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U.S. v. CHEN

March 28, 2003

UNITED STATES OF AMERICA
v.
BAO DENG CHEN, DEFENDANT.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S. District Judge.

OPINION AND ORDER

On March 3, 2003, a jury convicted Bao Deng Chen on all counts of a four-count indictment.*fn1 Immediately after the verdict, defendant asked that his bail be continued pending sentencing. The Government opposed defendant's request. I denied Defendant's motion and he was immediately remanded. After making that initial ruling, I decided, sua sponte, to grant reconsideration based on the written submissions of counsel. These submissions highlighted a continuing confusion regarding the law governing the post-conviction, pre-sentence release of certain defendants.

There is no dispute that section 3143 of Title 18 governs the question of release in the first instance. Some courts, however, have concluded that even if this section mandates a remand, a defendant may still be released pursuant to section 3145 of Title 18. This, admittedly, is the majority view, espoused by all four of the circuit courts to have considered the issue. Other courts, by contrast, have held that section 3145 only speaks to the authority of appellate courts to release a defendant, but does not permit any action by a district court.

After reviewing the decisions on both sides of the issue, I am firmly convinced that section 3145 may not be used by district courts to override the bail decision mandated by section 3143. I write now to fully explain the reasons for my decision.*fn2

I. 18 U.S.C. § 3143: "Release or detention of a defendant pending sentence or appeal"
A court's ability to release a defendant is governed by Chapter 207 of Title 18 of the United States Code.*fn3 The law sets escalating standards for release as a defendant proceeds through the criminal justice system. In particular, the law recognizes three benchmarks for considering release: before trial, after conviction but before sentencing, and after sentencing but during the pendency of an appeal.*fn4

For a defendant like Chen, who has been convicted but not yet sentenced, section 3143(a) applies. That section provides:

(a) Release or detention pending sentence. — (1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. § 994 does not recommend a term of imprisonment, be detained, unless 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 under section 3142(b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c).
(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless —
(A)(i) The judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person of the community.
Because Chen was found guilty of hostage taking, an offense potentially punishable by life imprisonment,*fn5 his was "an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142."*fn6 Furthermore, the Government has signaled its intention to seek a sentence of imprisonment in this case.

I am thus required to order Chen's detention unless I find that a motion for acquittal or for a new trial will be granted.*fn7 I do not so find. I therefore need not reach the question of whether Chen poses a flight risk or a danger to the community; the defendant must be remanded to custody.

II. 18 U.S.C. § 3145: "Review and appeal of a release or detention order"
Defendant, however, argues that he should be released pursuant to 18 U.S.C. § 3145. Defendant relies principally on section 3145(c), relating to "Appeal from a release or detention order":
An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.
Thus, under section 3145(c), a defendant (like Chen) who is "subject to detention pursuant to section 3143(a)(2)," may be released if he poses neither risk of flight nor threat to the community (the conditions of release set forth in section 3143(a)(1)) and there are "exceptional reasons" why his release is appropriate. See United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997). But as the text of the statute makes plain, section 3145(c) is not available absent "an appeal from a release or detention order."

The majority of courts — including every court of appeals — that have considered the question have concluded that section 3145(c) allows district courts to release a defendant.*fn8 A number of district courts, albeit a distinct minority, have held otherwise — that section 3145(c) is only available to the appellate courts.*fn9 The holdings of the minority courts stand on firmer ground. The courts in the majority have uniformly given the question cursory treatment, foregoing rigorous statutory analysis in favor of reliance on stare decisis.*fn10 Basic principles of statutory construction compel the conclusion that section 3145(c) is not available to district or magistrate*fn11 judges.

A.

The structure, language, and placement of section 3145(c) all favor the view that a district court is not invested with the power to reach "exceptional reasons." Section 3145 has three subsections. Subsection (a) governs a district court's "review" of an order of release entered by "a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court." 18 U.S.C. § 3145(a) (emphasis added). Subsection (b) is the analogous provision providing for review of an order of detention. See id. § 3145(b).

Finally, subsection (c) governs an "appeal from a release or detention order, or from a decision denying revocation or amendment of such an order." Id. § 3145(c). The title of the subsection ("appeal from a release or detention order") and the use of the word "appeal" in place of "review" weigh heavily in favor of reading section 3145(c) to apply only to appellate courts.*fn12 The meaning of "appeal" is clear: "to seek review (from a lower court's decision) by a higher court." ...


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