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