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[NOT FOR PUBLICATION]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.
__________
In February 1992,
RICO conspiracy,
violation,

18

This is a motion for bail pending appeal.

defendant Sidney Weiner
18 U.S.C.
U.S.C.

was convicted

1962(d), a
1962(c),

substantive

and

three

conspiracy to collect an extension of credit by

means, 18
prison

U.S.C.

894.

In April, he

term of two years.

bail pending

of

to a

been released on
then moved for

The district court summarily denied the

motion, and defendant renewed

remanded

Having earlier

RICO

extortionate

was sentenced

trial and sentencing, defendant

bail pending appeal.

counts

of

his motion in this court.

We

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

detention under 18 U.S.C.

discussed

infra, that
_____

pending appeal.

subject to

mandatory

With one

exception

3143(b)(2).

provision

convicted of, inter alia,

__________

is

requires that

any

a "crime of violence"

person

be detained

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).

defendant does

not

offenses here falls

defendant

seriously

district
dispute,

court
that

within this definition.

was convicted

collect extensions

The

of

on

three counts

credit by

found, and

each
As

of

the

mentioned,

of conspiracy

extortionate means;

to

these

offenses

also

convictions.
means

formed

two

RICO

And an "extortionate means" is defined as

"any

which involves

threat of use, of
harm

the

predicates

use, or

the

implicit

violence or other criminal means

to cause

or property of any person."

891(7).

As such,
if

an

for

express or

to the person, reputation,

18 U.S.C.

only

the

defendant is

he

can:

evidence that

(1)

entitled to bail

establish by

he is not likely

clear

pending appeal
and

to flee or pose

a danger to

the safety of any other person or the community,

3143(b)(1)(A);

(2)

demonstrate

substantial

question of

law or

inter alia,
__________

reversal or

an

3143(b)(1)(B);
exceptional

and

reasons

appropriate," id.
___

(3)

that the

show[]

[his]

detention

3145(c).

as to

a
in,

trial, id.
___

that

there

would

not

The district court found

defendant posed no risk of flight.

was made

raises

to result

a new

"clearly

why

18 U.S.C.

appeal

fact likely

order for

convincing

are
be
that

While no explicit finding

dangerousness, the fact

that defendant

was

released pending sentence necessarily entailed a finding that

he

was not likely to pose a danger.

court further

found, however,

See id.
___ ___

3143(a).

that defendant had

raise a "substantial" question on appeal and also

to demonstrate "exceptional

reasons" why detention

-3-

The

failed to
had failed
would be

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
detention should

apply.

In DiSomma,
_______

the court

mandatory
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

committed a crime of

violence.

advanced

challenge to

the

underlying his convictions.

from
court

DiSomma on at least
_______
found

(and

the

Defendant here has

sufficiency

appellate
issue

court

agreed)

was a

"substantial" one;

the district court found that "exceptional

found them

evidence

There, the district

here, the district court has concluded it is not.

here, it has

likewise

Yet this case is distinguishable

two grounds.

sufficiency-of-the-evidence

of the

he

to be absent.

that

the

And there,

reasons" existed;
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

very well be decided the other way.

v.

Bayko, 774 F.2d

_____

would be

516, 523 (1st

difficult

conclusion.

We

at
are

this

See, e.g., United States

___ ____ _____________
Cir. 1985).

juncture to

obligated

or could

to

In fact, it

reach

decide

any

bail

other
motions

-4-

promptly,

on

the basis

portions of the record

R. App. P. 9(b).
key

evidence

"such

in

as the parties shall present."

their

United States, 483

______________

memoranda.

from such
U.S. 171,

of evidence,

parts.").

may

Yet

synopses.

insufficient in

well

be

little
See
___

178-80 (1987)

point, may in cumulation prove it.

presentation

papers, affidavits,

and
Fed.

Here, the parties have outlined some of the

conclusively gleaned

pieces

of

greater

can

be

Bourjaily v.
_________
("[I]ndividual

themselves to

prove a

The sum of an evidentiary

than

its

constituent

Lacking transcripts, we must of necessity defer in

large

measure

to the

district

sufficiency of

the evidence.

Harris,
______

F.2d

942

("Necessarily, a
merits of a
petitions
issues

1125,

See,
___

the

e.g., United States v.

____ ______________
1991)

district court's thorough knowledge

of the

for release
been

and

oral

DiSomma,
_______

emphasizing

n.7

in a better

than our

fully

briefing

1135

evaluation of

Cir.

case puts it

have

court's

(7th

position to

Court, at

presented

to

argument.").1

The

"the trial

judge's

least

the

until the

Court

Second

evaluate

through

Circuit

in

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

the lower court's

finding that the challenge to

sufficiency was
the

a "substantial" one.

finding here

that such a

also deserves deference.

factual

at 497, deferred

For the

challenge is

to

the factual
same reason,

not substantial
___

Based on our review of the parties'

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

would be loath

to find

discretion

determining

in

that the district

that defendant

shown "exceptional reasons" under

would

be

exception

opposite conclusion,
court abused
had

not clearly

Defendant

would

the requirement

that, whenever

read into
one who

convicted of a "crime of violence" (and who is not

the

sufficiency of

convicted of

release must

a risk of

in

to

be ordered.

presumably would also apply

offenses described

this

has been

a "substantial question" as

the evidence,

Yet such a rule--which

its

3145(c) why his detention

inappropriate.

flight or danger) has raised

we

3142(f)(1)(B)

to those
& (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

detention provision.
history

"defines

in

497.

the

The few

circumstances

courts to

there must be present

giving

rise to

the

mandatory-

Neither the statute nor the legislative

exceptional reasons permitting

at

enacting

which

release."

may

DiSomma,
_______

address the matter

qualify as
951 F.2d
agree that

"a unique combination of circumstances

situations that

are out

of

the ordinary."

Id.; accord United States v. Herrera-Soto, 961

___ ______ _____________
____________

F.2d 645, 647

(7th

finding

Cir.

defendant's

1992)

(per

curiam)

substantial

(reversing

challenge

to

supplemental

that
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

exceptional
provision).
we

think,

curiam)

discretionary

3145(c)

provides

relief" from

The absence of statutory

that

district

courts have

"avenue

for

mandatory-detention
criteria makes clear,
wide

discretion

in

deciding whether to invoke this provision--and that a finding

of no exceptional reasons should be
in

compelling circumstances.

("it is not
the

disturbed on appeal only

See DiSomma, 951

___ _______

our intention to foreclose

F.2d at 497

district judges from

full exercise of discretion in these matters").

defendant's

evidentiary

"substantial" one, we see

challenge

were

to

be

Even if
deemed

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.
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-8-