United States District Court, Southern District of New York
August 1, 1991
UNITED STATES OF AMERICA
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
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).
The parties have offered as the only legislative history of
the exception authorized
by § 3145(c) a letter from Carol Crawford, an Assistant
Attorney General in the Justice Department's Office of
Legislative and Intergovernmental Affairs, to Senator Paul
Simon, the sponsor of the bill that amended § 3143 to provide
for mandatory detention. The letter states that the Justice
Department generally supports the bill but has concerns "about
the mandatory nature of the proposed amendment" to § 3143. The
letter then suggests that some provision be made for
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, DiSomma's appeal will raise an
issue on which his only conviction will stand or fall.
The unusual circumstance clearly shown by DiSomma is that the
very element of his conviction about which he raises a
substantial issue makes him ineligible for release under §
3143(a)(1) and (b)(1). Whether the evidence at trial was
sufficient to prove beyond a reasonable doubt that DiSomma
conspired to commit robbery, an essential element of which is
the use or threatened use of violence, as distinguished from
larceny or burglary, is the issue on which his motion for a
judgment of acquittal was grounded and on which his conviction
will stand or fall on appeal. It appears to me to be an
exceptional reason for release that the substantial issue
raised by DiSomma about his conviction — the element of
violence — is the very element of his conviction that prevents
his release under § 3143.
The Government argues that DiSomma should not be eligible for
release under § 3145(c) because his situation differs from the
examples in Assistant Attorney General Crawford's letter.
Although DiSomma's situation is not identical to either of
those examples, it is nonetheless exceptional. The example of
the elderly man convicted of a mercy killing under 18 U.S.C. § 1111
is exceptional because he raises "a question of first
impression in the circuit." Crawford Letter, at 2. The example
of the temporarily incapacitated drug dealer is exceptional
because his appeal "raise[s] a novel and difficult search or
seizure question. . . ." Id. However, the language of § 3145(c)
does not suggest that a person convicted of a crime of violence
is required to raise a novel issue in a motion for acquittal or
on appeal. Indeed, the reference in § 3145(c) to § 3143(b)(1)
appears to incorporate the requirement in that provision that
an appeal raise a substantial question of law or fact. Section
3145(c) says only that there must be "exceptional reasons." A
motion for acquittal or an appeal that raises a novel issue may
be one such reason, but nothing in the language of § 3145(c)
suggests that it would be the only such reason.
Therefore, DiSomma and the Government are directed to submit
proposed orders for DiSomma's release on bail.
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