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UNITED STATES v. NESSER

August 6, 1996

UNITED STATES OF AMERICA
v.
JAMES JOHN NESSER, III



The opinion of the court was delivered by: CINDRICH

 CINDRICH, District Judge

 August 6, 1996

 Defendant James Nesser was convicted on April 19, 1996 of conspiracy to distribute drugs, conspiracy to launder money, money laundering, and engaging in illegal monetary transactions. After the trial he timely moved for judgment of acquittal or for new trial; for bail or release pending sentence; and for enforcement of a plea agreement. After a full day of argument and testimony on July 17, 1996, the court at the end of the hearing orally denied the motion for enforcement of a plea agreement. We held another half day of argument on the remaining motions on July 31, 1996. For the reasons stated below, Nesser's motion for bail or releas pending sentence will be denied. His motion for judgment of acquittal or for new trial is considered in a separate memorandum opinion and order.

 MOTION FOR BAIL OR RELEASE PENDING SENTENCE

 Nesser argues that bail is available to him pending sentence, and that continued incarceration is unjustified and unnecessary.

 An exception to mandatory detention is also provided where two other conditions are met, one of which is when "an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person." Id. § 3143(a)(2)(A)(ii). Nesser likewise fails to meet this condition. See Government Response in Opposition to Defendant's Motion for Bail/Release Pending Sentence, Doc. No. 251, at 1. He therefore cannot be considered for bail pending sentence under section 3143(a)(2).

 Nesser next argues that 18 U.S.C. § 3145(c) affords him the possibility of relief from detention, because his is an "exceptional" case. Section 3145(c) states:

 
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. The appeal shall be determined promptly. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.

 Before we reach the question of whether Nesser's circumstances are exceptional, we must address the more immediate question of whether he is entitled to invoke section 3145(c) before this court at all.

 The United States Court of Appeals for the Third Circuit has not decided the question. A view accepted by all the circuit courts of appeals that have faced the issue is that district courts may apply section 3145(c). United States v. Mostrom, 11 F.3d 93, 95 (8th Cir. 1993) (accepting without analysis that district court may consider exceptional reasons); United States v. Koon, 6 F.3d 561, 562-63 (9th Cir. 1993) (Rymer, J., concurring in decision not to rehear en banc) (same); United States v. Jones, 979 F.2d 804 (10th Cir. 1992) (per curiam) (same); United States v. Herrera-Soto, 961 F.2d 645, 646-47 (7th Cir. 1992) (per curiam) (same); United States v. DiSomma, 951 F.2d 494, 496 (2d Cir. 1991) (accepting trial court's consideration of exceptional circumstances, citing United States v. Carr, 947 F.2d 1239 (5th Cir. 1991)); United States v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1991) (per curiam) (court "see[s] no reason why Congress would have limited" exceptional reasons test "to reviewing courts.... despite its inclusion in a section generally covering appeals"). *fn1"

 On the other side of this array of appellate authority stands Judge Diamond of this court. United States v. Salome, 870 F. Supp. 648 (W.D. Pa. 1994). In Salome, he carefully reviews the language of section 3145, and concludes that Congress intended section 3145(c) for the courts of appeals to apply. Citing this language, he sets out four reasons supporting his view. While all are persuasive, the first two we find conclusive. These have to do with the structure of section 3145 and the first sentence of section 3145(c).

 With regard to the structure of section 3145, we observe first that section 3145 has three sections. Section 3145(a) concerns review by "the court having original jurisdiction over the offense" of an order issued by "a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court" for release of a defendant. Both the government and ...


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