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UNITED STATES v. GIANGROSSO

February 6, 1985

UNITED STATES OF AMERICA
v.
ROSE GIANGROSSO.



The opinion of the court was delivered by: Roszkowski, District Judge.

ORDER

Before the court are the defendant's motion to set bond pending appeal and the government's motion to set a surrender date. For the reasons set forth herein, the defendant's motion to set bond pending appeal is denied, and the government's motion to set a surrender date is granted. Defendant is ordered to surrender to the United States Marshal in Chicago before Noon on February 26, 1985.

I. BACKGROUND

On June 29, 1984, a jury convicted the defendant of violations of the federal narcotic laws. On September 25, 1984, this court sentenced the defendant to eighteen months incarceration. Defendant was ordered to surrender on October 25, 1984.

On October 12, 1984, the President signed into law the Bail Reform Act of 1984. 98 P.L. 473 (1984) Among the provisions of that Act is an amendment restricting the availability of bail pending the outcome of an appeal. On November 8, 1984, defendant presented a motion for the setting of bond pending appeal. This court granted the parties an opportunity to submit briefs concerning the effect of the new Act on the defendant's request for bond, and stayed the defendant's reporting date pending the outcome of the various motions.

III. DISCUSSION

A. The Bail Reform Act

  Prior to October 12, 1984, Title 18, Section 3148, provided,
in relevant part, that a defendant filing a notice of appeal:

   . . shall be treated in accordance with the
  provisions of Section 3146 unless the court or
  judge has reason to believe that no one or more
  conditions of release will reasonably assure that
  the person will not flee or pose a danger to any
  other person or to the community. If such a risk of
  flight or danger is believed to exist, or if it
  appears that an appeal is frivolous or taken for
  delay, the person may be ordered detained.
  (emphasis added) 18 U.S.C. § 3148 (1982).

Similarly, Section 3146 provided:

  Any person charged with an offense, other than an
  offense punishable by death, shall . . . be ordered
  released pending trial on his personal recognizance
  or upon the execution of an unsecured appearance
  bond . . . unless the [judicial] officer
  determines, in the exercise of his discretion, that
  such a release will not reasonably assure the
  appearance of the person as required. . . .
  (emphasis added) 18 U.S.C. § 1346 (1982).

On October 12, 1984, Title 18, Section 3143(b) was amended to provide that a defendant found guilty and sentenced to a term of imprisonment shall be detained pending the outcome of his or her appeal unless the judicial officer finds:

  (1) 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 pursuant to section 3142(b) or (c); and
  (2) that the appeal is not for the purpose of
  delay and raises a substantial question of law or
  fact likely to result in reversal or an order for a
  new trial.

If the law in effect prior to October 12, 1984 were held to apply, this court would have little difficulty in finding the defendant is entitled to be released on bond. The defendant has appeared for every scheduled court appearance and there is no reason to believe she poses a danger to any other person or the community. If this court were to apply the new law, however, this court would be forced to decide the defendant is not entitled to release on bail. This court cannot conclude defendant's appeal is likely to ...


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