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USCA1 Opinion
July 31, 1992 [NOT FOR PUBLICATION]
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No. 92-1708
UNITED STATES,
Appellee,
v.
SIDNEY WEINER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Harry C. Mezer, Stephen R. Delinsky and Eckert, Seamans,
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Cherin & Mellott on Motion for Stay and Release on Bail Pending
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Appeal, for appellant.
A. John Pappalardo, United States Attorney, Todd E. Newhouse
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and Ernest S. Dinisco, Assistant United States Attorneys, on
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Opposition to Motion for Stay and Release on Bail Pending Appeal,
for appellee.
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Per Curiam. This is a motion for bail pending appeal.
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In February 1992, defendant Sidney Weiner was convicted of
RICO conspiracy, 18 U.S.C. 1962(d), a substantive RICO
violation, 18 U.S.C. 1962(c), and three counts of
conspiracy to collect an extension of credit by extortionate
means, 18 U.S.C. 894. In April, he was sentenced to a
prison term of two years. Having earlier been released on
bail pending trial and sentencing, defendant then moved for
bail pending appeal. The district court summarily denied the
motion, and defendant renewed his motion in this court. We
remanded the matter for submission of a statement of reasons
supporting the denial of bail, see Fed. R. App. P. 9(b), and
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stayed defendant's sentence pending further order. Having
now received the district court's reasons, we deny the motion
for release and vacate the stay of sentence.
It is clear that defendant is subject to mandatory
detention under 18 U.S.C. 3143(b)(2). With one exception
discussed infra, that provision requires that any person
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convicted of, inter alia, a "crime of violence" be detained
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pending appeal. A crime of violence is defined as follows:
(A) an offense that has as an element of the
offense the use, attempted use, or threatened use
of physical force against the person or property of
another, or
(B) any other offense that is a felony and
that, by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of committing
the offense.
18 U.S.C. 3156(a)(4). The district court found, and
defendant does not seriously dispute, that each of the
offenses here falls within this definition. As mentioned,
defendant was convicted on three counts of conspiracy to
collect extensions of credit by extortionate means; these
offenses also formed the predicates for the two RICO
convictions. And an "extortionate means" is defined as "any
means which involves the use, or an express or implicit
threat of use, of violence or other criminal means to cause
harm to the person, reputation, or property of any person."
18 U.S.C. 891(7).
As such, defendant is entitled to bail pending appeal
only if he can: (1) establish by clear and convincing
evidence that he is not likely to flee or pose a danger to
the safety of any other person or the community, 18 U.S.C.
3143(b)(1)(A); (2) demonstrate that the appeal raises a
substantial question of law or fact likely to result in,
inter alia, reversal or an order for a new trial, id.
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3143(b)(1)(B); and (3) "clearly show[] that there are
exceptional reasons why [his] detention would not be
appropriate," id. 3145(c). The district court found that
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defendant posed no risk of flight. While no explicit finding
was made as to dangerousness, the fact that defendant was
released pending sentence necessarily entailed a finding that
he was not likely to pose a danger. See id. 3143(a). The
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court further found, however, that defendant had failed to
raise a "substantial" question on appeal and also had failed
to demonstrate "exceptional reasons" why detention would be
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inappropriate. Either finding, if supportable, would suffice
to justify the denial of bail here.
Defendant, relying on United States v. DiSomma, 951 F.2d
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494 (2d Cir. 1991), contends that the exception to mandatory
detention should apply. In DiSomma, the court affirmed a
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ruling that "exceptional reasons" existed where the defendant
was challenging on appeal the factual sufficiency of the very
issue that subjected him to mandatory detention--whether he
committed a crime of violence. Defendant here has likewise
advanced a challenge to the sufficiency of the evidence
underlying his convictions. Yet this case is distinguishable
from DiSomma on at least two grounds. There, the district
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court found (and the appellate court agreed) that the
sufficiency-of-the-evidence issue was a "substantial" one;
here, the district court has concluded it is not. And there,
the district court found that "exceptional reasons" existed;
here, it has found them to be absent. These distinctions
prove dispositive.
We agree with the lower court that defendant's challenge
to the sufficiency of the evidence falls short of presenting
a "substantial" question--i.e., one that is close or could
very well be decided the other way. See, e.g., United States
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v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985). In fact, it
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would be difficult at this juncture to reach any other
conclusion. We are obligated to decide bail motions
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promptly, on the basis of "such papers, affidavits, and
portions of the record as the parties shall present." Fed.
R. App. P. 9(b). Here, the parties have outlined some of the
key evidence in their memoranda. Yet little can be
conclusively gleaned from such synopses. See Bourjaily v.
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United States, 483 U.S. 171, 178-80 (1987) ("[I]ndividual
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pieces of evidence, insufficient in themselves to prove a
point, may in cumulation prove it. The sum of an evidentiary
presentation may well be greater than its constituent
parts."). Lacking transcripts, we must of necessity defer in
large measure to the district court's evaluation of the
sufficiency of the evidence. See, e.g., United States v.
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Harris, 942 F.2d 1125, 1135 n.7 (7th Cir. 1991)
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("Necessarily, a district court's thorough knowledge of the
merits of a case puts it in a better position to evaluate
petitions for release than our Court, at least until the
issues have been fully presented to the Court through
briefing and oral argument.").1 The Second Circuit in
DiSomma, emphasizing "the trial judge's close familiarity
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1. The Harris court, having earlier denied bail pending
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appeal, reversed the convictions of the two defendants due to
lack of evidence. While the court had ordered their release
the day after oral argument, the defendants by then had
"already served most of the[ir] sentences." 942 F.2d at 1135
n.7. Describing this as "an injustice," the court encouraged
counsel "who believe that the Court should have granted a
petition for release" to "renew[] the petition in their main
appellate briefs." Id. We would likewise encourage such an
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approach in cases challenging the sufficiency of the
evidence.
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with the evidence presented," 951 F.2d at 497, deferred to
the lower court's finding that the challenge to the factual
sufficiency was a "substantial" one. For the same reason,
the finding here that such a challenge is not substantial
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also deserves deference. Based on our review of the parties'
factual descriptions, and given the deference due at this
stage of an appeal to the trial judge's first-hand evaluation
of evidentiary sufficiency, we conclude that no substantial
question in this regard has been presented.2
Even if we were to reach the opposite conclusion, we
would be loath to find that the district court abused its
discretion in determining that defendant had not clearly
shown "exceptional reasons" under 3145(c) why his detention
would be inappropriate. Defendant would read into this
exception the requirement that, whenever one who has been
convicted of a "crime of violence" (and who is not a risk of
flight or danger) has raised a "substantial question" as to
the sufficiency of the evidence, release must be ordered.
Yet such a rule--which presumably would also apply to those
convicted of offenses described in 3142(f)(1)(B) & (C)--
finds no support in the statutory language, and would seem at
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2. Defendant has pointed to additional issues on appeal
(not involving the sufficiency of the evidence) which he
claims to be substantial. These need not be considered, as
they provide no basis for invoking the DiSomma rationale, and
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defendant has offered no basis other than DiSomma for an
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exceptional-reasons determination.
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odds with Congress' purpose in enacting the mandatory-
detention provision. Neither the statute nor the legislative
history "defines the circumstances which may qualify as
exceptional reasons permitting release." DiSomma, 951 F.2d
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at 497. The few courts to address the matter agree that
there must be present "a unique combination of circumstances
giving rise to situations that are out of the ordinary."
Id.; accord United States v. Herrera-Soto, 961 F.2d 645, 647
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(7th Cir. 1992) (per curiam) (reversing finding that
defendant's substantial challenge to supplemental jury
instruction provided exceptional reason for release; there is
"nothing out of the ordinary about the circumstances" here);
see also United States v. Carr, 947 F.2d 1239, 1240 (5th Cir.
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1991) (per curiam) ( 3145(c) provides "avenue for
exceptional discretionary relief" from mandatory-detention
provision). The absence of statutory criteria makes clear,
we think, that district courts have wide discretion in
deciding whether to invoke this provision--and that a finding
of no exceptional reasons should be disturbed on appeal only
in compelling circumstances. See DiSomma, 951 F.2d at 497
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("it is not our intention to foreclose district judges from
the full exercise of discretion in these matters"). Even if
defendant's evidentiary challenge were to be deemed a
"substantial" one, we see nothing in the relatively ordinary
circumstances here that would call for such a result.
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The motion for release on bail pending appeal is denied,
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and the stay of sentence is vacated. The matter is remanded
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to the district court for designation of a suitable reporting
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date.
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Document Info
Docket Number： 92-1708
Filed Date： 7/31/1992
Precedential Status： Precedential
Modified Date： 3/3/2016