754 F.2d 898 (11th Cir. 1985), 84-3861, United States v. Giancola

• Docket Number: 84-3861.
• Date: 15 February 1985
• Citation: 754 F.2d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis Martin GIANCOLA and Charles A. Pifer, II, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 898

754 F.2d 898 (11th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francis Martin GIANCOLA and Charles A. Pifer, II,

Defendants-Appellants.

No. 84-3861.

United States Court of Appeals, Eleventh Circuit

February 15, 1985

Page 899

Mark L. Horwitz, Orlando, Fla., for Giancola and Pifer.

Garry J. Stegeland, Asst. U.S. Atty., Orlando, Fla., Thomas E. Booth, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before RONEY, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

This emergency motion for bond pending appeal requires this court to consider for the first time the interpretation of the post-conviction release provision of the recently enacted Bail Reform Act of 1984, Pub.L. No. 98-473, Sec. 203, 98 Stat.1981-82 (to be codified at 18 U.S.C. Sec. 3143), ¹ which sets forth a number of conditions that must be met before a district court may grant bail pending appeal. In this case, we are concerned with the meaning of the condition requiring that the appeal "raise[ ] a substantial question of law or fact likely to result in reversal or an order for a new trial."

FACTS

Appellants, Francis Martin Giancola and Charles A. Pifer, II, were convicted in the United States District Court for the Middle District of Florida of two counts of conspiracy to defraud in violation of 18 U.S.C. Sec. 371. They were sentenced to concurrent terms of five years imprisonment on each count. At sentencing, appellants requested bail pending appeal. The district court denied that request. The parties stipulate that the district court undertook to apply the requirements of the new Bail Reform Act and found that all of the conditions for granting bail were met, ² except the condition that the appeal is "likely to result in reversal or an order for a new trial." The district court denied bail solely because that condition was not met.

DISCUSSION

The post-conviction release provision of the 1984 Bail Reform Act provides:

(b) RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT

The judicial officer [of a court of original jurisdiction over an offense, or of a Federal appellate court] shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for writ of certiorari, be detained, unless the judicial officer finds--

(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released pursuant to sections 3142(b) or (c); and

(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of sections 3142(b) or (c).

Page 900

All parties agree that the district court interpreted the requirement that the appeal "raise[ ] a substantial question of law or fact likely to result in reversal or an order for a new trial" to mean that a court may grant bail only if it finds that its own rulings are likely to be reversed on appeal. We hold that this is an incorrect interpretation of the statutory requirement.

In interpreting the statutory language at issue here, we are aided significantly by the thoughtful analysis of this provision by Judge Sloviter, writing for the Third Circuit in its recent decision United States v. Miller, 753 F.2d 19 (3d Cir.1985). In Miller, the Third Circuit addressed the same question raised in this case. That court rejected the interpretation adopted by the district court here, stating,

we are unwilling to attribute to Congress the cynicism that would underlie the provision were it to be read as requiring the district court to determine the likelihood of its own error. A district judge who, on reflection, concludes that s/he erred may rectify that error when ruling on post-trial motions. Judges do not knowingly leave substantial errors uncorrected, or deliberately misconstrue applicable precedent. Thus, it would have been capricious of Congress to have conditioned bail only on the willingness of a trial judge to certify his or her own error.

Id. at 23.

We agree with the Third Circuit's reasoning. We, too, are unwilling to attribute to Congress the intention to deny bail pending appeal unless a district court judge found that he or she had committed error but was obstinately unwilling to grant a new trial or other relief to correct that error.

In Miller, the Third Circuit held that the proper interpretation of the provision was that it required, first, that the appeal raise a substantial question of law or fact, and, second, that "if that substantial question is determined favorably to the defendant on appeal, that decision...