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UNITED STATES v. HART

December 1, 1995

UNITED STATES OF AMERICA
v.
CONSTANCE HART, Defendant.



The opinion of the court was delivered by: MUNSON

 In the instant motion the defendant Constance Hart seeks to stay her sentence pending appeal pursuant to 18 U.S.C. § 3143(b). The court heard oral argument on November 9, 1995 at Syracuse, New York. After considering the risk of flight and the substantial questions the defendant intends to raise on appeal, the court grants defendant's motion for release. The following constitutes the court's memorandum-decision and order.

 BACKGROUND

 Constance Hart was convicted by jury of one count of bank fraud. 18 U.S.C. § 1344. She was sentenced to twenty-one months imprisonment and ordered to make restitution in the amount of $ 89,700.78. Defendant is scheduled to surrender for incarceration on December 5, 1995. Judgment, Document ("Doc.") 52.

 The fraud consisted of the defendant's kiting of checks between the Skaneateles Savings Bank and OnBank from June 4 to June 8, 1990. At trial the government moved to admit evidence of other check kites the defendant conducted in the past. Doc. 33. Although normally prohibited by Federal Rule of Evidence 404(b), the court allowed the evidence for the purpose of proving the defendant's intent, as defense counsel had argued no such intent existed in his opening statement to the jury. Government's ("Gov.'s") Memorandum ("Mem.") in Opposition to Defendant's ("Def.'s") Motion For Acquittal, Doc. 45, at 3.

 DISCUSSION

 The circumstances under which a convicted and sentenced defendant can be released pending an appeal are defined in the Bail Reform Act at 18 U.S.C. § 3143(b). Subsection (2) of that statute mandates detention pending appeal for defendants convicted of any of the serious types of crimes listed in 18 U.S.C. § 3142(f)(1)(A) through (C). However, because the relevant crime here does not fall into any of those classes, the applicable subsection for purposes of this decision is (1). This subsection reads in relevant part:

 
The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer 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 . . . 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,
 
. . . .

 The Bail Reform Act of 1984 reversed the presumption in favor of bail pending appeal embodied in the Bail Reform Act of 1966. Robin C. Lamer, Annotation, What is "A Substantial Question of Law or Fact Likely to Result In Reversal or an Order for a New Trial" Pursuant to 18 U.S.C. § 3143(b)(2) Respecting Bail Pending Appeal?, 79 A.L.R.Fed. 673, 677 (1986 & Supp. 1994). This policy in favor of bail between conviction and disposition of appeal was unknown at common law. In the United States, it arose after appeals of right were first authorized for federal criminal cases in 1891. United States v. Galanis, 695 F. Supp. 1565, 1566 (S.D.N.Y. 1988). The presumption in favor of bail was based on "the theory that a person accused of a crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment." Hudson v. Parker, 156 U.S. 277, 284, 39 L. Ed. 424, 15 S. Ct. 450 (1895); accord United States v. Motlow, 10 F.2d 657, 659 (7th Cir. 1926) (releasing owner of Jack Daniels Distillery on bail pending appeal for Prohibition Act convictions). This presumption survived through the Bail Reform Act of 1966, which generally allowed release pending appeal, unless the appeal was adjudged frivolous or intended for delay only, or the defendant was considered a flight risk or a danger to the community. Larner, 79 A.L.R.Fed. at 677.

 The Bail Reform Act of 1984 reversed this presumption, putting the burden on the defendant to demonstrate that she is entitled to release pending appeal. S. Rep. No. 2, 98th Cong., 2d Sess. 26, reprinted in 1984 U.S.C.A.A.N. 3182, 3209; United States v. Randell, 761 F.2d 122, 124 (2d Cir.), cert. denied, 474 U.S. 1008, 88 L. Ed. 2d 464, 106 S. Ct. 533 (1985). The Senate Judiciary Committee cited two reasons for the change: (1) a conviction in a court of law is presumably correct in law, and (2) the often lengthy appeals process might result in a decrease in the deterrent effect of the criminal law, as persons convicted at trial could be free on bail for months or even years. See 1984 U.S.C.A.A.N. at 3209. The increasing availability of court-appointed attorneys had also increased the number of appeals, and "some social discontent arose concerning the perceived ineffectual ...


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