United States v. William T. Smith, Jr. Appeal of United States of America

JAMES HUNTER III, Circuit Judge,

concurring:

1. Both the defendant, William T. Smith, and the government acknowledge that the two-part test in United States v. Miller, 753 F.2d 19 (3d Cir.1985), is to be used in making a decision on whether to grant bail ponding appeal under the Bail Reform Act of 1984, 18 U.S.C. § 3143 (b)(2). They differ, however, on the definition of a “substantial question.” On the subject of what constitutes a substantial question the Miller court stated: “[u]nder the new act, a court must determine that the question raised on appeal is a ‘substantial’ one, i.e., it must find that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful.” 753 F.2d at 23 . Although this statement was meant to suggest factors that could be considered in determining whether an issue is “substantial,” the presence of any one of these factors is not absolutely dispositive of substantiality. Other circuits have examined the question at greater length and I find their comments very helpful.

2. The next circuit to consider § 3143(b)(2) after Miller , the Eleventh Circuit, pointed out that an issue might not have been decided by controlling precedent “largely because that issue is so patently without merit that it has not been found necessary for it to have been resolved____ Similarly there might be no precedent in this circuit, but there may also be no real reason to believe that this circuit would depart from unanimous resolution of the issue by other circuits.” United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985). The Giancola court defined a substantial question as “one of more substance than would be necessary to a finding that it was not frivolous.. It is a ‘close’ question or one that very well could be decided the other way. Further, there are no blanket categories for what questions do or do not constitute ‘substantial’ ones.” Id. at 901 . All but one of the circuits that have considered what constitutes a substantial question *91 subsequent to the Miller and Giancola decisions have adopted the Giancola definition of a substantial question as a “close” one. 1

3. I agree with the Giancola court that a court should assess substantiality on a case-by-case basis and that an issue on appeal must present a close question if it is to be considered a substantial one. Just because a question is “one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful,” Miller, 753 F.2d at 23 , does not automatically, without reference to other factors demonstrating merit or the lack of it, make it a substantial question. In promulgating 18 U.S.C. § 3143 to replace former § 3148, Congress explicitly stated that it intended to eliminate the presumption in favor of post-conviction bail by requiring that a defendant raise a substantial question rather than one that was merely not frivolous. It would be pointless and contrary to the legislative intent in passing the Bail Reform Act of 1984 to agree with Smith that any question of first impression in this circuit, no matter how frivolous, is substantial.

4. Smith maintains that we will erode Miller if we join the courts that have followed Giancola and permit courts to consider the merit of an issue in deciding whether it is substantial. He argues that allowing a judge to determine whether an issue presents a close question involves the same problems that we sought to avoid in Miller . In Miller , we found that judges could not be expected to determine whether their own findings were so erroneous that they would result in reversal on appeal. I believe trial court judges can consider the merit of an issue to decide whether it is a close question. Such a determination does not involve the guesswork that would be involved if a judge had to assess the likelihood of being reversed.

5. I cannot agree with Judges Mansmann and Poliak that the Handy court was correct in defining a substantial question as one that is “fairly debatable.” 761 F.2d at 1282 n. 2. Like the Powell court, “I believe Giancola is more responsive to the announced purpose of Congress, which was, bluntly, that fewer convicted persons remain at large while pursuing their appeals.” 761 F.2d at 1232. The Handy test simply “does not work enough of a change from the prior standard that a question not be ‘frivolous.’ ” Bayko, 774 F.2d at 523. Congress intended that the 1984 Bail Reform Act make the standard for granting bail pending appeal more stringent. See Affleck, 765 F.2d at 952. It sought to remove the presumption in favor of release and place the burden of showing the merit of the appeal on the defendant. This was done to give “recognition to the basic principle that a conviction is presumed to be correct.” S.Rep. No. 98-225, 98th Cong., 1st Sess. 27 (1983), reprinted in 1984 U.S. Code Cong. & Admin.News 3182, 3210.

6. I find Judge Mansmann’s reliance on definitions of a “substantial question” from contexts other than bail are inappropriate. Barefoot v. Estelle, 463 U.S. 880 , 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983), used the “fairly debatable” language to define a substantial question in the context of a habeas corpus proceeding. Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4. In such a proceeding “doubts should be resolved in favor of the petitioner.” Gordon v. Willis, 516 F.Supp. 911, 912 (N.D.Ga.1980). Congress clearly intended that no such presumption be accorded to defendants seeking bail pending appeal. See S.Rep. No. 98-225, supra, at 26, reprinted in 1984, U.S.Code Cong. & Admin., 3182, 3209. In formulating its definition of a “substantial ques *92 tion,” the Handy court relied on cases predating the Bail Reform Act of 1984, when bail was the rule rather than the exception. See Powell, 761 F.2d at 1232. Judge Mans-mann correctly notes that the Handy approach is “consistent with that traditionally taken by the courts” and is “the historical approach.” This fact convinces me, however, that the Handy approach is inappropriate, given Congress’s clearly expressed desire that courts use a new approach applying a stricter standard for bail.

7. I do not believe that the constitutionality of Rule 23(b) is a close question and I, therefore, agree with Judge Mansmann that no substantial question has been raised.

. See United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.1985); United States v. Bayko, 774 F.2d 516, 523 (1st Cir.1985); United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir.1985); United States v. Affleck, 765 F.2d 944, 952 (10th Cir.1985); United States v. Powell, 761 F.2d 1227, 1232 (8th Cir.1985); United States v. Val-era-Elizondo, 761 F.2d 1020, 1024 (5th Cir.1985); United States v. Randell, 761 F.2d 122, 125 (2d Cir.), cert. denied, — U.S.-, 106 S.Ct. 533 , 88 L.Ed.2d 464 (1985); but see. United States v. Handy, 761 F.2d 1279 , 1282 n. 2 (9th Cir.1985) (a substantial question is not a close one but one which is "fairly debatable.”)