U.S. v. Bissell, Criminal No. 95-539 (AJL).

• Decision Date: 29 January 1997
• Docket Number: Criminal No. 95-539 (AJL).
• Citation: 954 F.Supp. 903
• Parties: UNITED STATES of America, Plaintiff, v. Barbara BISSELL, Defendant.
• Court: U.S. District Court — District of New Jersey

954 F.Supp. 903

UNITED STATES of America, Plaintiff, v. Barbara BISSELL, Defendant.

Criminal No. 95-539 (AJL).

United States District Court, D. New Jersey.

January 29, 1997.

COPYRIGHT MATERIAL OMITTED

Faith S. Hochberg, United States Attorney, Stuart A. Rabner, Perry Carbone, Asst. U.S. Attys., Newark, NJ, for U.S.

Rita E. Donnelly, South Orange, NJ, for Barbara J. Bissell.

Peter B. Bennett, Bennett & Leahey, Red Bank, NJ.

OPINION

LECHNER, District Judge.

Defendant Barbara Bissell ("Barbara Bissell") and her husband Nicholas Bissell ("Nicholas Bissell") (collectively the "Defendants") were charged in a second superseding indictment (the "Second Superseding Indictment"), filed on 14 March 1996. The facts relating to the numerous charges brought against Defendants are set forth in a decision regarding the pre-trial motions of Defendants and the sentencing of Barbara Bissell. See United States v. Bissell, 954 F.Supp. 841, 851-858 (D.N.J.1996) ("Bissell I").

Barbara Bissell was named in thirteen counts in the Second Superseding Indictment; she was named in counts 12 through 16, which charged Defendants with mail fraud in connection with their operation of the Bedminster Amoco Gas Station, located in Somerset County, New Jersey (the "Bedminster Station"). Second Superseding Indictment, ¶ 4, at 12. Count 23 charged Defendants with conspiracy to "defraud the United States and the Internal Revenue Service in the ascertainment, computation, assessment, and collection of income taxes." Id., ¶ 2, at 29. Counts 24 through 27 charged Defendants with tax evasion for the years 1991 to 1994 for failing to report money they embezzled from the Bedminster Station on their joint personal tax returns. Id., ¶ 3, at 33. Counts 28 through 30 charged Barbara Bissell with knowingly and wilfully signing false U.S. Partnership and Corporate Income Tax Returns for the Bedminster Station for the tax years 1991 through 1993, in violation of 26 U.S.C. § 7206(1) ("Section 7602(1)").

On 31 May 1996, Barbara Bissell was convicted by a jury of all counts charged against her in the Second Superceding Indictment. On 6 December 1996, she was sentenced to a term of 27 months imprisonment. This matter is now before the court upon a motion, filed on 6 January 1997, for an order "maintaining [Barbara Bissell] on a personal recognizance bond release or on bail pending her appeal to the United States Court of Appeals for the Third Circuit...." See Notice of Motion For Bail Pending Appeal (the "Motion for Bail Pending Appeal").¹ For the reasons set forth below, the Motion for Bail Pending Appeal is denied.

Discussion

A. Bail Pending Appeal

The Bail Reform Act of 1984 (the "1984 Act") provides, in relevant part:

[T]he judicial officer 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 a writ of certiorari, be detained, unless the judicial officer finds—

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and

(B) that the appeal is not for the purposes of delay and raises a substantial question of law or fact likely to result in—

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b) ("Section 3143(b)") (emphasis added).

Section 3143(b) creates a presumption against post-conviction release pending appeal. See United States v. Miller, 753 F.2d 19, 22 (3d Cir.1985) ("The [1984 Act] was enacted because Congress wished to reverse the presumption in favor of bail that had been established under the prior statute, the Bail Reform Act of 1966."); United States v. Mathis, Crim. No. 91-595-10, 1994 WL 22303, at *2 (E.D.Pa. 25 Jan. 1994).

The Circuit has explained:

Once a person has been convicted and sentenced to jail, there is absolutely no reason for the law to favor release pending appeal or even permit it in the absence of exceptional circumstances. First and most important, the conviction, in which the defendant's guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law, a presumption factually supported by the low rate of reversal of criminal convictions in the Federal system. Second, the decision to send a convicted person to jail and thereby reject all other sentencing alternatives, by its very nature includes a determination by the sentencing judge that the defendant is dangerous to the person or property of others, and dangerous when sentenced, not a year later after the appeal is decided. Third, release of a criminal defendant into the community, even after conviction, destroys whatever deterrent effect remains in the criminal law.

Miller, 753 F.2d at 22 (quoting H.Rep. No. 907, 91st Cong., 2d Sess. 186-87 (1970) (emphasis added)). Accordingly, under the 1984 Act, a defendant has the burden of establishing

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;

(2) that the appeal is not for the purpose of delay;

(3) that the appeal raises a substantial question of law or fact; and

(4) 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 imprisonment has been imposed. United States v. Messerlian, 793 F.2d 94, 95-96 (3d Cir.1986) (emphasis added) (quoting Miller, 753 F.2d at 24); see United States v. Smith, 793 F.2d 85, 87 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 832 (1987).

1. Risk of Flight/Danger to Community

The factors to be considered in assessing the risk of flight include: (1) the nature and circumstances of the offense, (2) the defendant's family ties, (3) the defendant's employment status, (4) the defendant's financial resources, (5) the defendant's character and mental condition, (6) the length of defendant's residence in the community, (7) any prior criminal record and (8) any flight or failures to appear in court proceedings prior to or during the time of trial. United States v. Bertoli, 854 F.Supp. 975, 1158 (D.N.J.), aff'd in part, sentence vacated in part on other grounds, 40 F.3d 1384 (3rd Cir.1994). When assessing danger to the community, "`danger may, at least in some cases, encompass pecuniary or economic harm.'" Id. at 1161 (quoting United States v. Reynolds, 956 F.2d 192, 192 (9th Cir. 1992)).

In the instant case, there is no indication Barbara Bissell poses a physical danger to the community or a risk of flight.

2. Purposes of Delay

The belated filing, insubstantial nature and lack of merit of the Motion for Bail Pending Appeal warrants the conclusion the motion has been brought for the purpose of merely delaying the commencement of Barbara Bissell's sentence.

As indicated, on 31 May 1996, Barbara Bissell was convicted of all charges brought against her in the Second Superseding Indictment. On 6 December 1996, a sentencing hearing was held (the "Sentencing Hearing"). At the Sentencing Hearing, Barbara Bissell was ordered to surrender to commence serving her sentence on 30 January 1997. Sentencing Hearing Tr. at 48. Barbara Bissell filed a notice of appeal on 12 December 1996. The Bissell I opinion, dealing with all of the pre-trial motions and the sentencing of Barbara Bissell, was filed on 13 December 1996.

Barbara Bissell waited until the close of business Friday, 3 January 1997, to submit the Motion for Bail Pending Appeal, which was not filed until 6 January 1997.² Her belated filing of the instant motion required scheduling adjustments so that opposition from the Government and a reply from Barbara Bissell could be received and considered and the motion decided before 30 January 1997.

The Motion for Bail Pending Appeal is not a substantial undertaking. The Moving Brief is a fifteen page letter memorandum. As is discussed below, the arguments contained in the Moving Brief are not supported by the evidence. The Motion for Bail Pending Appeal, moreover, does not present any substantial questions of law or fact warranting a continuation of bail pending appeal. Counsel for Barbara Bissell misstates the evidence and makes frivolous legal arguments based upon her misstatement of the evidence. The Motion for Bail Pending Appeal appears to have been brought for the purpose of delaying the commencement of Barbara Bissell's sentence.

The conclusion the Motion for Bail Pending Appeal was brought for the purposes of delay is further supported by counsel's request for an adjournment during argument. As mentioned, Barbara Bissell was sentenced on 6 December 1997 and filed her notice of appeal on 11 December 1997. In a letter, dated 24 December 1997, counsel for Barbara Bissell informed counsel for the Government of her intention to seek a two week adjournment. Apparently, despite having submitted an in forma pauperis application for her appeal, Barbara Bissell has privately "engaged" new attorneys. See letter of Rita E. Donnelly, dated 24 January 1997; 27 January 1997 Tr. at 3. This last minute request for an adjournment supports the conclusion the instant motion was brought merely to delay the commencement of Barbara Bissell's sentence.

3. Substantial Question of Law or Fact

The Circuit has held a "substantial question" is one which is "fairly debatable." Smith, 793 F.2d at 89-90 (adopting standard articulated in United States v. Handy, 761 F.2d 1279, 1281-82 (9th Cir.1985), and rejecting "close question" formulation stated in United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985), cert. denied, 479 U.S. 1018, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986)); see Messerlian, 793...