United States District Court, E.D. New York
June 8, 2005.
UNITED STATES OF AMERICA,
NAT SCHLESINGER, also known as "Naftule Schlesinger" and "Zvi Pollack," HERMAN NIEDERMAN, and GOODMARK INDUSTRIES, INC., Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This is an application for bail pending sentencing. On May 19,
2005, Nat Schlesinger ("the Defendant") was convicted by a jury
on thirty of thirty one various counts of arson, conspiracy,
insurance fraud, creditor fraud, and money laundering. Following
the verdict, the Defendant's bail was revoked and he was
remanded. On May 23, 2005, the Defendant filed an application for
bail pending sentencing, which included substantial collateral in
addition to the original bail package. The Defendant argued that
(1) he is not a flight risk; (2) he will waive extradition from
Canada or Israel; (3) he has a substantial likelihood of success
on a motion for acquittal, new trial, or for reversal on appeal;
and (4) exceptional circumstances justify the Defendant's release
pending sentence. For the reasons set forth below, the Court
finds that the Defendant has not met his burden to permit his
release on bail pending sentencing.
Generally, a defendant who has been convicted and is awaiting
sentence must be detained unless the court finds by clear and
convincing evidence that the defendant is unlikely to flee or
pose a danger. 18 U.S.C. § 3143(a)(1) (2005); see United
States v. Londono-Villa, 898 F.2d 328, 329 (2d Cir. 1990) (holding that
the district court's finding by clear and convincing evidence
that defendant did not pose flight risk pending sentence was
clearly erroneous). The provisions of section 3143(a) are
activated immediately upon a finding of guilt. United States v.
Bloomer, 967 F.2d 761, 763 (2d Cir. 1992). The statute states,
in relevant part:
(a) Release or detention pending sentence.
(1) Except [involving crimes of violence], 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 . . . 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).
18 U.S.C. § 3143.
However, where the conviction involves a crime of violence,
such as arson, section 3143 further provides that a defendant
must be detained unless the court finds that "there is a
substantial likelihood that a motion for acquittal or new trial
will be granted." 18 U.S.C. § 3143(a)(2); see United States v.
McAllister, 974 F.2d 291, 292-93 (2d Cir. 1992) (reversing
release order and revoking bail). That part of section 3143
(2) The judicial officer shall order that a person
who has been found guilty of an offense [involving a
crime of violence as] 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
(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 or the
18 U.S.C. § 3143(a)(2) (emphasis added).
Section 3143(a)(2) "is a more stringent test than the one that
applies to individuals who have been convicted of non-violent
crimes, which requires only that the judge find 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." United States v. Lea, 360 F.3d 401, 403 (2d Cir.
2004). Arson, one of the crimes that the Defendant has been
convicted of in this case, "is a crime of violence . . . for
which a maximum term of imprisonment of 10 years or more is
prescribed." 18 U.S.C. § 3142(f)(1)(A). Thus, the Defendant's
reliance on United States v. Abuhamra, 389 F.3d 309, 314 (2d
Cir. 2004), although well-founded for an analysis of the law with
regard to bail under section 3143(a)(1), is misplaced in that the
case does not address section 3143(a)(2), which governs the
release of this Defendant pending sentencing.
Section 3143(a)(2) in effect requires the remand of the
Defendant in this case unless the Defendant can show: (1) "that
there is a substantial likelihood that a motion for acquittal or
new trial will be granted;" and (2) that the Defendant is
unlikely to flee or pose a danger under section 3143(a)(1). Here,
the Defendant's motion for acquittal has been denied. In addition, the Court finds that under the
circumstances there is not a substantial likelihood that a motion
for a new trial will be granted. Accordingly, the Defendant has
failed the first prong of the test under section 3143(a)(2), and
as such, is required to be detained pending sentencing.
The only escape hatch for the Defendant is found in
18 U.S.C. § 3145, which permits the release pending sentence of some
defendants, notwithstanding the provision of section 3143(a)(2),
upon a showing of "exceptional reasons" why incarceration is
inappropriate. Id.; see United States v. DiSomma,
951 F.2d 494, 496 (2d Cir. 1991). That provision states:
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.
18 U.S.C. § 3145.
In Lea, the Second Circuit provided a clear and succinct
summary of what a defendant needs to show to be released under
sections 3143 and 3145 by stating:
[A] defendant convicted of a crime of violence and
awaiting sentencing who cannot satisfy the criteria
set forth in § 3143(a)(2) may nevertheless be
released if (1) the district court finds that the
conditions of release set forth in § 3143(a)(1) have
been met, and (2) it is clearly shown that there are
exceptional reasons why [the defendant's] detention
would not be appropriate.
Lea, 360 F.3d at 403 (citations, quotations, and footnotes
omitted). Few cases have interpreted the "exceptional reasons" provision
in section 3145. What exactly qualifies as "exceptional reasons"
depends upon a case by case analysis of the unique facts and
circumstances that each defendant presents. See id.;
DiSomma, 951 F.2d at 497. Exceptional circumstances may include
"the presence of one or more remarkable and uncommon factors" or
"a unique combination of circumstances giving rise to situations
that are out of the ordinary." DiSomma, 951 F.2d at 497. A wide
range of factors that a court may consider include: (1) the
nature of the defendant's criminal conduct; (2) the defendant's
prior record; (3) the length of the prison sentence; (4)
circumstances that may render the hardships of prison unusually
harsh, such as illness or injury; (5) the likelihood of success
on a pending appeal; and (6) whether the defendant was unusually
cooperative with the government. See United States v. Garcia,
340 F.3d 1013
, 1018-22 (9th Cir. 2003).
Courts have generally held that "purely personal" reasons
standing alone are insufficient to be considered "exceptional."
United States v. Lippold, 175 F. Supp. 2d 537, 540 (S.D.N.Y.
2001) (collecting cases analyzing the "exceptional reasons"
provision); see also Lea, 360 F.3d at 403-04 (stating that
there is "nothing `exceptional' about going to school, being
employed, or being a first-time offender, either separately or in
combination). In Lippold, the defendant argued that his
exceptional reasons included that he was the father of three
young children whom he supported financially; that his
seven-month old son had recently been diagnosed with Bell's Palsy; and that his employer needed him to train a
replacement to handle his responsibilities. Lippold,
175 F. Supp 2d at 540. The court found these reasons insufficient to
rise to the level of exceptional circumstances so as to justify
release pending sentencing. Id. at 541.
In DiSomma, the Second Circuit affirmed the release of a
defendant pending appeal pursuant to § 3145(c) where the
defendant was convicted of conspiracy to rob a store but claimed
on appeal that there was insufficient evidence of actual or
threatened violence "because the theft was planned for a time
when no one would be in the store." DiSomma, 951 F.2d at 496.
The court reasoned that the appeal raised unusual legal or
factual questions on appeal by alleging insufficient evidence of
violence to sustain the conviction, the very element of the crime
that barred release under the bail statute. Id. at 498.
The circumstances outlined in DiSomma, are not present in
this case. The Court notes that "whether an appeal is likely to
be successful is relevant to the determination of remand pending
appeal, not sentencing." United States v. Lippold,
175 F. Supp. 2d 537, 539 (S.D.N.Y. 2001). Compare 18 U.S.C. § 3143(a)
(standard for bail pending sentencing) with 18 U.S.C. § 3143(b)
(standard for bail pending appeal); see also United States v.
McAllister, 974 F.2d 291, 292 (2d Cir. 1992) (holding that §
3143(a) applies only to the district judge's own actions, not the
likelihood of success on appeal). Here, the Defendant is awaiting
sentencing and an appeal is not yet pending. The Court has denied the Defendant's
motion for judgment of acquittal and finds no likelihood of
success on the merits of a motion for a new trial. The Court also
notes that there was overwhelming evidence of guilt on the
insurance fraud and creditor fraud counts. Thus, there are no
pending legal or factual questions present in this case at the
time that can be considered "exceptional reasons" for the
purposes of this motion.
The Defendant argues that the number of community members
offering their support and the fact that the defendant has a
disabled son constitutes exceptional circumstances to warrant
bail pending sentence. The sentencing guidelines recognize that a
court may grant a departure for "exceptional family
circumstances." See U.S.S.G. § 5G1.1(a). However, the Second
Circuit has explained that departure is appropriate only "in
especially compelling circumstances, and impermissible in less
compelling circumstances, especially where other relatives could
meet the family's needs, or the defendant's absence [does] not
cause a `particularly severe' hardship." United States v.
Selioutsky, No. 04-2740, 2005 U.S. App. LEXIS 9745, at *14 (2d
Cir. May 27, 2005) (citations omitted) (finding that the
defendant's claim that his aged parents needed his physical
presence in their home unexceptional); see also United States
v. Smith, 331 F.3d 292, 294 (2d Cir. 2003) (finding nothing
extraordinary about having a son in which the defendant was not
the sole caregiver or financial supporter). An example of "especially compelling circumstances" can be
found in United States v. Johnson, 964 F.2d 124, 129 (2d Cir.
1992), where the defendant "was solely responsible for the
upbringing of her three young children, including an infant, and
of the young child of her institutionalized daughter." Id. The
Second Circuit noted that "[t]he number, age and circumstances of
these children all support the finding that Johnson faced
extraordinary parental responsibilities." Id. In contrast,
compelling circumstances did not exist in United States v.
Madrigal, 331 F.3d 258, 260 (2d Cir. 2003), where the defendant
had six children and only one was younger than eighteen and
suffered from a learning disability. In that case, the Second
Circuit found that extraordinary circumstance did not exist
because the family, including three older children and other
extended family members, remained cohesive and were available to
care for the young child. Id. The court noted that such
circumstances are not "extraordinary," but are merely "the common
collateral damage of imprisonment." Id.
The Defendant relies on United States v. Spero, 382 F.3d 803,
804 (8th Cir. 2004), to support his assertion that the defendant
need not be the sole caregiver of a developmentally disabled
child for a court to find exceptional family circumstances. In
Spero, the defendant's wife was the primary caregiver of their
autistic son, but the defendant's involvement with the child was
characterized as a "key component" of his care because even the
slightest change in routine "can cause him to become extremely
upset and violent." Id. The court noted that "[w]hen one parent
is critical to a child's well-being, . . . that qualifies as an exceptional circumstance.
. . ." Id. at 805. However, Spero is readily distinguishable
from the facts in this case. The Defendant's son is an adult with
Down Syndrome and is not an autistic child. Autism, as noted in
the Spero case, is a disorder in which affected individuals
"may adhere to inflexible, nonfunctional rituals or routine. They
may become upset with even trivial changes in their environment."
Id. at 804 n. 3 (quoting PDR Medical Dictionary 171 (2d ed.
In this case, although it is unfortunate that the Defendant's
son will no longer have his father to care for him at home, the
child has a mother and seven brothers and sisters, as well as a
large extended family that appears to be cohesive and well suited
to attend to his needs. Considering the facts presented, the
Court finds that the Defendant's circumstances are not
exceptional, but are more akin to "the common collateral damage
of imprisonment" that many defendants encounter. In addition, the
Court rejects, as a matter of law, the Defendant's argument that
the large show of support from the local community constitutes
the type of "exceptional circumstances" that are appropriate to
warrant bail under the statute.
II. CONCLUSION For all the foregoing reasons, the Court finds that the
Defendant is unable to show "exceptional reasons" to warrant
release pending sentencing, and thus it is required under the
terms of section 3143(a)(2) to detain the Defendant pending the
imposition of sentence.
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