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U.S. v. DISOMMA

August 1, 1991

UNITED STATES OF AMERICA
v.
JOSEPH DISOMMA, DEFENDANT.



The opinion of the court was delivered by: Cedarbaum, District Judge.

OPINION AND ORDER

On May 23, 1991, following an eight-week jury trial with six co-defendants, Joseph DiSomma was acquitted of mail fraud, RICO, and RICO conspiracy charges and convicted of one count of conspiracy to rob a jewelry store in violation of the Hobbs Act, 18 U.S.C. § 1951. I have denied DiSomma's motion for a judgment of acquittal under Fed.R.Crim.P. 29, and he is awaiting sentence. DiSomma now seeks bail pending sentence or appeal under 18 U.S.C. § 3143 and 3145(c).

Section 3143 imposes stringent requirements for release pending sentence of persons convicted of crimes of violence. It also mandates detention of such persons pending appeal. Both sides agree that DiSomma cannot be released under § 3143 because conspiracy to rob is a crime of violence and DiSomma can be released on bail only if his application falls under the exception authorized by § 3145(c). That provision requires a clear showing of "exceptional reasons" for release. 18 U.S.C.A. § 3145(c) (West Supp. 1991). Section 3145(c) also requires that the person seeking release meet the conditions set forth in § 3143(a)(1) or (b)(1), which I will consider first.

Under § 3143(a)(1), a person awaiting imposition or execution of sentence may be released if "the judicial officer finds 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. . . ." 18 U.S.C.A. § 3143(a)(1) (West Supp. 1991). The Government has stipulated that DiSomma meets this condition.

Under § 3143(b)(1), a person who has filed an appeal or a petition for a writ of certiorari may be released if the judicial officer finds that the person is not likely to flee or pose a danger to any other person or the community and:

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

(i) reversal[.]

18 U.S.C.A. § 3143(b)(1) (West Supp. 1991). DiSomma will meet these conditions for release when his appeal is filed. DiSomma's appeal will raise a substantial question of law likely to result in reversal. DiSomma argued in his motion for acquittal, and will argue on appeal, that a reasonable juror could not conclude beyond a reasonable doubt that DiSomma conspired to commit robbery, as distinguished from burglary or larceny. DiSomma argued that the evidence was insufficient to show that he conspired to use "actual or threatened force, or violence. . . ." 18 U.S.C.A. § 1951(b)(1) (West 1984). Although I denied DiSomma's motion for acquittal, the evidence supporting conviction was not overwhelming, and DiSomma raised a substantial question of law. If successful, DiSomma's appeal on this issue would result in reversal of his only conviction.

DiSomma may be released under 18 U.S.C. § 3145(c) "if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate." 18 U.S.C.A. § 3145(c) (West.Supp. 1991). The meaning of "exceptional reasons" in this new statute appears to be an issue of first impression.

Neither § 3143 nor § 3145 defines "exceptional reasons." The ordinary meaning of "exceptional" is "being out of the ordinary," "uncommon," or "rare." Webster's Third New International Dictionary 791 (1986) (unabridged).

  While confinement will be the proper result in the
  vast majority of cases of persons convicted for
  crimes of violence and serious drug offenses,
  there may be rare instances in which release,
  under appropriate conditions, would be proper. For
  example, suppose a situation in which the
  convicted defendant does not pose either a danger
  to the community if released or a risk of flight,
  and in which the appeal raises a substantial
  question of law (e.g. an elderly man convicted
  under 18 U.S.C. [§] 1111 of the mercy killing of
  his spouse, who has lived in the community all his
  life without prior incident, and who is challenging
  the applicability of the federal murder statute to
  mercy killings, a question of first impression in
  the circuit). In such a case, release pending
  appeal or sentence might be a suitable disposition,
  and detention an unduly harsh remedy. The same
  might be true of even a convicted drug dealer who,
  because of wounds incurred during his capture, was
  temporarily incapacitated and thus not likely to
  commit further crimes or to flee, and whose appeal
  raised a novel and difficult search or seizure
  question on which the conviction will stand or
  fall.

Letter from Carol T. Crawford to the Honorable Paul Simon, at 2 (July 26, 1989) (hereafter, "Crawford Letter").

DiSomma's application presents, in the language of Assistant Attorney General Crawford's letter, "a situation in which the convicted defendant does not pose either a danger to the community if released or a risk of flight, and in which the appeal raises a substantial question of law. . . ." As in the examples given in that letter, ...


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