*2 MANSMANN, Before HUNTER and Cir * Judges cuit and Judge. District POLLAK OPINION THE ANNOUNCING JUDG- COURT,

MENT OF THE in which Judges HUNTER and POLLAK L, as parts III., II. and Judge joins HUNTER also as VI., part Hunter, III, J., James concurred joins POLLAK parts also part opinion. and filed IV.(B) (C) and Poliak, Judge, sitting Louis H. District MANSMANN, Judge. by designation, part dissented and filed opinion. application We review the district court’s question requirement substantial

contained in the section of the Bail Reform governing Act of 1984 the release of a pending appeal. convicted defendant U.S.C. The district court inter- § preted our decision (3d Cir.1985), requir- as ing that the defendant be released where presented gov- the issue is not by controlling precedent, erned no matter improbable how a reversal of the convic- tion. The district court found that under this standard the defendant had raised a granted and the de- fendant’s motion for bail We reverse.

The defendant was indicted for crimes relating participation to his in a scheme to public Pennsylvania bribe officials in in or- der to secure the award of Federal Insur- (“FICA”) recovery ance Contribution Act contracts from state and local entities. Af- commenced, ter deliberations one of jurors injured in an automobile returning accident while to the courthouse. court, finding juror’s The district Poliak, sylvania, sitting by designation. *The Honorable Louis H. District Court for the Eastern District Penn- injuries precluded continuing affidavits, her from papers, de- with such portions liberations, invoked Federal Rule of Crimi- parties of the record as present, 23(b)1 permitted nal Procedure the re- appeals court of independently reaches a maining eleven to continue delibera- conclusion different from that of the trial guilty tions. The found the defendant judge appeals the court of power has the (1982), conspiracy, 18 U.S.C. four § to amend or reverse a detention or re- fraud, of mail counts U.S.C. *3 lease decision. (1982), violating and four counts of the Delker, (citations omitted). 757 F.2d at 1400 Transportation Interstate in Aid of Racke- Statute, teering 1952(a)(3) 18 U.S.C. § III. (1982) (“I.T.A.R.”). The defendant was The provides 1984 Bail Act in relevant years sentenced to a total of impris- twelve part that a defendant shall be released on $63,000. onment and fined The defendant pending appeal only if the court finds: alia, appealed, challenging, inter the con- (1) by convincing clear and evidence 23(b).2 stitutionality of Rule person that the likely is not to flee or granted The district court the defend- pose danger to the safety any per- pending appeal pursu- ant’s motion for bail community son or the pursu- if released 3143(b). govern- ant to 18 U.S.C. The § (c); ant to section or appeals. ment (2) purpose is not for delay and raises a II. of law likely or fact result reversal of the crucial nature of the “[B]ecause or an order for a new trial. liberty defendant’s interest and the ‘clear government U.S.C. does § public stake,” interest’ that is at we are finding court’s required to “independently determine” that the defendant had satisfied his burden whether the defendant is entitled to bail proof portion to the first Strong, United States v. requirements. government these does (3d Cir.1985) (quoting application contest the district court’s Delker, United the second half of these criteria. (3d Cir.1985) S.Rep. 1399-1400 No. 98- (1983), Cong., 98th 2d Sess. at 30 re Congress Miller we found that intend- printed Cong. in 1984 U.S.Code & Ad. 3143(b)(2)requirements ed that the section 3182, 3213). must, however, News We ac palee would a burden on the defendant to cord some deference to the district court’s demonstrate “that the raises a sub- reasoning. stantial of law or fact” and “that if

[Ajppellate give that substantial is courts reasons artic- determined judges favorably ulated respectful appeal, trial consid- to defendant on that deci- if, eration, likely but after careful assessment sion is to result in reversal or an judge’s reasoning, together of the trial order for a new trial of all counts on which 23(b) pro- appealed 1. Federal Rule of Criminal Procedure 2. The defendant from his conviction. Smith, 85-5532, vides: No. and from motions, post-trial any Juries verdict the with the shall consist of denial of his shall be of 12 but at time before United Smith, addition, parties may stipulate writing No. 85-5714. In Mr. approval jury co-defendant, Stoneman, of the court that the appealed Smith’s Alan any number less than 12 or motions, post-trial from the denial of his States v. may by jury that a valid verdict be returned Stoneman, No. All three of 85-5702. of less than 12 should the court find it neces- appeals these were consolidated with the sary any just to excuse one or more government's appeal granting of the order de- cause after trial commences. Even absent such fendant Smith bail which we consider here. We stipulation, necessary if the court finds it appeals sepa- address the defendants’ three in a juror just to excuse a cause after the opinion, rate 789 F.2d 196. verdict, has retired to consider its in the dis- cretion of the court a valid verdict remaining jurors. returned stressed, however, imposed.” has been The court its belief imprisonment 23(b) question the resolution of the Rule at 24. We said that the substan- was not doubtful”: requires de- question prerequisite tial significant ques- prove “that the fendant to I don’t think there is doubt about is tion at issue is one which either this at all. I think the chances are one by controlling Court, Supreme decided hundred to one that the which has not been it, gets when and if this doubtful.” Id. matter ever precedent, or which will hold that an in the eleven man noted: at 23. We case, circumstances we had [requirement] represents a marked This perfectly valid. I don’t think there is change inquiry in the into the merits it, any doubt about or the mini- doubt is determination, since the context of a bail mal. only required the court to the 1966 act emphasized The trial court its reluctance to the issue was “friv- determine whether find a substantial but concluded olous,” (repealed by see 18 U.S.C. 3148 *4 required by opinion that it was to do so our Act). Reasoning 23(b) in Miller. that if the Rule rejected any interpretation of the Id. We question favorably were determined to the statutory phrase “likely to result in rever- defendant, required a new trial would be on for trial” sal or an order a new which imprisonment all counts for im- require the federal courts to act as would posed, the district court ordered the de- “ probabili- ‘bookmakers’ who trade on the fendant released ty ultimate outcome.” We said that Id. reasonably the statute “cannot be con- IV.(A) require pre- strued to compel We find that Miller does not probability dict reversal.” Id. by the result reached the district court. The trial court here found that the de- clearly acknowledged We in Miller that constitutionality fendant’s to the Congress intended the 1984 Bail Act to provision of Federal Rule of Crimi- replace the “frivolous” test with a more 23(b) continuing nal Procedure delibera- stringent prerequisite pending ap to bail jury tions with an 11-member where one peal. Contrary to the assertion of the juror longer participate can no constitutes Appeals United States Court of for the question a substantial under the Miller Eighth Powell, Circuit United States guidelines.3 explained: The court (8th Cir.1985), we be 11-person jury

We have no doubt that the lieve the Miller definition is consistent with provided Congress’ for in Rule the Rules intent. Our definition of a sub question requires Criminal Procedure is constitutional and stantial the issue on that by appeal being significant will be so determined the U.S. Su- be in addition to preme question governed by controlling prece if and when this not However, reaches that court. there is no dent or doubtful. The district court controlling on controlling precedent solely to the focused the absence of Thus, and, 11-person question precedent doing, jury. falls so failed to deter definition of a mine whether the Rule issue consti within the “substantial significant question. question” under v. Miller. tuted a coupled only proof 3. The court found that indicted and the at trial with the "[t]he 2) by jury; question of law to be raised the defendant on court’s to the whether instructions erroneously by supplemental jury per- called our instructions which has been attention multiple conspir- up present is the mitted the acies court erred in to consider the defense counsel question to the time 3) constitutionality 11-per- separately; whether the district refusing permit defendant in this case.” The defendant son asserts also used subpoena records of two of the that three additional issues are to government's alcoholism 1) questions: We that none of whether the de- witnesses. find “substantial impermissible prejudiced these issues raises a substantial within fendant was variance between the crime for which he was meaning of U.S.C. 3143. IV.(B) qualify significant. as An issue which has been unanimously decided the other We are aware that a number of courts of may may circuits or significant. not be appeals view our Miller definition as in- Where there is signifi- doubt as to Giancola, complete. cance, Cir.1985), preferable we believe it is (11th to resort the United to the approach historical Appeals Court of for the Eleventh outlined Unit- ed adopted Handy, the Miller articulation of 1281-82 (9th Cir.1985), requirements. the section rather than to the “close” observed, however, concept Giancola advocated the Gianco- suggestion that a substantial accept la court. To the Giancola modifica- can one that has not beén decided judicial tion would be to resort to the book- controlling precedent fails to exclude some making condemned in Miller. cases which are not substantial. The court noted that several ob- explained: Giancola court servations made in Giancola were accu- We note that an issue be without rate, i.e., question’ that “a ‘substantial controlling precedent largely because one of more substance than would be nec- patently issue is so without merit essary finding it was not friv- necessary that it has not been found olous,” that catego- “there are no blanket Thus, it to have been resolved. an issue questions ries for what do or do not consti- though could well be insubstantial even ones,” “[wjheth- tute ‘substantial’ and that controlling prece- one could not point er a is ‘substantial’ must be deter- Similarly, might prece- dent. be no *5 case-by-case Giancola, mined on a basis.” circuit, dent but there also be 754 F.2d at 901 (quoted in 761 Handy, F.2d no real reason to believe that this circuit 2). agree. at 1282 n. We Handy court depart would from unanimous resolution suggested also that the Miller definition of of the issue other circuits. question “might not be suffi- at 901. The Id. Giancola court concluded separate cient to substantial from non-sub- question that a substantial is “a ‘close’ questions.” stantial Handy, 761 F.2d at question or very one that well could be Giancola, 901). 2 (citing 1282 n. 754 F.2d at way.” decided the other Id. The Gianco however, rejected, The court the “close adopted la modification of Miller has been question” analysis adopted in Giancola. appeals. See, of the number courts of Instead, Handy emphasized the its Pollard, e.g., United States v. 778 F.2d support historically-based of the “fairly de- 1177, (6th Cir.1985); 1182 United States v. interpretation batable” of the term “sub- 516, (1st Cir.1985); Bayko, 774 F.2d 523 approach stantial”. We find this consistent Bilanzich, 292, 771 F.2d traditionally with that taken the courts. (7th Cir.1985); 298-99 United States v. Af example, Supreme For the of the (10th 944, Cir.1985);

fleck, 765 F.2d 952 States, context, United a different re- Powell, 1231-32; 761 F.2d at United cently affirmed that: Valera-Elizondo, 1020, requiring ‘question “In of some sub- (5th Cir.1985); 1024 v. Ran stance’, showing aor ‘substantial dell, (2d Cir.), 125 cert. de right,’ obviously — denial of federal the [a] nied, -, 106 88 S.Ct. petitioner need not show that he should (1985). L.Ed.2d 464 prevail already on the merits. He has IV.(C) Rather, in that he failed endeavor. must demonstrate that the issues are debata- objec-

We believe the Giancola court’s reason; among jurists ble of that a court tions can satisfied reference to the could resolve the issues a different requirement question that a which is not [in manner]; questions or the are governed by controlling precedent none- ‘ade- quate encouragement pro- to deserve significant. Clearly, theless must be ” Willis, “patently issue that is can- ceed further.’ without merit” Gordon (ND Ga.1980) (quoting III, Judge, JAMES HUNTER F.Supp. con- curring: ex reL. v. Rich Jones mond, (CA2); denied, cert. defendant, 1. Both the William T. 71, 2 S.Ct. L.Ed.2d 355 U.S. 846 56] [78 Smith, government acknowledge (1957)). two-part test in United States v. Estelle, 893 n. 463 U.S. Barefoot Miller, (3d Cir.1985), is to be 4,n. 77 L.Ed.2d 1090 S.Ct. making used in a decision on whether to (1983) original). reject We (emphasis grant ponding appeal under the Bail modification to Miller sub- Giancola 3143(b)(2). Reform Act of 18 U.S.C. § adopt question stantial definition and differ, however, They on the definition of a approach court. historical question.” “substantial subject On the what constitutes a substantial V. act, Miller court stated: the new “[u]nder Because we find that a court must determine that the standard, applied the incorrect we one, i.e., raised on is a ‘substantial’ Rule must determine whether the is significant question it must find that the at question. sue constitutes a substantial issue is one which is either controlling precedent, Given absence by controlling prece- has not been decided requires sig Miller us to decide whether a dent, or which is doubtful.” 753 posed. pertinent nificant Although F.2d at 23. this statement was issue involves the defendant’s suggest meant factors that could be constitutionality continuing jury de determining considered whether an issue jurors ju liberations with eleven when one “substantial,” presence one of longer participate. ror can no Precedent absolutely dispositive these factors is not clearly establishes that twelve are substantiality. Other circuits have ex- required for a conviction. See Wil greater length amined the and I Florida, liams v. 399 U.S. very helpful. find their comments It is also clear that the district court acted in accordance 2. The next circuit consider with Federal Rule of Criminal Procedure 3143(b)(2) *6 after the Eleventh Cir- § 23(b) and that the defendant was convicted cuit, pointed might out that an issue not by the unanimous verdict of the eleven by controlling precedent have been decided remaining jurors. “largely patently because that issue is so without merit that it has not been found We find that the defendant’s to resolved____ necessary for it to have been significant question. Rule is not a Similarly might there precedent be no The defendant has not shown that the issue circuit, but also be no real among jurists,” is “debatable nor do we reason to believe that this circuit would question “adequate believe that the is to encouragement depart from unanimous resolution of proceed deserve fur- Estelle, ther.” issue See 463 U.S. at other circuits.” United States v. Barefoot (citations Giancola, (11th Cir.1985). 893 n. 3394 n. 4 S.Ct. at omitted). sug- Because no we find basis to court defined a substantial Giancola gest that the Rule issue fulfills the question as “one of more substance than requirement significance, we conclude necessary finding would be that it was that the defendant should not have been question not It is a ‘close’ or one frivolous.. pending appeal. released very could be decided the other well Further,

way. catego- there are no blanket VI. questions ries for what do or do not consti- tute ‘substantial’ ones.” Id. at 901. All We will reverse the order of the district considered permitting but one of the circuits that have the defendant’s release on question bail what constitutes a substantial

Q1 subsequent and if judge to the Miller Giancola de- involved a had to assess the likeli- being hood of adopted the defini- reversed. cisions have Giancola question tion of a substantial as a “close” agree 5. I cannot Judges with Mans one.1 mann and Poliak that the Handy court was correct in defining a question substantial agree I 3. with Giancola as one that “fairly is debatable.” 761 F.2d substantiality assess a court should a 1282 n. 2. Like the Powell “I case-by-case basis and that an issue on responsive believe Giancola more to the appeal present question if must a close it is purpose Congress, announced considered a one. be substantial Just was, bluntly, that fewer persons convicted a is “one which is because either large remain at while pursuing their ap which has not been decided con- peals.” 761 F.2d at 1232. The test trolling precedent, or which is doubt- simply “does enough not work change a ful,” Miller, 753 F.2d at does not auto- prior from the standard that a not matically, without reference to other ” Bayko, ‘frivolous.’ 774 F.2d at 523. demonstrating factors merit or the lack of Congress intended that the 1984 Bail Re it, question. pro- make it a substantial form Act make the granting standard for mulgating replace 18 U.S.C. 3143 to for- § pending bail stringent. more See 3148, Congress explicitly mer stated that Affleck, 765 F.2d at sought 952. It presumption it intended to eliminate the presumption remove the in favor of release post-conviction by requiring favor of place the burden of showing the merit ques- that a defendant raise a substantial on the defendant. This was tion rather merely than one that was give “recognition done to prin to the basic pointless frivolous. It would be and con- ciple that a presumed conviction is to be legislative trary passing to the intent in 98-225, S.Rep. correct.” Cong., No. 98th Bail Reform Act of 1984 to (1983), 1st Sess. 27 reprinted in 1984 U.S. any question impression Smith that of first Cong. Code & Admin.News circuit, frivolous, in this no matter how I find Mansmann’s reliance on substantial. question” definitions of a “substantial from 4. Smith maintains that we will erode contexts other inappropriate. than bail are join Miller if we the courts that have fol- Estelle, 463 U.S. Barefoot permit lowed Giancola courts con- 3383, (1983), used the sider the merit of issue in deciding language debatable” to define a argues whether it is substantial. He in the context of allowing judge to determine whether an corpus proceeding. habeas Id. at 893 n. presents issue a close involves the at 3394 n. 4. In proceed- S.Ct. such a problems sought same that we to avoid in ing “doubts should be resolved in favor of *7 Miller, judges Miller. we found that petitioner.” Willis, the Gordon v. 516 expected could to determine 911, whether (N.D.Ga.1980). F.Supp. 912 Congress findings their own were so erroneous that clearly intended that no such presumption they appeal. would result in reversal on I seeking be accorded to defendants bail judges believe trial court can consider the S.Rep. 98-225, See No. merit of 26, 1984, an issue to decide whether it supra, is a reprinted in U.S.Code question. Admin., 3182, close Such a determination Cong. does & 3209. In formulat- guesswork ing not involve the ques- would be its definition of a “substantial Pollard, 1177, era-Elizondo, 1020, (5th Cir.1985); 1. See United States v. 778 F.2d 761 F.2d 1024 (6th Cir.1985); 122, Randell, (2d Bayko, 1182 United States v. 774 United States v. 761 F.2d 125 — (1st U.S.-, Cir.1985); Cir.), denied, F.2d 523 United States v. cert. 88 Bilanzich, (7th Cir.1985); (1985); 771 F.2d 298 L.Ed.2d 464 but United States v. see. (10th (9th Affleck, Cir.1985) Handy, United States v. 952 n. 2 1282 Cir.1985); Powell, (a v. States is not a close one but (8th Cir.1985); debatable.”) "fairly 1232 United States v. Val- one which is 92 pre- purposes

tion,” court relied on cases stantial” for of the Bail Handy the Reform debatable,” “fairly if it Reform Act of when Act is I do not dating Bail the Judge exception. companion than the Mansmann’s the rule rather bail was namely, Powell, Judge Mans- conclusion: that defendant Smith’s 761 F.2d at See Handy ap- constitutional to the second sen- correctly notes that the mann Rule of Proce- traditionally tence Federal Criminal proach is “consistent with 23(b) dure 1983 amendment which by and is “the historical taken the courts” —the me, provides that “if the court finds it neces- fact convinces how- approach.” This juror ever, approach inappro- sary just is to excuse a cause after verdict, clearly expressed the has retired to consider its priate, given Congress’s approach ap- in the discretion of the court a valid verdict that courts use a new desire remaining ju- 11 be returned plying a stricter standard bail. properly rors”—did not raise issue char- the constitution- I do not believe that “fairly acterizable as debatable.” The sub- I, 23(b) is a close ality of Rule stance of Smith’s claim was that a verdict therefore, Judge Mansmann agree with rendered a of fewer than twelve question has been that no substantial (un- persons constitutionally is defective raised. less, course, pur- stipulates, a defendant 23(b), suant to the sentence of Rule POLLAK, Judge, H. District dis- first LOUIS jury). such a diminished senting. 23, 1985) (July As of the date I. court determined that Smith was entitled to Miller, pending This in v. appeal, appears United States there to have (3d Cir.1985) way discussing in only reported opinion led the been one recently adopted of the Bail Reform the then amendment parsing the mandate 23(b). opinion of pending appeal of 1984 that bail be Rule That was the Act Gambino, alia, district court in finding, on a inter “that conditional (D.N.J.1984), F.Supp. affirmed, 788 ... raises a substantial (3d 1986). F.2d 938 district Following Gambino of law.” 18 U.S.C. § opinion “just describes the cause” in of other the decision number which in that instance necessitated dis- sought courts of have to shed addi- charging juror after deliberations had light delphic statutory on the lan- tional begun, explains why the and then guage. I Mansmann’s concur proceed decided to with eleven rath- that, explication demonstration as an seques- er than substitute one of the two law,” “substantial opinion says All tered alternates. adopted debatable” standard the Ninth validity of amended Rule about Handy, following: (9th Cir.1985), is a sounder F.2d “ defendants, Finally, counsel for the question” guide than the ‘close’ standard urging proceed that this court to substi- advanced the Eleventh Circuit United alternate, did not attack Rule tute an Giancola, (11th F.2d 23(b). Thus, any the record is barren Cir.1985). Handy’s “fairly debatable” argument that somehow Rule comport seems to me to better with the Certainly, or faulted. it cannot flawed the salu- language of the statute and with im- now be contended statutory language tary approach to *8 otherwise, in perfection, constitutional or by in taken this court Miller. procedure permitted under Rule the II. may fairly be

Although F.Supp. in at 661.1 Thus it I concur 598 Mansmann’s that, court below at the time the conclusion that a of law is “sub- stated Gambino, 18, April 1986. United States v. the district court on 1. This court affirmed

93 credentials, that defendant Smith should be how can validity concluded its be charac- large pending appeal, at that did not terized as debatable”? disposal any its case law comment- have The doubt with to amended Rule in other ing conclusory than terms on the 23(b)’s validity in inheres the Court’s own validity of the second sentence of Rule in language Williams v. Florida. The 23(b).2 plainly Court was aware that its latitudina- case validity The for the of the second description rian of what a federal criminal 23(b) of sentence Rule rests the Su- jury might look sharp like reflected a de- opinion Court’s in preme v. Flor- Williams (and which, parture noted, one it be 1893, ida, 399 U.S. 90 S.Ct. 26 L.Ed.2d support the only commanded five (1970). 446 Williams v. Florida was decid- Justices5) from ap- what had theretofore Court, years in thirteen the ed before peared to a settled be constitutional under- rule-making capacity, in its amended Rule standing the “jury” that word as used 23(b) language challenged by to add the Florida, the Sixth Amendment ques- jury Smith. the connoted “a Williams v. presented tion was whether persons.”6 a state’s consti- twelve Against back- that obligation provide jury tutional a in a ground, the Court was careful to make obligation criminal case—an which the clear its new reading that of the Sixth Court, implicit had found the Amendment would not of its own force Fourteenth Amendment3 —was satisfied judges confer on federal trial any warrant jury persons. six A divided Court empanel juries of fewer than twelve: answered in the affirmative. holding “Our does no more than the leave decision, En route to its Court the deter- Congress considerations ... unre- Amendment, mined Sixth while in interpretation strained Sixth mandating verba in a “jury” haec federal Amendment that would forever dictate trial, require criminal did not precise number that can jury.” constitute a “jury” composed persons. of twelve 399 U.S. at 90 S.Ct. at 1907. Unquestionably, the 1983 amendment to light In the of this language, it would 23(b) gains strong support Rule from the range seem well within the of reasonable pronouncement Court’s v. Williams argument that the five Justices comprising favoring Florida. That constitutional wind v. majority Williams Florida contem- presumption is enhanced of validity plated implementation path- properly proce- attaches to a rule of breaking constitutional latitude an- promulgated by Supreme dure legisla- entail nounced would affirmative pursuant delegated to its statutorily rule- Congress, making merely Congressional tion authority.4 And if second sen- of Rule impressive tence has non-objection procedure” such a “rule of (3d Cir.1986). opinion “Ap- 938 notes that 3771. 18 U.S.C. 4. pellants they concede that have no constitution- right twelve-person jury, al Williams v. see 5. wrote Justice White for the Court in Williams Florida, 1893, 1907, 399 U.S. 103 26 [90 S.Ct. (the v. On the Florida. issue case also (1970)." L.Ed.2d Id. 446] at 947. presented pertinent a notice-of-alibi issue not here) Harlan, Stewart dis- Justices and Marshall Subsequently, two courts have addressed the pronouncement the Court’s that a sented from Circuit, question. One is the Second which sus- federal criminal could number fewer than tained the amended Rule in United States participate. twelve. Justice Blackmun did not Stratton, Cir.1985). (2d v. 820 rejecting opinion is this other appeals in the Utah, 343, 355, Thompson 170 S.Ct. defendant his co-defend- U.S. Smith and Smith, 620, 624, (1898); Stoneman. ant L.Ed. 1061 accord. Patton (3d Cir.1986). States, 276, 288, Compare, United Gambino, supra, note 1. (1938). 74 L.Ed. Louisiana, 3. Duncan v. S.Ct. 391 U.S. Justices Harlan and Stewart dissented. *9 non-adjudi-

promulgated by the in its capacity.7 cative

III. challenge Rule summarized which, ultimately, I am above is not one Indeed, already I persuaded by. have concluding that the district court joined in ground in exer- was on sound constitutional cising discretionary authority conferred 23(b).8 second sentence of Rule But difficulty characterizing

I have no validity the amended Rule’s issue of as “fairly debatable” at the time the district pending ap- court admitted Smith to bail Therefore, respectfully I peal. dissent reversing judgment from the of this court the order of the district court. Reynolds, Atty.

William Bradford Asst. Gen., Barrett, Gornstein, Irving Walter W. America, Appellee, Justice, D.C., Dept. Washington, ap UNITED STATES pellee. Wells, Boylan, Matthew P. Theodore V. MESSERLIAN, H., Harry Appellant. Jr., Krakower, Lowenstein, Robert L. San- (C-160). No. 86-5323 dler, Brochin, Kohl, Fisher, Boylan & Mea- nor, Roseland, N.J., appellant. Appeals, United States Court of Third Circuit. HUNTER, Before GARTH and MANS- June MANN, Judges. Circuit As Amended June THE

OPINION OF COURT GARTH, Judge: defendant, Messerlian, Harry H. convicted after trial and sentenced to ten years imprisonment. The district court de- nied bail We are asked to review that order.

Messerlian, Trooper, Jersey a New State willfully depriv- by jury was convicted Wilson, change "procedure" 7. With sent in Sibbach v. modifying long-accepted 85 L.Ed. 479 did not involve consti- architecture, opin- tutional Roberts’ see Justice Smith, supra, ion for the Court and Justice Frankfurter’s dis- note 2. 8. See United States v.