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U.S. v. ANTICO

November 16, 2000

UNITED STATES OF AMERICA
V.
FRANK ANTICO.



The opinion of the court was delivered by: DuBOIS, District Judge.

ORDER & MEMORANDUM

ORDER

AND NOW, to wit, this 16th day of November, 2000, upon consideration of Defendant Antico's Motion for Continued Release Pending Appellate Disposition (Doc. 166, filed April 27, 2000), Government's Response to Defendant's Motion for Bail Pending Appeal (Doc. 174, filed May 5, 2000), and Defendant Antico's Reply Concerning Appellate Bail (Doc. 175, filed May 9, 2000), and related submissions, for the reasons stated in the accompanying Memorandum, IT IS ORDERED that Defendant Antico's Motion for Continued Release Pending Appellate Disposition is GRANTED.

MEMORANDUM

I. PROCEDURAL HISTORY

On September 30, 1998, a grand jury in the Eastern District of Pennsylvania returned a 19 count superceding indictment charging Frank Antico ("defendant") with: racketeering in violation of 18 U.S.C. § 1962(c) (Racketeer Influenced and Corrupt Organizations Act, "RICO") (Count 1); Hobbs Act Extortion in violation of 18 U.S.C. § 1951 (Counts 2-10); wire fraud in violation of 18 U.S.C. § 1343 (Counts 11-18); and criminal forfeiture pursuant to 18 U.S.C. § 1963 (Count 19). On May 11, 1999, following a fifteen day trial, a jury convicted defendant on all counts of the indictment.

On April 28, 2000, the defendant was sentenced to concurrent terms of 63 months imprisonment on Counts 1 through 10, and to concurrent terms of 60 months imprisonment on Counts 11 through 18, to run concurrently with the sentence imposed on for Counts 1 through 10. In addition, defendant was sentenced to three years supervised release, a fine of $10,000, and a special assessment of $1000, and ordered to forfeit $52,900.

On April 27, 2000, the defendant filed a motion for continued release pending appeal. On May 4, 2000 defendant filed a timely notice of appeal.

II. STANDARD FOR BAIL PENDING APPEAL

Under Federal Rule of Appellate Procedure 9(c), the decision to release a person sentenced to a term of imprisonment pending appeal is governed by 18 U.S.C. § 3143. Under that statute, the defendant must satisfy two requirements in order to be released pending appeal: (1) the defendant must satisfy the court, by clear and convincing evidence, that he is unlikely to flee or pose a danger to the safety of any other person or the community if released; and (2) the defendant must establish that his appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment or a reduced sentence less than the total of time served. 18 U.S.C. § 3143(b); see also United States v. Miller, 753 F.2d 19, 24 (3d Cir. 1985). Release should be granted only if the decision on appeal of the "substantial question," if resolved in the defendant's favor, would be likely to result in reversal or an order for a new trial "of all counts on which imprisonment has been imposed." Id.

A substantial question within the meaning of § 3143 is one that is "fairly debatable" on which reasonable jurists might disagree.*fn1 See United States v. Smith, 793 F.2d 85, 89-90 (3d Cir. 1986). Another way of looking at the substantial question standard is to ask whether the question is "adequate to deserve encouragement to proceed further." Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983) (citations omitted)). The term "likely to result" in reversal does not mean that the court must act as a "bookmaker," predicting the outcome of defendant's appeal. See Miller, 753 F.2d at 23. Rather, the term means that the court must consider whether the defendant raises a "substantial question of law or fact" and, if so, the likelihood that acceptance of his arguments on appeal would result in either a reversal or an order for new trial.

The Miller test first requires the court to determine whether the defendant is likely to flee or to pose a danger to the community. It then requires a determination as to whether the appeal is for purposes of delay. See Miller at 24. The government does not challenge defendant's assertions that he is unlikely to flee, and that the appeal is not for purposes of delay. Rather the government disputes whether defendant has raised a substantial issue likely to result in reversal or an order for a new trial on all counts. It is to this question which the Court now turns.

III. SUBSTANTIAL ISSUE LIKELY TO RESULT IN REVERSAL OR ...

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