On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Cr. 84-00156-04).
BEFORE: HUNTER and MANSMANN, Circuit Judges and POLLAK*fn* District Judge.
We review the district court's application of the substantial question requirement contained in the section of the Bail Reform Act of 1984 governing the release of a convicted defendant pending appeal. 18 U.S.C. § 3143(b). The district court interpreted our decision in United States v. Miller, 753 F.2d 19 (3d Cir. 1985), as requiring that the defendant be released where the issue presented on appeal is not governed by controlling precedent, no matter how improbable a reversal of the conviction. The district court found that under this standard the defendant had raised a substantial question and granted the defendant's motion for bail pending appeal. We reverse.
The defendant was indicted for crimes relating to his participation in a scheme to bribe public officials in Pennsylvania in order to secure the award of Federal Insurance Contribution Act ("FICA") recovery contracts from state and local entities. After jury deliberations commenced, one of the jurors was injured in an automobile accident while returning to the courthouse. The district court, finding that the juror's injuries precluded her from continuing deliberations, invoked Federal Rule of Criminal Procedure 23(b)*fn1 and permitted the remaining eleven jurors to continue deliberations. The jury found the defendant guilty of conspiracy, 18 U.S.C. § 371 (1982), four counts of mail fraud, 18 U.S.C. § 1341 (1982), and four counts of violating the Interstate Transportation in Aid of Racketeering Statute, 18 U.S.C. § 1952(a)(3) (1982) ("I.T.A.R."). The defendant was sentenced to a total of twelve years imprisonment and fined $63,000. The defendant appealed, challenging, inter alia, the constitutionality of Rule 23(b).*fn2
The district court granted the defendant's motion for bail pending appeal pursuant to 18 U.S.C. § 3143(b). The government appeals.
"Because of the crucial nature of the defendant's liberty interest and the 'clear public interest' that is at stake," we are required to "independently determine" whether the defendant is entitled to bail pending appeal. United States v. Strong, 775 F.2d 504, 505 (3d Cir. 1985) (quoting United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir. 1985) and S.Rep. No. 98-225, 98th Cong., 2d Sess. at 30 (1983), reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3213). We must, however, accord some deference to the district court's reasoning.
Appellate courts give the reason articulated by trial judges respectful consideration, but if, after careful assessment of the trial judge's reasoning, together with such papers, affidavits, and portions of the record as the parties present, the court of appeals independently reaches a conclusion different from that of the trial judge the court of appeals has the power to amend or reverse a detention or release decision.
Delker, 757 F.2d at 1400 (citations omitted).
The 1984 Bail Act provides in relevant part that a defendant shall be released on bail pending appeal only if the court finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released pursuant to section 3142(b) or (c); and
(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.
18 U.S.C. § 3143(b). The government does not challenge the district court's finding that the defendant had satisfied his burden of proof with respect to the first portion of these requirements. The government does contest the district court's application of the second half of these criteria.
In Miller we found that Congress intended that the section 3143(b)(2) requirements would place a burden on the defendant to demonstrate "that the appeal raises a substantial question of law or fact" and "that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed." Miller, 753 F.2d at 24. We said that the substantial question prerequisite requires the defendant to prove "that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Id. at 23. We noted:
This [requirement] represents a marked change in the inquiry into the merits in the context of a bail determination, since the 1966 act only required the court to determine whether the issue was ...