United States v. Weiner

Opinion

USCA1 Opinion

          July 31, 1992         [NOT FOR PUBLICATION]

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          No. 92-1708

UNITED STATES,

                                      Appellee,

                                          v.

                                    SIDNEY WEINER,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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                                 ___________________

               Harry  C. Mezer,  Stephen R.  Delinsky and  Eckert, Seamans,
               _______________   ____________________      ________________
          Cherin & Mellott  on Motion for Stay and  Release on Bail Pending
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          Appeal, for appellant.
               A. John Pappalardo, United States Attorney, Todd E. Newhouse
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          and Ernest  S. Dinisco,  Assistant  United States  Attorneys,  on
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          Opposition to Motion for Stay and Release on Bail Pending Appeal,
          for appellee.

                                  __________________

                                  __________________

Per Curiam.  This is a motion for bail pending appeal. 
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            In February 1992,  defendant Sidney Weiner  was convicted  of

            RICO conspiracy,  18 U.S.C.     1962(d), a  substantive  RICO

            violation,  18   U.S.C.     1962(c),  and   three  counts  of

            conspiracy to collect an extension of credit by  extortionate

            means, 18  U.S.C.    894.   In April, he  was sentenced  to a

            prison  term of two years.   Having earlier  been released on

            bail pending  trial and sentencing, defendant  then moved for

            bail pending appeal.  The district court summarily denied the

            motion, and defendant renewed  his motion in this court.   We

            remanded  the matter for submission of a statement of reasons

            supporting the denial of bail, see Fed. R.  App. P. 9(b), and
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            stayed defendant's  sentence pending  further order.   Having

            now received the district court's reasons, we deny the motion

            for release and vacate the stay of sentence.

                 It  is  clear that  defendant  is  subject to  mandatory

            detention under 18 U.S.C.    3143(b)(2).  With one  exception

            discussed  infra, that  provision  requires that  any  person
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            convicted of, inter alia,  a "crime of violence"  be detained
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            pending appeal.  A crime of violence is defined as follows:  

                      (A) an offense  that has as an  element of the
                 offense the  use, attempted use,  or threatened use
                 of physical force against the person or property of
                 another, or
                      (B)  any other  offense that  is a  felony and
                 that, by  its nature,  involves a substantial  risk
                 that physical force against the person  or property
                 of  another may be used in the course of committing
                 the offense.

            18  U.S.C.     3156(a)(4).   The  district  court  found, and

            defendant does  not  seriously  dispute,  that  each  of  the

            offenses here falls  within this definition.   As  mentioned,

defendant  was convicted  on  three counts  of conspiracy  to

            collect extensions  of  credit by  extortionate means;  these

            offenses  also  formed  the   predicates  for  the  two  RICO

            convictions.  And an "extortionate means" is defined as  "any

            means  which involves  the  use, or  an  express or  implicit

            threat of use, of  violence or other criminal means  to cause

            harm  to the person, reputation,  or property of any person."

            18 U.S.C.   891(7).

                 As such,  defendant is  entitled to bail  pending appeal

            only  if  he  can:  (1)  establish by  clear  and  convincing

            evidence that  he is not likely  to flee or pose  a danger to

            the safety of any other person or the community,  18 U.S.C.  

            3143(b)(1)(A);  (2)  demonstrate  that the  appeal  raises  a

            substantial  question of  law or  fact likely  to result  in,

            inter alia,  reversal or  an  order for  a new  trial, id.   
            __________                                             ___

            3143(b)(1)(B);  and  (3)  "clearly  show[]  that   there  are

            exceptional  reasons   why  [his]  detention   would  not  be

            appropriate," id.   3145(c).   The district court found  that
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            defendant posed no risk of flight.  While no explicit finding

            was made  as to  dangerousness, the fact  that defendant  was

            released pending sentence necessarily entailed a finding that

            he  was not likely to pose a danger.  See id.   3143(a).  The
                                                  ___ ___

            court further  found, however,  that defendant had  failed to

            raise a "substantial" question on appeal and also  had failed

            to demonstrate "exceptional  reasons" why detention  would be

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inappropriate.  Either finding, if supportable, would suffice

            to justify the denial of bail here.

                 Defendant, relying on United States v. DiSomma, 951 F.2d
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            494 (2d Cir. 1991), contends that the exception to  mandatory

            detention should  apply.   In DiSomma,  the court  affirmed a
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            ruling that "exceptional reasons" existed where the defendant

            was challenging on appeal the factual sufficiency of the very

            issue that subjected  him to mandatory detention--whether  he

            committed a crime of  violence.  Defendant here has  likewise

            advanced  a  challenge to  the  sufficiency  of the  evidence

            underlying his convictions.  Yet this case is distinguishable

            from  DiSomma on at least  two grounds.   There, the district
                  _______

            court  found  (and  the  appellate  court  agreed)  that  the

            sufficiency-of-the-evidence  issue  was a  "substantial" one;

            here, the district court has concluded it is not.  And there,

            the district court found that "exceptional  reasons" existed;

            here, it has  found them  to be absent.   These  distinctions

            prove dispositive.

                 We agree with the lower court that defendant's challenge

            to  the sufficiency of the evidence falls short of presenting

            a "substantial"  question--i.e., one  that is close  or could

            very well be decided the other way.  See, e.g., United States
                                                 ___  ____  _____________

            v.  Bayko, 774 F.2d  516, 523 (1st  Cir. 1985).   In fact, it
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            would be  difficult  at  this  juncture to  reach  any  other

            conclusion.    We  are   obligated  to  decide  bail  motions

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promptly,  on  the basis  of  "such  papers, affidavits,  and

            portions of the record  as the parties shall present."   Fed.

            R. App. P. 9(b).  Here, the parties have outlined some of the

            key  evidence  in  their  memoranda.    Yet  little  can   be

            conclusively gleaned  from such  synopses.  See  Bourjaily v.
                                                        ___  _________

            United  States, 483  U.S. 171,  178-80 (1987)  ("[I]ndividual
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            pieces  of evidence,  insufficient in  themselves to  prove a

            point, may in cumulation prove it.  The sum of an evidentiary

            presentation  may  well  be  greater  than   its  constituent

            parts.").  Lacking transcripts, we must of necessity defer in

            large  measure  to the  district  court's  evaluation of  the

            sufficiency of  the evidence.   See,  e.g., United  States v.
                                            ___   ____  ______________

            Harris,   942   F.2d  1125,   1135   n.7   (7th  Cir.   1991)
            ______

            ("Necessarily, a  district court's thorough knowledge  of the

            merits of a  case puts it  in a better  position to  evaluate

            petitions  for release  than our  Court, at  least  until the

            issues  have  been  fully  presented  to  the  Court  through

            briefing  and  oral  argument.").1   The  Second  Circuit  in

            DiSomma,  emphasizing  "the trial  judge's  close familiarity
            _______

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            1.     The Harris  court, having earlier  denied bail pending
                       ______
            appeal, reversed the convictions of the two defendants due to
            lack  of evidence.  While the court had ordered their release
            the day  after  oral argument,  the  defendants by  then  had
            "already served most of the[ir] sentences."  942 F.2d at 1135
            n.7.  Describing this as "an injustice," the court encouraged
            counsel "who  believe that  the Court  should have  granted a
            petition for release" to "renew[] the  petition in their main
            appellate  briefs."  Id.  We would likewise encourage such an
                                 ___
            approach  in   cases  challenging  the   sufficiency  of  the
            evidence.

                                         -5-

with the evidence  presented," 951 F.2d  at 497, deferred  to

            the lower court's  finding that the challenge to  the factual

            sufficiency was  a "substantial" one.   For the  same reason,

            the  finding here  that such a  challenge is  not substantial
                                                          ___

            also deserves deference.  Based on our review of the parties'

            factual  descriptions, and  given the  deference due  at this

            stage of an appeal to the trial judge's first-hand evaluation

            of evidentiary sufficiency,  we conclude that no  substantial

            question in this regard has been presented.2

                 Even if we  were to  reach the  opposite conclusion,  we

            would be loath  to find  that the district  court abused  its

            discretion  in  determining  that defendant  had  not clearly

            shown "exceptional reasons" under   3145(c) why his detention

            would  be  inappropriate.   Defendant  would  read into  this

            exception  the requirement  that, whenever  one who  has been

            convicted of a "crime of violence" (and who is not  a risk of

            flight or danger) has raised  a "substantial question" as  to

            the  sufficiency of  the evidence,  release must  be ordered.

            Yet such a rule--which  presumably would also apply  to those

            convicted of  offenses described  in   3142(f)(1)(B)  & (C)--

            finds no support in the statutory language, and would seem at

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            2.     Defendant has pointed  to additional issues  on appeal
            (not  involving the  sufficiency  of the  evidence) which  he
            claims to be substantial.   These need not be  considered, as
            they provide no basis for invoking the DiSomma rationale, and
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            defendant  has offered  no basis  other  than DiSomma  for an
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            exceptional-reasons determination.

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odds  with  Congress'  purpose  in  enacting  the  mandatory-

            detention provision.  Neither the statute nor the legislative

            history  "defines  the  circumstances  which  may  qualify as

            exceptional reasons permitting  release."  DiSomma,  951 F.2d
                                                       _______

            at  497.   The few  courts to  address the matter  agree that

            there must be present  "a unique combination of circumstances

            giving  rise to  situations that  are out  of  the ordinary."

            Id.; accord United States v. Herrera-Soto, 961  F.2d 645, 647
            ___  ______ _____________    ____________

            (7th   Cir.  1992)  (per   curiam)  (reversing  finding  that

            defendant's  substantial  challenge   to  supplemental   jury

            instruction provided exceptional reason for release; there is

            "nothing out of the  ordinary about the circumstances" here);

            see also United States v. Carr, 947 F.2d 1239, 1240 (5th Cir.
            ________ _____________    ____

            1991)   (per  curiam)   (   3145(c)   provides  "avenue   for

            exceptional  discretionary  relief" from  mandatory-detention

            provision).   The absence of statutory  criteria makes clear,

            we  think,  that  district  courts have  wide  discretion  in

            deciding whether to invoke this provision--and that a finding

            of no exceptional reasons should be  disturbed on appeal only

            in  compelling circumstances.   See DiSomma, 951  F.2d at 497
                                            ___ _______

            ("it is not  our intention to foreclose  district judges from

            the  full exercise of discretion in these matters").  Even if

            defendant's  evidentiary  challenge  were  to  be   deemed  a

            "substantial" one, we see  nothing in the relatively ordinary

            circumstances here that would call for such a result.  

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The motion for release on bail pending appeal is denied,
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            and the  stay of sentence is vacated.  The matter is remanded
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            to the district court for designation of a suitable reporting
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            date.
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