605 F.2d 85 (3rd Cir. 1979), 79-1912, United States v. Provenzano

Docket Nº:Anthony PROVENZANO, Appellant in No. 79-1912,
Citation:605 F.2d 85
Party Name:UNITED STATES of America v.
Case Date:August 21, 1979
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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605 F.2d 85 (3rd Cir. 1979)



Anthony PROVENZANO, Appellant in No. 79-1912,


Thomas Andretta, Appellant in No. 79-1913.

Nos. 79-1912, 79-1913.

United States Court of Appeals, Third Circuit

August 21, 1979

Argued July 13, 1979.

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Jeffrey Speiser (argued), Sp. Atty., Newark, N. J., Maryanne T. Desmond, Chief, Appeals Div., Asst. U. S. Atty., Newark, N. J., for appellee.

Gerald L. Shargel (argued), New York City, for Anthony Provenzano.

John L. Pollok (argued), Hoffman, Pollok, Mass & Gasthalter, New York City, for Thomas Andretta.

Before ADAMS, ROSENN and HIGGINBOTHAM, Circuit Judges.


ADAMS, Circuit Judge.

The present appeal raises important questions concerning motions for bail pending review of judgments of conviction.

It is this nation's policy that one convicted of a crime shall be entitled to bail while appealing his conviction, unless no set of conditions upon release will reasonably assure that he will not flee or pose a danger to the community. 1 Here, the district court denied two motions for release on bail pending appeal solely on the second of these grounds, namely, that no set of conditions could assure that the defendants, if left free, would not pose a danger to the community. The applicants now renew their motions for release on bail in this Court. Resolution of these motions requires us to decide initially the standard by which an appellate court should review district court orders denying bail during the pendency of judicial review. Our answer to that question then renders necessary consideration of the allocation of the burden of establishing that a defendant poses a risk of flight or a

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risk of harm to the community, as well as the kinds of harm and particular factors pertinent to that determination.


Anthony Provenzano and Thomas Andretta have moved this Court for an order releasing them on bail pending their appeal from convictions in federal district court of violations of the federal racketeering laws. 2 The indictment charged and the jury found that the appellants, along with two co-defendants, 3 corruptly used their positions of influence over the Teamsters Union for their own pecuniary gain. On July 10, 1979, the trial judge imposed on each defendant a sentence of twenty years imprisonment and a fine of $20,000.00.

Immediately following the imposition of the sentences, the prosecution requested the trial judge to remand the appellants into custody without bail. 4 The appellants, in turn, moved the trial judge, pursuant to Federal Rule of Appellate Procedure 9(b), for an order releasing them on bail pending appeal of their convictions. Although explicitly recognizing the strong presumption inherent in the Bail Reform Act in favor of granting bail pending appeal, the trial judge denied the motions on the ground that Provenzano and Andretta, if left free pending appeal, would each constitute a danger to the community. 5

The trial judge specifically refused to base his decision, even in part, on the grounds that the appellants either posed a risk of flight or were pursuing frivolous appeals. Indeed, he declared that given appellants' ties to the community and their record of previous court appearances, bail could be set so as to minimize risk of flight. Similarly, while doubting the merits of the appeals and disclaiming the existence of any judicial error, the trial judge emphasized that such judgments should more aptly be left to this Court, and also declined to

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deny bail on that ground. In predicating his decision solely on the determination that the appellants pose a danger to the community, the trial judge recognized the ambiguity inherent in the clause "danger to . . . the community." His review of cases interpreting that provision, however, convinced him that pecuniary harm, as well as physical danger, was clearly contemplated within the meaning of the Act. 6

In reaching his decision that Provenzano and Andretta posed a danger to the community, the trial judge considered the appellants' histories, including information contained in their presentence reports. He noted in particular that this was Provenzano's third federal felony conviction dealing with some form of labor extortion or racketeering. Of even greater significance to the trial judge was Provenzano's continued "substantial and undesirable" influence within the Teamsters Union, as evidenced by Local 560's munificence toward him during his previous incarcerations as well as his continued control, through his family, of the union. 7 Concluding that he would continue to exercise his influence within the union corruptly and in violation of the criminal law, the trial judge found that Provenzano's freedom pending appeal would constitute a danger to the community.

The trial judge dealt similarly with Andretta's motion for release. Andretta possesses a record of violent criminal activity which includes one grand larceny and five felony convictions. On the basis of this background, the trial judge declared that Andretta "was probably incapable of leading a life free from the commission of crime," 8 and that he, too, therefore constituted a community danger.

Accordingly, on July 12, 1979, the district court ordered the bail previously imposed on the defendants revoked, and remanded them into custody. Provenzano and Andretta then renewed their motions in this Court for an order releasing them on reasonable bail pending appeal. 9


Federal Rule of Appellate Procedure 9(c), 10 by expressly incorporating the criteria for release enunciated in the applicable provisions of the Bail Reform Act, 11 governs an applicant's eligibility for bail or other

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release pending review of his conviction in federal court. Although there is no absolute right to release on bail pending appeal, 12 the Bail Reform Act favors post-trial as well as pre-trial release. Its directive that courts must consider a convicted appellant's potential danger to another person or to the community distinguishes such treatment from that accorded non-convicted persons, however, and reflects Congress's attempt to reconcile the appellant's interest in freedom during the pendency of judicial review and society's interest in preventing individuals convicted of crimes from absconding or endangering the community. 13

Section 3148 of the Act lists the three questions courts must answer in the negative before admitting an applicant to bail pending disposition of his appeal:

(1) Is the appeal frivolous or taken for delay?

(2) Is there reason to believe that no set of conditions will reasonably assure that the person will not flee?

(3) Is there reason to believe that no set of conditions will reasonably assure that the person will not pose a danger to any other person or to the community?

If it appears that an appeal lacks requisite legal merit or is taken for delay, or that the applicant poses an unreasonable risk of flight or danger, the court possesses discretion to order his detention. If not, then the court must order the applicant's release, albeit with appropriate conditions, in accordance with the provisions of section 3146. 14 Despite the Act's embodiment of a

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strong presumption in favor of post-trial as well as pretrial release, "both its structure and its interpretation underscore the delicacy of the determinations which must precede any ruling on that score." 15

The initial resolution of a convicted defendant's motion for release pending appeal has traditionally been entrusted to the trial judge. 16 Federal Rule of Appellate Procedure 9(b) now explicitly provides what the Bail Reform Act contemplated: that an application for release after a judgment of conviction be made in the first instance to the district court, notwithstanding that the jurisdiction of the court of appeals has already attached by virtue of the appeal from the judgment of conviction. 17 The justification for such a requirement stems from the trial court's superior capacity, at least in the first instance, to gather and sift the pertinent information necessary to the correct determination of motions for release pending appeal. Once the district court refuses release, however, Rule 9(b) permits the applicant to submit a motion for release to the court of appeals or a judge thereof.

The "need for ample information," as the Court of Appeals for the District of Columbia Circuit recently emphasized, "is particularly acute to investigations of potential danger to the community." 18 A finding that one convicted of a crime poses a danger to the community necessitates predictions of future behavior that "must rest on a 'scrupulous inquiry' " 19 into an applicant's past, his prospects if released, and any possible conditions of release that might mitigate the danger he poses. Evaluating the harvest of such an inquiry necessarily implicates elements of discretion peculiarly within the competence and experience of the trial court. Given the trial judge's familiarity with the circumstances of a case, his opportunity to observe an applicant's demeanor at trial, and his ability to marshal the relevant informational sources in order to "probe for what is obscure, trap what is elusive, and settle what is controversial," 20 sound practice dictates that applicants seek release in the first instance in the trial court.

These considerations have led a number of courts to declare that the determinations involved in the consideration of motions for release pending appeal rest in the trial court's sound discretion. 21 And

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indeed, the deference and respect appellate courts accord such determinations evidence the genuine importance of a trial court's...

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