
USCA1 Opinion

	




          July 31, 1992         [NOT FOR PUBLICATION]                                 ___________________          No. 92-1708                                    UNITED STATES,                                      Appellee,                                          v.                                    SIDNEY WEINER,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Harry  C. Mezer,  Stephen R.  Delinsky and  Eckert, Seamans,               _______________   ____________________      ________________          Cherin & Mellott  on Motion for Stay and  Release on Bail Pending          ________________          Appeal, for appellant.               A. John Pappalardo, United States Attorney, Todd E. Newhouse               __________________                          ________________          and Ernest  S. Dinisco,  Assistant  United States  Attorneys,  on              __________________          Opposition to Motion for Stay and Release on Bail Pending Appeal,          for appellee.                                  __________________                                  __________________                            Per Curiam.  This is a motion for bail pending appeal.                  __________            In February 1992,  defendant Sidney Weiner  was convicted  of            RICO conspiracy,  18 U.S.C.     1962(d), a  substantive  RICO            violation,  18   U.S.C.     1962(c),  and   three  counts  of            conspiracy to collect an extension of credit by  extortionate            means, 18  U.S.C.    894.   In April, he  was sentenced  to a            prison  term of two years.   Having earlier  been released on            bail pending  trial and sentencing, defendant  then moved for            bail pending appeal.  The district court summarily denied the            motion, and defendant renewed  his motion in this court.   We            remanded  the matter for submission of a statement of reasons            supporting the denial of bail, see Fed. R.  App. P. 9(b), and                                           ___            stayed defendant's  sentence pending  further order.   Having            now received the district court's reasons, we deny the motion            for release and vacate the stay of sentence.                 It  is  clear that  defendant  is  subject to  mandatory            detention under 18 U.S.C.    3143(b)(2).  With one  exception            discussed  infra, that  provision  requires that  any  person                       _____            convicted of, inter alia,  a "crime of violence"  be detained                          __________            pending appeal.  A crime of violence is defined as follows:                        (A) an offense  that has as an  element of the                 offense the  use, attempted use,  or threatened use                 of physical force against the person or property of                 another, or                      (B)  any other  offense that  is a  felony and                 that, by  its nature,  involves a substantial  risk                 that physical force against the person  or property                 of  another may be used in the course of committing                 the offense.            18  U.S.C.     3156(a)(4).   The  district  court  found, and            defendant does  not  seriously  dispute,  that  each  of  the            offenses here falls  within this definition.   As  mentioned,            defendant  was convicted  on  three counts  of conspiracy  to            collect extensions  of  credit by  extortionate means;  these            offenses  also  formed  the   predicates  for  the  two  RICO            convictions.  And an "extortionate means" is defined as  "any            means  which involves  the  use, or  an  express or  implicit            threat of use, of  violence or other criminal means  to cause            harm  to the person, reputation,  or property of any person."            18 U.S.C.   891(7).                 As such,  defendant is  entitled to bail  pending appeal            only  if  he  can:  (1)  establish by  clear  and  convincing            evidence that  he is not likely  to flee or pose  a danger to            the safety of any other person or the community,  18 U.S.C.              3143(b)(1)(A);  (2)  demonstrate  that the  appeal  raises  a            substantial  question of  law or  fact likely  to result  in,            inter alia,  reversal or  an  order for  a new  trial, id.               __________                                             ___            3143(b)(1)(B);  and  (3)  "clearly  show[]  that   there  are            exceptional  reasons   why  [his]  detention   would  not  be            appropriate," id.   3145(c).   The district court found  that                          ___            defendant posed no risk of flight.  While no explicit finding            was made  as to  dangerousness, the fact  that defendant  was            released pending sentence necessarily entailed a finding that            he  was not likely to pose a danger.  See id.   3143(a).  The                                                  ___ ___            court further  found, however,  that defendant had  failed to            raise a "substantial" question on appeal and also  had failed            to demonstrate "exceptional  reasons" why detention  would be                                         -3-            inappropriate.  Either finding, if supportable, would suffice            to justify the denial of bail here.                 Defendant, relying on United States v. DiSomma, 951 F.2d                                       _____________    _______            494 (2d Cir. 1991), contends that the exception to  mandatory            detention should  apply.   In DiSomma,  the court  affirmed a                                          _______            ruling that "exceptional reasons" existed where the defendant            was challenging on appeal the factual sufficiency of the very            issue that subjected  him to mandatory detention--whether  he            committed a crime of  violence.  Defendant here has  likewise            advanced  a  challenge to  the  sufficiency  of the  evidence            underlying his convictions.  Yet this case is distinguishable            from  DiSomma on at least  two grounds.   There, the district                  _______            court  found  (and  the  appellate  court  agreed)  that  the            sufficiency-of-the-evidence  issue  was a  "substantial" one;            here, the district court has concluded it is not.  And there,            the district court found that "exceptional  reasons" existed;            here, it has  found them  to be absent.   These  distinctions            prove dispositive.                 We agree with the lower court that defendant's challenge            to  the sufficiency of the evidence falls short of presenting            a "substantial"  question--i.e., one  that is close  or could            very well be decided the other way.  See, e.g., United States                                                 ___  ____  _____________            v.  Bayko, 774 F.2d  516, 523 (1st  Cir. 1985).   In fact, it                _____            would be  difficult  at  this  juncture to  reach  any  other            conclusion.    We  are   obligated  to  decide  bail  motions                                         -4-            promptly,  on  the basis  of  "such  papers, affidavits,  and            portions of the record  as the parties shall present."   Fed.            R. App. P. 9(b).  Here, the parties have outlined some of the            key  evidence  in  their  memoranda.    Yet  little  can   be            conclusively gleaned  from such  synopses.  See  Bourjaily v.                                                        ___  _________            United  States, 483  U.S. 171,  178-80 (1987)  ("[I]ndividual            ______________            pieces  of evidence,  insufficient in  themselves to  prove a            point, may in cumulation prove it.  The sum of an evidentiary            presentation  may  well  be  greater  than   its  constituent            parts.").  Lacking transcripts, we must of necessity defer in            large  measure  to the  district  court's  evaluation of  the            sufficiency of  the evidence.   See,  e.g., United  States v.                                            ___   ____  ______________            Harris,   942   F.2d  1125,   1135   n.7   (7th  Cir.   1991)            ______            ("Necessarily, a  district court's thorough knowledge  of the            merits of a  case puts it  in a better  position to  evaluate            petitions  for release  than our  Court, at  least  until the            issues  have  been  fully  presented  to  the  Court  through            briefing  and  oral  argument.").1   The  Second  Circuit  in            DiSomma,  emphasizing  "the trial  judge's  close familiarity            _______                                            ____________________            1.     The Harris  court, having earlier  denied bail pending                       ______            appeal, reversed the convictions of the two defendants due to            lack  of evidence.  While the court had ordered their release            the day  after  oral argument,  the  defendants by  then  had            "already served most of the[ir] sentences."  942 F.2d at 1135            n.7.  Describing this as "an injustice," the court encouraged            counsel "who  believe that  the Court  should have  granted a            petition for release" to "renew[] the  petition in their main            appellate  briefs."  Id.  We would likewise encourage such an                                 ___            approach  in   cases  challenging  the   sufficiency  of  the            evidence.                                         -5-            with the evidence  presented," 951 F.2d  at 497, deferred  to            the lower court's  finding that the challenge to  the factual            sufficiency was  a "substantial" one.   For the  same reason,            the  finding here  that such a  challenge is  not substantial                                                          ___            also deserves deference.  Based on our review of the parties'            factual  descriptions, and  given the  deference due  at this            stage of an appeal to the trial judge's first-hand evaluation            of evidentiary sufficiency,  we conclude that no  substantial            question in this regard has been presented.2                 Even if we  were to  reach the  opposite conclusion,  we            would be loath  to find  that the district  court abused  its            discretion  in  determining  that defendant  had  not clearly            shown "exceptional reasons" under   3145(c) why his detention            would  be  inappropriate.   Defendant  would  read into  this            exception  the requirement  that, whenever  one who  has been            convicted of a "crime of violence" (and who is not  a risk of            flight or danger) has raised  a "substantial question" as  to            the  sufficiency of  the evidence,  release must  be ordered.            Yet such a rule--which  presumably would also apply  to those            convicted of  offenses described  in   3142(f)(1)(B)  & (C)--            finds no support in the statutory language, and would seem at                                            ____________________            2.     Defendant has pointed  to additional issues  on appeal            (not  involving the  sufficiency  of the  evidence) which  he            claims to be substantial.   These need not be  considered, as            they provide no basis for invoking the DiSomma rationale, and                                                   _______            defendant  has offered  no basis  other  than DiSomma  for an                                                          _______            exceptional-reasons determination.                                         -6-            odds  with  Congress'  purpose  in  enacting  the  mandatory-            detention provision.  Neither the statute nor the legislative            history  "defines  the  circumstances  which  may  qualify as            exceptional reasons permitting  release."  DiSomma,  951 F.2d                                                       _______            at  497.   The few  courts to  address the matter  agree that            there must be present  "a unique combination of circumstances            giving  rise to  situations that  are out  of  the ordinary."            Id.; accord United States v. Herrera-Soto, 961  F.2d 645, 647            ___  ______ _____________    ____________            (7th   Cir.  1992)  (per   curiam)  (reversing  finding  that            defendant's  substantial  challenge   to  supplemental   jury            instruction provided exceptional reason for release; there is            "nothing out of the  ordinary about the circumstances" here);            see also United States v. Carr, 947 F.2d 1239, 1240 (5th Cir.            ________ _____________    ____            1991)   (per  curiam)   (   3145(c)   provides  "avenue   for            exceptional  discretionary  relief" from  mandatory-detention            provision).   The absence of statutory  criteria makes clear,            we  think,  that  district  courts have  wide  discretion  in            deciding whether to invoke this provision--and that a finding            of no exceptional reasons should be  disturbed on appeal only            in  compelling circumstances.   See DiSomma, 951  F.2d at 497                                            ___ _______            ("it is not  our intention to foreclose  district judges from            the  full exercise of discretion in these matters").  Even if            defendant's  evidentiary  challenge  were  to  be   deemed  a            "substantial" one, we see  nothing in the relatively ordinary            circumstances here that would call for such a result.                                           -7-                 The motion for release on bail pending appeal is denied,                 ________________________________________________________            and the  stay of sentence is vacated.  The matter is remanded            _____________________________________________________________            to the district court for designation of a suitable reporting            _____________________________________________________________            date.            _____                                         -8-
