793 F.2d 85 (3rd Cir. 1986), 85-5557, United States v. Smith

Docket Nº:85-5557.
Citation:793 F.2d 85
Party Name:UNITED STATES of America v. William T. SMITH, Jr. Appeal of UNITED STATES of America.
Case Date:June 13, 1986
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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793 F.2d 85 (3rd Cir. 1986)



William T. SMITH, Jr.

Appeal of UNITED STATES of America.

No. 85-5557.

United States Court of Appeals, Third Circuit

June 13, 1986

Argued March 18, 1986.

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James J. West (Argued), U.S. Atty., Harrisburg, Pa., for appellant.

John Rogers Carroll (Argued), Carroll & Carroll, Philadelphia, Pa., for appellee.

Before HUNTER and MANSMANN, Circuit Judges and POLLAK [*] District Judge.


Judges HUNTER and POLLAK agree

as to parts I., II. and III.,

Judge HUNTER also joins as to part VI.,

Judge POLLAK also joins parts IV.(B) and (C)

MANSMANN, Circuit Judge.

We review the district court's application of the substantial question requirement contained in the section of the Bail Reform Act of 1984 governing the release of a convicted defendant pending appeal. 18 U.S.C. Sec. 3143(b). The district court interpreted our decision in United States v. Miller, 753 F.2d 19 (3d Cir.1985), as requiring that the defendant be released where the issue presented on appeal is not governed by controlling precedent, no matter how improbable a reversal of the conviction. The district court found that under this standard the defendant had raised a substantial question and granted the defendant's motion for bail pending appeal. We reverse.


The defendant was indicted for crimes relating to his participation in a scheme to bribe public officials in Pennsylvania in order to secure the award of Federal Insurance Contribution Act ("FICA") recovery contracts from state and local entities. After jury deliberations commenced, one of the jurors was injured in an automobile accident while returning to the courthouse. The district court, finding that the juror's

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injuries precluded her from continuing deliberations, invoked Federal Rule of Criminal Procedure 23(b) 1 and permitted the remaining eleven jurors to continue deliberations. The jury found the defendant guilty of conspiracy, 18 U.S.C. Sec. 371 (1982), four counts of mail fraud, 18 U.S.C. Sec. 1341 (1982), and four counts of violating the Interstate Transportation in Aid of Racketeering Statute, 18 U.S.C. Sec. 1952(a)(3) (1982) ("I.T.A.R."). The defendant was sentenced to a total of twelve years imprisonment and fined $63,000. The defendant appealed, challenging, inter alia, the constitutionality of Rule 23(b). 2

The district court granted the defendant's motion for bail pending appeal pursuant to 18 U.S.C. Sec. 3143(b). The government appeals.


"[B]ecause of the crucial nature of the defendant's liberty interest and the 'clear public interest' that is at stake," we are required to "independently determine" whether the defendant is entitled to bail pending appeal. United States v. Strong, 775 F.2d 504, 505 (3d Cir.1985) (quoting United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985) and S.Rep. No. 98-225, 98th Cong., 2d Sess. at 30 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3213). We must, however, accord some deference to the district court's reasoning.

[A]ppellate courts give the reasons articulated by trial judges respectful consideration, but if, after careful assessment of the trial judge's reasoning, together with such papers, affidavits, and portions of the record as the parties present, the court of appeals independently reaches a conclusion different from that of the trial judge the court of appeals has the power to amend or reverse a detention or release decision.

Delker, 757 F.2d at 1400 (citations omitted).


The 1984 Bail Act provides in relevant part that a defendant shall be released on bail pending appeal only if the court 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 section 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.

18 U.S.C. Sec. 3143(b). The government does not challenge the district court's finding that the defendant had satisfied his burden of proof with respect to the first portion of these requirements. The government does contest the district court's application of the second half of these criteria.

In Miller we found that Congress intended that the section 3143(b)(2) requirements would palce a burden on the defendant to demonstrate "that the appeal raises a substantial question of law or fact" and "that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which

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imprisonment has been imposed." Miller, 753 F.2d at 24. We said that the substantial question prerequisite requires the defendant to prove "that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Id. at 23. We noted:

This [requirement] represents a marked change in the inquiry into the merits in the context of a bail determination, since the 1966 act only required the court to determine whether the issue was "frivolous," see 18 U.S.C. Sec. 3148 (repealed by 1984 Act).

Id. We rejected any interpretation of the statutory phrase "likely to result in reversal or an order for a new trial" which would require the federal courts to act as " 'bookmakers' who trade on the probability of ultimate outcome." Id. We said that the statute "cannot reasonably be construed to require the district court to predict the probability of reversal." Id.

The trial court here found that the defendant's challenge to the constitutionality of the provision of Federal Rule of Criminal Procedure 23(b) for continuing deliberations with an 11-member jury where one juror can no longer participate constitutes a substantial question under the Miller guidelines. 3 The court explained:

We have no doubt that the 11-person jury provided for in Rule 23 of the Rules of Criminal Procedure is constitutional and will be so determined by the U.S. Supreme Court if and when this question reaches that court. However, there is no controlling precedent with respect to the 11-person jury. Thus, the question falls within the definition of a "substantial question" under U.S. v. Miller.

The court stressed, however, its belief that the resolution of the Rule 23(b) question was not "fairly doubtful":

I don't think there is any doubt about this at all. I think the chances are one hundred to one that the Supreme Court, when and if this matter ever gets to it, will hold that an eleven man jury in the circumstances we had in this case, is perfectly valid. I don't think there is any doubt about it, or the doubt is minimal.

The trial court emphasized its reluctance to find a substantial question but concluded that it was required to do so by our opinion in Miller. Reasoning that if the Rule 23(b) question were determined favorably to the defendant, a new trial would be required on all counts for which imprisonment was imposed, the district court ordered the defendant released pending appeal.


We find that Miller does not compel the result reached by the district court. We clearly acknowledged in Miller that Congress intended the 1984 Bail Act to replace the "frivolous" test with a more stringent prerequisite to bail pending appeal. Contrary to the assertion of the United States Court of Appeals for the Eighth Circuit in United States v. Powell, 761 F.2d 1227, 1232 (8th Cir.1985), we believe the Miller definition is consistent with Congress' intent. Our definition of a substantial question requires that the issue on appeal be significant in addition to being novel, not governed by controlling precedent or fairly doubtful. The district court focused solely on the absence of controlling precedent and, in so doing, failed to determine whether the Rule 23(b) issue constituted a significant question.

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We are aware that a number of courts of appeals view our Miller definition as incomplete. In United States v. Giancola, 754 F.2d 898 (11th Cir.1985), the United States Court of Appeals for the Eleventh Circuit adopted the Miller articulation of the section 3143(b) requirements. The Giancola court observed, however, that the suggestion that a substantial question can be one that has not been decided by controlling precedent fails to exclude...

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