761 F.2d 1279 (9th Cir. 1985), 85-3001, United States v. Handy

Docket Nº:85-3001.
Citation:761 F.2d 1279
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Connie M. HANDY, Defendant-Appellant.
Case Date:February 20, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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761 F.2d 1279 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Connie M. HANDY, Defendant-Appellant.

No. 85-3001.

United States Court of Appeals, Ninth Circuit

February 20, 1985

Submitted Jan. 3, 1985.

Amended May 21, 1985.

Andrew Hamilton, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Alix Foster, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant.

Motion for Release Pending Appeal from the Western District of Washington (Seattle).

Before SCHROEDER, FARRIS and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Appellee's motion for bail pending appeal requires an interpretation of an important provision of the Bail Reform Act of 1984, Pub.L. No. 98-473, Secs. 202-210, 98 Stat. 1837, 1976-1987 (codified at scattered sections of 18 U.S.C.). The Act provides that a defendant who has been convicted and sentenced to a term of imprisonment shall be detained pending appeal unless the court finds "that the person is not likely to flee or pose a danger to the safety of any other person or the community if released" and "that the appeal is not for purpose of

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delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial." 18 U.S.C. Sec. 3143(b). Here, we are required to interpret for the first time the meaning of the phrase "a substantial question of law or fact likely to result in a new trial."

Handy was indicted for conspiracy to import heroin, 21 U.S.C. Sec. 963 (1982), importation of heroin, 21 U.S.C. Secs. 952, 960(a)(1), (b) (1982), and possession of heroin with intent to distribute, 21 U.S.C. Sec. 841(a)(1), (b)(1)(A) (1982). She was admitted to bail pending trial upon execution of a $20,000 secured appearance bond.

Handy filed a motion to suppress illegally obtained evidence. She contended that the customs officers who strip searched her and discovered heroin had no "real suspicion" that she was engaged in the smuggling of narcotics. See United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir.1970). After conducting three days of hearings on Handy's suppression motion, the district court issued a written order denying the motion. Handy then stipulated to the facts, including possession of heroin, but reserved the right to challenge on appeal the admissibility of the evidence discovered as a result of the strip search. Shortly thereafter the district court convicted her following a trial on the stipulated facts.

The district court sentenced Handy to two concurrent 18-month terms of incarceration to be followed by a five-year period of probation and a special parole term. At the sentencing hearing, the district court denied Handy's motion for bail pending appeal. The court found by clear and convincing evidence that Handy was not likely to flee or pose a danger to the safety of any other person or the community if released, "and that the appeal is not for the purpose of delay and does raise a substantial question of law." The court nevertheless denied bail on the ground that it did not view reversal to be "likely."

Handy then moved this court to admit her to bail pending appeal on the same terms in effect prior to conviction. Because we conclude that the district court misconstrued the phrase "substantial question likely to result in reversal or an order for a new trial," 18 U.S.C. Sec. 3143(b) (1982), we grant Handy's motion.

The government contends that the disputed phrase plainly limits bail pending appeal to defendants who can demonstrate that they will probably prevail on appeal. Handy argues that, properly interpreted, "substantial" defines the level of merit required in the question presented and "likely to result in reversal or an order for a new trial" defines the type of question that must be presented. The Third Circuit has recently adopted the view urged by Handy, United States v. Miller, 753 F.2d 19 (3d Cir.1985), as has the Eleventh Circuit, United States v. Giancola, 754 F.2d 898 (11th Cir.1985). We adopt that interpretation of the statute as well.

The construction of the phrase suggested by the government is untenable for a number of reasons. First, the meaning the government would have us give the phrase is precisely the meaning the phrase would have if the word "substantial" were deleted, i.e., if the statute limited bail to cases in which "the appeal is not for purpose of delay and raises a question of law or fact likely to result in reversal or an order for a new trial." A statute should be construed so as to avoid making any word superfluous. Yamaguchi v. State Farm Mutual Automobile Insurance Co., 706 F.2d 940, 946 (9th Cir.1983); United States v. Mehrmanesh, 689 F.2d 822, 829 (9th Cir.1982).

Second, Congress did not intend to limit bail pending appeal to cases in which the defendant can demonstrate at the outset of appellate proceedings that the appeal will probably result in reversal or an order for a new trial. The legislative history states that the purpose of the statute is to require "an affirmative finding that the chance for reversal is substantial." S.Rep. No. 98-225, 98th Cong., 2d Sess. 27, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3210. As we discuss further infra, a showing

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that the chance of reversal is substantial is, of course, very different from a showing that reversal is more likely than not.

Finally, requiring the defendant to demonstrate to the district court that its ruling is likely to result in reversal is tantamount to requiring the district court to certify that it believes its ruling to be erroneous. Such an interpretation of the Act would make a mockery of the requirement of Fed.R.App.P. 9(b) that the application for bail be made in the first instance in the district court. We do not think Congress intended to invalidate that requirement sub silentio and thereby to vest exclusive authority over post-sentencing bail motions in appellate courts. In fact, the new version of 18 U.S.C. Sec. 3141 adopted in the Act, see Bail Reform Act of 1984, Pub.L. No. 98-473, Sec. 203, 98 Stat. 1981, makes it plain that such was not the intent of Congress.

For the above reasons, we reject the government's proposed construction of the statute. Like the Third and Eleventh Circuits, we find that the word "substantial" defines the level of merit required in the question raised on appeal, while the phrase "likely to result in reversal" defines the type of question that must be presented.

Next, we examine the closely related issue of how much merit there must be to a question in order for a court to find it to be a "substantial question." An excessively strict interpretation of the term could result in giving the statute precisely the effect we have already rejected. Fortunately the issue is hardly a new one for the courts; nor does it appear to be one of particular difficulty.

Historically the phrase "substantial question" has referred to questions that are "fairly debatable." Included within this definition have been questions that are novel and not readily answerable.

The question may be "substantial" even though the judge or justice hearing the application for bail would affirm on the merits of the appeal. The question may be new and novel. It may present unique facts not plainly covered by the controlling precedents. It may involve important questions concerning the scope and meaning of decisions of the Supreme Court. The application of well-settled principles to the facts of the instant case may raise issues that are fairly debatable.

D'Aquino v. United States, 180 F.2d 271, 272 (11th Cir.1950) (Douglas, Circuit Justice). In Herzog v. United States, 75 S.Ct. 349, 351, 99 L.Ed. 1299 (1955), Circuit Justice Douglas stated:

[T]he first consideration is the soundness of the errors alleged. Are they, or any of them, likely to command the respect of the appellate judges? It is not enough that I am unimpressed. I must decide whether there is a school of thought, a philosophical view, a technical argument, an analogy, an appeal to precedent or to reason commanding respect that might possibly prevail.... A question may nevertheless be "substantial" ... if it is novel, or if there is a contrariety of views concerning it in the several circuits, or if the appellate court should give directions to its district judges on the question, or if in the interests of the administration of justice some clarification of an existing rule should be made.

See also Williamson v. United States, 184 F.2d 280, 282 (2d Cir.1950) (Jackson, Circuit Justice) ("It is one thing to maintain that the Court of Appeals has given the right answer to a substantial question, but it is another thing to contend that there is no question which merits answer by the only Court invested with ultimate and nation-wide authority in the matter.").

The Supreme Court has recently reiterated that a "substantial question" is one that is "fairly debatable." In Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), when discussing the level of merit required in a habeas appeal involving a death penalty, the Supreme Court noted that a " 'substantial showing of the denial of [a] federal right,' " 103 S.Ct. at 3394 (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied,

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Y406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972) ), is " 'something more than the absence of frivolity,' " id. (quoting Blackmun, Allowance of In Forma Pauperis Appeals in Sec. 2255 and Habeas Corpus Cases, 43 F.R.D. 343, 352 (8th Cir.1967) ). 1 The Court continued on to define a "substantial question" as one that poses issues " 'debatable among jurists of reason,' " id. at n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980) )...

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