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