U.S. v. Messerlian, 86-5323

• Citation: 793 F.2d 94
• Decision Date: 16 June 1986
• Docket Number: No. 86-5323,C-160,86-5323
• Parties: UNITED STATES of America, Appellee, v. MESSERLIAN, Harry H., Appellant. ().
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 94

793 F.2d 94

UNITED STATES of America, Appellee, v. MESSERLIAN, Harry H., Appellant.

No. 86-5323 (C-160).

United States Court of Appeals, Third Circuit.

June 16, 1986.

As Amended June 25, 1986.

William Bradford Reynolds, Asst. Atty. Gen., Walter W. Barrett, Irving Gornstein, Dept. of Justice, Washington, D.C., for appellee.

Matthew P. Boylan, Theodore V. Wells, Jr., Robert L. Krakower, Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor, Roseland, N.J., for appellant.

Before HUNTER, GARTH and MANSMANN, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

The defendant, Harry H. Messerlian, was convicted after trial and sentenced to ten years imprisonment. The district court denied bail pending appeal. We are asked to review that order.

Messerlian, a New Jersey State Trooper, was convicted by a jury of willfully depriving Joseph Topolosky of his constitutional right to liberty without due process of law by beating him to death in violation of 18 U.S.C. Sec. 242 (Count I); of conspiracy to obstruct justice in an effort to cover up the circumstances surrounding Topolosky's death, in violation of 18 U.S.C. Sec. 371 (Count II); and of falsely testifying before a federal grand jury that he, Messerlian, had not in fact struck Topolosky around the head and neck with his flashlight, in violation of 18 U.S.C. Sec. 1623 (Count III).

Following his conviction and the filing of post-trial motions, Messerlian moved before the district court for bail pending appeal pursuant to 18 U.S.C. Sec. 3143(b). Applying the four-part standard established by United States v. Miller, 753 F.2d 19 (3d Cir.1985), the district court expressly found that Messerlian posed no risk of flight or immediate danger to the community, and that Messerlian's appeal was not taken for purposes of delay. District Court op. at App. 441a. Nevertheless, the district court denied Messerlian bail on the ground that Messerlian's proposed appeal presented no substantial legal issues which, if determined favorably to Messerlian, would be likely to result in reversal of his conviction or an order for a new trial. District Court op. at App. 444a.

On May 13, 1986, Messerlian was sentenced by the district court to concurrent terms of ten years imprisonment on Count I, three years imprisonment on Count II, and three years imprisonment on Count III. ¹ The district court's original commitment order provided that Messerlian should voluntarily surrender on or before May 29, 1986 to the designated penal institution. However, the district court further provided that if the location of the penal institution to which Messerlian would be incarcerated were established sooner, Messerlian would be obligated to surrender on May 22, 1986. Upon determining where he would be assigned to serve his term of imprisonment, Messerlian was informed by letter that he was to report for confinement by noon on May 22, 1986.

Messerlian moved before the district court for a stay of the district court's order denying him bail pending appeal. The district court denied Messerlian's motion and ordered that Messerlian surrender to federal authorities by noon on May 22, 1986. While Messerlian was en route to prison, Messerlian's newly retained appellate counsel moved before Judge Leonard I. Garth, as a single judge of this court, for a stay of the district court's order denying bail pending appeal. In an order issued May 22, 1986, the district court's order denying bail pending appeal was stayed until further action by a three-judge panel of this court.

Exercising our responsibility to "independently determine" whether Messerlian is entitled to bail pending appeal, United States v. Smith, 793 F.2d 85, at 87 (3d Cir.1986); United States v. Strong, 775 F.2d 504, 505 (3d Cir.1985); United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985), we conclude that the district court erred in finding that Messerlian's appeal of his conviction fails to raise a substantial issue. Accordingly, we vacate the district court's order denying Messerlian bail, and remand to the district court for proceedings consistent with this opinion.

I.

In order for a convicted defendant to obtain bail pending appeal pursuant to 18 U.S.C. Sec. 3143(b) ², the 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 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. Miller, 753 F.2d 19, 24 (3d Cir.1985)

In responding to Messerlian's appeal, the government does not contend that Messerlian poses a threat of flight or danger to the community or that his appeal has been raised for purposes of delay. Thus, the sole issue before us is whether Messerlian's appeal on the merits raises a substantial issue which, if determined favorably to Messerlian, would result in reversal of his conviction or a new trial.

This court recently elaborated upon the question of what constitutes a substantial issue on appeal in United States v. Smith, 793 F.2d 85 (3d Cir.1986). We realize that the district court did not have the benefit of our decision in Smith at the time it was called upon to determine the bail question.

In Smith, we discussed two interpretations of the meaning of "substantial issue" which have been developed by other courts of appeals. In United States v. Giancola, 754 F.2d 898 (11th Cir.1985), the Eleventh Circuit concluded that a substantial question is a " 'close' question or one that very well could be decided the other way." 754 F.2d at 901. The Giancola modification of Miller has been adopted by the First, Second, Fifth, Sixth, Seventh, and Tenth Circuits. In United States v. Handy, 761 F.2d 1279, 1281-82 (9th Cir.1985), on the other hand, the Ninth Circuit concluded that a substantial question is one that can be characterized as "fairly debatable."

In announcing the judgment of the court in Smith, Judge Mansmann, with District Court Judge Pollak concurring in the choice of standard, but dissenting as to its application, ³ adopted the Handy "fairly debatable" standard. Judge Hunter, who agreed that bail should be denied, but who dissented from the Handy formulation of "substantial issue", advocated adoption of the Giancola "close question or one that is very likely to be decided the other way" standard.

In the present appeal, we are bound by Smith. However, under either the Giancola or Handy standard, we are satisfied that Messerlian has presented substantial issues on appeal within the formula of Smith. The briefs prepared by his present counse...