The opinion of the court was delivered by: Charles Haight, District Judge.
The question presently before the Court is whether "exceptional reasons" within the meaning of the Bail Reform Act, 18 U.S.C. § 3145(c), justify the release pending sentence of defendant Anthony Capanelli. Capanelli contends that they do and moves for that relief. The government opposes the motion and argues that the statute mandates Capanelli's detention. The parties have briefed the issue. The Court heard oral argument on May 7, 2003.
Following trial the jury acquitted Capanelli on Counts One, Two, and Four, but convicted him on Count Three. Capanelli had been free on bail, but in view of his conviction, the government moved that he be detained pending sentence, relying principally upon the provisions of the Bail Reform Act found in 18 U.S.C. § 3143(a)(2), 3142(f)(1)(A), and 3156(a)(4)(A). At the conclusion of an extended colloquy with counsel concerning these statutory provisions, I granted the government's application and ordered Capanelli detained.
During that colloquy neither counsel nor Court referred to § 3145(c). Because the Court's post-trial research indicated the possible applicability of that subsection to Capanelli's situation, I entered orders dated April 23, 2003 and May 1, 2003, directing counsel to brief and argue the question, and to include in their submissions discussions of United States v. DiSomma, 951 F.2d 494 (2d Cir. 1991), and United States v. Chen, No. 02 Cr. 1039, 2003 WL 1701986 (S.D.N.Y. March 28, 2003).
The jury's conviction of Capanelli on Count Three triggered § 3143(a) of the Bail Reform Act, captioned "Release or detention pending sentence," which provides in pertinent part:
(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;
Subparagraph (A) of 3142(f)(1), incorporated by reference in § 3143(a)(2), describes in generic terms "a crime of violence," a phrase § 3156(a)(4) defines in pertinent part as
(A) an offense that has an element of the offense the
use, attempted use, or threatened use of physical
force against the person or property of another.*fn1
Following his conviction on Count Three, I applied these provisions in detaining Capanelli because I concluded that the crime of conviction was "a crime of violence" within the statutory scheme, and I was unable to perceive a "substantial likelihood that a motion for acquittal or new trial will be granted." However, as noted supra, no reference was made during the post-conviction colloquy to § 3145(c), which, while captioned "Appeal from a release or detention order" (emphasis added), goes on to provide in pertinent part:
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.
(emphasis added). The emphasized language set the stage for Judge Schiendlin's decision in Chen, 257 F. Supp.2d 656; she there concluded that "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," id. at 664, an exercise entrusted by the section, in her view, solely to appellate judges. The government does not agree with Judge Schiendlin's construction of § 3145(c), for the reasons stated in its May 2, 2003 letter brief in the case at bar at 3-6; neither, with the greatest respect, do I; and several circuits (including by necessary implication the Second Circuit in DiSomma) have held that the term "judicial officer" encompasses in this context both district and appellate judges. Accordingly I regard myself as competent to answer the question that I raised mea sponte.
In DiSomma, 951 F.2d at 496, the Second Circuit described the protocol that a trial judge should follow in applying the provisions of § 3145(c) to a particular case:
While the language of section 3143(b)(2) compels
detention, an exception permits release of mandatory
detainees who meet the requirements for release under
section 3143(b)(1), and "if it is clearly shown that
there are exceptional reasons why such person's
detention would not be appropriate."
18 U.S.C. § 3145(c). Thus, section 3143(b)(1) supplies the
threshold requirements that a person convicted of a
violent crime must meet. To satisfy those
requirements, the trial judge must find that the
person poses no risk of flight and no danger to the
community during release and that the appeal "raises
a substantial question of law or fact likely to
result in" reversal, a new trial, or a reduced
sentence, and is not interposed for purposes of
delay. 18 ...