilar state-court 17 sentences to challenge his custodial sentence is not fairly debatable. 18 19
20 19 ECF No. 26 at 13. 21 20 ECF No. 21 at 17–19. 21 Handy, 761 F.2d at 1283 (cleaned up). 22 22 ECF No. 26 at 14. 23 23 See ECF No. 21 at 17. 24 United States v. Ringgold, 571 F.3d 948, 951 (9th Cir. 2009). 1 Lastly, Verhonich challenges the trial judge’s weighing of the § 3553(a) sentencing 2\| factors. He argues that “this case was, at heart, a tragic accident” and that the court should have 3]| treated it as such.?> He also focuses on his lack of serious criminal history.”° But whether the Al trial judge acted within his sentencing discretion is not a close question. The judge considered the nature and circumstances of Verhonich’s crime, his criminal history following the accident, 6] and his lack of remorse about his passenger’s death to conclude that a custodial sentence was 7|| warranted.”’ Verhonich hasn’t shown that the judge’s consideration of those things was in error, and he doesn’t provide any convincing argument that the judge’s decision to treat this as more 9|| than a “tragic accident” made his sentence substantively unreasonable. So, because I find that none of Verhonich’s appellate challenges are substantial, I deny his motion for release pending 11]| appeal. 12 Conclusion 13 IT IS THEREFORE ORDERED that Bryce Tyrone Verhonich’s motion for release 14|| pending appeal [ECF No. 26] is DENIED. 15 1 vs mit ee Xe US. Disirict Jujige fenni eal Dorsey \pru 7, 2025 18 19 20 21
Id. *7 See ECF No. 21 at 21.