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UNITED STATES v. D'AMATO

August 21, 1989

UNITED STATES OF AMERICA
v.
CARMEN J. D'AMATO, a/k/a "BUTCHIE"



The opinion of the court was delivered by: DITTER, JR.

 J. WILLIAM DITTER, JR., SENIOR UNITED STATES DISTRICT JUDGE

 This case comes before the court on defendant's motion to have bail continued pending the resolution of his appeal to the Third Circuit. Carmen J. D'Amato was convicted by a jury of conspiracy to defraud the Internal Revenue Service in violation of 18 U.S.C. § 371, and was acquitted of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846. *fn1" I denied D'Amato's post-trial motions, sentenced him to serve a four year period of incarceration, ordered him to pay a fine of $ 100,000, and required him to surrender to the United States marchal within thirty days. At sentencing, bail was continued pending D'Amato's surrender to the marshal. The present motion to have it continued pending resolution of his appeal must be denied.

 Section 3143(b) of Title 18 sets forth the standard for release or detention of convicted defendants pending appeal:

 
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 (1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other 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.

 Section 3143(b) places the burden on the defendant to establish four factors before the court may order release pending appeal:

 
(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
 
(2) that the appeal is not for purpose of delay;
 
(3) that the appeal raises a substantial question of law or fact; and
 
(4) 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.

 United States v. Miller, 753 F.2d 19, 24 (3d Cir. 1985). In Miller, the Third Circuit defined "substantial question" as "one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Id. at 23. A creatively drafted appeal, however, does not necessarily warrant release in accordance with Sections 3142(b) or (c) of Title 18 in light of the fourth Miller factor. An issue must be "likely to result in reversal or an order for a new trial" if decided in defendant's favor; hence, alleged trial errors which were harmless or which had no prejudicial effect, and questions which are not integral to the merits of conviction will not warrant release pending appeal. Id. If an issue can be categorized as "fairly debatable," it may be substantial. United States v. Smith, 793 F.2d 85, 89 (3d Cir. 1986) (quoting United States v. Handy, 761 F.2d 1279, 1282 n.2 (9th Cir. 1985)).

 In its response to D'Amato's motion, the government does not contend that D'Amato is likely to flee or that he poses a danger to any person or to the community. The government opposes the motion on the basis that the issues to be raised by D'Amato on appeal do not satisfy the third and fourth Miller factors. *fn2"

 D'Amato states that the issues he will raise on appeal "include, but are not limited to the following: a. those issues raised in pretrial proceedings in this case; b. those issues raised in post trial motions in this case; c. those issues set forth in the case of United States ...


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