United States District Court, S.D. New York
August 15, 2005.
UNITED STATES OF AMERICA,
PINHAS BEN-ARI, Defendant.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
This matter comes before the Court on Defendant's motion for
bail pending re-sentencing and following oral argument on August
4, 2005. Because this appeared to be a novel issue in this
Circuit, I reserved decision and have now concluded that, for the
reasons discussed below, the petition must be DENIED.
Defendant Pinhas Ben-Ari ("Ben-Ari") pled guilty on February 4,
2005, to violation of 18 U.S.C. 371, Conspiracy to Commit Bank
Fraud. This Court sentenced Ben-Ari on January 18, 2005 to 24
months of incarceration, and a joint and several obligation in
the nature of restitution in the amount of $1,360,100. Ben-Ari
appealed his sentence, and on March 3, 2005, moved this Court for
a stay of bail pending appeal pursuant to 18 U.S.C. § 3143. On
March 16, 2005, I denied this motion. On April 29, 2005, the
Second Circuit Court of Appeals granted the Defendant's motion
for an expedited appeal. At the same time, the Court affirmed my
denial of his motion for release pending appeal. Ben-Ari began to
serve his sentence on May 2, 2005.
On July 19, 2005, the Second Circuit remanded the case with
instruction to this Court to "vacate the sentence and
re-sentence" the Defendant in conformity with the "Booker,
Crosby, and Fagans" decisions. United States v. Ben-Ari,
No. 05-0675-cr (2d Cir. July 19, 2005).
Defendant now petitions the Court to be released on bail
The statute that governs release or detention of a defendant
pending sentence or appeal is 18 U.S.C. § 3143. Section 3143 (a)
applies when a defendant has "been found guilty of an offense"
and is "awaiting imposition or execution of a sentence." Such
defendants may be released where the Court finds that they pose
no danger to the community and are not likely to flee. Id.
Section 3143(b) applies to "a person who has been found guilty of
an offense and [has been] sentenced to a term of imprisonment,
and . . . has filed an appeal or a petition for a writ of
certiorari." This is a higher standard for release and such
defendants will be detained unless the Court finds that (1) the
defendant poses no danger and is not likely to flee, plus (2)
"the appeal is not for the purpose of delay and raises a
substantial question of fact or law likely to result" in a
reversal, new trial, or a reduced sentence. Id.
The facts of this case present a conundrum because Ben-Ari pled
guilty, has been sentenced, and yet is at the same time awaiting
sentence, so the issue becomes which Subsection of 3143 is
applicable. Ben-Ari argues that he should be released now because
he was allowed to remain free on bail pending his original
sentencing. But this was before he surrendered to the Bureau of
Prisons, and this Court and the Second Circuit denied him bail
pending appeal. Indeed, I have found no case with this fact
pattern in the Second Circuit.
In United States v. Pfeiffer, 886 F. Supp. 303, 304 (E.D.N.Y.
1995), the case relied upon by the Defendant, Judge Weinstein
held that § 3143(a) should apply to a situation where the Circuit
vacates and remands for re-sentence because the defendant should
constructively be put in the same position he was in before
sentence was imposed. Pfeiffer, 886 F. Supp. at 304 (citing
United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1999).
The Seventh Circuit has taken a contrary position and held that
defendants like Ben-Ari are subject to the stricter 3143(b)
standard because the remand does not negate the fact that the
defendant has already been sentenced, and reads the statutory
language of 3143(b) to include persons awaiting sentence on remand. See e.g., United
States v. Krilich, 178 F.3d 859, 861 (7th Cir. 1999). Cases
in the Seventh Circuit have reasoned that this is the correct
application because it is not the conviction that has been
remanded, but only the sentence. Id.
In United States v. Holzer, 848 F.2d 822 (7th Cir. 1988),
a defendant convicted of mail fraud, and who had begun to serve
his sentence, successfully sought to have part of his conviction
reversed. The Court of Appeals vacated part of his sentence and
remanded to the trial court to re-sentence. The trial court
released the defendant on bail pending the re-sentencing but the
Court of Appeals reversed and held that the "reason for not
imprisoning a convicted defendant (unless he is likely to flee or
is a public menace) before he is sentenced is that the sentence
may not be a sentence of imprisonment, or may be a sentence for a
shorter period of imprisonment than the interval between
conviction and sentencing; or that the defendant needs some time
to get his affairs in order . . . The reason has no application
to a case where the defendant's conviction . . . has been upheld
and a sentence . . . remanded solely to give the judge a chance
to consider a possible, though doubtless modest, reduction
because the court of appeals has vacated a . . . sentence." Id.
(citing S. Rep. No. 225, 98th Cong., 2d Sess. 26 (1984). This
is the pattern before me. I share the view that no purpose behind
the bail statute will be served were I to release Ben-Ari from
custody only to have him appear within a few weeks for
re-sentencing, where he will likely receive at best, "a modest
reduction" of his sentence.
In Pfeiffer, the Second Circuit vacated the defendant's
sentence while he remained free on bail. 886 F. Supp. at 304. It
was at the outset of re-sentencing proceedings that the
Government moved to revoke bail pursuant to § 3143(b). Id.
Here, as in both Holzer and Krilich, the Defendant is already
incarcerated and has begun to serve his sentence.
Also, the instruction from the Second Circuit to this Court is
to vacate the sentence and to re-sentence. There was no direction
from the Court that suggested some immediacy to the vacateur. In
Pfeiffer, the Second Circuit vacated the sentence and directed
the district court to re-sentence. Under the Pfeiffer
reasoning, Ben-Ari will only be subject to 3143(a) for the time
it takes to re-sentence. My proposed plan, as I noted at oral
argument, will include a vacateur and re-sentence for Ben-Ari on October 31, 2005, at
10:00 a.m. (Oral Argument Tr. 24:06-23, Aug. 4, 2005.) This, by
the way, was the timetable sought by the Defendant. While it is
far too long in my view, it likely stems from defense counsel's
hope that his client would be released and preferably for as long
as possible. Nonetheless, I agreed to the schedule as urged by
the Defendant. It certainly provides time to submit arguments as
to what the applicable sentence should be. I keep in mind too
that this appeal is from the sentence only. There was no trial
and no likelihood that the conviction will be overturned. Indeed,
it is worth noting that the Circuit took no position with respect
to the restitution argument made by the Government, and with
which I agreed. For good measure, let me add that based on the
restitution amount, an incarcerative term of 30 to 37 months was
appropriate and I chose a lesser non-Guidelines term of 24
To vacate the sentence and re-sentence the Defendant at the
same time, also comports with the reasoning advanced by Judge
Weinstein and the Second Circuit cases he cites. They all rest on
the notion that once a sentence is vacated, the defendant should
be placed in the same position as before the original sentence
was passed. Pfeiffer, 886 F. Supp. at 304 (citing United
States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1999).
Finally, in this post-Booker, FanFan, and Crosby era
there are a number of cases like this one, where the Second
Circuit remands due to the changes to the Sentencing Guidelines
enunciated in those cases. This remand stems from the fact that I
originally sentenced Ben-Ari after the Supreme Court excised the
Sentencing Guidelines in Booker and FanFan, but before the
Second Circuit issued its instructive Crosby opinion. As such
the Second Circuit remanded this case for me to re-sentence
because it was not clearly spelled out in the record whether I
considered the lower of two possible Sentencing Guideline ranges,
before I imposed a non-Guideline sentence. Remands on this basis
were not part of the landscape when Judge Weinstein decided his
well-reasoned decision over a decade ago. III. CONCLUSION
For the reasons stated above, the Defendant's application for
bail pending his re-sentence is DENIED. Defendant's sentence will
be vacated and he will be re-sentenced on October 31, 2005, at
10:00 a.m. The Government is instructed to make the necessary
arrangements so that the Defendant will be writted down in time
to be present on that day.
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