United States v. Price
| Decision Date | 31 May 1985 |
| Docket Number | No. 83-799-Cr-Spellman.,83-799-Cr-Spellman. |
| Parties | UNITED STATES of America, Plaintiff, v. Joseph R. PRICE, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Helen Forsyth, Asst. U.S. Atty., Miami, Fla., for plaintiff.
Michael Pasano, John Evans, Miami, Fla., for defendant.
CORRECTED MEMORANDUM OPINION AND ORDER GRANTING BOND PENDING APPEAL
The Defendant, Joseph Robert Price, a United States Customs Agent, was indicted on September 29, 1983, on charges of possession with intent to distribute hashish oil (counts 1 and 3), distribution of hashish oil (counts 2 and 4), using a communication facility to violate the narcotics laws (count 6), and theft of government property (count 5). A jury found Price guilty of counts 1, 2, 3, 4, and 6. Price was acquitted on count 5.
On May 2, 1985, this Court sentenced Price to a total term of imprisonment of ten (10) years, a five (5) year special parole term, and a fine of $1,700.00. The Defendant was also immediately remanded to the custody of the Attorney General.
The Defendant, however, on May 2, 1985, filed a motion with this Court requesting that he be permitted to remain on bond pending the appeal of his convictions. A hearing was held on May 16, 1985 and on May 21, 1985 the Defendant supplemented his motion. For the following reasons, the Defendant's motion for bond pending appeal is granted.
The Bail Reform Act of 1984, 18 U.S.C. § 3143, which controls the issue of bond pending appeal, provides in pertinent part:
In the present case, this Court already concluded at the May 16, 1985 hearing that the Defendant was not likely to flee and did not pose a danger to either himself or the community. These findings are borne out by the fact that the Defendant was released on bond over the course of the proceedings in this matter (a period of several years), was permitted to leave the jurisdiction, and yet appeared at every scheduled court date and the sentencing. These findings are also supported by the psychiatric reports filed by Dr. Charles Mutter and Dr. Arthur Stillman. After recently examining the Defendant at the Metropolitan Correctional Center, Dr. Mutter and Dr. Stillman concluded that the Defendant was not likely to flee and was not a danger to himself or the community. Thus, the only question this Court need now consider1 is whether the Defendant's appeal of his convictions will raise a "substantial question" that if decided favorably to the defense will "result in reversal or an order for a new trial."2
As this Court recently noted in United States v. Hicks, 611 F.Supp. 497 (S.D.Fla. 1985) (Memorandum Opinion and Order Granting Bond Pending Appeal), "the construction of the words `substantial question' is itself a substantial question." Id. at 499 (quoting Justice Douglas in Herzog v. United States, 75 S.Ct. 349, 350, 99 L.Ed.2d 1299 (1955)). Justice Douglas recognized that the phrase "substantial question" "obviously does not mean a decision on the merits." 75 S.Ct. at 350. Indeed, Justice Douglas analogized the bail standard3 to the standard used by the United States Supreme Court in determining whether a petition for certiorari should be granted. Because "further study of the problem" would normally follow, the Court deciding whether to grant or deny a petition for certiorari—or, by analogy, this Court deciding whether to grant or deny bond pending appeal—does not make that decision by reaching the full merits of the issues for which review is sought. See id.
Still, this Court must look into the nature of the appeal to determine whether or not a "substantial question" is presented. According to Justice Douglas, "it is not enough that I am unimpressed" with the argument. Id. at 351. In D'Aquino v. United States, 180 F.2d 271 (9th Cir.1950), Justice Douglas equated the phrase "substantial question" to the phrase "fairly debatable." Id. at 272. The inquiry focuses on whether "responsible and conscientious counsel pose some problems that on this record are not free from doubt." Id.
Courts have articulated similar definitions of the "substantial question" standard under the Bail Reform Act of 1984. See, e.g., United States v. Giancola, 754 F.2d 898 (11th Cir.1985) (per curiam); United States v. Handy, 753 F.2d 1487 (3d Cir.1985); United States v. Miller, 761 F.2d 1279 (9th Cir.1985) (per curiam); United States v. Hicks, 611 F.Supp. 497 (S.D. Fla.1985) (Memorandum Opinion and Order Granting Bond Pending Appeal). But see United States v. Powell, 761 F.2d 1227 (8th Cir.1985) (en banc).4
In Giancola, the Eleventh Circuit noted that a substantial question was "`one which is either novel, ... has not been decided by controlling precedent, or ... is fairly doubtful.'" 754 F.2d at 900 (quoting United States v. Miller, 753 F.2d at 23). The Eleventh Circuit found that a "substantial question" must be "of more substance than would be necessary to a finding that it was not frivolous." 754 F.2d at 901. A substantial question is "one that very well could be decided the other way." Id. "Further," the Eleventh Circuit "observed," Id. (footnote omitted).
While this Court firmly believes that it was correct in its rulings and that the Defendant received a fair trial, it recognizes that the alleged constitutional violations must be considered "substantial" within the meaning of the Bail Reform Act. This Court also recognizes that the "substantial question" is critical enough to the Defendant's conviction that a contrary appellate ruling would warrant a reversal. See id. at 900. The Defendant should therefore be permitted to remain on bond pending the eleventh circuit's resolution of the appeal.
The Defendant's primary appellate argument concerns the sixth amendment right to confront witnesses for the prosecution and the fifth and sixth amendment right to present a defense. This Court, over Defendant's objection, admitted into evidence tape recordings of the Defendant and Jimmy Carbone, an informant who died prior to trial. The government's case was based on a literal interpretation of the tapes: Carbone taped the Defendant, a corrupt Customs agent, attempting to sell drugs. Therefore the Court reasoned that Carbone's statements on the tapes were not hearsay since such statements were not being offered for the truth of the matter asserted.
Defendant, on the other hand, argued that he posed as a corrupt Customs agent as part of a reverse sting operation. According to the Defendant, "it was necessary to adopt this pose with Carbone, because although Carbone had served as an informant and was being utilized in the reverse sting, Carbone was, in fact, double dealing." Id. at 3-4.
The Defendant attempted to bolster his interpretation of the tapes both through cross-examination of Detective Phillip Paschal and by presentation of his own witnesses who knew and had dealt with Jimmy Carbone in the past. The Defendant now claims that "this evidence would have supported the defendant's otherwise essentially uncorroborated testimony that Carbone was unreliable." Id. at 5.
The Defendant argues that his fifth and sixth amendment rights were violated when this Court "precluded" trial counsel "from cross-examining government witnesses and presenting evidence about Jimmy Carbone's history of crime, drugs and double-dealing." See Defendant's Supplement to Motion for Release Pending Appeal at page 1. "This evidence," according to the defense, "would have corroborated the defendant's testimony that he was engaged in a `reverse sting' operation and would have supported defendant's claim that the statements which the defendant made to Carbone and the manner in which the defendant dealt with Carbone were reasonable." Id.
This Court ruled the evidence inadmissible based upon what it still believes to be a correct interpretation of the Federal Rules of Evidence. This Court does recognize, however, that in certain instances defense testimony or evidence should be admitted even though the testimony or evidence is otherwise inadmissible. See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967) (); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (); Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir. 1984) ().
While this Court is of the opinion that it was correct in ruling the evidence and testimony inadmissible in that the facts of this case do not approach those in Chambers, Washington, or Boykins, this Court must acknowledge that the issue presented is "fairly doubtful." Giancola, 754 F.2d at 900 (citing ...
To continue reading
Request your trial
-
U.S. v. Price, s. 85-5392
...are premature, without prejudice to the defendant to raise the issues argued therein after the district court has set bail. On May 31, 1985, 611 F.Supp. 502, Judge Spellman entered an order granting bail on appeal, expressly finding that defendant was not likely to flee, did not pose a dang......