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UNITED STATES v. COLLETTA

February 21, 1985

UNITED STATES of America
v.
Jordan B. COLLETTA, D.O.



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 Before me is a motion by defendant for release upon bail pending appeal. Defendant argues that, under the terms of the Bail Reform Act of 1984, as construed by the Court of Appeals for the Third Circuit in United States v. Miller, 753 F.2d 19 (1985), he is entitled to bail pending appeal because his appeal raises substantial issues which, if resolved in his favor, would be likely to result in reversal. For the reasons that follow, I agree.

 I.

 On July 18, 1984, defendant was indicted for three counts of mail fraud. The indictment charged that defendant, a doctor of osteopathy, purposely overstated the number of office visits of certain patients in order to (1) enable the patients to reach the $750 threshold required by Pennsylvania law in order to collect damages for pain and suffering, and (2) collect more money from whatever insurance company was liable for the patients' medical expenses. After a two-day jury trial, defendant was convicted on all three counts on September 13, 1984. Post-trial motions were filed, and oral argument was heard on December 21, 1984. These motions, which sought, in the alternative, judgment of acquittal or a new trial, were denied following oral argument. Defendant was then sentenced to (1) three years of probation, the first six months of which are to be served in a Community Treatment Facility, and (2) restitution to the defrauded insurance companies. At sentencing, defendant indicated that he would appeal his conviction, and requested the court to set bail pending the appeal. I denied this request, for the reason that success on appeal was not in my judgment probable, and was therefore foreclosed under the Bail Reform Act of 1984. *fn1" Defendant proceeded to file his appeal, and again moved, pursuant to Federal Rule of Appellate Procedure 9(b), for bail pending appeal. In an Order entered on January 21, 1985, the Court of Appeals for the Third Circuit denied defendant's motion without prejudice to an application to this court to reconsider, in light of the recent Miller decision, its prior denial of bail. Defendant filed such an application on January 28, 1985. The government filed its response on February 13, 1985.

 II.

 The recently enacted Bail Reform Act of 1984 governs defendant's application. See United States v. Miller, supra, at 21 (1984 Act applies to cases tried before Act took effect). That Act provides in pertinent part:

 
(b) RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT.
 
-- The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds --
 
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
 
If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).

 18 U.S.C. § 3143(b). There is no evidence that defendant, who is suffering from serious medical problems, would either flee or "pose a danger to the safety of any person or the community" if released pending his appeal. Nor does the government contest defendant's motion on this ground. Rather, the government argues that defendant's appeal does not raise "a substantial question of law or fact likely to result in reversal or an order for a new trial." 18 U.S.C. § 3143(b)(2).

 In United States v. Miller, supra, the Third Circuit discussed the requirement created by subsection (b)(2). Miller arose on a motion pursuant to Federal Rule of Appellate Procedure 9 for bail pending appeal. The district court had denied a similar motion after finding that the defendants' appeal was not likely to result in reversal or a new trial order. Miller, supra, at 22. The Court of Appeals rejected the district judge's reading of the statute, which would have required that bail be granted only if the district court found that, more probably than not, it had committed a reversible error. Id. Instead, the Court of Appeals found that subsection (b)(2) calls for two distinct findings: (1) whether the question raised on appeal is "substantial" within the meaning of the Act, and (2) if so, whether a ruling in defendant's favor on that question would require reversal or a new trial. Id. at 23. Thus, the Miller court found, the Act does not require district judges "to be put in the position of 'bookmakers' who trade on ...


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