author: CANNELLA, District Judge:

text:
    Pinchas BALABIN, Plaintiff, v. Charles SCULLY, Thomas Coughlin, III, Dean Riley, Robert Seitz, Wayne Strack, WJ. Connolly, Rosario, Defendants.
    No. 83 Civ. 6778 (JMC).
    United States District Court, S.D. New York.
    Jan. 31, 1985.

      Cravath, Swaine & Moore, New York City (John E. Beerbower, James E. Brandt, New York City, of counsel), for plaintiff.
    Robert Abrams, Atty. Gen. of the State of New York, New York City (Sue Barnett Bohringer, Asst. Atty. Gen., New York City, of counsel), for defendants.
   MEMORANDUM AND ORDER

CANNELLA, District Judge:

Defendants’ motion to dismiss the complaint is granted in part and denied in part. Fed.R.Civ.P. 12(b)(6).

FACTS

Plaintiff Pinchas Balabin commenced this action by pro se complaint on September 15, 1983. Defendants filed a notice of motion to dismiss the complaint on December 13, 1983. Before that motion was decided, however, counsel was appointed by this Court, see Order, 83 Civ. 6778 (JMC) (S.D.N.Y. Jan. 11, 1984), the motion was withdrawn, and the complaint was amended. Defendants now move to dismiss the amended complaint.

In the amended complaint, plaintiff alleges that defendants violated his civil rights under 42 U.S.C. § 1983 and unlawfully converted his property in violation of state law. The defendants are or were employees of the Green Haven Correctional Facility [“Green Haven”], except Thomas Coughlin, III, who is the New York State Commissioner of Correction. This Court has jurisdiction over the federal constitutional claims under 28 U.S.C. §§ 1331, 1343. Whether the Court has jurisdiction over the state claim under the principles of pendent jurisdiction is an issue raised in this motion.

The facts leading to the current dispute are as follows: On June 3, 1983, plaintiff’s cell at Green Haven was searched, without warning. Plaintiff claims that the cell was left in “shambles” and that some personal property was damaged or destroyed. Certain other property was confiscated, including, according to plaintiff, a transcript of plaintiffs criminal trial, other legal papers and notes, lawbooks, letters to and from attorneys, three bibles, prayer books, a prayer shawl, a tefillin, a yarmulke and some personal letters. Plaintiff was given a receipt indicating that the following property had been taken: “All paperwork, All contraband wood, Exacto knife, 8 track.Radio and Realistic Radio, medical supplies, and mise, contraband.” Apparently at least some of the items taken were contraband. Plaintiff claims that the property was “scrutinized”, including the letters to and from attorneys.

At some time after the search and confiscation, a disciplinary proceeding was held and plaintiff was “found guilty” of possessing certain contraband items: “a print of a helicopter that allegedly contained drawings of certain keys, sand paper, an alien wrench and a map of the world.” This ruling was later overturned on procedural grounds.

There is some dispute as to whether plaintiff has been offered access to his property or merely been allowed to inspect it. Apparently, the only property that has been returned to plaintiff is one bible, one prayer book, certain nonlegal books and personal correspondence.

DISCUSSION

Plaintiff raises claims based on the first, fourth, fifth, sixth, eighth and fourteenth amendments to the United States Constitution, and a state law claim of conversion. Each of these claims, and the defendants’ objections to each, will be discussed in turn. First and Fourteenth Amendments

Plaintiff claims that the confiscation and failure to return certain religious items— bibles, prayer books, a prayer shawl, tefillin and a yarmulke — has “curtailed” his religious activities, in violation of his first amendment rights. Defendants have moved to dismiss the claim on the ground that the confiscation is within the discretion of the prison officials and that the complaint insufficiently states the way in which plaintiff’s religious activities have been curtailed.

Prisoners are not automatically stripped of first amendment rights by virtue of their incarceration. See Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Moorish Science Temple of Am., Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.1982); Phillips v. Coughlin, 586 F.Supp. 1281, 1283 (S.D.N.Y.1984). See also Heimerle v. Attorney General, 753 F.2d 10, 12-13 (2d Cir.1985) (discussing first amendment restrictions on prison mail censorship). On the contrary, a prisoner retains all first amendment guarantees “not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. at 822, 94 S.Ct. at 2804. Prison officials may thus interfere with those rights only for important penological purposes, where the “restraint on religious liberty is reasonably adapted to achieving [the] objective.” LaReau v. MacDougall, 473 F.2d 974, 979 (2d Cir.1972), cert. denied, 414 U.S. 878, 94 S.Ct. 49, 38 L.Ed.2d 123 (1973), quoted in Moorish Science Temple, 693 F.2d at 990.

In certain circumstances, the Supreme Court has shown great deference to prison officials’ enunciations of their motives in restricting prisoners’ first amendment rights, see Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977) (where prisoners sought to form union, district court erroneously required prison officials to prove that it would be detrimental to proper penal objectives); see also St. Claire v. Cuyler, 634 F.2d 109, 112-15 (3d Cir.1980) (discussing burden of proof and compiling cases). Even assuming that prison officials may not be required to prove that their motives are valid or their means the least restrictive, however, they must, at the very least, allege an important purpose for imposing a restriction. See Moorish Science Temple, 693 F.2d at 990 (plaintiff need only plead that his first amendment rights were restricted to overcome sua sponte dismissal); Burgin v. Henderson, 536 F.2d 501, 504 (2d Cir.1976) (counsel’s unsupported assertion that religious hats might conceal weapons held insufficient to permit affirmance of district court’s sua sponte dismissal).

Defendants have given plaintiff no explanation whatever for retaining his religious items for a year and a half and have also failed to allege any purpose in their motion papers before this Court. The only suggestion that counsel has presented is the equivocal statement that “[i]t is not inconceivable that an inmate might use religious articles to conceal contraband and that prison officials would occasionally be justified in confiscating such articles.”

Defendants instead rest their motion to dismiss this claim on the contention that plaintiff has insufficiently pleaded an interference with his religion. It has been held that there is a judicial policy requiring stricter pleading in civil rights cases as a means to combat the ever-increasing burden that these cases place on district courts. See Patton v. Dumpson, 425 F.Supp. 621, 626 (S.D.N.Y.1977). Even supposing that his circuit was to adopt such a rule, this case presents no such broad conclusory allegation as that raised in Patton. In that ease, the court dismissed the complaint with leave to amend because the plaintiff had made the eonelusory allegation that the defendants had participated in a pattern and practice of racial discrimination in their placement of children who are wards of the state. Id. Balabin, by contrast, specifically alleges that certain religious artifacts were seized from him and have been retained for over a year without legitimate reason and that his religious practices have thereby been curtailed. Whether the lack of these items has in fact curtailed his religious practices is a question of fact that cannot be decided in this motion. The complaint clearly presents circumstances that, if proved, would warrant recovery at trial. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

Accordingly, plaintiffs claim that his first amendment rights were infringed must not be dismissed at this time.

Fourth and Fourteenth Amendments

In moving to dismiss plaintiff’s fourth amendment claim that his cell was the subject of an unreasonable search, defendants raise the recent Supreme Court decision in Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3198-204, 82 L.Ed.2d 393 (1984). Hudson held that prisoners have no reasonable expectation of privacy in their cells and thus are not protected by the fourth amendment insofar as concerns searches of their cells. Id. The plaintiff does not contest this argument in its brief.

It is clear that Hudson v. Palmer is controlling in this situation. Therefore, plaintiff’s fourth amendment claim is dismissed.

Fifth and Fourteenth Amendments

Plaintiff raises claims that he was deprived of both property and liberty interests without due process of law in violation of the fifth and fourteenth amendments. Under the fourteenth amendment, no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST, amend. XIY, § 1. However, not all liberty or property interests are covered by this section. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). That a prisoner has a property interest in his personal belongings is undisputed. The existence of the alleged liberty interests is less clear. Protected liberty interests may arise from the Due Process Clause or the laws of the state. See Hewitt, supra; Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-40, 49 L.Ed.2d 451 (1976). Plaintiff claims three constitutionally protected liberty interests, each created by a separate Directive of the State of New York Department of Correctional Services [“Directive”]: (1) the interest in protecting certain religious articles; (2) the interest in possessing property not classified as contraband; and (3) the interest in not having outgoing privileged mail read by prison officials except in the presence of the inmate.

The Supreme Court in Hewitt emphasized that the Court had “never held that statutes and regulations governing daily operation of a prison system conferred any liberty interest in and of themselves.” 459 U.S. at 469, 103 S.Ct. at 870. In that case, the Court was concerned with whether a prisoner in a Pennsylvania prison had liberty interest in remaining with the general prison population rather than in a secluded administrative segregation. The Court held that Pennsylvania had created such a liberty interest, not by the mere enactment of procedural guidelines to direct the prison officials, but by its use of emphatic words in the regulations. Id. at 470-72, 103 S.Ct. at 870-72. The Court stressed that the state “has used language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed, and that administrative segregation will not occur absent specified substantive predicates.” Id. at 470-71, 103 S.Ct. at 870-71 (citation omitted).

The first two liberty interests claimed by plaintiff are essentially identical to his property interests and best characterized as property interests. Moreover, the first two directives cited by plaintiff to support those interests use no emphatic language. The directives are clearly prison regulations governing daily operation and do not give rise to an independent liberty interest protected by the due process clause of the fourteenth amendment.

The third directive, however, uses the word “must” in each sentence and is phrased in a forceful, mandatory style. Moreover, the Directive places substantive limits on prison officials’ actions by creating substantive predicates to opening and reading prisoners’ outgoing mail: “[T]here must be a reasonable suspicion to believe that the contents of such mail endangers or threatens the safety, security, and operations of a facility or the safety of a party to whom the letter is addressed.”

It is not clear whether the law of this circuit holds that a constitutionally protected liberty interest can be created by a prison regulation. In Pugliese v. Nelson, 617 F.2d 916, 924 (2d Cir.1980), the Second Circuit held that a prison Policy Statement, which did not use emphatic language, had not created a constitutionally protected liberty interest. The court also suggested that there were problems with finding any mere policy statement to be capable of creating such an interest: “One obvious problem is that if a Policy Statement were held to create a liberty interest ... prison administrators might then opt in favor of revoking such statements.” Id. at 924 n. 8. But see Walker v. Hughes, 558 F.2d 1247, 1254-56 (6th Cir.1977) (analyzing drawbacks of permitting administrative regulations to create liberty interests but finding prison policy statements to do so).

The New York State Directive at issue here, however, is not a mere policy statement. It purports to describe “the policies, regulations, and procedures governing ‘privileged’ correspondence.” Moreover, at least five circuits, see Lucas v. Hodges, 730 F.2d 1493, 1502-03 (D.C.Cir.1984) (collecting cases from Seventh, Fifth, Sixth, Tenth Circuits), have held that prison policy statements can create liberty interests as long as the inmate shows some specific criteria or guidelines designed to direct or limit the prison officials. Id. at 1504. See also Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (regulations providing prison officials with complete discretion do not create liberty interest); Sher v. Coughlin, 739 F.2d 77, 81-82 (2d Cir.1984) (similar analysis applied to statute/regulation scheme).

The overwhelming trend of judicial decisions, on both the Supreme Court and Circuit Court levels, compels the conclusion that the New York Department of Correctional Services has created a constitutionally protected liberty interest in a prisoner’s right to have privileged mail opened and read only under the limited circumstances detailed in the regulation. By placing emphatic and discrete limitations upon prison officials’ actions, the department has given prisoners a right to be free from intrusions upon that interest without the operation of due process of law. Thus, if plaintiff’s outgoing mail was among the effects seized and was “scrutinized,” as alleged by plaintiff, a liberty interest may have been deprived.

Having determined that plaintiff has adequately alleged that certain constitutionally protected property and liberty interests have been deprived, the Court must next determine what procedural safeguards are required and whether plaintiff was accorded those procedures. The Supreme Court has, in recent years, laid out several preliminary questions that must be answered. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Court held that in the case of random and unauthorized negligent takings of property by state officials no predeprivation procedures were possible so that adequate postdeprivation procedures would satisfy the requirements of due process. Id. at 541, 101 S.Ct. at 1916. The holding of Parratt was extended to intentional, but unauthorized, takings of property in Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984). Additionally, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-37, 102 S.Ct. 1148, 1157-59, 71 L.Ed.2d 265 (1982) the Court held that postdeprivation remedies do not satisfy due process requirements when a property interest has been taken or withheld in accord with established state procedure rather than by random and unauthorized action.

Three questions must thus be asked: (1) whether predeprivation procedures were required; (2) if not, whether the deprivations were accomplished in accordance with established state procedures; and (3) if not, whether adequate postdeprivation remedies exist under state law. The Court will first address plaintiff’s property interests. Plaintiff claims that his property was seized, some of it destroyed or lost and the rest withheld without due process of law. Apparently, no procedures were undertaken prior to the seizure. The only hearing that plaintiff has received was a disciplinary hearing, later vacated, that took place after the seizure, but perhaps before the loss of the property, and which was not directly related to the return of plaintiff’s property. Whether predeprivation proceedings are required depends in part upon whether the deprivation was the result of random and unauthorized acts of state officials. See Hudson v. Palmer, supra; Logan v. Zimmerman Brush Co., supra; Parratt v. Taylor, supra. To the extent that plaintiff’s property was destroyed or lost, the cause was presumably random and unauthorized negligence. To the extent that the property is being wrongfully held by prison authorities, it was seized and is being held in violation of state procedures and is thus unauthorized. Therefore, under Parratt and Hudson, no prior procedures were required. Additionally, plaintiff does not allege any specific state procedure that by its operation violates due process. See Logan v. Zimmerman Brush Co., supra (state procedure precluded hearing if state labor commission failed to conduct fact finding hearing within 120 days). There is no allegation that the procedures outlined in Department of Corrections Directives, if followed, would constitute a violation of due process. Therefore, Logan is inapplicable. Thus the only remaining question is whether adequate postdeprivation remedies exist under state law.

The Court finds that adequate state postdeprivation proceedings exist in the form of Directive 2733, which provides for claims by prisoners for lost property; Article 78 of the New York Civil Practice Law and Rules; and tort claims for conversion or negligence against the officials or state, see N.Y.CT.CL.ACT § 8 (McKinney’s 1963) (waiving immunity of state to tort suits); N.Y.CORRECT.L. § 24 (McKinney’s Supp. 1983-84) (all claims against corrections officers for acts within the scope of employment must be brought as claims against state). Accordingly, because adequate postdeprivation remedies exist, plaintiff’s due process claims with respect to his property interests are dismissed.

Neither the Supreme Court nor the Second Circuit have ruled on whether these preliminary questions apply to liberty as well as property interests, although in many cases, there seems no logical reason to distinguish between the two. See Thibodeaux v. Bordelon, 740 F.2d 329, 337-38 (5th Cir.1984); Daniels v. Williams, 720 F.2d 792, 795 (4th Cir.1983); Haygood v. Younger, 718 F.2d 1472 (9th Cir.1983), reh’g granted, 729 F.2d 613 (9th Cir.1984); Garcia v. County of Los Angeles, 588 F.Supp. 700, 701-03 (C.D.Cal.1984); Holmes v. Ward, 566 F.Supp. 863, 865 (S.D.N.Y.1983). The Court need not decide this question, however, because the result is the same whether or not Parratt and Hudson apply to liberty interest claims.

Plaintiff alleges that his outgoing mail was read during the process of examining property seized subsequent to a search. If this is done as a regular matter, then the procedure itself violates due process. Although a formal hearing may not be necessary before opening privileged mail, the procedures outlined in Directive 4421 are clearly the minimum required to protect this liberty interest created by the state. Plaintiff claims and defendants do not dispute that no such procedures were undertaken. Therefore, plaintiff’s claim must stand. Moreover, assuming the mail was opened and read as a result of a random and unauthorized act, the claim must also stand because defendants have not alleged any postdeprivation remedies. Nor has the Court found any clear indication that the state provides any postdeprivation remedy that would adequately redress the wrongful scrutiny of privileged letters.

Accordingly, plaintiff’s property interest claims are dismissed. His claim regarding a violation of his liberty interest in not having his mail opened and scrutinized remains standing.

Sixth and Fourteenth Amendments

Count four alleges that by confiscating plaintiff’s legal materials, defendants have interfered with plaintiff’s right to access to courts under the sixth and fourteenth amendments. He claims that without these legal materials he is unable to adequately file a habeas corpus petition concerning his criminal conviction. There is some dispute over whether plaintiff has in fact been allowed access to these materials. However, for the purpose of this motion, the Court must accept as true plaintiff’s allegation that he was merely allowed to inspect them. Defendants’ primary legal arguments are that delay in filing papers is not sufficient to constitute a denial of access to courts and that the confiscated papers are in any case not necessary for the filing of a federal habeas petition, which does not require citations to the trial transcript.

Defendants’ arguments are unavailing. It is well-settled that prisoners have a right of access that guarantees them some affirmative action on the part of prison officials, see Bounds v. Smith, 430 U.S. 817, 827-28, 97 S.Ct. 1491, 1497-98, 52 L.Ed.2d 72 (1977), as well as prohibits prison officials from interfering with existing channels available to the prisoner, see Hiney v. Wilson, 520 F.2d 589, 591 (2d Cir.1975) (confiscation of legal papers may equal denial of access). Whether or not the state would be required to furnish plaintiff a transcript free of cost for the purposes of his habeas petition, the officials may not interfere with his existing transcript and other legal papers, which taken as a whole are necessary for effective legal argument. Cf. Patterson v. Mintzes, 717 F.2d 284, 288 (6th Cir.1983) (prison officials may not interfere with existing transcript necessary for effective review).

Whether plaintiff was in fact obstructed in obtaining access to courts is a question of fact. It is enough to overcome this motion to dismiss that plaintiff has alleged that all his handwritten notes, memos, briefs and an existing transcript were seized and have not been returned for a year-and-a-half. This is clearly not the minor delay contemplated by the court in Pickett v. Schaefer, 503 F.Supp. 27, 28 (S.D.N.Y.1980), which held that a nine and one-half day delay in the mailing of the prisoner’s correspondence to the court did not constitute a constitutional violation.

For these reasons, defendants’ motion to dismiss plaintiff's claim that he was denied access to courts is denied.

Eighth and Fourteenth Amendments

Count five alleges that plaintiff’s eighth and fourteenth amendment rights have been violated by the deprivation of any reasonable expectation of privacy. It is true that in ruling out a fourth amendment claim by prisoners in Hudson, supra, the Supreme Court explicitly refused to preclude an eighth amendment claim for harrassment, given the appropriate circumstances. See Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984). Plaintiff has made no allegations of harassment, nor alleged any facts that suggest an invasion of privacy that might rise to the level of cruel and unusual punishment. Cf. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) (double celling does not necessarily constitute cruel and unusual punishment).

Accordingly, plaintiff’s fifth cause of action must be dismissed.

Conversion

Finally, plaintiff alleges that defendants are jointly and severally liable for conversion. Defendants claim that the decisions in Parratt and Hudson, supra, preclude pendent state law claims in federal civil rights actions. These two cases, however, deal only with the existence of adequate due process available under state law; neither addresses the question whether those state law procedures may be pursued in federal court under the principles of pendent jurisdiction. Similarly, the Supreme Court’s decision in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), does not require that this suit be barred on eleventh amendment grounds. Unlike Pennhurst’s claim, this suit does not involve a claim against the State itself, through the guise of a suit against prison officials. See id. 104 S.Ct. at 908-17. Rather, it is a suit against prison officials who, if plaintiff’s claims are true, acted outside their authority and against the interests of the state’s clearly enunciated prison rules. See Morrison v. LeFevre, 592 F.Supp. 1052, 1081 (S.D.N.Y.1984).

Under the doctrine of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), a state claim may be attached to colorable federal claims if the two claims arise out of “a common nucleus of operative facts.” Id. at 725, 86 S.Ct. at 1138. Here, the federal and state claims arise out of the same confiscation of plaintiff’s property, and the federal claims are substantive enough to have survived this motion and thus adequate to support jurisdiction.

For these reasons, defendants’ motion to dismiss plaintiff’s conversion claim is denied.

Claims against Thomas Coughlin

When a prisoner brings an action under 42 U.S.C. § 1983, the doctrine of “respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.” Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). The only personal connection that plaintiffs allege between Commissioner Coughlin and this action is the requirement that he be made aware of the circumstances under which a prisoner’s outgoing mail is opened and inspected.

Because plaintiff alleges that his mail was opened without the observance of required procedures and there is no allegation that Coughlin actually knew what was happening, Coughlin cannot be held to have had any personal responsibility for the actions alleged. Therefore, the claims against him are dismissed.

CONCLUSION

Accordingly, defendants’ motion to dismiss the complaint is granted as to defendant Coughlin. As to the remaining defendants, counts two and five are dismissed in totality and count three is dismissed in part. Fed.R.Civ.P. 12(b)(6).

SO ORDERED.

      . See Pro Se Complaint, 83 Civ. 6778 (JMC) (filed Sept. 15, 1983).

      . See Notice of Motion, 83 Civ. 6778 (JMC) (filed Dec. 13, 1983).

      . See Amended Complaint, 83 Civ. 6778 (JMC) (filed May 25, 1984) [hereinafter "Amended Complaint”].

      . Id. at ¶ 13.

      . Id. at [f 21; Exh. 1.

      . Id. at ¶ 23.

      . Id. at ¶ 27.

      . Id. at ¶ 35.

      . Reply Memorandum at 11, 83 Civ. 6778 (JMC) (filed Sept. 5, 1984) (discussing due process claim).

      . State of New York Dep’t of Correctional Services Directive [“Directive”] 4202 J.4, 5; K.3.

      . Directive 4931 I.D.

      . Directive 4421 III.A.l.

      . A. Outgoing Privileged Correspondence
      1. Outgoing mail to any of the above must not be opened or inspected in any manner unless authorized by the facility Superintendent, upon written notice of the Commissioner. Substantial information must be conveyed to the Commissioner by a Superintendent as a basis for this action. In such cases, there must be a reasonable suspicion to believe that the contents of such mail endangers or threatens the safety, security, and operations of a facility or the safety of a party to whom the letter is addressed.
      Outgoing privileged mail may be sent according to the provisions of the free postage program described in Section III-D of Directive # 4422, Inmate Correspondence Program. Outgoing privileged mail addressed to the Commissioner of the Department of Correctional Services and his staff must be sent in the facility mail pouch. No postage is required on such letters.

      . Id.

      . Id.

      . Plaintiff also raises an equal protection claim arising out of the fifth and fourteenth amendments. However, plaintiff has made no arguments regarding this claim in his briefs and the facts suggest that no such claim exists. Therefore this claim is also dismissed.

      . See Directive 4421 III.A.l.


source: Caselaw Access Project

author: HUNGATE, District Judge.

license: Public Domain

text:
    Paul E. PODHORN, Jr., Liana E. Podhorn, Renata A. Podhorn, Plaintiffs, v. PARAGON GROUP, INC., San Miguel Apartments, Defendants.
    No. 84-0896C(3).
    United States District Court, E.D. Missouri, E.D.
    Feb. 7, 1985.

      Michael G. Hoehn, Clayton, Mo., for plaintiffs.
    Richard C. Bresnahan, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, Clayton, Mo., Joseph H. Mueller, Kortenhof & Ely, Alan G. Kimbrell, Robert L. Nussbaumer, Rosecan & Kimbrell, St. Louis, Mo., for defendants.
   MEMORANDUM

HUNGATE, District Judge.

This matter is before the Court on defendants’ joint motion to dismiss plaintiffs’ complaint.

Plaintiffs bring this civil action alleging constructive eviction, breach of implied warranty of habitability, false swearing, false credit report, breach of implied covenant of quiet enjoyment, negligence, abuse of process, prima facie tort, conversion, and initiation of malicious prosecution by defendants. Defendant Paragon Group, Inc., is the owner of defendant San Miguel Apartments. All of these claims arise out of plaintiffs’ tenancy at defendants’ apartment building from April 1 to July 31,1983.

On or about November 17, 1983, defendant Paragon Group, Inc., filed a petition in the Circuit Court of St. Louis County against the plaintiffs in this case, Paul and Liana Podhorn, for rent due. The state court action arose out of the same tenancy that gives rise to this federal cause. The Podhorns did not file a counterclaim in the state court action, and on March 29, 1984, a judgment in default was entered against the Podhorns in the sum of $1,113.33, plus costs.

Defendants move to dismiss plaintiffs’ claim in this case asserting that it should have been filed as a compulsory counterclaim in the state court action.

Missouri Supreme Court Rule 55.-32(a) requires the filing of compulsory counterclaims:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction____

The Court finds plaintiffs’ claims in this case arise out of the transaction or occurrence that gave rise to Paragon’s rent action in the earlier state court case, namely plaintiffs’ tenancy at defendants’ apartment. Accordingly, plaintiffs were required to file the instant claims as compulsory counterclaims and their failure to do so bars them from having those claims heard. Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811 (Mo.App.1982); State ex rel. Davis v. Moss, 392 S.W.2d 260 (Mo. banc 1965); Harris v. Nola, 537 S.W.2d 636 (Mo.App.1976).

Plaintiffs contend that associate circuit judges are granted limited authority and may not properly hear a civil case where the sum demanded, exclusive of interest and cost, exceeds $5,000. Mo.Rev.Stat. § 478.225.2(1). Plaintiffs argue that since their claims then and now exceed the statutory limit, the state court was without jurisdiction to hear their counterclaim if filed. Plaintiffs assert that the compulsory counterclaim rule does not apply in this action before an associate circuit judge.

Mo.Rev.Stat. § 517 governs the procedural dispute in this matter. The Supreme Court rule which requires the filing of compulsory counterclaims in the circuit court also applies to cases before an associate circuit court judge. Mo.Rev.Stat. § 517.020.1(3). In the event the counterclaim is not triable before an associate circuit judge, as in this case where the counterclaim exceeds $5,000, the case is to be certified for assignment to a judge who may hear the claim. In short, although plaintiffs’ counterclaim may not have been triable before the associate circuit judge, plaintiffs were not relieved of their obligation to file it.

Therefore, plaintiffs’ claim is barred and this Court will grant defendants’ motion to dismiss.


author: DUPLANTIER, District Judge.

text:
    Henry WINSTON v. INTERNATIONAL HARVESTER CO.
    Civ. A. No. 83-3437.
    United States District Court, E.D. Louisiana.
    Feb. 8, 1985.
    Michael Guidry, Omar Bradley Law Office, New Orleans, La., for plaintiff.
    C.G. Norwood, Jr., Michael Noonan, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for defendant.
   REASONS FOR JUDGMENT

DUPLANTIER, District Judge.

In this products liability Louisiana diversity suit, Henry Winston claims damages for bodily injuries suffered when he fell off a tractor which he was driving; defendant manufactured the tractor.

Plaintiff was driving the tractor on a dirt road on a sugar cane plantation at the end of a work day when he carelessly and inattentively allowed the tractor to veer off the road and into a cane field. As the tractor crossed the alternating elevated rows and trenches of the field, the tractor’s bouncing caused plaintiff to fall off the tractor, resulting in severe injuries. At the time of the accident, the tractor was in essentially the same condition as when it was manufactured and sold by defendant. The tractor was an open type; the driver's seat was not enclosed. There was no seat belt or other protective device to prevent a driver from being thrown or falling from the tractor.

The jury found defendant’s tractor defective under Louisiana law. The jury also concluded that plaintiff was ninety-seven percent contributorily negligent. The jury awarded $300,000 to plaintiff as his total damages. If plaintiff’s negligence operates to reduce his award proportionately, he is entitled to judgment for $9,000; otherwise, for $300,000.

In answering a certified question from the U.S. Fifth Circuit Court of Appeals, the Louisiana Supreme Court recently decided that contributory negligence was not a complete bar to recovery in a products liability action under Louisiana law. Contributory negligence, assumption of the risk, and misuse of a product (all combined as comparative fault) should be applied under some circumstances to reduce a plaintiff’s recovery. In other situations, including the case under consideration by the Louisiana Supreme Court, plaintiff’s activity would be of no consequence and would not reduce recovery. Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985), rehearing denied.

During the trial, the court was in doubt about the effect of the Louisiana Supreme Court decision in Jet Wheel upon plaintiff’s claim specifically, whether the issue of plaintiff’s comparative negligence should be submitted to the jury. During conferences with counsel off the record, the issue was discussed. On the second day of trial the court stated to counsel its intention not to submit the issue. Defendant’s counsel urged that comparative negligence was a “defense” and that in any event the issue should be submitted to avoid a second trial. The court finally agreed with this position. Counsel were told that if the court ultimately decided that plaintiff’s negligence would not operate to reduce his recovery, judgment would be entered for the full amount of his damages.

The court invited and received post-verdict memoranda on this issue. After reviewing the memoranda and the cases cited therein, for the following reasons we conclude that plaintiff’s fault should not operate to reduce his recovery. Therefore, we enter judgment in favor of plaintiff in the amount of the jury’s award of $300,000.00, with interest from date of judicial demand.

The facts in Bell v. Jet Wheel Blast also involved a work-related injury, though in an industrial and not an agricultural setting. Bell’s injury occurred when his hand got caught in the chain and sprocket drive of the conveyor system of a machine manufactured by Jet Wheel. The opinion in Jet Wheel indicates that there may be situations in which plaintiff’s fault would reduce his recovery, as comparative negligence typically does. This portion of the opinion is dictum, since the court did not reduce Bell’s recovery because of his own negligence.

It would serve no useful purpose to speculate- as to what the future holds with respect to this issue in Louisiana, especially since only three of the seven justices concurred completely in the opinion (there were two dissents, a “concurs and will assign reasons, and a “subscribes to the opinion and concurs in part”). What is clear is that there is only one case in which the Louisiana Supreme Court has spoken on this issue, and in that case plaintiff recovered his full damages notwithstanding his own negligence. What is equally clear is that the circumstances of the instant case and those in Jet Wheel, vis a vis plaintiff fault, are sufficiently similar as to compel the same result.

The Louisiana Supreme Court emphasized that the plaintiff in Jet Wheel was performing a repetitive industrial operation, that his negligence amounted to nothing more than inattentiveness, and that the injury occurred directly because of the machine’s defect. We note that driving a farm tractor for an entire work day can also cause boredom and inattentiveness at the end of the day, that our tractor driver’s negligence consisted of inattentiveness and thereafter the wrong response to the emergency created thereby, and that the injury occurred directly because of the defect in the tractor, the absence of a body restraint.

The safety features not installed on the Jet Wheel machine and plaintiff’s tractor are both intended to protect a user against his own carelessness and the negligence of others. If the machine guard had been in place, the plaintiff in Jet Wheel would not have been injured. If plaintiff had been wearing a seat belt, or if other operator protection had been provided, plaintiff would not have been thrown from the tractor and injured.

Defendant cites a number of cases applying comparative negligence to reduce recovery in strict products liability actions in other states. These cases may be persuasive, but they are inapplicable in Louisiana.


author: CAHN, District Judge.

text:
    Gerald A. GREENBERG v. Anthony J. PACENTA, Individually and as Mayor of the City of Pottsville, et al.
    Civ. A. No. 84-2467.
    United States District Court, E.D. Pennsylvania.
    Feb. 8, 1985.
    Edward E. Kopko, Pottsville, Pa., for plaintiff.
    Sheldon L. Albert, Philadelphia, Pa., for defendants.
   OPINION

CAHN, District Judge.

The plaintiff, Gerald A. Greenberg, seeks money damages and injunctive relief from the defendants in regard to his demotion from Lieutenant/Deputy Chief of Police of the City of Pottsville. Before the court is defendants’ motion for summary judgment. I will grant defendants’ motion for the reasons set forth in this opinion.

Greenberg received an appointment as a patrolman with the Pottsville Bureau of Police on April 16,1971. He was promoted to the rank of Detective in November of 1975. In June of 1979, he was promoted to the rank of Lieutenant. Greenberg was designated Deputy Chief of Police of the Pottsville Bureau of Police by a letter dated March 18, 1983, from the then Mayor, Charles Quandel. On April 24, 1984, May- or Pacenta reorganized the Pottsville Bureau of Police and demoted Greenberg to the rank of patrolman. On July 12, 1984, Greenberg submitted a resignation from the Pottsville police force to Chief John Mushock. The defendants did not afford Greenberg any type of hearing concerning his demotion. Although he attempted to rescind his resignation, the City of Potts-ville has taken the position that the resignation is valid and binding upon Greenberg.

On May 21, 1984, Greenberg filed the within lawsuit alleging a violation of his constitutional rights to substantive and procedural due process as an employee of a municipality. Greenberg alleged that he had a property interest in his position as Deputy Chief or at least in regard to his rank as Lieutenant. Greenberg also alleged that his constitutional right to equal protection of the law was violated by the adoption of the ordinance which reorganized the Bureau of Police.

It does not appear that Greenberg has taken any action to grieve his demotion in accordance with the Collective Bargaining Agreement between police officers and the City of Pottsville. Nor has Greenberg initiated any action to redress his demotion under the Civil Service provisions applicable to third class cities.

The first inquiry is whether or not Greenberg has a property interest in either the position of Deputy Chief or the rank of Lieutenant. Whether or not a police officer’s rank is constitutionally protected property hinges on whether or not the police officer has a claim of entitlement under state law. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), Sames v. Gable, 542 F.Supp. 51, 52 (E.D.Pa.1982), vacated on other grounds, 732 F.2d 49 (3d Cir.1984). If Greenberg does not have a property interest in either position, then I would be required to grant defendants’ motion because Greenberg can have no federal claim based on the taking of an unprotected right. The defendants contend that Greenberg had no entitlement to either the position of Deputy Chief or the rank of Lieutenant.

In regard to the position of Deputy Chief, I hold that the defendants are correct in their assertion that Greenberg has no entitlement under state law to that position. His appointment to that position by its terms was to expire on December 31, 1983. There is no proffer of any evidence that Greenberg was appointed to the position of Deputy Chief in conformity with Civil Service provisions and, therefore, Civil Service protection did not attach. Snizaski v. Zaleski, 410 Pa. 548, 189 A.2d 284 (1963).

The defendants’ argument in regard to the rank of Lieutenant is less persuasive and I reject it. Defendants urge that the Pennsylvania Supreme Court in Petrillo v. City of Farrell, 345 Pa. 518, 520-21, 29 A.2d 84 (1942) and Zeloyle v. Bettor, 371 Pa. 546, 549, 91 A.2d 901 (1952) held that a third class city may demote a policeman without a hearing provided the officer remains a member of the force. The difficulty with defendants’ contention is that the statute was amended on December 27, 1967. The Third Class City Code of Pennsylvania (“Code”) now provides at Pa.Stat. Ann. tit. 53, § 37001 (Purdon Supp.1984):

... no member of the city police force having been promoted in conformity with the civil service provisions of this act shall be demoted in rank or discharged from the police force except upon proper cause shown as set forth under the civil service provisions of this act. (Emphasis supplied)

The defendants maintain that the quoted portion of the Code nevertheless permits the Mayor to demote ranking police officers because of the following provision in the Code set forth at Pa.Stat.Ann. tit. 53, § 37002 (Purdon Supp.1984), which provides:

The mayor shall designate, from the force, the chief and other officers who shall serve as such officers until their successors are appointed and qualified. The chief of police shall be designated by the mayor and may be demoted without cause in the same manner but not to any rank lower than the rank which he held at the time of his designation as chief of police. (Emphasis supplied)

It is the defendants’ position that this section authorizes at-will appointments and at-will demotions by the Mayor of a third class city. That contention is correct in regard to the Chief of Police (provided the demotion is not to a rank lower than that which he or she held immediately prior to the appointment as chief) and it may be correct in regard to police officers who are appointed to ranking positions in a manner not in conformity with the Civil Service provisions of the Code. However, Green-berg (who was not the chief) was appointed to his position as Lieutenant in conformity with the Civil Service provisions of the Code and, therefore, he cannot be demoted or discharged except upon proper cause shown in conformity with the Civil Service provisions. Therefore, I conclude that Greenberg did have an entitlement to the position of Lieutenant.

Greenberg maintains that, because the Mayor demoted him without a hearing and in violation of the Civil Service provisions of the Code, a constitutional violation has occurred. It may well be that Green-berg’s demotion amounts to a taking because the demotion was not in conformity with the Civil Service provisions. However, because Greenberg may obtain adequate relief from the state under the Civil Service provisions of the Code, he has not been denied due process of law. Under Pa.Stat.Ann. tit. 53 § 39408 (Purdon Supp. 1984), a discharge or a suspension of more than ten days (presumably including demotion) may be imposed for misconduct by the director of the department involved. That type of employment decision is made pending action by the City Council upon charges brought against the employee. A hearing is then to be held before the City Council where the employee is entitled to legal counsel of his own choosing and, if the employee is aggrieved by the action of the Council, he has the right of appeal by a petition to the Court of Common Pleas within thirty days after receipt of written notice of such action by Council “which it shall be the duty of the Council to give”. The Court of Common Pleas is to hear the charges against the employee de novo.

Consequently, plaintiff is in a position to petition the Council of the City of Pottsville for a hearing on whether or not there was cause to demote him from the rank of Lieutenant to patrolman and whether or not his subsequent resignation was a constructive discharge. If plaintiff is aggrieved by the decision of Council, he has a de novo right of appeal before the state judiciary.

This type of procedure comports with the Constitution of the United States and plaintiff is not entitled to a separate federal remedy. Because plaintiff has a state remedy which provides for due process, his federal right to due process is not impinged. Recently, the United States Court of Appeals for this circuit joined the first and seventh circuits ‘‘in holding that substantive mistakes by administrative bodies in applying local ordinances do not create a federal claim so long as correction is available by the state’s judiciary.” Cohen v. City of Philadelphia, 736 F.2d 81, 86 (3d Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984). In that case, a Philadelphia police officer with a property interest in his position was suspended without a hearing. The suspension was without pay. Writing for the court, Judge Hunter held that there is no federal claim for an improper employment decision made by a public administrator provided the affected employee has an opportunity to receive due process under state law. As Judge Hunter observed, this is not a requirement that a civil rights litigant exhaust state remedies. The issue is whether the plaintiff has been denied due process of law. He has not been if the state procedures provide him with reasonable process to protect his substantive rights.

Consequently, I will grant summary judgment in favor of all defendants. Plaintiff will then be in a position to petition the City Council of Pottsville to consider all of his claims in regard to the alleged violations of the Civil Service provisions of the Code. In the event of an unfavorable ruling from the City Council, plaintiff has a right to a de novo appeal under the Code. In addition, plaintiff may pursue his pendent state claims of defamation and intentional infliction of emotional distress in the Court of Common Pleas of Schuylkill County.

An appropriate order will be entered.

ORDER

AND NOW, this 8th day of February, 1985, IT IS ORDERED that the motion of defendants for summary judgment is GRANTED. Judgment is hereby ENTERED in favor of defendants, Anthony J. Pacenta, individually and as Mayor of the City of Pottsville, the City of Pottsville, and John Mushock, individually and as Chief of Police of the City of Pottsville, and against plaintiff, Gerald A. Greenberg. This judgment is without prejudice to plaintiffs pursuing his claims before municipal and state tribunals. Should municipal or state tribunals construe Pa.Stat.Ann. tit. 53, §§ 37001 and 39408 (Purdon Supp.1984) to provide plaintiff an entitlement but no remedial procedures, plaintiff may petition this court to reopen this case for further analysis of his due process rights.

      . The defendants are Anthony J. Pacenta, individually and as Mayor of the City of Pottsville, the City of Pottsville, and John Mushock, individually and as Chief of Police of the City of Pottsville.

      . The reorganization was accomplished in part by the adoption of an Ordinance which eliminated the rank of Lieutenant in the Pottsville Bureau of Police.

      . In addition to counts alleging violations of his rights to due process and equal protection of the law, plaintiffs amended complaint contains claims for conspiracy in violation of 42 U.S.C. § 1985(3) (1982) and pendent state law claims for defamation and intentional infliction of emotional distress.

      . Pa.Stat.Ann. tit. 53, §§ 39401-39410 (Purdon 1957 & Supp.1984).

      . The parties agree that Pottsville is a third class city under the Pennsylvania statutory scheme set forth at Pa.Stat.Ann. tit. 53, §§ 35101-39701 (Purdon 1957 & Supp.1984).

      . In Diehl v. City of McKeesport, 60 Pa.Commw. 561, 432 A.2d 288 (1981) the court held that “under the Code the mayor could demote police officers at will, without a hearing, provided only that the person remained a member of the police force.” The court, however, made no reference to the December 27, 1967, amendment to Pa.Stat.Ann. tit. 53, § 37001 (Purdon Supp. 1984). Furthermore, McKeesport operated under a Home Rule Charter and not the Code.

      . It appears that Greenberg was promoted to Lieutenant pursuant to civil service procedures. Greenberg’s promotion to the rank of Lieutenant was evidenced by Mayor Allen's letter of June 21, 1979. The letter provides:
      I hereby promote to the rank of Lieutenant, as of June 21, 1979, Gerald Greenberg and Dale Repp.
      These promotions are made after an oral and written examination were given by the Civil Service Commission of the City of Potts-ville to all eligible candidates.
      The Civil Service Commission of the City, after submitting a list to my Office of the candidates that they believe best represent the eligible persons for the position of Lieutenant, have (sic) been notified of my selections.
      In granting defendants' motion for summary judgment I am assuming that plaintiff did in fact receive his rank of Lieutenant in conformity with civil service provisions. Of course, if he did not, then he would have no entitlement to that rank under state law which is a prerequisite for his federal cause of action. Rogin v. Bensalem Township, 616 F.2d 680, 696 (3d Cir.1980), cert. denied sub nom. Mark-Garner Associates, Inc. v. Bensalem Township, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).

      . Although plaintiff urges that he has a constitutional claim because of alleged defamation in conjunction with his demotion, he simply has not made any showing that there is evidence of defamation other than the fact of the reorganization of the Bureau of Police. His counsel has not rebutted the assertion of the defendants that plaintiffs name was not mentioned publicly by any defendant in regard to the reorganization and his demotion.

      . It should be noted that Pa.Stat.Ann. tit. 53 § 39408 (Purdons Supp.1984) refers to suspension and discharge, making no reference to demotion. However, Pa.Stat.Ann. tit. 53 § 37001 (Purdons Supp.1984) specifically requires that a demotion of a police officer be made in accordance with the civil service provisions of the Code. Pa.Stat.Ann. tit. 53 § 39408 (Purdons Supp.1984) sets forth the applicable civil service provisions and I hold that it is applicable to plaintiffs demotion.

      . Plaintiffs claim based on allegations of conspiracy in violation of 42 U.S.C. § 1985(3) (1982) does not pass muster because of the rule in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) which requires "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” (footnote omitted) Greenberg has neither pleaded nor in any other way suggested that this requirement has been met.


author: SESSIONS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Robert Lyle LAMP, Jr., Defendant.
    No. SA-84-CR-12(1).
    United States District Court, W.D. Texas, San Antonio Division.
    Feb. 14, 1985.

      Vincent D. Callahan, San Antonio, Tex., for defendant.
    Mitchell Weidenbach, Asst. U.S. Atty., San Antonio, Tex., for plaintiff.
   MEMORANDUM OPINION AND ORDER

SESSIONS, Chief Judge.

ON THIS DATE came on to be heard the Oral Motion of the Defendant, Robert Lyle Lamp, Jr., to be admitted to bail pending appeal of his conviction in the above-styled and numbered cause. For the reasons set forth below, the Court finds that Defendant has met his burden of proving by clear and convincing evidence that he is not likely to flee or present a danger to any person or the community, and that his appeal presents a substantial question of fact or law likely to result in reversal or an order for a new trial. Therefore, the Court will grant Defendant's motion to remain free on bail pending appeal, subject to the terms and conditions already imposed upon the Defendant.

I

INTRODUCTION

The Court begins its analysis by looking to the applicable statute, which was recently amended as part of the bail reform amendments to the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 18 U.S.C. § 3143(b), which provides:

RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT. — The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for certiorari, be detained, 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 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 judicial officer makes such findings, he shall order the release of a person in accordance with the provisions of Section 3142(b) or (c).

18 U.S.C. § 3143(b). The amended statute clearly sets forth a presumption that a defendant should not be allowed to go free on bail pending appeal unless he proves both that he is not likely to flee or pose a danger to the community and that his appeal raises a substantial question of law or fact likely to result in reversal or a new trial. The predecessor to Section 3143(b) provided only that Defendant not pose a danger to the community or be likely to flee, and that the appeal was not “frivolous” or taken for purposes of delay. The practical result of the prior standard was that very few defendants were denied bail pending appeal on the grounds that such an appeal was “frivolous.” See 3A C. Wright, Federal Practice and Procedure § 767 (1982). The second requirement for release pending appeal, that the appeal raises a substantial question of law or fact, represents a clear departure from the prior standard, and thus shall be considered first in the court’s analysis.

II

SUBSTANTIAL QUESTION OF FACT OR LAW

A. History

The procedural history surrounding the second prong of the test for bail pending appeal, whether the appeal presents a “substantial question of law or fact likely to result in reversal,” should be helpful in analyzing the intent and scope of the recent bail amendments. Professor Wright succinctly sets forth the second element’s history in his learned treatise on federal procedure:

The first of the circumstances in which § 3148 [the predecessor to § 3143(b) ] allows the court to have a defendant detained pending appeal is if it appears that the appeal is frivolous. This requirement had previously appeared in Criminal Rule 46(a)(2), as it stood from 1956 to 1972, and should receive the same construction under the statute as under the rule. When Rule 46(a)(2) was originally adopted in 1946 it had allowed bail pending appeal “only if it appears that the case involves a substantial question which should be determined by the appellate court.” The Supreme Court, acting on its own rather than on a recommendation from the Advisory Committee on Criminal Rules, amended that in 1956 to provide for bail “unless it appears that the appeal is frivolous or taken for delay.” The new standard was intended to liberalize the granting of release pending appeal, and it is this lighter standard that was taken without change into the 1966 statute [the Bail Reform Act of 1966].

3A C. Wright, supra at § 767 (fn.’s omitted).

This trend towards “liberalization” of the standard for allowing bail pending appeal was clearly checked by the bail reform amendments of the Comprehensive Crime Control Act of 1984. This Court must now determine how stringent a test Congress intended to impose upon a defendant seeking bail pending appeal by its recent amendment of the relevant section.

B. The Statutory Provision

The issues in this case turn on the interpretation of the 1984 amendments to the Bail Reform Act, and in particular, the changes in the section pertaining to bail pending appeal. It is well established that the starting point in every case involving statutory construction is the language of the statute itself. If the statutory words are clear, there is neither need nor warrant to look elsewhere. See American Trucking Associations, Inc. v. I.C.C., 659 F.2d 452, 458-9 (5th Cir.1981), opinion clarified (on other issues), 666 F.2d 167, cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 493 (1982). Section 3143(b)(2) requires the judicial officer to find “that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” 18 U.S.C. § 3143(b)(2). A court should not depart from the official text of the statute and seek extrinsic aids to its meaning unless the language is not clear or the apparent clarity of language leads to absurdity of result when applied. American Trucking Associations, Inc. v. I. C. C., supra at 459. Despite the apparent clarity of Section 3143(b)(2), the Court finds that a strict and literal application of the statute would lead to denial of bond in every appeal, and therefore, the Court must look further to effectuate the intent of Congress in amending the provisions for bail pending appeal. In so doing, the Court recognizes the Supreme Court’s admonition that a court may not “interpret a statute so narrowly as to defeat its obvious intent.” United States v. Braverman, 373 U.S. 405, 408, 83 S.Ct. 1370, 1372, 10 L.Ed.2d 444 (1963).

If the sub-section is taken literally, the Court should never grant bond unless the Defendant raises a substantial question that is “likely to result in reversal; ” in effect, the section compels the Court to find that it has committed reversible error in the course of the trial in order to release a defendant pending appeal. If the Court finds that it committed reversible error, the proper course would be to grant a new trial or a judgment of acquittal rather than forcing the Defendant to appeal a conviction the Court knows is unjust. This inconsistency has been noted by the commentators, and has been the subject of much discussion by members of the federal judiciary. As one leading commentator has stated:

If “likely” means “probable,” there will be almost no cases in which a trial judge could find that an appeal was “likely to result in reversal or an order for a new trial” ... [but] [i]f “likely” means something less than “probable” (such as a substantial possibility), it becomes easier to find that an appeal is likely to result in reversal but harder to find that a defendant is not likely to flee or pose a danger.

A. Partridge, The Crime Control and Fine Enforcement Acts of 1984: A Synopsis at 27 (Federal Judicial Center 1985).

It is clear to this Court that if the words “likely to result in reversal” are taken literally, then this Court would be remiss in its duties under Rule 29(c) or Rule 33 of the Federal Rules of Criminal Procedure in not granting a motion for acquittal or directing a new trial. It would be an absurd result for the Court to grant an appeal under this standard while simultaneously denying a motion for a new trial or for judgment of acquittal. Accordingly, the Court must look beyond the words of the statute to ascertain the true intent of Congress in amending this provision.

C. Statutory Construction

Faced with this apparent ambiguity, the Court has the ultimate responsibility to determine any issues of statutory interpretation. Sumlin v. Brown, 420 F.Supp. 78, 82 (N.D.Fla.1976), citing with approval, Volkswagenwerk Aktiengesellschaft v. Federal Maritime Commission, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968). The presumption against interpreting a statute in a way which renders it ineffective is hornbook law and simply beyond peradventure. See, e.g., General Motors Acceptance Corp. v. Whisnant, 387 F.2d 774, 778 (5th Cir.1968). In seeking to construe this statute, the Court keeps in mind the basic axiom that “courts should construe all legislative enactments to give them some meaning____” Rosado v. Wyman, 397 U.S. 397, 415, 90 S.Ct. 1207, 1219, 25 L.Ed.2d 442 (1970).

In this case, if the Court construes “likely to result in reversal” to mean that it is more probable than not that the Court has committed reversible error, then a defendant would never be freed on bail pending appeal because the court should grant a new trial or judgment of acquittal. Thus, a literal interpretation of “likely to result in reversal” would result in the statute being a nullity: if the only cases where appeal is to be granted are those cases in which the Court should grant a new trial or a judgment of acquittal, then Section 3143(b) is not a standard for determining when bail should be granted on appeal, but is rather a directive that absent a new trial or judgment of acquittal, bail should not be granted. This interpretation conflicts with a common sense analysis of the statute.

While it is clear that Congress intended to revise the standard for bail pending appeal by setting a more stringent standard, the Court is convinced that Congress did not intend to cut off any right to bail pending appeal. The right to bail pending appeal prior to the recent amendments was not absolute, but defendants were virtually assured of bail absent the unlikely finding of danger to the community or likelihood of flight. See 3A C. Wright, supra at § 767. As the Supreme Court has stated: Muniz v. Hoffman, 422 U.S. 454, 470, 95 S.Ct. 2178, 2187, 45 L.Ed.2d 319 (1975), quoting with approval, United States v. Rider, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308 (1884). In addition, the Court notes that Congress dearly showed by its other amendments to the Bail Reform Act that it was capable of expressly providing for detention without bail. See, e.g., 18 U.S.C. § 3142(e). Thus, this Court is not convinced that Congress intended to effectively deny to all defendants bail pending appeal by its amendment to the provision at issue. Instead, the Court believes that Congress intended to apply a stricter standard for determining whether an appeal was meritorious enough to justify granting bail during its pendency.

To read a substantial change in accepted practice into a revision of the Criminal Code without any support in the legislative history of that revision is insupportable____ “It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such an intention be clearly expressed.”

D. Legislative History

As Mr. Justice Story so eloquently stated “the proper course in all these cases is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and presents in the fullest manner the apparent objects of the legislature.” United States v. Winn, 3 Sumn. 209, 211, 28 Fed.Cas. No. 16, 740 (1838), quoted with approval, in Hattaway v. United States, 304 F.2d 5, 9-10 (5th Cir.1962). It is well established that where a court finds a statute ambiguous, it should look to the legislative history of the statute to aid in ascertaining the congressional intent, see Craig v. Finch, 425 F.2d 1005, 1008 (5th Cir.1970), since the legislative history of a statute is the most fruitful source of instruction as to its proper interpretation. See Graff Chevrolet Co. v. Campbell, 343 F.2d 568, 571 (5th Cir.1965).

The Court finds several comments in the legislative history that are particularly significant in its analysis:

Although there is clearly no constitutional right to bail once a person has been convicted, 18 U.S.C. § 3148, as well as this section, statutorily permit release of a person while he is awaiting sentence or while he is appealing____ The basic distinction between the existing provision and [the new] section 3143 is one of presumption____ [T]he current statute incorporates a presumption in favor of bail even after conviction. It is [this] presumption that the Committee wishes to eliminate in [the new] section 3143.
... Under the current 18 U.S.C. § 3148, release can be denied if it appears that the appeal is frivolous or taken for delay. The change in subsection (b) requires an affirmative finding that the chance of reversal is substantial. This gives recognition to the basic principle that a conviction is presumed to be correct.
The Committee intends that in overcoming the presumption in favor of detention the burden of proof rests with the defendant.

S.Rep. No. 225, 98th Cong., 2d Sess. 26-27, reprinted in 1984 U.S.Code Cong. & Ad. News 1, 29-30 (cit’s omitted).

The Court is aided in its analysis of the legislative history by the recent decision in United States v. Chiattello, 599 F.Supp. 970 (N.D.Ind.1985), where the court stated:

... It is clear from the language of the statute itself and the legislative history that a significantly different standard is now mandated in determining whether the presumption favoring post-conviction detention of a defendant has been overcome. The “likely to result in reversal” standard is clearly a much more stringent requirement with the burden now placed on a defendant. The emphasis is entirely changed from the prior standard which placed the burden on the government in establishing that an appeal was “frivolous.”
Section 3143 of the new “Bail Reform Act of 1984” reflects the Congressional recognition of the basic principle that a conviction is presumed to be correct. In accordance with this basic principle a release of a defendant on appeal may be granted only if the chance for reversal is substantial and the defendant is not likely to flee or pose a danger to the community.

Id.

This Court concurs with the Chiattello Court and finds that the Congressional intent in enacting the amendments to the Bail Reform Act was primarily to shift the burden of persuasion to the Defendant while stiffening the showing required. The Defendant is not required to show that the trial court will be reversed, but instead must show that the questions of fact or law raised are “substantial,” and likely to result in reversal should the appellate court hold in defendant’s favor. The exact standard for determining when a question of fact or law is “substantial” is not precisely defined by the Congress, as it appears that Congress intended to grant the trial court some discretion in determining when a defendant’s appeal merits bail during its pendency. The Court finds that a “substantial question of law or fact” is a persuasive argument by the Defendant, solidly based upon the evidence and law adduced prior to and during trial, which if decided in defendant’s favor by the appellate court, would be “likely to result in reversal or an order for a new trial.”

The Court finds support for this finding from several sources. As the legislative history stated, the “basic distinction between the existing provision and Section 3143 is one of presumption.” See S.Rep. No. 225, supra, at 29. Although the shift in the burden of proof may sometimes prevent a movant from prevailing on the merits, such a shift is not tantamount to an outright denial of a substantive right. The legislative history further provides that the “change in sub-section (b) requires an affirmative finding that the chance for reversal is substantial. This gives recognition to the basic principle that a conviction is presumed to be correct.” Id. at 30 (emphasis supplied). The clear focus of the Congress is upon the substantiveness of the appeal and the presumption/burden of persuasion. The legislative history gives no further explanation and does not emphasize the “likely to result in reversal” language. Thus, the Court finds that the Congressional intent in amending Section 3143(b) was to shift the burden of persuasion to the Defendant and to stiffen the requirements for bail by requiring a finding that substantial questions of law are raised.

The Court finds further support in the text of the statute itself. As Mr. Chief Justice Marshall noted:

It is undoubtedly a well-established principle in the exposition of statutes that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain ...”

United States v. Fisher, 6 U.S. (2 Cranch) 358, 2 L.Ed. 304, 313 (1804) (emphasis supplied). The Court notes that the title of the sub-section at issue reads “Release or Detention Pending Appeal.” While the title of the section is not controlling, it does give some indication of the legislature’s intent and the inclusion of the word “release” supports a finding that Congress intended release in some circumstances. As another Texas United States District Court stated, the “legislative history includes not only the committee reports and debates, but also the title or heading of an act or provision ... and in the case of an amendment, the mischief it was intended to eliminate____” Herren v. United States, 317 F.Supp. 1198, 1203 (S.D.Tex.1970), aff'd, 443 F.2d 1363 (5th Cir.1971); see also House v. C.I.R., 453 F.2d 982, 987 (5th Cir.1972). After due consideration of all these sources, the Court is convinced that Congress intended that a defendant be released on bail pending appeal where the risk of flight or danger to the community are both unlikely, and where the defendant’s appeal presents a substantial question of fact or law likely to result in reversal if the appellate court finds for the defendant.

E. Defendant’s Showing of a Substantial Question of Law or Fact

At the sentencing hearing for Defendant Robert Lyle Lamp, Jr., Defendant’s counsel gave oral notice of appeal and stated several grounds to support that appeal. Those grounds are repeated in the Defendant’s sworn affidavit and pro se motion for leave to proceed on appeal in forma pauperis. While it would be improper for the Court to assume the advocate’s role and to support Defendant’s appeal, the Court is of the opinion that at least two of the Defendant’s issues on appeal present “substantial questions of law” which are "likely to result in reversal” if decided in Defendant’s favor.

Defendant’s first substantial issue concerns the Court’s decision to grant the Government’s motion in limine regarding the admissibility of evidence of illegal drug activities and income. The Court granted the Government’s motion to present this “other crimes” evidence on two alternative grounds. The Court’s first ground was that such evidence is not extrinsic under Rule 404(b) of the Federal Rules of Evidence where the act the Government seeks to admit and the evidence of the crime charged are inextricably intertwined. The Court found for the Government on this point while relying on United States v. Carrillo, 561 F.2d 1125 (5th Cir.1977). The Court notes, however, that its research revealed several cases in other Circuits contrary to the Carillo holding. See, e.g., United States v. Horvath, 731 F.2d 557 (8th Cir.1984). These conflicting holdings might support a finding that the Defendant raises a “substantial” question of law.

The second alternative ground for granting the Government’s motion in limine was the Court’s finding that the evidence would be admissible under the two-step “extrinsic offense” test of United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). The Rule 403 balancing test, which is part two of the Beechum test, was a very close decision in the instant case. Should the Fifth Circuit find that the Court incorrectly balanced the probative value of the evidence against its prejudicial effect, the appeals court would likely find reversible error. Accordingly, both alternative grounds relied upon by the Court in granting the Government’s motion in limine to allow evidence of other illegal activities raise “substantial” questions of law “likely to result in reversal” should the Fifth Circuit hold that this Court erred in its findings.

Defendant raises a second “substantial question of law” which is “likely to result in reversal” should the Fifth Circuit find that this Court’s findings were in error. That issue involves the Court’s finding of substantial independent evidence of the conspiracy alleged in count one of the indictment in the instant cause pursuant to United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836 (1979). James requires the Court to find that a conspiracy existed, that the co-conspirator and the Defendant against whom the statement is offered were members of that conspiracy, and that the statement was made during the course of and in furtherance of the conspiracy. Id. at 583. At the close of evidence, the Court determined that the predicate for admitting the hearsay statements of co-conspirator Lonnie Werning had been satisfied by a preponderance of the evidence independent of the hearsay statement itself. As Mr. Werning’s testimony was pivotal in Defendant’s conviction, a finding by the Fifth Circuit that the Court had failed to satisfy the James requirements would cast doubt on the validity of Defendant’s conviction. Based on the foregoing analysis, the Court is of the opinion that the Defendant raises a “substantial question of law” on appeal by attacking the Court’s ruling that portions of Mr. Werning’s testimony were admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence and United States v. James.

F. Summary

Section 3143(b)(2) requires the Court to find that “the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” 18 U.S.C. § 3143. The Court has found that Defendant’s appeal raises at least two such grounds: (1) whether the Court erred in granting the Government’s motion in limine to admit evidence of other illegal activities; and (2) whether the Court erred in admitting the hearsay statements of Lonnie Werning pursuant to United States v. James and Rule 801(d)(2)(E). The Court finds that Defendant’s appeal is not for the purpose of delay and raises at least two “substantial questions of law” which are “likely to result in reversal or an order for a new trial” should the appellate court find in Defendant’s favor. Defendant has therefore satisfied the second element of the Section 3143(b) test for release on bail pending appeal.

Ill

LIKELIHOOD OF FLIGHT AND DANGER TO THE COMMUNITY

A. Procedural History

Section 3143(b)(1) requires the judicial officer to find “by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released.” This standard is the same standard required by Section 3143(a) for release of a defendant pending sentence. The Court ordered the Defendant released pending sentencing pursuant to Section 3143(a) on January 2, 1985. Although Defendant’s situation has changed with the imposition of a substantial prison term, the Court believes that the finding that the Defendant proved by clear and convincing evidence that he was not likely to flee or pose a danger to any other person or the community if released remains unchanged. The Court’s determination is based upon the evidence adduced at trial, the Court’s observations during trial and at sentencing, the Court’s discussions with the Defendant during the sentencing hearing, as well as the proceedings before the Magistrate on December 28, 1984 (relating to the Government’s motion to revoke the Defendant’s bond prior to sentencing).

B. The Statutory Provision

Section 3143(b)(1) requires the Court to find by clear and convincing evidence both that (i) the Defendant is not likely to flee the jurisdiction if permitted to remain on bond; and (ii) that the Defendant will not pose a danger to the safety of any other person or the community if released on bond pending appeal. These two factors embody several more specific concerns. These concerns have been enumerated by the Court of Appeals for the District of Columbia in the leading case of United States v. Stanley, 152 U.S.App.D.C. 170, 469 F.2d 576 (1972), cited with approval, United States v. Miranda, 442 F.Supp. 786, 789 (N.D.Fla.1977), rev’d on other grounds, 593 F.2d 590 (5th Cir.1979).

The nine specific concerns listed by the Stanley Court for determining whether a defendant is likely to flee or pose a danger are as follows:

(1) The nature and circumstances of the offense;
(2) The weight of the evidence against the accused;
(3) The defendant’s family ties;
(4) The defendant’s employment status;
(5) The defendant’s financial resources;
(6) The defendant’s character and mental condition;
(7) The length of defendant’s residence in the community;
(8) Any prior criminal record; and
(9) Any flight or failures to appear in court proceedings prior to or during the time of trial.

United States v. Stanley, supra, 469 F.2d at 580 n. 14. Those factors are substantially the same as those set forth in the new bail provisions. See 18 U.S.C. § 3142(g). The Court will consider each of these concerns in determining whether the Defendant is likely to flee or pose a danger to the community.

C. Analysis

1. Nature and Circumstances of the Offense

The Defendant was convicted on one count of conspiracy to defraud the United States, two counts of attempted tax evasion, and two counts of aiding and abetting false declarations. In addition, the evidence showed that the source of the income which led to the tax evasion was the sale of substantial quantities of methamphetamine, a separate crime not charged against the Defendant. The Court further notes that the conspiracy and evasion took place over five years, and evidences the continuing disrespect of the Defendant for the legal process. Although the activities from which the Defendant derived his illegal income often involve violence, the Court notes that there was no evidence to show that Defendant employed violence in the course of his sale of methamphetamine. Despite the non-violent nature of the charges against the Defendant, the Court finds that this factor weighs against Defendant’s release.

2. Weight of the Evidence Against Accused

The evidence against the Defendant in the instant case was substantial. The Government’s case lasted well over three weeks and involved both “inside testimony” and considerable circumstantial evidence that supports Defendant’s conviction. The Court believes that the evidence presented against the Defendant at trial weighs strongly against the Defendant, and militates against a release on bail pending appeal.

3. Family Ties

This factor weighs strongly in Defendant’s favor. The Court notes that Defendant’s mother has obviously supported her son throughout the trial, both by her attendance and her discussions with Defendant’s counsel. The pre-sentence report further reflects that the Defendant’s mother confirmed that the Defendant assumed a large role in helping to raise her younger children. The Court finds that Defendant has strong and supportive family ties. Defendant’s siblings also appear to support the Defendant. In addition, the Court finds that the Defendant has provided a great deal of the assistance to the family unit, both financially and otherwise, and that the family looks to him for continued contribution. Accordingly, the Court finds that this factor militates strongly in favor of Defendant’s release on bail pending appeal.

4. Employment Status

The Defendant testified at the hearing on the Government’s motion to revoke bond prior to sentencing that he had worked from June, 1984, until the jury verdict in December, 1984, for his brother-in-law, Fred Brietzke, doing home remodeling and cutting cord wood. Prior to that time, the Defendant claims that he was self-employed and involved in custom vehicle painting and bodywork. While the Court accepts Defendant’s testimony that he has been employed by his brother-in-law, the evidence at trial showed that Defendant’s primary occupation prior to the IRS investigation was the sale of methamphetamine, and not auto work. The Court believes, however, that the Defendant is unlikely to be involved in any further drug trafficking, and his current financial situation, combined with the needs of his family, compel him to resume work for his brother-in-law pending his appeal. While Defendant’s current employment status is not a factor of great weight in this Court’s balancing process, it does weigh slightly in Defendant’s favor.

5. Financial Resources

According to the Defendant’s motion for leave to file an appeal in forma pauperis, Defendant has virtually no assets. This factor cuts both ways in this Court’s consideration. If the Court accepts as true Defendant’s representation as to his financial situation, then Defendant has nothing to lose financially by fleeing the jurisdiction, and this would weigh against release on appeal pending bond. At the same time, however, a dearth of liquid assets would hinder a defendant who wished to successfully flee the jurisdiction. After due consideration of this factor, the Court is of the opinion that it does not weigh either for or against the Defendant’s case for bail pending appeal.

6. Character and Mental Condition

Defendant’s character and mental condition have frequently been brought into question during the course of a trial and sentencing in this case. The Court finds that Defendant is “highly excitable,” but is not incompetent or dangerous because of any mental deficiency. The Court notes that despite the obvious pressures brought to bear by the IRS investigation, trial, and sentencing, the Defendant has maintained some semblance of control over his personal life. On the other hand, Defendant’s behavior during trial convinces this Court that Defendant is subject to the exercise of poor judgment. Defendant’s character must also be questioned in light of strong evidence of tax evasion, perjury, and narcotics trafficking. After due consideration of this factor, the Court is of the opinion that it weighs against release of Defendant on bond.

7. Length of Residence in Community

This factor weighs very strongly in Defendant’s favor. A San Antonio native, the Defendant has been away from home only one year since his birth in 1954. That year was spent in the United States Army, and much of that time was apparently spent in San Antonio. Defendant’s entire life has been spent in the same neighborhood, and should the Defendant choose to flee, he would leave behind his entire family, friends, and any chance of a normal existence. The Government did not provide any evidence at the hearing on the Government’s motion to revoke bond pending sentencing that would contradict the Court’s conclusion that Defendant’s entire life is centered in San Antonio, Texas. Thus, the factor of residence in the community weighs strongly in Defendant’s favor.

8. Criminal Record

While Defendant's criminal record is not spotless, it is far less extensive than many of the defendants that come before this Court for sentencing. The Defendant has been charged in four prior situations. Two of the charges were no-billed by the Grand Jury, and accordingly, do not concern the Court. A third charge of theft was dismissed subsequent to indictment. Defendant’s sole prior conviction was for the sale of methamphetamine to an undercover narcotics officer in May 1978. Defendant received a suspended five year sentence for the offense and five year’s probation was imposed. Defendant successfully completed this probation after two and one-half years.

It should be noted, however, that the instant offense charged the Defendant with evasion of federal taxes on the income from the very same illegal drug sales that led to his state conviction. Defendant’s sole criminal conviction thus arose out of the methamphetamine trafficking that led to the instant tax evasion charges. The Defendant has never been convicted of a violent offense, which militates against a finding of danger to any person or the community. After due consideration of this factor, the Court is of the opinion that it weighs in favor of release of the Defendant during the pendency of his appeal.

9. Flight

The Court finds that this factor weighs strongly in Defendant’s favor. Although the Defendant has been aware of a pending investigation for over three years, he has made no attempt to flee. The Court is quite aware of the proximity of the Mexican border and the availability of refuge for persons with financial resources. Despite this, Defendant remained in San Antonio during the lengthy investigation, Grand Jury proceedings, trial, and the pre-sentencing period. During this entire time, Defendant has failed to report to Pre-trial Services on only four occasions, once in August 1984, twice in November 1984, and once in December 1984.

In addition, Defendant’s counsel informed this Court at the sentencing that the Defendant is required to report daily to his bail bondsman as a condition of his surety. Defendant’s counsel reported that Defendant has not failed to make his required daily appearance. The Court further notes that should the Defendant flee the jurisdiction, he would have to abandon his mentally retarded brother and sickly mother, both of whom depend upon him for support. After due consideration of the evidence and risk of flight, the Court is of the opinion that this factor weighs strongly in favor of allowing the Defendant to remain on bond pending appeal.

D. Summary

Admission to bail after conviction and pending appeal is within the sound discretion of the Court. See United States v. Parr, 399 F.Supp. 883, 887 (W.D.Tex.1975). The Court must look at the totality of the circumstances surrounding the Defendant’s entire situation to arrive at what must be considered an educated guess as to Defendant’s future behavior. After due consideration of all the above factors, this Court is of the opinion that Defendant has proven by clear and convincing evidence that he is not likely to flee the jurisdiction nor pose a danger to any person or the community during the pendency of his appeal of his conviction. Accordingly, the Court is of the opinion that the Defendant has satisfied the first element of the Section 3143(b) requirement for release pending appeal.

IV

CONCLUSION

The primacy of the concept of Liberty in American jurisprudence cannot be doubted. The Declaration of Independence refers to the “unalienable Rights” of man, including “Life, Liberty and the pursuit of Happiness.” The primary concern of due process in the criminal system is that no man be deprived of his liberty unless he is found guilty beyond a reasonable doubt in a trial unmarked by fundamental flaws in fairness. A trial court cannot guarantee that a defendant’s due process rights will never be violated, although they are ever watchful to protect such rights. Despite a trial court’s good faith attempts to provide fundamental fairness, appeals courts are often compelled to grant a defendant’s appeal and order a new trial. A conviction in a trial court thus cannot be considered absolutely final under the present system prior to the exhaustion of a defendant’s direct appeals.

Within this framework the Court must consider the rights of a defendant to bail pending appeal. Although the right to bail is not absolute, it should be denied only in the most compelling circumstances so that a man should never be deprived of his liberty prior to receiving his right to a fair trial. The Defendant in the instant case has received such a trial, and has been found guilty beyond a reasonable doubt. The defendant is not without recourse, however, as he may appeal his conviction on the grounds that the court’s error deprived him of due process and the right to a fair trial. In recognition of this fact, Congress has seen fit to accord a worthy defendant an opportunity to remain free on bond during the pendency of such an appeal.

Section 3143(b) of the Bail Reform Act of 1984 provides that a defendant shall be ordered detained unless the judicial officer finds by clear and convincing evidence that defendant is not likely to flee or pose a danger, and that the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial. This is not an easy burden, and the legislative history of the act makes it clear that the burden is on the defendant to prove all of these things prior to his release on bail pending appeal. After due consideration of the applicable law and facts before it, this Court is of the opinion that the Defendant has met his burden and should be released on bail pending appeal. Therefore,

IT IS HEREBY ORDERED that Defendant’s Oral Motion for release pending appeal be and is hereby GRANTED.

IT IS FURTHER ORDERED that Defendant shall be required to comply with each and every condition set forth by this Court in its January 2, 1985, order setting forth his terms and conditions of bond.

IT IS FURTHER ORDERED that should the United States Court of Appeals for the Fifth Circuit deny Defendant’s appeal, Defendant shall report to the designated institution or the U.S. Marshal, San Antonio, Texas, within ninety-six (96) hours of the issuance of mandate.