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United States v. Provenzano

decided: August 21, 1979.

UNITED STATES OF AMERICA
v.
ANTHONY PROVENZANO, APPELLANT IN NO. 79-1912 AND THOMAS ANDRETTA, APPELLANT IN NO. 79-1913



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Before Adams, Rosenn and Higginbotham, Circuit Judges.

Author: Adams

Opinion OF THE COURT

The present appeal raises important questions concerning motions for bail pending review of judgments of conviction.

It is this nation's policy that one convicted of a crime shall be entitled to bail while appealing his conviction, unless no set of conditions upon release will reasonably assure that he will not flee or pose a danger to the community.*fn1 Here, the district court denied two motions for release on bail pending appeal solely on the second of these grounds, namely, that no set of conditions could assure that the defendants, if left free, would not pose a danger to the community. The applicants now renew their motions for release on bail in this Court. Resolution of these motions requires us to decide initially the standard by which an appellate court should review district court orders denying bail during the pendency of judicial review. Our answer to that question then renders necessary consideration of the allocation of the burden of establishing that a defendant poses a risk of flight or a risk of harm to the community, as well as the kinds of harm and particular factors pertinent to that determination.

I.

Anthony Provenzano and Thomas Andretta have moved this Court for an order releasing them on bail pending their appeal from convictions in federal district court of violations of the federal racketeering laws.*fn2 The indictment charged and the jury found that the appellants, along with two co-defendants,*fn3 corruptly used their positions of influence over the Teamsters Union for their own pecuniary gain. On July 10, 1979, the trial judge imposed on each defendant a sentence of twenty years imprisonment and a fine of $20,000.00.

Immediately following the imposition of the sentences, the prosecution requested the trial judge to remand the appellants into custody without bail.*fn4 The appellants, in turn, moved the trial judge, pursuant to Federal Rule of Appellate Procedure 9(b), for an order releasing them on bail pending appeal of their convictions. Although explicitly recognizing the strong presumption inherent in the Bail Reform Act in favor of granting bail pending appeal, the trial judge denied the motions on the ground that Provenzano and Andretta, if left free pending appeal, would each constitute a danger to the community.*fn5

The trial judge specifically refused to base his decision, even in part, on the grounds that the appellants either posed a risk of flight or were pursuing frivolous appeals. Indeed, he declared that given appellants' ties to the community and their record of previous court appearances, bail could be set so as to minimize risk of flight. Similarly, while doubting the merits of the appeals and disclaiming the existence of any judicial error, the trial judge emphasized that such judgments should more aptly be left to this Court, and also declined to deny bail on that ground. In predicating his decision solely on the determination that the appellants pose a danger to the community, the trial judge recognized the ambiguity inherent in the clause "danger to . . . the community." His review of cases interpreting that provision, however, convinced him that pecuniary harm, as well as physical danger, was clearly contemplated within the meaning of the Act.*fn6

In reaching his decision that Provenzano and Andretta posed a danger to the community, the trial judge considered the appellants' histories, including information contained in their presentence reports. He noted in particular that this was Provenzano's third federal felony conviction dealing with some form of labor extortion or racketeering. Of even greater significance to the trial judge was Provenzano's continued "substantial and undesirable" influence within the Teamsters Union, as evidenced by Local 560's munificence toward him during his previous incarcerations as well as his continued control, through his family, of the union.*fn7 Concluding that he would continue to exercise his influence within the union corruptly and in violation of the criminal law, the trial judge found that Provenzano's freedom pending appeal would constitute a danger to the community.

The trial judge dealt similarly with Andretta's motion for release. Andretta possesses a record of violent criminal activity which includes one grand larceny and five felony convictions. On the basis of this background, the trial judge declared that Andretta "was probably incapable of leading a life free from the commission of crime,"*fn8 and that he, too, therefore constituted a community danger.

Accordingly, on July 12, 1979, the district court ordered the bail previously imposed on the defendants revoked, and remanded them into custody. Provenzano and Andretta then renewed their motions in this Court for an order releasing them on reasonable bail pending appeal.*fn9

II.

Federal Rule of Appellate Procedure 9(c),*fn10 by expressly incorporating the criteria for release enunciated in the applicable provisions of the Bail Reform Act,*fn11 governs an applicant's eligibility for bail or other release pending review of his conviction in federal court. Although there is no absolute right to release on bail pending appeal,*fn12 the Bail Reform Act favors post-trial as well as pre-trial release. Its directive that courts must consider a convicted appellant's potential danger to another person or to the community distinguishes such treatment from that accorded non-convicted persons, however, and reflects Congress's attempt to reconcile the appellant's ...


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