applicable guideline range is in Zone B of the Sentencing Table,
the minimum term may be satisfied by . . . [inter alia] (3) a
sentence of probation that includes a condition or combination
of conditions that substitute intermittent confinement,
community confinement, or home detention for
imprisonment. . . ." See USSG § 5C1.1(c)(3).
A likely outcome, should the Third Circuit determine that this
Court should have used the approximately $31,000 figure, could
be a sentence of probation, not a sentence of imprisonment. This
conclusion should not be considered to be an indication of what
this Court is likely to do if the Third Circuit accepts
defendant's contention. Rather, it means only that the Court
cannot say with certainty that defendant would be sentenced to a
term of imprisonment should the Third Circuit accept defendants
argument. Defendant, therefore, has satisfied the Miller test
for bail pending appeal on the Riccardi mail/wire fraud scheme.
C. Counts 17 and 18 — McCausland Wire Fraud Scheme
Defendant's third argument on appeal is that a routinely
issued conforming-use zoning/use permit is not "property" for
the purposes of federal wire fraud charges and should not have
been convicted on these counts. Defendant was convicted of two
wire fraud counts under 18 U.S.C. § 1343, in a sting operation
relating to Maureen McCausland's supposed opening of a new
brothel. Specifically, defendant was convicted of obtaining a
zoning/use permit for a modeling business, when he knew the real
purpose for McCausland's business.
Section 1343 provides as follows: "[w]hoever, having devised
or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises [shall be guilty of
violating this section]." The crux of defendant's argument is
that the zoning permits were not property, but rather "routine
administrative authorizations." In support of the contention
that this is a substantive issue without clear precedent,
defendant points to Cleveland v. United States, ___ U.S. ___,
121 S.Ct. 365, 148 L.Ed.2d 221 (2000), where the Supreme Court
held that a video poker license is "not `property' in the
government regulator's hands". Id, at 371. In that case, the
Court ruled that such a license is not property, in part because
it is essentially an expression of a state's sovereign right to
exclude applicants from running video poker operations. The
license is a way to "permit, regulate, and tax private operators
of the games." Id. at 372.
The government points to several cases in which courts have
held that licenses are property. Specifically, the Supreme Court
has held that a license that permits a person to engage in an
occupation or business is property. See Barry v. Barchi,
443 U.S. 55, 64, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979) (state
horse trainer's license); Bell v. Burson, 402 U.S. 535, 542,
91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (requiring a due process
hearing in connection with suspension of a driver's license).
Neither the Third Circuit nor the Pennsylvania courts have
specifically decided whether zoning permits are property. The
Third Circuit has held that the state has a property interest in
unissued medical licenses. See United States v. Martinez,
905 F.2d 709 (3d Cir. 1990). In Cleveland, however, the Supreme
Court, in resolving a conflict in the Circuits, abrogated the
Third Circuit decision in Martinez. See Cleveland v. United
States, ___ U.S. ___, 121 S.Ct. 365, 369, 148 L.Ed.2d 221.
There is some force to defendant's contention that, following
Cleveland, zoning permits may not be considered property for
the purposes of federal wire fraud charges. The Supreme Court's
decision in Cleveland lends support to defendant's position.
Thus the Court concludes defendant has raised a "substantial
law or fact" sufficient to satisfy the Miller test.
Should the Third Circuit determine that a zoning permit is not
property for the purposes of the federal wire fraud statute, the
requirements for conviction under § 1343 cannot be satisfied.
Thus the Court believes that such a holding would be "likely to
result in reversal or an order for a new trial."
By deciding that defendant has raised substantial questions of
law or fact in his appeal, and deciding that, should the Third
Circuit rule in defendant's favor, a new trial is likely to
result, this Court does not mean to imply that it believes such
an order is probable. Miller prohibits a trial court from
engaging in "bookmaking" — trying to predict whether there is a
51 percent chance of reversal at the appellate level. Instead,
Miller "construed the word `likely' in subsection (b)(2) as
`going to the significance of the substantial issue to the
ultimate disposition of the appeal.'" United States v.
Colletta, 602 F. Supp. 1322, 1329 (E.D.Pa. 1985) (citing United
States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)). Therefore, a
question is "likely to result in reversal or an order for a new
trial" if there is a significant chance that a contrary ruling
by the appellate court would lead to a reversal of the judgment
below. That is the rationale that led this Court to determine
that defendant has satisfied the Miller standard for bail
For the foregoing reasons, defendant Frank Antico's Motion for
Continued Release Pending Appellate Disposition is granted.