U.S. v. Steinhorn, 90-5380
| Decision Date | 08 March 1991 |
| Docket Number | No. 90-5380,90-5380 |
| Citation | 927 F.2d 195 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Neil W. STEINHORN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Richard M. Karceski, White & Karceski, Towson, Md., for defendant-appellant.
Gary P. Jordan, First Asst. U.S. Atty., argued (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and BUTZNER, Senior Circuit Judge.
The question before us concerns the proper standard for applying 18 U.S.C. Sec. 3143(b)(2) and Fed.R.App.P. 9(c), which govern release on bail pending appeal.
Neil W. Steinhorn filed a motion for release pending appeal. The district court found that Steinhorn qualified for release on bail with respect to the requirements of 18 U.S.C. Sec. 3143(b)(1): he is not likely to flee, and he does not pose a danger to any person or the community. With respect to the requirements of Sec. 3143(b)(2), the district court concluded that the appeal did not "raise a substantial question of law or fact likely to result in reversal or an order for a new trial." It denied the motion but granted a stay of commitment, which we extended. The government does not contend that this appeal is taken for the purpose of delay. We grant the motion, because the principal issue Steinhorn raises on appeal satisfies Sec. 3143(b)(2).
A jury convicted Steinhorn of money laundering and interstate transportation of stolen goods, and the court imposed a 33-month sentence. Steinhorn has appealed, claiming, among other things, that the court erred in denying a jury instruction on entrapment. Steinhorn contends that a DEA informer entrapped him before the informer told the FBI of the scheme. The district court held that the government was not responsible for the informer's conduct before the FBI became involved, or if the government were responsible, there was no entrapment.
We adopt the procedure first announced in United States v. Miller, 753 F.2d 19 (3d Cir.1985), and subsequently accepted by every other circuit, see United States v. Perholtz, 836 F.2d 554, 555 (D.C.Cir.1987). In applying Sec. 3143(b)(2) the court must make two inquiries after finding that the appeal is not taken for the purpose of delay. First, whether the question presented on appeal is a "substantial" one. Second, if decided in favor of the accused, whether the substantial question is important enough to warrant reversal or a new trial on all counts for which the district court imprisoned the defendant. Miller, 753 F.2d at 23-24.
We adopt the definition of "substantial question" first proposed by the Eleventh Circuit in United States v. Giancola, 754 F.2d 898 (11th Cir....
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