United States v. William T. Smith, Jr. Appeal of United States of America

793 F.2d 85, 1986 U.S. App. LEXIS 26095, 55 U.S.L.W. 2027

• Court: Court of Appeals for the Third Circuit
• Decided: June 13, 1986
• Docket: 85-5557
• Status: Published

Opinions

MANSMANN, Circuit Judge.

We review the district court’s application of the substantial question requirement contained in the section of the Bail Reform Act of 1984 governing the release of a convicted defendant pending appeal. 18 U.S.C. § 3143(b). The district court interpreted our decision in United States v. Miller, 753 F.2d 19 (3d Cir.1985), as requiring that the defendant be released where the issue presented on appeal is not governed by controlling precedent, no matter how improbable a reversal of the conviction. The district court found that under this standard the defendant had raised a substantial question and granted the defendant’s motion for bail pending appeal. We reverse.

I.

The defendant was indicted for crimes relating to his participation in a scheme to bribe public officials in Pennsylvania in order to secure the award of Federal Insurance Contribution Act (“FICA”) recovery contracts from state and local entities. After jury deliberations commenced, one of the jurors was injured in an automobile accident while returning to the courthouse. The district court, finding that the juror’s injuries precluded her from continuing deliberations, invoked Federal Rule of Criminal Procedure 23(b)¹ and permitted the remaining eleven jurors to continue deliberations. The jury found the defendant guilty of conspiracy, 18 U.S.C. § 371 (1982), four counts of mail fraud, 18 U.S.C. § 1341 (1982), and four counts of violating the Interstate Transportation in Aid of Racketeering Statute, 18 U.S.C. § 1952(a)(3) (1982) (“I.T.A.R.”). The defendant was sentenced to a total of twelve years imprisonment and fined $63,000. The defendant appealed, challenging, inter alia, the constitutionality of Rule 23(b).²

The district court granted the defendant’s motion for bail pending appeal pursuant to 18 U.S.C. § 3143(b). The government appeals.

II.

“[B]ecause of the crucial nature of the defendant’s liberty interest and the ‘clear public interest’ that is at stake,” we are required to “independently determine” whether the defendant is entitled to bail pending appeal. United States v. Strong, 775 F.2d 504, 505 (3d Cir.1985) (quoting United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985) and S.Rep. No. 98-225, 98th Cong., 2d Sess. at 30 (1983), reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3213). We must, however, accord some deference to the district court’s reasoning.

[Ajppellate courts give the reasons articulated by trial judges respectful consideration, but if, after careful assessment of the trial judge’s reasoning, together with such papers, affidavits, and portions of the record as the parties present, the court of appeals independently reaches a conclusion different from that of the trial judge the court of appeals has the power to amend or reverse a detention or release decision.

Delker, 757 F.2d at 1400 (citations omitted).

III.

The 1984 Bail Act provides in relevant part that a defendant shall be released on bail pending appeal only if the court finds:

(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released pursuant to section 3142(b) or (c); and

(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

18 U.S.C. § 3143(b). The government does not challenge the district court’s finding that the defendant had satisfied his burden of proof with respect to the first portion of these requirements. The government does contest the district court’s application of the second half of these criteria.

In Miller we found that Congress intended that the section 3143(b)(2) requirements would palee a burden on the defendant to demonstrate “that the appeal raises a substantial question of law or fact” and “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.” Miller, 753 F.2d at 24. We said that the substantial question prerequisite requires the defendant to prove “that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful.” Id. at 23. We noted:

This [requirement] represents a marked change in the inquiry into the merits in the context of a bail determination, since the 1966 act only required the court to determine whether the issue was “frivolous,” see 18 U.S.C. § 3148 (repealed by 1984 Act).

Id. We rejected any interpretation of the statutory phrase “likely to result in reversal or an order for a new trial” which would require the federal courts to act as “ ‘bookmakers’ who trade on the probability of ultimate outcome.” Id. We said that the statute “cannot reasonably be construed to require the district court to predict the probability of reversal.” Id.

The trial court here found that the defendant’s challenge to the constitutionality of the provision of Federal Rule of Criminal Procedure 23(b) for continuing deliberations with an 11-member jury where one juror can no longer participate constitutes a substantial question under the Miller guidelines.³ The court explained:

We have no doubt that the 11-person jury provided for in Rule 23 of the Rules of Criminal Procedure is constitutional and will be so determined by the U.S. Supreme Court if and when this question reaches that court. However, there is no controlling precedent with respect to the 11-person jury. Thus, the question falls within the definition of a “substantial question” under U.S. v. Miller.

The court stressed, however, its belief that the resolution of the Rule 23(b) question was not “fairly doubtful”:

I don’t think there is any doubt about this at all. I think the chances are one hundred to one that the Supreme Court, when and if this matter ever gets to it, will hold that an eleven man jury in the circumstances we had in this case, is perfectly valid. I don’t think there is any doubt about it, or the doubt is minimal.

The trial court emphasized its reluctance to find a substantial question but concluded that it was required to do so by our opinion in Miller. Reasoning that if the Rule 23(b) question were determined favorably to the defendant, a new trial would be required on all counts for which imprisonment was imposed, the district court ordered the defendant released pending appeal.

IV.(A)

We find that Miller does not compel the result reached by the district court. We clearly acknowledged in Miller that Congress intended the 1984 Bail Act to replace the “frivolous” test with a more stringent prerequisite to bail pending appeal. Contrary to the assertion of the United States Court of Appeals for the Eighth Circuit in United States v. Powell, 761 F.2d 1227, 1232 (8th Cir.1985), we believe the Miller definition is consistent with Congress’ intent. Our definition of a substantial question requires that the issue on appeal be significant in addition to being novel, not governed by controlling precedent or fairly doubtful. The district court focused solely on the absence of controlling precedent and, in so doing, failed to determine whether the Rule 23(b) issue constituted a significant question.

IV.(B)

We are aware that a number of courts of appeals view our Miller definition as incomplete. In United States v. Giancola, 754 F.2d 898 (11th Cir.1985), the United States Court of Appeals for the Eleventh Circuit adopted the Miller articulation of the section 3143(b) requirements. The Giancola court observed, however, that the suggestion that a substantial question can be one that has not beén decided by controlling precedent fails to exclude some cases which are not substantial. The Giancola court explained:

We note that an issue may be without controlling precedent largely because that issue is so patently without merit that it has not been found necessary for it to have been resolved. Thus, an issue could well be insubstantial even though one could not point to controlling precedent. Similarly, there might be no precedent in this circuit, but there may also be no real reason to believe that this circuit would depart from unanimous resolution of the issue by other circuits.

Id. at 901. The Giancola court concluded that a substantial question is “a ‘close’ question or one that very well could be decided the other way.” Id. The Giancola modification of Miller has been adopted by a number of the courts of appeals. See, e.g., United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.1985); United States v. Bayko, 774 F.2d 516, 523 (1st Cir.1985); United States v. Bilanzich, 771 F.2d 292, 298-99 (7th Cir.1985); United States v. Affleck, 765 F.2d 944, 952 (10th Cir.1985); Powell, 761 F.2d at 1231-32; United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir.1985); United States v. Randell, 761 F.2d 122, 125 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985).

IV.(C)

We believe the Giancola court’s objections can be satisfied by reference to the requirement that a question which is not governed by controlling precedent nonetheless must be significant. Clearly, an issue that is “patently without merit” cannot qualify as significant. An issue which has been unanimously decided by the other circuits may or may not be significant. Where there is any doubt as to significance, we believe it is preferable to resort to the historical approach outlined in United States v. Handy, 761 F.2d 1279, 1281-82 (9th Cir.1985), rather than to the “close” question concept advocated by the Gianco-la court. To accept the Giancola modification would be to resort to the judicial bookmaking condemned in Miller.

The Handy court noted that several observations made in Giancola were accurate, i.e., that “a ‘substantial question’ is one of more substance than would be necessary to a finding that it was not frivolous,” that “there are no blanket categories for what questions do or do not constitute ‘substantial’ ones,” and that “[wjhether a question is ‘substantial’ must be determined on a case-by-case basis.” Giancola, 754 F.2d at 901 (quoted in Handy, 761 F.2d at 1282 n. 2). We agree. The Handy court also suggested that the Miller definition of substantial question “might not be sufficient to separate substantial from non-substantial questions.” Handy, 761 F.2d at 1282 n. 2 (citing Giancola, 754 F.2d at 901). The court rejected, however, the “close question” analysis adopted in Giancola. Instead, the Handy court emphasized its support of the historically-based “fairly debatable” interpretation of the term “substantial”. We find this approach consistent with that traditionally taken by the courts. For example, the Supreme Court of the United States, in a different context, recently affirmed that:

“In requiring a ‘question of some substance’, or a ‘substantial showing of the denial of [a] federal right,’ obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’ ” Gordon v. Willis, 516 (ND Ga.1980) (quoting United States ex reL. Jones v. Richmond, 245 F.2d 234 (CA2); cert. denied, 355 U.S. 846 [78 S.Ct. 71, 2 L.Ed.2d 56] (1957)).

Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983) (emphasis in original). We reject the Giancola modification to the Miller substantial question definition and adopt the historical approach of the Handy court.

V.

Because we find that the district court applied the incorrect standard, we must determine whether the Rule 23(b) issue constitutes a substantial question. Given the absence of controlling precedent, Miller requires us to decide whether a significant question is posed. The pertinent issue involves the defendant’s challenge to the constitutionality of continuing jury deliberations with eleven jurors when one juror can no longer participate. Precedent clearly establishes that twelve jurors are not required for a conviction. See Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). It is also clear that the district court acted in accordance with Federal Rule of Criminal Procedure 23(b) and that the defendant was convicted by the unanimous verdict of the eleven remaining jurors.

We find that the defendant’s challenge to Rule 23(b) is not a significant question. The defendant has not shown that the issue is “debatable among jurists,” nor do we believe that the question is “adequate to deserve encouragement to proceed further.” See Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (citations omitted). Because we find no basis to suggest that the Rule 23(b) issue fulfills the requirement of significance, we conclude that the defendant should not have been released pending appeal.

VI.

We will reverse the order of the district court permitting the defendant’s release on bail pending appeal.

1 . Federal Rule of Criminal Procedure 23(b) provides:

Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.

2 . The defendant appealed from his conviction. United States v. Smith, No. 85-5532, and from the denial of his post-trial motions, United States v. Smith, No. 85-5714. In addition, Mr. Smith’s co-defendant, Alan Stoneman, appealed from the denial of his post-trial motions, United States v. Stoneman, No. 85-5702. All three of these appeals were consolidated with the government's appeal of the order granting defendant Smith bail which we consider here. We address the defendants’ three appeals in a separate opinion, 789 F.2d 196.

3 . The court found that "[t]he only substantial question of law to be raised by the defendant on appeal which has been called to our attention by defense counsel up to the present time is the question of the constitutionality of the 11-per-son jury used in this case.” The defendant asserts on appeal that three additional issues are also “substantial questions: 1) whether the defendant was prejudiced by an impermissible variance between the crime for which he was indicted and the proof at trial coupled with the court’s instructions to the jury; 2) whether the supplemental jury instructions erroneously permitted the jury to consider the multiple conspiracies separately; and 3) whether the district court erred in refusing to permit the defendant to subpoena alcoholism records of two of the government's witnesses. We find that none of these issues raises a substantial question within the meaning of 18 U.S.C. § 3143.