Opinion
Criminal No. 02-127(2) ADM/AJB
May 27, 2003.
Mark D. Larsen, Esq., Assistant United States Attorney, on behalf of Plaintiff.
Janice M. Symchych, Esq., and Kimberly A. Fuhrman, Esq., on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendant Joseph Paul Biernat's ("Defendant") Motion for Stay of Sentence Pending Appeal and for Continuation of Current Conditions of Release [Docket No. 266]. Defendant moves the Court to stay his sentence of imprisonment under 18 U.S.C. § 3143(b), and to stay his sentence of fines, restitution and costs under Federal Rule of Criminal Procedure 38(c), pending his appeal to the Eighth Circuit Court of Appeals from the judgment of conviction. For the reasons set forth below, the Motion is denied.
II. DISCUSSION
18 U.S.C. § 3143(b)(1) provides that a defendant may be granted bail pending appeal if the Court 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 under section 3142(b) or (c) of this title; 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,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.18 U.S.C. § 3143(b) (2003). The defendant bears the burden of establishing the absence of these factors. See Fed.R.App.P. 9(c); Fed.R.Crim.P. 46(c); see, e.g., U.S. v. Londono-Villa, 898 F.2d 328, 330 (2d Cir. 1990); United States v. Gorman, 674 F. Supp. 1401, 1403 (D.Minn. 1987). The Court has no serious concerns about flight or danger to the community posed by Defendant's release status pending appeal. However, if his appeal does not raise a substantial question under 18 U.S.C. § 3143(b)(1)(B), the Court still cannot release the defendant. See, e.g., Morison v. U.S., 486 U.S. 1306, 1306 (1988); U.S. v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990).
Several circuits have interpreted a "substantial question of law or fact" to mean a question that is "close" or could be decided either way. U.S. v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985); see also, U.S. v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985) (adopting Giancola "close" standard). Giancola was a modification of U.S. v. Miller, in which the Third Circuit held that a substantial question is one that is novel, has not been decided by controlling precedent, or is fairly doubtful. 753 F.2d 19, 22-24 (3d Cir. 1985).
The Eighth Circuit adopted a slight modification of the Giancola-Miller approach in U.S. v. Marshall, 78 F.3d 365 (8th Cir. 1996). The Eighth Circuit requires "a showing that the appeal presents `a close question' — not `simply that reasonable judges could differ' — on a question `so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor.'" Id. at 366 (citing U.S. v. Powell, 761 F.2d 1227, 1234 (8th Cir. 1985)). "It is not sufficient to show simply that reasonable judges could differ (presumably every judge who writes a dissenting opinion is still `reasonable') or that the issue is fairly debatable or not frivolous. On the other hand, the defendant does not have to show that it is likely or probable that he or she will prevail on the issue on appeal." Powell, 761 F.2d at 1234.
Other circuits have also adopted modifications of Giancola. See, e.g., U.S. v. Messerlian, 793 F.2d 94, 97 (3d Cir. 1986) (holding that a substantial question is "fairly debatable"); Lee v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993) (requiring additional test that defendant show "some circumstance making [the motion for bail] exceptional and deserving of special treatment in the interests of justice"). Typically, a court need not determine whether or not the ruling is likely to be reversed. See Bayko, 774 F.2d at 512-23 (holding release on bail not contingent on district court finding of probable reversal).
The issues identified by Defendant in support of his current Motion have permeated this case since its inception and have been intertwined with numerous previous legal findings of the Court. Defendant's bail arguments, at their core, are largely credibility considerations relating to the content and circumstances surrounding the Defendant's two written "confessions" of March 7 and 8, 2002. Legal analysis regarding constitutionality and admissibility of these statements have been the subject of prior Orders by both Magistrate Judge Boylan and the undersigned District Judge, and credibility determinations related to the statements have been made by the jury. The statements have been the subject of review by three independent decision-makers, all of whom have decided adversely to the position of the Defendant. The rationale for the rulings has been fully expressed in prior Orders of this Court and at trial, and will not here be re-examined. Defendant fails to meet his burden of raising a "close" substantial question of law or fact.
Defendant has not shown that the questions to raise on appeal are so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in Defendant's favor. Defendant was convicted of five counts of offense: Aiding and Abetting or Causing Theft from a Labor Organization, False Statement and three counts of Mail Fraud. Defendant has been sentenced to concurrent time on each crime. Even if one or more of the counts were to be overturned on appeal, Defendant would most likely be subject to the sentence for the remaining count or counts. The False Statement conviction is subject to be vacated only in the event an appellate court were to find it was "infected" by evidence admitted relative to the other counts of the Indictment. No new evidence has been presented to support Defendant's assertion that the issues identified for appeal should be decided differently than they were at trial. Accordingly, the showing required by 18 U.S.C. § 3143(b) has not been made, and a stay of sentence pending appeal is not warranted.
A stay of fines and costs pursuant to Federal Rule of Criminal Procedure 38(c) is likewise not appropriate. The Presentence Investigation financial statement reviewed ample assets for immediate payment of these obligations. In the event of reversal by the Eighth Circuit the funds may be returned to the Defendant.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant's Motion for Stay of Sentence Pending Appeal and for Continuation of Current Conditions of Release [Docket No. 266] is DENIED.