United States District Court, Southern District of New York
March 28, 2003
UNITED STATES OF AMERICA
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
(A)(i) The judicial officer finds there is a
substantial likelihood that a motion for
acquittal or new trial will be granted;
(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
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.
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." Black's Law Dictionary (7th ed. 1999) (emphasis added). By definition, a court cannot hear an appeal from its own order.*fn13
Section 3145(c) therefore governs appellate review of either: (i) a district court's initial release or detention order made pursuant to section 3143, or (ii) a district court's order, made pursuant to section 3145(a) or (b), reviewing another court's release or detention order.*fn14 Such appellate review is governed by 28 U.S.C. § 1291*fn15 and 18 U.S.C. § 3731,*fn16 both of which relate solely to review of a final order of a district court by a court of appeals. After specifying that an appeal from a release or detention order is governed by these two statutes, the "exceptional reasons" provision immediately follows. As one court succinctly stated, applying basic principles of logic:
Since Congress provided that an "appeal" from a
release or detention order "is governed by" these
statutes [28 U.S.C. § 1291 and 18 U.S.C. § 3731],
we find this an unmistakable indication that such
an appeal is appropriately taken to the court of
appeals. The first sentence of section 3145(c)
otherwise makes no sense; it is not logical to
construe the first sentence as giving the district
courts power to hear appeals (from themselves, no
less) pursuant to two statutes whose purpose is to
establish the scope of jurisdiction for courts of
Nesser, 937 F. Supp. at 509.
Not only is Congress' choice of words important, so too is its decision as to where to place those words.*fn17 If Congress had intended the "exceptional reasons" provision of section 3145(c) to be an available alternative to mandatory detention under section 3143(a)(2) and (b)(2), it is surely misplaced in a section governing appellate review. Had Congress simply added the "exceptional reasons" language to section 3143, there would be no question as to its availability to district courts.*fn18 The placement of the "exceptional reasons" provision is especially telling in light of the fact that it was adopted at the same time as the mandatory detention amendments to section 3143.*fn19 Why would Congress, primarily concerned with amending section 3143, place the "exceptional reasons" provision in an entirely different section? The only plausible answer is the one supported by the text itself: Congress intended section 3145(c) for the appellate courts alone.*fn20
If that were not totally clear from the language employed in section 3145(c), Congress made the point again less than six months ago. Recently revised Federal Rule of Criminal Procedure 46 ("Release from Custody"), applicable to the district courts, provides:
Pending Sentence and Notice of Appeal. Eligibility
for release pending sentence or pending notice of
appeal or expiration of the time allowed for filing
notice of appeal, shall be in accordance with
18 U.S.C. § 3143.
Fed.R.Crim.P. 46(c) (as amended December 1, 2002). But Federal Rule of Appellate Procedure 9 ("Release in a Criminal Case"), applicable to the courts of appeals, provides:
Criteria for Release. The court must make its
decision regarding release in accordance with the
applicable provisions of 18 U.S.C. § 3142, 3143,
Fed.R.App.P. 9(c) (as amended, December 1, 1998). Any ambiguity about the "exceptional reasons" provision created by its placement in section 3145(c) is therefore answered by Congress' clear statement: a district court considering release pending sentence or appeal is to look only at section 3143; a court of appeals should look at sections 3143 and 3145(c).*fn21
Notwithstanding the fact that the Salome court raised similar arguments almost a decade ago, no court has seen fit to address them. The courts that have held that section 3145(c) is available to district courts almost uniformly cite, without discussion, the Fifth Circuit's decision in Carr. In that case — by far the most extensive treatment of the issue by an appellate court*fn22 — the court resolved the question in one paragraph:
Section 3145(c) is confusing because it is entitled
"appeal from a release or detention order." At the
same time, the language of the sentence included in
§ 3145(c) is direct. It states that "the judicial
officer" may order release if certain conditions are
met and there are exceptional reasons why detention
would be inappropriate. This sentence was added to
§ 3145(c) with the mandatory detention provisions
of § 3143(a)(2) and (b)(2) and was apparently
designed to provide an avenue for exceptional
discretionary relief from those provisions. See Crime
Control Act of 1990, P.L. No. 101-647, § 902, 104
Stat. 4826, 4827 (1990).
Section 3143(a)(2) and (b)(2) use the term "judicial
officer" when referring to the individuals initially
ordering such mandatory detention. Furthermore, at
least two district courts have applied § 3145(c)
in the first instance. United States v. DiSomma,
769 F. Supp. 575 (S.D.N.Y. 1991); United States v.
Bailey, 759 F. Supp. 685 (D.Colo.), aff'd, 940 F.2d 1539
(10th Cir. 1991). We see no reason why Congress would
have limited this means of relief to reviewing
courts. Thus we conclude that the "exceptional
reasons" language of § 3145 may be applied by the
judicial officer initially ordering such mandatory
detention, despite its inclusion in a section
generally covering appeals.
Carr, 947 F.2d at 1240. The Carr court thus proffered three reasons in support of its holding: (1) that the term "judicial officers" encompasses district courts; (2) that two district courts had already availed themselves of section 3145(c); and (3) that the "exceptional reasons" provision was added to provide an alternative to mandatory detention.
I briefly address each of these reasons in turn. First, although the term "judicial officers" concededly includes district judges,*fn23 its use in section 3145(c) is narrower for the reasons already discussed. Statutory terms must be read in context, even when they are given explicit definitions.*fn24 In the context of a provision dealing with appellate review, "judicial officer" must be read to mean only appellate judges.
The second reason is even less persuasive. The notion that an appellate court is somehow bound by the actions of two district courts (from other circuits, no less) is, to say the least, surprising. Doubly so when, as here, neither lower court expressly considered the question for which its decision is cited.*fn25 Finally, this argument confuses what the law is with what other (lower) courts have taken it to be.*fn26
To the extent that later courts have analyzed the issue, they have picked up on Carr's third argument: that section 3145(c) was intended to provide an alternative to mandatory detention under sections 3143(a)(2) and (b)(2). That argument too is seriously flawed.
Although the Carr court correctly noted that the "exceptional reasons" provision "was added to § 3145(c) with the mandatory detention provisions of § 3143(a)(2) and (b)(2) and was apparently designed to provide an avenue for exceptional discretionary relief from those provisions," there is no suggestion in the statute or its meager legislative history that this alternative avenue was intended to be available to the district courts. Carr, 947 F.2d at 1240.*fn27 In the absence of such an indication, the Carr court stated: "We see no reason why Congress would have limited this means of relief to reviewing courts." Id.*fn28 This rhetorical flourish cannot defeat the plain language of section 3145(c), which demonstrates that it applies only to appellate courts.
Moreover, there is at least one plausible explanation for reserving the "exceptional reasons" alternative to reviewing courts. While Congress may have sought to display a "get tough" demeanor by adding the mandatory detention provisions to section 3143,*fn29 it nonetheless wanted to provide an escape clause, but only to a reviewing court based on a "cold" record. Congress might reasonably have worried that district courts, facing a defendant and his family in the courtroom, would stretch the "exceptional reasons" language to release defendants worthy of sympathy, but in no way exceptional. See, e.g., United States v. Charger, 918 F. Supp. 301, 303-04 (D.S.D. 1996) (finding "exceptional reasons" because defendant's family, rather than prison, would be the best environment to aid in defendant's rehabilitation prior to sentencing); United States v. Basque, Cr. No. 92-169, 1996 WL 50979, at *1 (D.Or. Jan. 18, 1996) (finding "exceptional reasons" because defendants were "young enough that there is ample time for them to serve their sentences, if any, after the merits of their appeals have been resolved"); United States v. Cantrell, 888 F. Supp. 1055, 1057-58 (D.Nev. 1995) (finding "exceptional reasons" because defendant "ha[d] been participating in a substance abuse program, and he would benefit more from outpatient treatment at this time than from incarceration").*fn30
Although a number of appellate courts have concluded otherwise, a review of the text and structure of section 3145 compels the conclusion that a district court may not consider "exceptional reasons" as a basis for release. That being so, and because the defendant cannot be released under section 3143(a), Bao Deng Chen is remanded to the custody of the Bureau of Prisons.*fn31 Defendant's sentencing is scheduled for June 19, 2003, in courtroom 12C.