the right to seek such review, the latter for review of the conditions of release.
Section 3145(b) concerns review under the same terms as section 3145(a) of an order that a defendant be detained.
This leads to section 3145(c). The first sentence of section 3145(c) provides that "an appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title." (Emphasis added.) Thus, after providing for "review" by "the court having original jurisdiction over the offense" in sections 3145(a) and (b), section 3145(c) then progresses to a right to an "appeal" from a release or detention order.
Section 3145(c) then refers to 28 U.S.C. § 1291 and 18 U.S.C. § 3731. The sole purpose of title 28 U.S.C. § 1291 is to assign jurisdiction to courts of appeals "from all final decisions of the district courts of the United States" and other territorial district courts. The sole purpose of title 18 U.S.C. § 3731 is to establish, in criminal cases, when "an appeal by the United States shall lie to a court of appeals."
Since Congress provided that an "appeal" from a release or detention order "is governed by" these statutes, we find this an unmistakable indication that such an appeal is appropriately taken to the courts of appeals. The first sentence of section 3145(c) otherwise makes no sense; it is not logical to construe the first sentence as giving the district courts power to hear appeals (from themselves, no less) pursuant to two statutes whose purpose is to establish the scope of jurisdiction for courts of appeals.
Furthermore, still confining ourselves to the language of section 3145, both sections 3145(a) and (b) contain references to judicial decisionmakers "other than a Federal appellate court." Section 3145(c) omits this language. The natural and justifiable conclusion to draw from this structure is that the "other than a Federal appellate court" language is left out of section 3145(c) because Congress was addressing federal appellate courts in that section, and so did not need to separately distinguish them.
To further bolster these conclusions, we adopt the reasoning of Salome not repeated or amplified above.
We feel compelled to add that we do not lightly rule in a manner contrary to six courts of appeals. The collective weight of a legal conclusion accepted (to what degree we do not know) by at least 16 appellate judges from other circuits is more than enough to strongly counsel hesitation in following the conclusion we have reached. The fact remains, however, that the appellate opinions cited above either did not analyze the statutory language at all, or did so cursorily or conclusorily. When contrasted with these decisions, our own review of the specific statutory language, and Judge Diamond's scrutiny of the statutory language and application of rules of statutory construction, furnish a path to addressing Nesser's arguments that the appellate courts simply have not explored. Accordingly, we will not consider Nesser's "exceptional reasons" argument for bail pending appeal, finding that Congress reserved this task for the court of appeals.
Nesser's final argument regarding detention pending sentence is that detention under the Bail Reform Act does not mean incarceration as he currently is confined. While this may be so, given the jury's verdict against Nesser, the court is not inclined, and finds no grounds, to modify his conditions of detention.
An order consistent with this memorandum opinion will be entered.
In accordance with the accompanying memorandum opinion, James Nesser's Motion for Bail/Release Pending Sentence, Doc. No. 241, is DENIED.
SO ORDERED this 6 day of August, 1996.
ROBERT J. CINDRICH
United States District Judge