US v. Hart

• Decision Date: 01 December 1995
• Docket Number: No. 93-CR-407.,93-CR-407.
• Citation: 906 F. Supp. 102
• Parties: UNITED STATES of America v. Constance HART, Defendant.
• Court: U.S. District Court — Northern District of New York

906 F. Supp. 102

UNITED STATES of America v. Constance HART, Defendant.

No. 93-CR-407.

United States District Court, N.D. New York.

December 1, 1995.

Bruce R. Bryan, Syracuse, New York, for Defendant.

Thomas J. Maroney, United States Attorney, Northern District of New York (Richard Southwick, Assistant U.S. Attorney, of Counsel), Syracuse, New York, for U.S.

MEMORANDUM-DECISION AND ORDER

MUNSON, Senior District Judge.

In the instant motion the defendant Constance Hart seeks to stay her sentence pending appeal pursuant to 18 U.S.C. § 3143(b). The court heard oral argument on November 9, 1995 at Syracuse, New York. After considering the risk of flight and the substantial questions the defendant intends to raise on appeal, the court grants defendant's motion for release. The following constitutes the court's memorandum-decision and order.

BACKGROUND

Constance Hart was convicted by jury of one count of bank fraud. 18 U.S.C. § 1344. She was sentenced to twenty-one months imprisonment and ordered to make restitution in the amount of $89,700.78. Defendant is scheduled to surrender for incarceration on December 5, 1995. Judgment, Document ("Doc.") 52.

The fraud consisted of the defendant's kiting of checks between the Skaneateles Savings Bank and OnBank from June 4 to June 8, 1990. At trial the government moved to admit evidence of other check kites the defendant conducted in the past. Doc. 33. Although normally prohibited by Federal Rule of Evidence 404(b), the court allowed the evidence for the purpose of proving the defendant's intent, as defense counsel had argued no such intent existed in his opening statement to the jury. Government's ("Gov.'s") Memorandum ("Mem.") in Opposition to Defendant's ("Def.'s") Motion For Acquittal, Doc. 45, at 3.

DISCUSSION

The circumstances under which a convicted and sentenced defendant can be released pending an appeal are defined in the Bail Reform Act at 18 U.S.C. § 3143(b). Subsection (2) of that statute mandates detention pending appeal for defendants convicted of any of the serious types of crimes listed in 18 U.S.C. § 3142(f)(1)(A) through (C). However, because the relevant crime here does not fall into any of those classes, the applicable subsection for purposes of this decision is (1). This subsection reads in relevant part:

The 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 ... and

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

(i) reversal,

(ii) an order for a new trial,

....

The Bail Reform Act of 1984 reversed the presumption in favor of bail pending appeal embodied in the Bail Reform Act of 1966. Robin C. Larner, Annotation, What is "A Substantial Question of Law or Fact Likely to Result In Reversal or an Order for a New Trial" Pursuant to 18 U.S.C. § 3143(b)(2) Respecting Bail Pending Appeal?, 79 A.L.R.Fed. 673, 677 (1986 & Supp.1994). This policy in favor of bail between conviction and disposition of appeal was unknown at common law. In the United States, it arose after appeals of right were first authorized for federal criminal cases in 1891. United States v. Galanis, 695 F.Supp. 1565, 1566 (S.D.N.Y.1988). The presumption in favor of bail was based on "the theory that a person accused of a crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment." Hudson v. Parker, 156 U.S. 277, 284, 15 S.Ct. 450, 453, 39 L.Ed. 424 (1895); accord United States v. Motlow, 10 F.2d 657, 659 (7th Cir. 1926) (releasing owner of Jack Daniels Distillery on bail pending appeal for Prohibition Act convictions). This presumption survived through the Bail Reform Act of 1966, which generally allowed release pending appeal, unless the appeal was adjudged frivolous or intended for delay only, or the defendant was considered a flight risk or a danger to the community. Larner, 79 A.L.R.Fed. at 677.

The Bail Reform Act of 1984 reversed this presumption, putting the burden on the defendant to demonstrate that she is entitled to release pending appeal. S.Rep. No. 2, 98th Cong., 2d Sess. 26, reprinted in 1984 U.S.C.A.A.N. 3182, 3209; United States v. Randell, 761 F.2d 122, 124 (2d Cir.), cert. denied, 474 U.S. 1008, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985). The Senate Judiciary Committee cited two reasons for the change: (1) a conviction in a court of law is presumably correct in law, and (2) the often lengthy appeals process might result in a decrease in the deterrent effect of the criminal law, as persons convicted at trial could be free on bail for months or even years. See 1984 U.S.C.A.A.N. at 3209. The increasing availability of court-appointed attorneys had also increased the number of appeals, and "some social discontent arose concerning the perceived ineffectual administration of the criminal law." Galanis, 695 F.Supp. at 1567. It is clear, however, that bail pending appeal is still available. Randell, 761 F.2d at 125 (citing United States v. Miller, 753 F.2d 19, 23 (3d Cir.1985)).

The four-step analysis for granting bail pending appeal under the modern Act was set forth by Chief Circuit Judge Feinberg in Randell. The court must find

(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 on all counts on which imprisonment has been imposed.

Randell, 761 F.2d at 125 (citing Miller, 753 F.2d at 24 and United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985)).

The court finds in favor of the defendant with respect to all four of the prescribed findings.

Risk of Flight and Danger to the Community

There appears to be little appreciable risk that the defendant will flee, and the government has conceded as much. Gov.'s Mem. in Opposition to Release Pending Appeal, Doc. 55, at 3. The defendant has been released on bail on an unsecured bond in the amount of $20,000 since her arraignment two years ago, conditioned only on her refraining from possessing a firearm, abusing alcohol, or using illegal narcotics. Order Setting Conditions of Release, Doc. 4. There is no suggestion that she has violated these conditions. After conviction and again after sentencing, bail was continued on these conditions. The defendant has made all required appearances. Defendant has conscientiously sought the prior permission of the court to leave the Northern District for business purposes, even though she was subject to no travel restrictions in the release order. Letter from Andre Sobolevsky, Doc. 47. A local businesswoman, the defendant appears to have substantial community ties, is married, and has several children. The court consequently finds that the evidence is clear and convincing that Constance Hart is unlikely to flee while her appeal is pending. Cf. Galanis, 695 F.Supp. at 1570.

Regarding the danger factor, nothing in the record suggests that the defendant poses a threat to anyone. The defendant was not convicted of any violent crime, or a crime with which violence is commonly associated. Moreover, it does not seem that the defendant will be able to reperpetrate a kiting scheme against OnBank or Skaneateles Savings Bank. The evidence clearly and convincingly shows that no danger will accrue to any person or institution if the defendant is released.

Purpose of Delay

It does not appear that defendant is appealing her conviction for the purpose of delay. When there is no pattern of dilatory defense tactics during the conduct of the litigation or other extrinsic evidence of an intent to delay the inevitable, the court is left with the undesirable task of discerning a defendant's subjective mindset. In these circumstances, the court is content to note that the defendant at no time has admitted her guilt and seems sincere in her belief that she is innocent. She has retained appellate counsel and has raised substantial issues for consideration by the Second Circuit, as detailed below. The court finds that the appeal is not for the purpose of delay, but is rather taken in a good faith belief in defendant's innocence and the merits of her arguments.

Substantial Question of Law or Fact

Despite the apparent stiff standard of materiality required by the "substantial question" language of § 3143(b), judicial interpretations of the statute have not been so strict. The Second Circuit addressed the issue in Randell, specifically adopting a definition of "substantial question" formulated by the Eleventh Circuit: "In short, a `substantial question' is one of more substance than would be necessary to a finding that it was not frivolous. It is a `close' question or one that very well could be decided the other way." United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985) (quoted in United States v. Randell, 761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985)). The Randell court also cited with approval interpretations by the Ninth Circuit, United States v. Handy, 761 F.2d 1279, 1281 (9th Cir.1985) (substantial question is "fairly debatable"), and the Third Circuit, United States v. Miller, 753 F.2d 19, 23 (3d Cir.1985) (issue should be novel, not decided by controlling precedent, or fairly doubtful). Having examined what "substantial" means, the court now turns to the questions raised by defendant.

The...