author: STEWART, District Judge:

text:
    Kevin ANDERSON, Plaintiff, v. CITY OF NEW YORK, Police Department of the City of New York, Michael Cassidy, Carl Daniels, and Robert McGuire, as Commissioner of Police Department of the City of New York, Defendants.
    No. 82 Civ. 5609(CES).
    United States District Court, S.D. New York.
    May 21, 1985.

      Lehrman & Kronick, White Plains, N.Y. (Arnold S. Kronick, White Plains, of counsel), for plaintiff.
    F.A.O. Schwarz, Jr., Corp. Counsel, City of New York, New York City, (William L. Barrish, New York City, of counsel), for defendants.
   MEMORANDUM DECISION

STEWART, District Judge:

Plaintiff Kevin Anderson moves for summary judgment against defendants the City of New York (“NYC”), the New York City Police Department (“NYPD”), the Commissioner of the Police Department, Robert McGuire (“the Commissioner”) and New York City Police Detectives Michael Cassidy and Carl Daniels. Defendants cross-move for summary judgment on the entire complaint, or alternatively, on behalf of the municipal defendants.

We find that plaintiff has stated a cause of action under 42 U.S.C. § 1983, but is not entitled to summary judgment because of questions of fact. Defendants’ motion for summary judgment is denied with respect to the municipal defendants, specifically NYC, NYPD and the Commissioner. Summary judgment is granted, however, on behalf of the individual officers, Cassidy and Daniels.

The background of this case is essentially undisputed. On January 1, 1977, the police arrested Anderson for robbery in the second degree. In accordance with the usual procedures, his fingerprints and photographs were taken. The case was dismissed on January 29, 1977 for failure to prosecute. Pursuant to N.Y.Crim. Proc.Law § 160.50 (“section 160.50”), Judge Herbert Shapiro signed an order on April 14, 1977, calling for the return of all photographs, negatives, fingerprints and palmprints of the defendant.

The photographs were not returned. On May 19, 1977, while investigating a homicide, the police displayed to a witness a January 1977 photograph of the plaintiff retained in violation of Judge Shapiro’s order. The trial judge at Criminal Term, Justice Sullivan, denied suppression of the identification after analysis of the statute requiring the return of the photographs. In interpreting the statutory requirement that materials be returned “forthwith,” Justice Sullivan held that “the approximately five week interval between the court order of April 14, 1977 and the police display of the photo on May 19, 1977 was a reasonable period within which the sovereign could comply with the court order.” People v. Anderson, 97 Misc.2d 408, 413, 411 N.Y.S.2d 830, 834 (Sup.Ct. Bronx County 1978). Given that interpretation, the court found no violation of the court order, nor any “taint in the identification procedures used.” Id. at 415, 411 N.Y.S.2d at 834. The court went on to express its view that the retention and use of the photograph, even if it had violated the statute, would not have been a denial of due process or an abridgement of any fourth amendment right. Lastly, the court also stated that even if it were to assume a statutory violation of constitutional proportions, the ultimate test for suppression of identification testimony would be whether, under the totality of circumstances, the identification was unnecessarily suggestive. Analyzing the facts surrounding Anderson’s identification, the court found “the photo and line-up identification procedures were not unnecessarily suggestive.” Id. at 415, 411 N.Y.S.2d at 835.

After trial on the homicide charge, Anderson was acquitted by a jury, and Justice Sullivan entered another order pursuant to section 160.50 calling for release of all photographs, negatives, fingerprints and palm-prints of the defendant relating to the murder charge. According to plaintiff, the City has complied with this second ex-pungement order. During the course of the 1977 murder proceedings, some fingerprints, photographs and negatives from the January 1977 robbery arrest were returned to the attorney who had represented Anderson at his robbery trial. Those photographs were forwarded to Mr. Kroniek, Anderson’s present attorney, who also represented him with respect to the 1977 murder charge. The Assistant District Attorney in charge of the 1977 murder prosecution also acknowledged that the City had complied with Justice Shapiro’s order regarding the photographs taken in connection with the 1977 robbery charge.

Nonetheless, on June 11, 1981, while investigating a robbery and attempted murder, Detectives Cassidy and Daniels displayed one of the January 1977 photographs to two witnesses, Tamika White and Leola Gray. Plaintiff contends that as a result of that display, he was placed in a line-up on June 14 and identified by Ms. Gray as the perpetrator of the robbery under investigation. Ms. White viewed the same line-up, but could not make a positive identification. Moments later, however, saying that she had made a mistake and had been scared, she identified plaintiff. Anderson was arrested and taken into custody.

In a Wade hearing in connection with this trial, the court denied suppression of the line-up identification of the defendant by White and Gray, as well as their subsequent in-court identification. See People v. Anderson, Indictment No. 1997/81, slip op. Dec. 3, 1981 (Sup.Ct.Bronx County) (McNab, J.). With respect to the pretrial line-up identification, Justice McNab concluded that there was no “exploitation of the antecedent illegality.” Id. at 12 (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. Irving Pleasant, 54 N.Y.2d 972, 430 N.E.2d 905, 446 N.Y.S.2d 29 (1981)). We quote from the state court opinion as to how the police used the retained photograph:

[A]s testified to by Detective Carl Daniels, Miss White selected defendant Anderson’s photo in the 48th precinct from a tray, or drawer containing some 1500 photos, under what were otherwise totally proper and unsuggestive circumstances. Only then was Anderson’s photo given to Miss Gray to view as part of a group, or pile, of “lookalikes”, numbering ten in all. In no way did the police make any effort to exploit the illegally retained photograph of Kevin Anderson and “sneak” it before Miss White.

People v. Anderson, supra, Indictment No. 1997/81, slip op. at 12-13.

Following the analysis set forth in Irving Pleasant, supra, 54 N.Y.2d 972, 430 N.E.2d 905, 446 N.Y.S.2d 29, the court found that with respect to the in-court identification, both witnesses had an independent source for identifying Anderson apart from the use of the photograph. Specifically, White and Gray, both prostitutes who were working in the area at the time in question, observed Anderson driving a stationwagon during a two or three hour period immediately before the time of the alleged crime. Both spoke to the occupants of the car, and each testified that Anderson had “dated” them, or been their “trick.” As Justice McNab stated:

Lending additional credence to this independent source is Miss White’s testimony that upon identifying defendant's photo at the 48th precinct, she exclaimed “That’s the driver” and Miss Gray’s even more pointed response, actually naming the suspect, i.e., “This is Kevin Anderson,” upon identifying that same photograph.

People v. Anderson, supra, Indictment No. 1997/81, slip op. at 11.

While denying suppression of the identification testimony, Justice McNab made a few sharp comments about the retention of the photograph. After observing that Anderson was the same defendant who first litigated the issue of an identification based on an illegally retained photograph, Justice McNab stated that

[T]his Court simultaneously became aware that the photograph of defendant Anderson, People’s Exhibit No. 7 in evidence, ... is in fact the very same photograph which was at issue before Justice Sullivan some three years ago. As the People have conceded, the continued retention of this photograph by the police for such an excessive length of time is totally inexcusable and might very well render the police subject to a possible civil action.

Id. at 10. Toward the end of the opinion, Justice McNab further commented:

[L]et this Court emphasize that in permitting this evidence to be received at trial, it is in no way condoning the plainly inept and deficient police conduct demonstrated herein. The police are to be on notice that the type of sloppy and unintelligent work exhibited here will ultimately leave some Court, at some future time, no choice but to suppress what may otherwise be perfectly valid evidence.”

Id. at 15.

In connection with the above charges, plaintiff was arrested and incarcerated in lieu of bail for a period of six months. At trial, he was acquitted of all but one charge. The jury was unable to render a verdict on that remaining charge, which involved a lesser included offense of a charge upon which the jury had acquitted. Upon motion of the District Attorney, the remaining charge was dismissed.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging a violation of his civil rights in June 1981 when the police used the retained photograph in contravention of the April 1977 expungement order. He argues that the use of the photograph led to his arrest on criminal charges of which he was ultimately found not guilty. Plaintiff contends that the use of the photograph deprived him of his rights to liberty and privacy, thereby causing him humiliation and embarrassment, and damaging his character and reputation. Defendants attack the complaint on grounds that 1) it is barred by the doctrine of collateral estoppel; 2) it fails to state a claim upon which relief can be granted because no constitutionally protected interest has been infringed; 3) the existence of adequate post-deprivation remedies forecloses a finding of a violation of procedural due process even if there were a protected constitutional interest; and 4) the individual defendants at all times acted in good faith, shielding them from liability for civil damages. Alternatively, defendants assert that the municipal defendants are entitled to summary judgment because plaintiff has not alleged facts sufficient to impose municipal liability. In deciding the motions before us, we begin with defendants’ motion for summary judgment and address each of the defendants’ arguments in turn.

COLLATERAL ESTOPPEL

There is no question that state court judgments can have collateral estoppel effect in subsequent section 1983 proceedings. Migra v. Warren City School District Board, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). To determine the preclusive effect of a state court judgment, we look to the law of the state where the judgment was rendered. Migra, supra, 465 U.S. at-, 104 S.Ct. at 896; Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Allen, supra, 449 U.S. at 96, 101 S.Ct. at 415. In New York, there must be an identity of issue, which was necessarily decided in the prior action and is decisive of the present action. Secondly, there must also have been a full and fair opportunity to contest the decision now said to be controlling. Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 246 N.E.2d 725, 728-29, 298 N.Y.S.2d 955, 960 (1969); see also Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500-501, 467 N.E.2d 487, 490-91, 478 N.Y.S.2d 823, 826-27 (1984); Shanley v. Callanan Industries, 54 N.Y.2d 52, 429 N.E.2d 104, 444 N.Y.S.2d 585 (1981). In People v. Anderson, the court decided the issue of the admissibility of pretrial line-up and in-court identifications provided by two witnesses who saw the unlawfully retained January 1977 photograph. That the court did not decide the question of potential police civil liability is clearly reflected in Justice McNab’s opinion, where he commented that the police might very well be subject to civil liability. People v. Anderson, supra, Indictment No. 1997/81, slip op. at 10.

While the issue of civil liability was obviously not decided, defendants also argue that Anderson is collaterally estopped from relitigating the question of whether the use of the illegally retained photograph caused the deprivation of his liberty. The only damages alleged are those in connection with Anderson's incarceration. We hold that this question was not necessarily decided by the state court and no estoppel arises.

■ Ruling on the suppression motion, the issue before Justice McNab was whether the identification of Anderson was “tainted” under the “fruit of the poisonous tree” doctrine. Id. at 2; see also Wong Sun, supra, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. As explained above, the state court judge held against Anderson because the two identifying witnesses were independently acquainted with him. The focus of analysis was whether the witnesses had an independent source of identification and whether the police exploited the “antecedent illegality.” People v. Anderson, supra, Indictment No. 1997/81, slip op. at 12; United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Irving Pleasant, supra, 54 N.Y.2d 972, 430 N.E.2d 905, 446 N.Y.S.2d 29.

Not squarely before the court was whether these witnesses would have been able to identify Anderson at all without the photograph. While the defendants state that the denial of the suppression motion “by implication” decided the question of whether the arrest was improper, no such implication is valid. See Crews, supra, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (arrest conceded to lack probable cause, but in-court identification allowed). Justice McNab acknowledged that “any question as to probable cause re the arrest of each of the defendants in the instant case would seem rather moot.” People v. Anderson, supra, Indictment No. 1997/81, slip op. at 9 n. *. Nonetheless, in the same footnote, he went on to state “so the record be clear,” that-he “would also find that there was probable cause to arrest co-defendants Wallace and Anderson based on the photographic identification made of these defendants, notwithstanding the unlawful retention of their respective photos.” Id. at 9 n. * (citing People v. Nelson, 79 A.D.2d 171, 436 N.Y.S.2d 505 (1981)).

The trial court judge’s observation that the issue was moot indicates that the question was certainly not one “necessarily decided” in the sense of collateral estoppel. Nor is there any indication in the record that the defendant had a “full and fair opportunity” to litigate that particular issue. Allen, supra, 449 U.S. at 95, 101 S.Ct. at 415.

Defendants are correct in asserting that in order to state a cause of action under section 1983, plaintiff must show that the injury alleged was caused by the challenged conduct. See generally 2 J. Cook & J. Sobieski, Jr., Civil Rights Action ¶ 7.06 (1984) and cases cited therein. But the proper test for causation in a section 1983 action is the one set out by the Supreme Court in Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), which refines somewhat the usual common law tort causation doctrine. Specifically, plaintiff must first make a showing that the challenged conduct was a “substantial” or “motivating” factor in causing the injury. Then defendants must show, by a preponderance of the evidence, that the same result would have been reached even without the impermissible conduct. Id. at 287, 97 S.Ct. at 576; see also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979) (“but for” causation required).

On these facts, the question would be whether the display of the photograph was a substantial factor in the ability of White or Gray to identify Anderson. If so, then the defendants would have the opportunity to show that Anderson would have been arrested anyway because of the extent of the witnesses’ prior acquaintance with him, additional information or whatever. Since hypothetical questions of causation are usually for the fact finder, however, these are most likely questions unresolvable on summary judgment. Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir.1984). It is only when these questions of fact are decided that it could be said one way or the other that the use of the photograph caused the injuries arising out of Anderson’s six-month incarceration prior to his acquittal.

NO CONSTITUTIONALLY PROTECTED INTEREST

Defendants next argue that pursuant to Fed.R.Civ.P. 12(b)(6), the complaint fails to state a claim upon which relief can be granted because the plaintiff fails to identify any constitutionally protected interest that has been infringed without due process of law. Plaintiff argues that he has been deprived of liberty and privacy.

The conduct complained of in this case is the retention of Anderson's photograph in violation of state law. That police department action resulted in the deprivation of Anderson’s liberty does not in and of itself mean that a liberty interest was infringed. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). However, plaintiff here argues that section 160.50 creates a liberty interest in reputation and privacy that was violated when defendants failed to obey the court order and return the photograph.

To summarize section 160.50, when a criminal proceeding is terminated in favor of the accused, the return of photographs, photographic plates or proofs, palmprints and fingerprints is mandatory, unless the District Attorney or the court itself, upon five days’ notice to the defendant or his attorney, makes a motion to retain the records “in the interests of justice.” The notice must be in writing, and the reasons for the denial of the motion must also be set forth. Moreover, the defendant or his attorney must be afforded an opportunity to be heard. N.Y.Crim.Proc.Law § 160.50.

Legislative history and subsequent court opinions support our ultimate finding that the statute creates a liberty interest in reputation or privacy.

The statute serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation. That detriment to one’s reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even unsuccessful criminal prosecutions (cites omitted). The statute’s design is to lessen such consequences (see Governor’s Approval Memorandum, N.Y.Legis. Ann., 1976, p. 408 (additional cite omitted) ).

Hynes v. Karassik, 47 N.Y.2d 659, 662-63, 393 N.E.2d 1015, 1017, 419 N.Y.S.2d 942, 944 (1979). As Justice Sullivan emphasized in his 1978 suppression decision, the statute was designed to afford protection to the accused “in the pursuit of employment, education, professional licensing and insurance opportunities.” People v. Anderson, supra, 97 Misc.2d at 412, 411 N.Y.S.2d at 834.

Notwithstanding this clear legislative intent to act affirmatively to protect an acquitted defendant’s reputation, defendants argue that Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), forecloses recognition of a liberty interest based on damage to reputation by public defamation. We disagree. In Paul, the court found no cause of action under section 1983 where the police department disseminated a folder that identified plaintiff as a known shoplifter, even though earlier charges against him had been dropped. No violation of liberty, property or privacy rights of the plaintiff was found. Significantly, the decision rested on a finding that “Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioner’s action.” Id. at 711-12, 96 S.Ct. at 1165. In the present case, section 160.50 was implemented specifically to protect liberty and privacy rights. This makes all the difference. As the Supreme Court recognized,

there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either ‘liberty’ or ‘property’ as meant in the Due Process Clause. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law [footnote omitted], and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status.

Id. at 710-11, 96 S.Ct. at 1164-65. Such is the case here.

The Supreme Court’s recent transposition of the entitlement concept to the definition of liberty interests is useful in lending support to the view that the statute creates an entitlement. Specifically, a state statute can create a constitutionally protected liberty interest if it contains explicit mandatory language creating a right, and if, as a precondition to the restriction of this right, the statute provides for the use of objective criteria rather than unfettered administrative discretion. Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983). As stated above, the language of the statute is mandatory. The Police Department’s Operations Order explaining the statute, which was submitted by defendants as an exhibit, describes the statute as mandatory. While the “interests of justice” standard prescribed for retention is certainly flexible, the statute requires that the court state the reasons for retention on the record. Such a requirement indicates that unfettered discretion is not allowed.

This court is well aware that mere violation of a state statute does not always rise to a violation of constitutional rights. Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir. Mar. 20, 1985) (citing Crocker v. Hakes, 616 F.2d 237, 239 n. 2 (5th Cir.1980)). No violation of constitutional proportion exists if there is difficulty in determining whether plaintiff has presented a legitimate claim of entitlement under state law or merely a unilateral hope or expectation of a right guaranteed against deprivation by the fourteenth amendment. See Yale Auto Parts, Inc., supra, at 58. No such problem is presented in the case at bar. On two separate occasions state courts ordered that plaintiff enjoy the protections guaranteed by section 160.50.

Relying on Bishop v. Wood, 426 U.S. 341, 346 n. 10, 96 S.Ct. 2074, 2078 n. 10, 48 L.Ed.2d 684 (1976), defendants urge that we pay deference to the state court interpretations of this statute in determining whether or not it creates a constitutionally protected interest. We acknowledge that those state courts that have looked at this statute have uniformly held that it was not designed to frustrate criminal prosecutions. As Justice Sullivan said in the first People v. Anderson suppression decision, section 160.50 “was never intended to immunize a [criminal] defendant from the operation of a law enforcement official’s investigatory display of a photograph, albeit in contravention of a statute.” People v. Anderson, supra, 97 Misc.2d at 412, 411 N.Y.S.2d at 834. Other courts have followed the reasoning of Anderson in the context of suppression motions. People v. Lord, 104 Misc.2d 150, 151, 427 N.Y.S.2d 898, 899 (Crim.Ct.1980); In re Vincent C., 106 Misc.2d 612, 434 N.Y.S.2d 879 (Fam.Ct.1980). A finding that the Police Department is open to civil liability, however, does not immunize criminal defendants from prosecution, nor does it contravene any state court interpretations of the statute. Anderson’s identification, based on these pictures, was not suppressed, and he was tried. He was also acquitted. We fail to see how a finding that retention of the photograph is governed by the due process clause necessitates an interpretation of the statute that would “accord defendants the liberty to engage in post-acquittal prosecution free crime,” as defendants’ reply memorandum puts it.

Defendants cite United States v. Jiles, 658 F.2d 194 (3d Cir.1981), cert. denied, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 465 (1982), as the only analogous case their research uncovered. In that case, the Third Circuit reversed the suppression of an identification resulting from a photographic display where the police had not obtained the requisite court order for release of the photograph. This police omission violated a statute prescribing procedures for the release and exchange of juvenile records between law enforcement officials. Jiles is inapposite for two reasons. First, the case merely decided a suppression issue and is not controlling on the question of civil liability. Second, the Jiles defendant was merely guaranteed an expectation of receiving process, not an entitlement to the return of records. The court noted:

Within that procedure was a special safeguard requiring that a court order be secured before photographs from juvenile records are released to other law enforcement officials. This safeguard, while helpful to the state in ensuring that such records would not be released to the general public, did not create a property interest on behalf of the appellee. Law enforcement agencies were intended to have access to these records.

Id. at 200. Defendants correctly assert that “while a protected ‘liberty’ or ‘property’ interest may arise from a state law placing substantive limits on state officials’ authority, no entitlement can derive from a statute merely establishing procedural requirements.” See Olim v. Wakinekona, 461 U.S. 238, 250 n. 12,103 S.Ct. 1741,1748 n. 12, 75 L.Ed.2d 812 (1983) (expectation of receiving process, without more, does not implicate any liberty interest) (citing Jiles, supra, 658 F.2d 194). In contrast, section 160.50 does more than establish procedural requirements. It protects plaintiff’s reputation and privacy interests by controlling the physical location of the photographs and fingerprints. The court orders issued pursuant to the statute required expungement, and the plaintiff fully expected compliance.

One last argument against finding a protected interest merits attention. Defendants assert that the statute merely “creates an opportunity for the exercise of judicial discretion in response to requests for the return of arrest records.” Should a return order issue but not be executed, only the order and not the statute are violated. Thus, defendants suggest, the issue is simply whether this court “would find contempt of court to be an affront to the constitution.” (Def. Reply Memo., p. 6). The court disagrees.

Simply because the legislature chose to vest the right created by section 160.50 through a court order does not change the fundamental nature of the underlying entitlement. As discussed above, the ex-pungement and sealing orders are mandatory, unless the District Attorney, or the court itself, makes a motion upon five days’ notice to the defendant or his attorney. But the court does not have unfettered discretion to retain records. The statute requires that the court state the reasons for retention on the record.

Furthermore, the court’s recognition for fourteenth amendment purposes of a judicially declared interest does not open the door for every plaintiff with a state court order to bring a section 1983 claim in the event execution is incomplete or delayed. Unlike the order at issue here, few court orders are directly mandated by statute. In any event, it is not entirely clear that state court orders alone cannot create protected interests sufficient to state a federal due process claim. Yale Auto Parts, supra, at 60 (suggesting that entitlement by order of the court is possible, notwithstanding the absence of a mandatory entitlement created by state statute). For example, in Roy v. Augusta, 712 F.2d 1517 (1st Cir.1983), the First Circuit held that plaintiff had a protected property interest based on a state court decision that he was entitled to a pool room license. The alleged due process violation was the city’s failure to carry out the mandate of the state court. The city’s motion to dismiss for failure to state a claim was rejected and the case remanded to allow plaintiff the opportunity to show that the withholding of the license was so plainly contrary to the state court order as to be a subversion of the state’s process. Id. at 1524. Significantly, the appeals court noted that plaintiff’s case was strengthened, like the case at bar, by criticism of defendants’ actions by the state court itself. Id. at 1524.

Defendants’ brief cites Batista v. Rodriguez, 702 F.2d 393 (2d Cir.1983), as the sole authority for its theory that the proper remedy for violation of a state court order lies in state court. However, Batista is inapposite. It addresses only the breach of a consent decree, not the breach of a court order mandated by a statute.

Finally, as will be discussed more fully below, the availability and adequacy of contempt proceedings or other post-deprivation remedies is irrelevant in deciding whether a protected property or liberty interest exists. Examining post-deprivation remedies is only appropriate to determine whether the process afforded the plaintiff satisfied the minimum requirements of the due process clause, Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981) — and, even then, only in cases where the deprivation is not pursuant to an established state procedure, Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982). Such is not the case here. Instead, plaintiff’s complaint specifically alleges that the cause of his injuries was the defendants’ failure to promulgate, put into effect and monitor procedures applicable to the return of photographs and fingerprints. The problem is not defendants’ defiance of a court order. Rather, it is defendants’ purported inability to comply because of inadequate state procedures.

ADEQUACY OF POST-DEPRIVATION REMEDIES IS NOT CONTROLLING

Defendants suggest that plaintiff’s section 1983 claim is insufficient because he “was accorded a suppression hearing and may avail himself of any remedies state law may provide for violation of a statute.” Parratt v. Taylor, supra, 451 U.S. at 537-44, 101 S.Ct. at 1913-17; Barnier v. Szentmiklosi, 565 F.Supp. 869, 878-79 (E.D.Mich.1983).. Defendants’ reliance on Parratt and Barnier, however, is misplaced.

First, Parratt indeed affirms that the existence of adequate state post-deprivation remedies can satisfy the requirement of procedural due process.

Either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process can, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking, satisfy the requirement of procedural due process.

Parratt, supra, 451 U.S. at 539, 101 S.Ct. at 1915. The Parratt majority applied this principle to a situation involving the tortious loss of a prisoner’s property through the random and unauthorized act of a state employee. The court specifically noted, however, that “in such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur.” Id. at 541, 101 S.Ct. at 1916 (emphasis added). In contrast, when “it is the state system itself that destroys a complainant’s property interest,” Parratt is wholly inapplicable. Logan, supra, 455 U.S. at 435-36,102 S.Ct. at 1157-58. Such is the case here.

The heart of plaintiff’s complaint is that the defendants failed to “promulgate, put into effect and monitor the enforcement of the appropriate rules applicable to the return of photographs and fingerprints.” Complaint If 21. There is no question that such allegations of systemic failure can be the basis of a due process claim. Allman v. Coughlin, 577 F.Supp. 1440 (S.D.N.Y.1984); Holmes v. Ward, 566 F.Supp. 863 (E.D.N.Y.1983). In Allman, state prisoners sued state officials under 42 U.S.C. § 1983, alleging inter alia that inadequate selection, training and supervision of New York State’s Correctional Emergency Response Team (CERT) caused the destruction of the inmate plaintiffs’ property. In denying a motion to dismiss the due process claims, the court noted that pre-deprivation procedures, presumably better training, could have readily prevented the alleged abuses. Allman, supra, 577 F.Supp. at 1447. In Holmes, a state prisoner, who was attacked by another inmate, sued state correctional officers for failing to safeguard his liberty. One issue was whether the deprivation was the result of random, unauthorized official acts or according to established, but inadequate, procedures. The court concluded that it was the latter by evaluating the constitutional adequacy of the existing procedures according to general standards outlined in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). Specifically, the court noted that 1) the individual interest at stake was serious; 2) the existing procedures were minimal; 3) there was reason to believe additional procedural safeguards would provide protection; and 4) these additional procedures were not prohibitively expensive. Holmes, supra, 566 F.Supp. at 867. Defendants have failed to convince this court that similar conclusions might not be reached here.

Above all else, defendants have not sufficiently refuted plaintiff’s allegations of inadequate state procedures to merit summary judgment in their favor. Defendants submit a copy of an Operations Order, dated December 16, 1976, issued by the New York City Police Department, explaining the new law, section 160.50. But this document surely does not outline any procedures for compliance with the law. Also before us is an affidavit from the Administrator in Charge of the Correspondence and Special Records Unit of the New York City Police Department, Roberta Baron. This affidavit states that the Police Department does not ignore court orders to return arrest records and that the Sealed Records Unit has processed approximately 60,000 such orders in the past three years. It further states that “it is neither the department’s practice or policy to ignore such orders.” However, these self-serving affidavits are not sufficient to rebut inferences supported by the record suggesting a different conclusion. In plaintiff's case, two such orders were not carried out. In addition, during plaintiff's 1981 Wade hearing in Bronx County Supreme Court, not only the failure to return plaintiff’s photographs was at issue, but the identical failure to return the photographs of his co-defendant. Moreover, both parties have cited numerous cases involving unreturned photographs in the context of suppression motions.

There is a second reason for rejecting defendants’ insistence on an inquiry into the adequacy of post-deprivation remedies. Defendants incorrectly rely on Barnier, supra, 565 F.Supp. at 878-79, to establish that Parratt is applicable to deprivations of liberty as well as property. While the Eastern District of Michigan may be confident that this extension of Parratt is correct, the issue is far from clear in the Second Circuit. Compare Lynn H. Conway v. Village of Mount Kisco, 758 F.2d 46, 48 (2d Cir.1985) (the existence of adequate state post-deprivation remedies does not foreclose appellant’s section 1983 claim of malicious prosecution) with Holmes v. Ward, supra, 566 F.Supp. at 865 (“the analysis of the Parratt majority opinion is not per se inapplicable to deprivation of liberty interests”).

QUALIFIED IMMUNITY OF INDIVIDUAL DEFENDANTS

The individual defendants, Michael Cassidy and Carl Daniels, raise the defense of qualified immunity or good faith. We believe that they are entitled to protection from liability under such a theory.

As the Supreme Court set out in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” It is by no means clear that defendants Cassidy and Daniels could reasonably have known that the display of the photograph to the witnesses was in violation of the court order. In general, defendants’ argument of good faith is persuasive, in that the court order was issued some three years before the display, and the detectives merely pulled out a tray of photographs that contained the wayward 1977 photograph. Nonetheless, we only have before us an attorney’s affidavit setting out what these two individuals could have known or did know. While the Supreme Court in Harlow emphasized that an objective analysis of the good faith defense would prevent insubstantial claims from having to go to trial, it did not remove the issue from the usual strictures with respect to summary judgment. See Harlow, supra, 457 U.S. at 816-17, 102 S.Ct. at 2737. Hearsay affidavits of counsel are not admissible to establish the facts for a summary judgment motion. Schiess-Froriep Corp. v. S.S. Finnsailor, 574 F.2d 123, 127 (2d Cir.1978); Establissement Tomis v. Shearson Hayden Stone, Inc., 459 F.Supp. 1355, 1365 (S.D.N.Y.1978).

However, the controlling issue is that while section 160.50 was enacted in 1976, the constitutional dimension of a violation of the statute was not established in June 1981 when defendants allegedly violated plaintiff’s civil rights. Absent violation of clearly established constitutional rights, defendants’ violation of the statute is not a waiver of qualified immunity. Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 82 S.Ct. 139 (1984). To hold otherwise would make an official liable for violation of a constitutional right “that was not clearly defined or perhaps not even foreshadowed at the time of the alleged violation — merely because this official conduct also violated some statute or regulation.” Id. at 3020. According to the Davis court, imposing liability on officials who cannot reasonably anticipate that their conduct will give rise to damages intolerably infringes on their effective performance of duty.

MUNICIPAL LIABILITY

Defendants last argue that the municipal defendants, specifically NYC, NYPD and the Commissioner are entitled to summary judgment because plaintiff has not alleged sufficient facts to impose municipal liability. Under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), municipalities and officials cannot be held liable under a theory of respondeat superior. Rather, a plaintiff must show that his or her constitutional rights were violated by action taken in aid of “a policy statement, ordinance, regulation or decision officially adopted and promulgated by [a municipal] body’s officers.” Id. at 690, 98 S.Ct. at 2035.

As noted above, plaintiff here alleges that the defendants failed to promulgate, put into effect and monitor the enforcement of appropriate rules to ensure the return of photographs and fingerprints. As a matter of law, it is clear that “official policy may be inferred from the informal acts or omissions of supervisory municipal officials.” Cerbone v. County of Westchester, 508 F.Supp. 780, 783 (S.D.N.Y.1981) (citing Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.1980)). While defendants argue that no such policy can be inferred from one act of illegality, one incident can suffice if it is shown that “the incident is unusually brutal or egregious, evidencing deliberate indifference or gross negligence on the part of the municipal officials, or there is other evidence of supervisory indifference such as acquiescence in a prior pattern of misconduct.” Cerbone, 508 F.Supp. at 783-84 (citing Turpin, supra, 619 F.2d at 202; Owens v. Haas, 601 F.2d 1242, 1246-57 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979)).

Defendants have not sustained their burden on this point to entitle them to summary judgment. While defendants’ brief argues strenuously that municipal liability cannot be imposed on the basis of “two slip-ups out of the approximately 240,-000 sealing/retrieval orders the Police Department processed over a four year period,” there are considerable inferences of many more than two slip-ups in this time period. See pp. 17-18 supra. Moreover, in light of the particular circumstances surrounding his case, plaintiff has raised a number of questions about “deliberate indifference,” “gross negligence,” or “acquiescence in a prior pattern of misconduct.” Specifically, the NYPD was on notice that it had not complied with the court order at the time of the first suppression motion. See p. 5 supra. While the NYPD may have believed that it had complied with the order, the failure to comply in fact, after the prior noncompliance had been spotlighted, indicates a possibility of gross negligence.

CONCLUSION

In sum, we find that plaintiff has stated a cause of action under 42 U.S.C. § 1983, but is not entitled to summary judgment because of the existence of questions of fact. Specifically, plaintiff has not definitively established that defendants’ conduct caused him injury. Nor does the record suggest that alternative state procedures could prevent the wrong alleged and that such procedures are feasible and not prohibitively expensive. Defendants’ motion for summary judgment is denied with respect to municipal defendants NYC, NYPD and the Commissioner. Summary judgment is granted on behalf of individual defendants Cassidy and Daniels.

SO ORDERED.

      . We rely on defendants’ designation of the Commissioner as a municipal defendant.

      . Plaintiff states in his motion papers that he was arrested on January 29, 1977. While not crucial to any of our holdings, we note that we have relied on the dates set out in People v. Anderson, 97 Misc.2d 408, 411 N.Y.S.2d 830 (Sup.Ct.1978).

      . Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of this section, unless the district attorney upon motion with not less than five days notice to such person or his attorney demonstrates to the satisfaction of. the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the court wherein such criminal action or proceeding was terminated shall enter an order, which shall immediately be served by the clerk of the court upon the commissioner of the division of criminal justice services and upon the heads of all police departments and other law enforcement agencies having copies thereof, directing that:
      (a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article in regard to the action or proceeding terminated ... and all duplicates and copies thereof shall forthwith be returned to such person, or to the attorney who represented him at the time of the termination of the action or proceeding, at the address given by such person or attorney during the action or proceeding, by the division of criminal justice services and by any police department or law enforcement agency having any such photograph, photographic plate or proof, palmprint or fingerprints in its possession or under its control.

      . According to People v. Anderson, supra, 97 Misc.2d 408, 411 N.Y.S.2d 830, Judge Shapiro’s order of April 14, 1977 calling for the release of all photographs, negatives, fingerprints and palmprints of the defendant was upon defendant’s motion. We note that N.Y.Crim.Proc.Law § 160.50 does not require such a motion, however, unless the criminal action or proceeding against the person seeking release was terminated in favor of such person prior to the effective date of the section. Such is not the case here.

      . See footnote 2 supra.

      . The same test has been extended to intentional deprivations of property. Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

      . "[0]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra, 424 U.S. at 334-35, 96 S.Ct. at 902-03.


source: Caselaw Access Project

author: ROETTGER, District Judge.

license: Public Domain

text:
    Walter K. HINTON, Executor, v. MAINLANDS OF TAMARAC.
    No. 83-6497-CIV-NCR.
    United States District Court, S.D. Florida, Fort Lauderdale Division.
    May 21, 1985.

      Robert Asti, Miami, Fla., for plaintiff.
    Stuart L. Stein, Fort Lauderdale, Fla., for defendant.
   ROETTGER, District Judge.

This infringement of copyright case presents the first reported decision dealing with the applicability of 17 U.S.Code § 101 and copyright royalties to a condominium association holding a dance on its premises for the benefit of its members.

Plaintiff represents the royalty holders of several copyrighted musical compositions and plaintiff is the registered owner of seven copyrighted songs which plaintiff asserts were infringed by a performance at defendant’s clubhouse on November 7, 1981. The record reveals that several letters had been sent in the preceding years by ASCAP (American Society of Composers, Authors and Publishers) to defendant, advising them that ASCAP felt that defendant was in violation of the copyright law and that some correspondence between the parties ensued. Defendant, hereinafter referred to as Condominium, asserted it was not in violation because it contended this was for the benefit of the residents and cited a decision by the Florida State Public Service Commission that condominium residents were entitled to residential rates rather than commercial rates from public utilities such as Florida Power and Light. ASCAP rejected contention and insisted that Condominium was in violation.

A veteran professional musician and his wife, also a veteran professional musician, attended the dance at the clubhouse at the Mainlands of Tamarac on November 7, 1981. The deposition of the defendant’s president reveals that there are no security gates or entrances to pass through so the public can drive directly to defendant’s clubhouse without the visitor’s receiving clearance for admittance from a gatekeeper, security guard, or watchman. Neither of plaintiff’s witnesses at the performance were residents or guests of residents of the Mainlands of Tamarac. There was no sign at the door excluding non-resident owners or persons who were not guests of such owners. There was a charge of $3.00 each for admittance, although defendant contended that it was not an admission fee but a suggested contribution. Seven songs on which Plaintiff indisputably held copyrights were performed on the night of November 7, 1981.

The question arises: whether under these circumstances 17 U.S. Code § 101 provides an exception for condominium owners from the strictures of a copyright law. Plaintiff contends the performance was a paid, musical performance by an orchestra and that the condominium association’s clubhouse use is like that of a lodge or club which is subject to the copyright laws, as amended in 1976. The House Reports on the 1976 emphasize that, “contrary to the decision in Metro-GoldwinMayer Distributing Cory. v. Wyatt, 21 C.O.Bull. 203 (D.Md.1932), performances in ‘semipublic’ places such as clubs, lodges ... are ‘public performances’ subject to copyright control.” H.Rep. No. 94-1476, 94th Cong., 2d Sess. 64, reprinted in (1976) U.S.Code Cong. & Ad.News 5659, 5677. See also, S.Rep. No. 94-473, 94th Cong. 1st Sess. 60 (1975).

Defendant contends that the condominium clubhouse is merely an extension of the residents’ living rooms and, therefore, falls within the statutory exception because each owner has a fee simple interest in the common areas such as the clubhouse.

The statute was amended in 1976 and now reads as follows:

“To perform or display a work ‘publicly’ means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

Plaintiff contends that the statute was amended and specifically is limited to “a family ...” which means one single family. Defendant contends that the Congress explicitly provided a section for a family such as the holding of a wedding reception in the bride’s home. Defendant further asserts that the amount paid at the door was only a voluntary donation and the amount is merely suggested.

The court does not have trouble accepting Defendant’s contention that the clubhouse in a condominium association is an “extension of the owner’s living room” or, more appropriately in this court’s estimation, is like a parlor of yesteryear which happens to be held in common ownership by the condominium members, but available from time to time for individual use by any one of the member-owners.

The court can take judicial notice that the clubhouse seems to be ubiquitous with condominiums in South Florida, unless there are a small number of residential units in the condominium. Defendant’s condominium comprises 225 owner-residents. However, the court does not have to decide in this case whether a social function of the entire condominium or a major unit of it, is entitled to be treated as an extension of one owner’s living room, or several owners’ living rooms.

The court has considerably more trouble with defendant’s contention that this “donation” was not an admission price and, further, that this was not a public performance at which admission was charged. There was not the slightest impediment to the public in attending the dance and the musical performance inherent at the dance — other than the payment of $3.00, defendant’s assertion that it was only a suggested and voluntary donation is untenable under these circumstances. “Donations” are often merely euphemisms for ticket prices, apparently in an effort to defeat admission taxes or sales taxes in many areas — or simply to avoid the paperwork involved. Although it does not appear to be another version of the old custom of passing the hat to pay the fiddler, that question also is a matter the court does not have to decide because the money exacted by the condominium from plaintiff’s witnesses in this case was purely and simply the price of admission.

Therefore, under these particular circumstances, the court holds that this was a public performance, open to the general public, apparently held on a fairly regular basis and not one within the “family exception” of § 101. The fact that the 1976 amendment deleted the “for profit” requirement of the statute supports plaintiff’s contention, not defendant’s.

Summary Judgment will be entered for plaintiff, however, damages will be limited to the statutory minimum of $250.00 for each infraction, plus an attorneys fee to be awarded to plaintiff by separate order.

      . Neither counsel could locate any case dealing with the question and neither could the Court.

      . Apparently by the year 2000, the percentage of persons in South Florida who reside in condominiums will be startingly high so this matter is a question of considerable public interest.


author: SPELLMAN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Nancy Andre HICKS, Defendant.
    No. 83-997-Cr-Spellman.
    United States District Court, S.D. Florida, Miami Division.
    May 23, 1985.
    Robert Bondi, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Michael Gelety, Fort Lauderdale, Fla., for defendant.
   SECOND CORRECTED MEMORANDUM OPINION AND ORDER GRANTING BOND PENDING APPEAL

SPELLMAN, District Judge.

Following a jury trial, the Defendant, Nancy Andre Hicks, was convicted of importation of cocaine, in violation of 21 U.S.C. § 952(a), conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). On March 29, 1985, this Court sentenced the Defendant to a total term of imprisonment of six (6) years, a ten (10) year special parole term, and a total fine of $45,000. The Court also immediately remanded the Defendant to the custody of the Attorney General.

The Defendant has filed an application with this Court requesting that she be permitted to remain on bond pending the appeal of her convictions. For the following reasons, the Defendant’s application for bond pending appeal is GRANTED.

I.

The 1984 Bail Reform Act, 18 U.S.C. § 3143, which controls the issue of bond pending appeal, provides in pertinent part:

(b) 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 writ of 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 person or the community if released ... and
(2) that the appeal is not for purposes for delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
It the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of sections 3142(b) or (c).

In the present case, a United States Magistrate conducted a hearing and made specific findings that the Defendant was not likely to flee. These findings are borne out by the fact that the Defendant was released on bond over the course of the proceedings in this matter (a period of several years), was permitted to leave the jurisdiction, even after conviction, and appeared at sentencing when she faced a possible sentence of forty-five years. There is no contention that the Defendant is a danger to any person or to the community. The only factor in dispute is whether the Defendant’s appeal of her convictions will raise a “substantial question of law or fact [which if acted upon favorably will] likely ... result in reversal or an order for a new trial.”

In fact, the issue presented to this Court is even more narrow for the Government has conceded, for purposes of this motion only, that if the appellate court should find that there was error at trial, the Defendant’s conviction would be reversed. Thus, the only issue this Court need decide is whether the Defendant’s appeal will raise a “substantial question” within the meaning of the Bail Reform Act of 1984.

II.

The Defendant’s primary appellate argument concerns the admissibility of certain incriminating statements the Defendant made to a fellow inmate while she was in custody shortly after her arrest. The Defendant contends that the admission of these statements violated her sixth amendment right to counsel. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1977).

The Defendant was arrested by the United States Customs Service on October 28, 1981. At the time of her arrest she indicated that she did not want to talk to federal agents without the presence of her attorney. That same day, the Defendant was incarcerated at the Dade County Jail, Women’s Annex. On October 29, 1981, a woman named Marilyn Armstrong West was also incarcerated at the Dade County Jail, after she had surrendéred herself before a United States Magistrate on a bond revocation matter.

While both women were in custody, they conversed. The Defendant made several incriminating statements which West later reported to federal authorities.

Prior to trial, the Defendant filed a motion to suppress West’s testimony on the grounds that West’s conversation with the Defendant constituted a surreptitious interrogation and that admission of the statements would violate the Defendant’s sixth amendment right to counsel. This Court held two lengthy evidentiary hearings on this matter and reviewed numerous memoranda of law filed by the parties. In a written Order dated July 16, 1984, this Court found that although West had been an informant for federal law enforcement authorities, she had not been directed by those authorities to converse with the Defendant at the Dade County Jail. The Court further found that the federal officers with whom West had cooperated in the past did not even know of her incarceration or of her conversation with the Defendant until several days after the conversation occurred and that West had not been rewarded for providing information about the Defendant.

Based upon these factual premises, this Court held that West was a “neutral inmate” and there would be no sixth amendment violation if she were to testify as to the statements made by the Defendant.

West testified at trial and told the jury ' about incriminating statements made by the Defendant to West.

III.

As Justice Douglas noted in Herzog v. United States, 75 S.Ct. 349, 350, 99 L.Ed. 1299 (1955), “[t]he construction of the words ‘substantial question’ is itself a substantial question.” While it is clear that this Court must look into the nature of the appeal to make a determination that there is a “substantial question,” it is also clear that it is not the role of this Court to substitute itself for the appellate court in deciding the ultimate merits of the appeal. In order to obtain bond, a defendant is not required to convince a trial court that it committed reversible error.

Thus, in determining whether there is a substantial question, a court must keep in mind that it is not being asked to reverse its position on issues decided at trial, nor is it being asked to grant a new trial.- It must decide only that a significant issue exists that merits appellate review and that the issue is critical enough to the defendant’s conviction that a contrary appellate ruling would warrant a reversal. See United States v. Miller, 753 F.2d 19, 23 (3d Cir.1985); accord United States v. Giancola, 754 F.2d 898, 900 (11th Cir.1985) (per curiam); United States v. Handy, 761 F.2d 1279, 1489 (9th Cir.1985) (per curiam).

In Giancola, the Eleventh Circuit, agreeing with the interpretation offered by the Third Circuit, noted that a substantial question was “ ‘one which is either novel, ... has not been decided by controlling precedent, or ... is fairly doubtful.’ ” 754 F.2d at 900 (quoting Miller, 753 F.2d at 23). The Eleventh Circuit found that a “substantial question” must be “of more substance than would be necessary to a finding that it was not frivolous.” Id. at 901. It is “one that very well could be decided the other way.” Id. Further, the court observed that “there are no blanket categories for what questions do or do not constitute ‘substantial’ ones” and that the determination of what is “substantial” therefore must be done on a “case-by-case basis.” Id.

Although our experience with the Bail Reform Act of 1984 is necessarily limited, in determining whether a substantial question has been raised, the Court is further guided by the case law interpreting former Rule 46(a)(2) of the Federal Rules of Criminal Procedure which also required a finding that an appeal raised a “substantial question” before bond was permitted. In finding that a substantial appellate question existed in D\'Aquino v. United States, 180 F.2d 271, 272 (9th Cir.1950) (Douglas, Circuit Justice) the court explained:

The question may be “substantial” even though the judge or justice hearing the application for bail would affirm on the merits of the appeal. The question may be new or novel. It may present unique facts not plainly covered by the controlling precedents. It may involve important questions concerning the scope and meaning of decisions of the Supreme Court. The application of well-settled principles to the facts of the instant case may raise issues that are fairly debatable.

In that case, the defendant was raising the issue of the applicability of the principles enunciated in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948) to confessions obtained following the prolonged confinement of the defendant by military authorities. The court expressly stated that it was not suggesting that there had been an infraction of these principles in the case before it, but concluded nonetheless that the appeal raised a substantial question and granted the application for bail.

Similarly, in Herzog, the court found that in deciding whether a question is “substantial” it was not sufficient that one judge may not be impressed. 75 S.Ct. at 351. While this Court firmly believes that it was correct in its rulings and that the Defendant received a fair trial, it recognizes that the “West question” must be considered “substantial” within the meaning of the Bail Reform Act and that the Defendant should therefore be permitted to remain on bond pending the Eleventh Circuit’s resolution of this issue.

IV.

In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Supreme Court held that the intentional planting of an informant in a suspect’s cell for the purpose of eliciting incriminatory statements violated the sixth amendment. The informant in that case was placed in close proximity to the defendant and was told “not to initiate” any conversations with the defendant but “to pay attention” to any incriminating statements he may make. Id. at 268, 100 S.Ct. at 2185.

Although the Court in Henry did not make it the focal point of its inquiry, it is plain that a sixth amendment violation would occur only when a citizen-informant who elicits incriminating information from an accused is acting as an agent of the government. In Henry, the actions of the inmate witness were clearly attributable to the government for he was acting as a paid informant under specific instructions to elicit information from the defendant in that case. But the principles enunciated in Henry are not necessarily limited to those situations in which a paid informant’s assigned mission is specifically targeted on the accused. As the court observed in Thomas v. Cox, 708 F.2d 132,136 (4th Cir.), cert. denied, — U.S.-, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983), the point at which a citizen-informant may be considered a government agent may not be subject to a “bright-line” test.

For example, in United States v. Sampol, 636 F.2d 621, 638 (D.C.Cir.1980), the United States Court of Appeals for the District of Columbia Circuit found that an informant was a government agent for sixth amendment purposes even when the authorities had not specifically targeted the defendant for interrogation. In fact, in Sampol, when the informant undertook his informing project, the government authorities did not even know of his association with the defendant. The informant’s actions were attributable to the government, however, because he had previously provided information in different cases and was told by a sentencing judge that he would receive a probationary sentence as long as he continued to “go all out” and to “forge ahead on [his] own” to gain information that would be helpful to the government. The individual departed the courtroom with the judicial fiat that he was an “informant-at-large without portfolio.”

While it is obvious that this Court does not believe that the facts of this case approach those in Massiah, Henry, or Sam-pol, this does not detract from the substance of the issue presented here. The lower federal courts have only begun to define the parameters of when a citizen-informant can be considered a government agent. Although this Court found that West was a neutral inmate and her actions could not be attributable to the government when she spoke with the Defendant, the facts of this case are not “plainly covered by controlling precedent.” See D Aquino, 180 F.2d at 272. This appeal will therefore involve “important questions concerning the scope and meaning of [a] decision[ ] by the Supreme Court.” See id. Notwithstanding this Court’s opinion that no error was committed, the Defendant’s appeal will raise a “substantial question.” Accordingly, the application for bond pending appeal is GRANTED in the amount of one hundred fifty thousand dollars- ($150,000) corporate surety.

      . This Court has not attempted to separately analyze whether the Defendant is pursuing the appeal of her conviction "for purposes of delay.” Because this Court finds that a substantial question is present here, the Court will assume that the defendant is pursuing the appeal not for delay but in order to obtain a reversal of her conviction.

      . The court in Giancola, however, noted that the lack of controlling precedent does not necessarily mean that the issue is substantial. According to the court, "an issue may be without controlling precedent largely because the issue is so patently without merit that it has not been found necessary for it to be resolved____ Similarly, there might be no precedent in this circuit, but there may also be no real reason to believe that this circuit would depart from unanimous resolution of the issue by other circuits." 754 F.2d at 901. As explained in Section IV, infra, the reason there is no controlling precedent here is not necessarily because the issue raised by the Defendant is lacking in merit, but because the lower federal courts have only begun to define when a citizen-informant can be considered a government agent.

      . The Eighth Circuit, sitting en banc, has recently taken a more stringent view of what can be considered a “substantial question” under the Bail Reform Act of 1984. See United States v. Powell, 761 F.2d 1227 (8th Cir.1985) (en banc). The Eighth Circuit explicitly rejected the definition of "substantial question” articulated by the Third Circuit in Miller and the Ninth Circuit’s definition in Handy. Miller defined a substantial question as a "significant question at issue which is either novel, which has not been decided by controlling precedent or which is fairly doubtful." 753 F.2d at 23. Handy defined a substantial question as one that is "fairly debatable.” 753 F.2d at 1490. The Eighth Circuit found that the Miller and Handy formulations "would not work much of a change in prior law.” 761 F.2d at 1232. Relying upon language in Giancola, the Eighth Circuit defined a "substantial question" as a "close question or one that very well could be decided the other way.” Id. at 1231 (quoting Giancola, 754 F.2d at 901).

        This Court, however, is of the opinion that the Eighth Circuit has read Giancola too narrowly. Giancola did not reject the definition of "substantial question” articulated by the Miller court. In fact, the Eleventh Circuit expressly "adopt[ed] the Third Circuit’s interpretation [of the Bail Reform Act of 1984]”, 754 F.2d at 901, finding that "the Third Circuit’s interpretation effectuates congressional intent.” Id. at 900. The Eleventh Circuit’s only qualification of Miller's definition was its "observation” that the lack of controlling precedent does not necessarily mean that the question is substantial. Id. at 901. This cannot, in this Court’s view, be considered an implicit rejection of Miller. Instead, this Court finds that the Eleventh Circuit’s conclusion that a "substantial question” is one that "very well could be decided the other way,” id., merely underscores its previous finding that the appellate issue have "more substance than would be necessary to a finding that it was not frivolous.” Id.

      Additionally, this Court believes that the Eighth Circuit was inaccurate in its criticism of Handy’s definition of "substantial question." According to the Eighth Circuit, the Ninth Circuit in Handy relied on authorities that "reflect the previous view ... that bail is the rule rather than the exception, to be granted whenever a nonfrivolous question is raised.” 761 F.2d at 1232. The Eighth Circuit is incorrect.
      In defining a "substantial question” as one that is "fairly debatable," Handy was guided by cases interpreting the "substantial question” requirement of former Rule 46(a)(2) of the Federal Rules of Criminal Procedure. See 753 F.2d at 1489-90 (citing Herzog v. United States, 75 S.Ct. 349, 99 L.Ed. 1299 (1955) and D'Aquino v. United States, 180 F.2d 271 (9th Cir.1950). This Court was similarly aided by these cases. The United States Supreme Court, however, in 1956, believed the standard under Rule 46(a)(2) to be too stringent and thus amended the rule. The amended rule "greatly liberalized” the requirements for bond pending appeal. Ward v. United States, 76 S.Ct. 1063, 1065, 1 L.Ed.2d 25 (1956) (Frankfurter, Circuit Justice). While the former rule required the defendant to establish that his appeal raised a "substantial question,” the amended rule permitted bond unless the government demonstrated "that the appeal is frivolous or taken for delay.” Id. at 1064 (citation omitted). As Justice Frankfurter explained, "[the non-frivolous standard] expressed] a general attitude ... that inasmuch as an appeal from a conviction is a matter of right, the risk of incarceration for a conviction that may be upset on appeal is normally to be guarded against by allowing bail unless the appeal is so baseless as to deserve to be condemned as ‘frivolous’ or is sought as a device for delay." Id. It was this standard — release if appeal is not "baseless” or "frivolous” — that was modified by the Bail Reform Act of 1984, which reimposed the "substantial question" requirement.
      Thus, Handy did not rely on authorities reflecting the view that "bail is the rule rather than the exception, to be granted whenever a nonfrivolous question is raised.” 761 F.2d at 1232. Handy looked to cases defining “substantial question” — a requirement reimposed by the Bail Reform Act of 1984.

      . Prior to its amendment is 1956, Rule 46(a)(2) of the Federal Rules of Criminal Procedure provided, in part:
      Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court.
      Unlike the Bail Reform Act of 1984, there was no requirement that the substantial question would likely result in reversal or an order for a new trial.

      . The effective date and time of this Order is stayed until 12 noon on May 29, 1985 to allow the Government, if it so desires, to seek any additional stay of this Order and a review of this Opinion and Order in the United States Court of Appeals for the Eleventh Circuit.


text:
    UNITED STATES of America, Plaintiff, v. Joseph R. PRICE, Defendant.
    No. 83-799-Cr-Spellman.
    United States District Court, S.D. Florida, Miami Division.
    May 31, 1985.
    Helen Forsyth, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Michael Pasano, John Evans, Miami, Fla., for defendant.
   CORRECTED MEMORANDUM OPINION AND ORDER GRANTING BOND PENDING APPEAL

SPELLMAN, District Judge.

The Defendant, Joseph Robert Price, a United States Customs Agent, was indicted on September 29, 1983, on charges of possession with intent to distribute hashish oil (counts 1 and 3), distribution of hashish oil (counts 2 and 4), using a communication facility to violate the narcotics laws (count 6), and theft of government property (count 5). A jury found Price guilty of counts 1, 2, 3, 4, and 6. Price was acquitted on count 5.

On May 2, 1985, this Court sentenced Price to a total term of imprisonment of ten (10) years, a five (5) year special parole term, and a fine of $1,700.00. The Defendant was also immediately remanded to the custody of the Attorney General.

The Defendant, however, on May 2,1985, filed a motion with this Court requesting that he be permitted to remain on bond pending the appeal of his convictions. A hearing was held on May 16, 1985 and on May 21, 1985 the Defendant supplemented his motion. For the following reasons, the Defendant’s motion for bond pending appeal is granted.

I

The Bail Reform Act of 1984, 18 U.S.C. § 3143, which controls the issue of bond pending appeal, provides in pertinent part:

(b) 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 a writ of 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 ... and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of sections 3142(b) or (c).

In the present case, this Court already concluded at the May 16, 1985 hearing that the Defendant was not likely to flee and did not pose a danger to either himself or the community. These findings are borne out by the fact that the Defendant was released on bond over the course of the proceedings in this matter (a period of several years), was permitted to leave the jurisdiction, and yet appeared at every scheduled court date and the sentencing. These findings are also supported by the psychiatric reports filed by Dr, Charles Mutter and Dr. Arthur Stillman. After recently examining the Defendant at the Metropolitan Correctional Center, Dr. Mutter and Dr. Stillman concluded that the Defendant was not likely to flee and was not a danger to himself or the community. Thus, the only question this Court need now consider is whether the Defendant’s appeal of his convictions will raise a “substantial question” that if decided favorably to the defense will “result in reversal or an order for a new trial.”

II

As this Court recently noted in United States v. Hicks, 611 F.Supp. 497 (S.D.Fla.1985) (Memorandum Opinion and Order Granting Bond Pending Appeal), “[t]he construction of the words ‘substantial question’ is itself a substantial question.” Id. at 499 (quoting Justice Douglas in Herzog v. United States, 75 S.Ct. 349, 350, 99 L.Ed.2d 1299 (1955)). Justice Douglas recognized that the phrase “substantial question” “obviously does not mean a decision on the merits.” 75 S.Ct. at 350. Indeed, Justice Douglas analogized the bail standard to the standard used by the United States Supreme Court in determining whether a petition for certiorari should be granted. Because “further study of the problem” would normally follow, the Court deciding whether to grant or deny a petition for certiorari — or, by analogy, this Court deciding whether to grant or deny bond pending appeal — does not make that decision by reaching the full merits of the issues for which review is sought. See id.

Still, this Court must look into the nature of the appeal to determine whether or not a “substantial question” is presented. According to Justice Douglas, “[i]t is not enough that I am unimpressed” with the argument. Id. at 351. In D ’Aquino v. United States, 180 F.2d 271 (9th Cir.1950), Justice Douglas equated the phrase “substantial question” to the phrase “fairly debatable.” Id. at 272. The inquiry focuses on whether “[responsible and conscientious counsel pose some problems that on this record are not free from doubt.” Id.

Courts have articulated similar definitions of the “substantial question” standard under the Bail Reform Act of 1984. See, e.g., United States v. Giancola, 754 F.2d 898 (11th Cir.1985) (per curiam); United States v. Handy, 753 F.2d 1487 (3d Cir.1985); United States v. Miller, 761 F.2d 1279 (9th Cir.1985) (per curiam); United States v. Hicks, 611 F.Supp. 497 (S.D.Fla.1985) (Memorandum Opinion and Order Granting Bond Pending Appeal). But see United States v. Powell, 761 F.2d 1227 (8th Cir.1985) (en banc ).

In Giancola, the Eleventh Circuit noted that a substantial question was “ ‘one which *is either novel, ... has not been decided by controlling precedent, or ... is fairly doubtful.’ ” 754 F.2d at 900 (quoting United States v. Miller, 753 F.2d at 23). The Eleventh Circuit found that a “substantial question” must be “of more substance than would be necessary to a finding that it was not frivolous.” 754 F.2d at 901. A substantial question is “one that very well could be decided the other way.” Id. “Further,” the Eleventh Circuit “observ[ed],” “there are no blanket categories for what questions do or do not constitute ‘substantial’ ones. Whether a question is ‘substantial’ must be determined on a case-by-case basis.” Id. (footnote omitted).

While this Court firmly believes that it was correct in its rulings and that the Defendant received a fair trial, it recognizes that the alleged constitutional violations must be considered “substantial” within the meaning of the Bail Reform Act. This Court also recognizes that the “substantial question” is critical enough to the Defendant’s conviction that a contrary appellate ruling would warrant a reversal. See id. at 900. The Defendant should therefore be permitted to remain on bond pending the eleventh circuit’s resolution of the appeal.

Ill

The Defendant’s primary appellate argument concerns the sixth amendment right to confront witnesses for the prosecution and the fifth and sixth amendment right to present a defense. This Court, over Defendant’s objection, admitted into evidence tape recordings of the Defendant and Jimmy Carbone, an informant who died prior to trial. The government’s case was based on a literal interpretation of the tapes: Car-bone taped the Defendant, a corrupt Customs agent, attempting to sell drugs. Therefore the Court reasoned that Car-bone’s statements on the tapes were not hearsay since such statements were not being offered for the truth of the matter asserted.

Defendant, on the other hand, argued that he posed as a corrupt Customs agent as part of a reverse sting operation. According to the Defendant, “[i]t was necessary to adopt this pose with Carbone, because although Carbone had served as an informant and was being utilized in the reverse sting, Carbone was, in fact, double dealing.” Id. at 3-4.

The Defendant attempted to bolster his interpretation of the tapes both through cross-examination of Detective Phillip Paschal and by presentation of his own witnesses who knew and had dealt with Jimmy Carbone in the past. The Defendant now claims that “[this evidence] would have supported the defendant’s otherwise essentially uncorroborated testimony that Car-bone was unreliable.” Id. at 5.

The Defendant argues that his fifth and sixth amendment rights were violated when this Court “precluded” trial counsel “from cross-examining government witnesses and presenting evidence about Jimmy Carbone’s history of crime, drugs and double-dealing.” See Defendant’s Supplement to Motion for Release Pending Appeal at page 1. “This evidence,” according to the defense, “would have corroborated the defendant’s testimony that he was engaged in a ‘reverse sting’ operation and would have supported defendant’s claim that the statements which the defendant made to Carbone and the manner in which the defendant dealt with Carbone were reasonable.” Id.

This Court ruled the evidence inadmissible based upon what it still believes to be a correct interpretation of the Federal Rules of Evidence. This Court does recognize, however, that in certain instances defense testimony or evidence should be admitted even though the testimony or evidence is otherwise inadmissible. See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967) (recognizing the “right to present a defense, the right to present the defendant’s version of the facts”); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (holding that “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice”); Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir.1984) (holding that where the sole defense was insanity, excluded testimony was material as a “crucial, critical [and] highly significant factor”).

While this Court is of the opinion that it was correct in ruling the evidence and testimony inadmissible in that the facts of this case do not approach those in Chambers, Washington, or Boykins, this Court must acknowledge that the issue presented is “fairly doubtful.” Giancola, 754 F.2d at 900 (citing Miller, 753 F.2d at 23). The appeal will raise a “substantial question” within the meaning of the Bail Reform Act of 1984. Accordingly, Defendant’s motion for bond pending appeal is granted in the amount of $150,000.00 personal surety bond collateralized by the same real property heretofore pledged by the Defendant’s family and a corporate surety bond in the amount of $25,000.00.

DONE AND ORDERED in Chambers, at Miami, Florida this 31 day of May, 1985.

      . As this Court noted in United States v. Hicks, 611 F.Supp. 497 (S.D.Fla.1985) (Memorandum Opinion and Order Granting Bond Pending Appeal at page 10, note 1), it is not attempting to separately analyze whether the Defendant is pursuing the appeal of his conviction "for the purposes of delay.” This Court concluded: "Because this Court finds that a substantial question is present here, the Court will assume that the defendant is pursuing the appeal not for delay but in order to obtain a reversal of h[is] conviction.”

      . At the hearing on May 16, 1985, this Court ruled that the Defendant’s other appellate issues are not "substantial” within the meaning of the Bail Reform Act of 1984. Specifically, this Court found that Defendant’s claimed Massiah violation was not a "substantial question” because "no information obtained as a result of [the government’s post-indictment] investigation ever guided the government in planning its trial strategy.” See Order Denying Motion and Amended Motion for Judgment of Acquittal or for a New Trial, May 2, 1985, at page 6. The government’s conduct, at all times, was proper and indeed laudable. See id. at 6-7.
      This Court also decided that Defendant’s alleged Brady violation was not "substantial” in that the Defendant here was "aware of the essential facts enabling him to take advantage of any exculpatory evidence.” See id. at 2.
      The Defendant, however, relies on United States v. Franklin, 714 F.2d 157 (11th Cir.1983), a case he represented to be "directly on point.” Id, at 4. This Court does not agree with the Defendant’s assessment of Franklin. The significance of Franklin, as this Court explained in open court on May 2, 1985, was that in that case there was no evidence that Franklin knew that the tapes of the exculpatory conversation existed. The Eleventh Circuit noted that ”[i]t is the existence of those tapes that has the greatest trial value.” Here, there are no tapes of the allegedly exculpatory conversations had between the confidential informant, Eugene Schneider, and the Defendant, only tapes that refer to these allegedly exculpatory conversations. And, besides, these tapes were given to the Defendant before trial. Thus, even if the tapes in this case could be considered to be as significant as the tapes in Franklin, here unlike the Defendant in Franklin, the Defendant not only knew of the allegedly exculpatory conversations but knew of the tapes that referred to the allegedly exculpatory conversations and, indeed, had the tapes in his possession before trial.
      The claimed Brady violation cannot be considered a "substantial question.”

      . Justice Douglas was interpreting former Rule 46(a)(2) of the Federal Rules of Criminal Procedure. Rule 46(a)(2) also required a finding that an appeal raised a "substantial question” before bond was permitted.

      . The Eighth Circuit, sitting en banc, has recently taken a moré stringent view of what can be considered a "substantial question” under the Bail Reform Act of 1984. See United States v. Powell, 761 F.2d 1227 (8th Cir.1985) (en banc). The Eighth Circuit explicitly rejected the definition of "substantial question" articulated by the Third Circuit in Miller and the Ninth Circuit’s definition in Handy. Miller defined a substantial question as a “significant question at issue ... which is either novel, which has not been decided by controlling precedent or which is fairly doubtful." 753 F.2d at 23. Handy defined a substantial question as one that is "fairly debatable." 753 F.2d at 1490. The Eighth Circuit found that the Miller and Handy formulations "would not work much of a change in prior law.” At 1232. Relying upon language in Giancola, the Eighth Circuit defined a “substantial question” as a "close question or one that very well could be decided the other way.” Id. at 1231. (quoting Giancola, 754 F.2d at 901).
      This Court, however, is of the opinion that the Eighth Circuit has read Giancola too narrowly. Giancola did not reject the definition of "substantial question" articulated by the Miller court. In fact, the Eleventh Circuit expressly "adoptfedj the Third Circuit's interpretation [of the Bail Reform Act of 1984]”, 754 F.2d at 901, finding that "the Third Circuit’s interpretation effectuates congressional intent.” Id. at 900. The Eleventh Circuit’s only qualification of Miller's definition was its "observation” that the lack of controlling precedent does not necessarily mean that the question is substantial. Id. at 901. According to the Eleventh Circuit, “an issue may be without controlling precedent largely because the issue is so patently without merit that it has not been found necessary for it to be resolved---- Similarly, there might be no precedent in this circuit, but there may also be no real reason to believe that this circuit would depart from unanimous resolution of the issue by other circuits." Id. This cannot, in this Court’s view, be considered an implicit rejection of Miller. Instead, this Court finds that the Eleventh Circuit's conclusion that a "substantial question" is one that “very well could be decided the other way,” id., merely underscores its previous finding that the appellate issue have “more substance than would be necessary to a finding that it was not frivolous.” Id.

      Additionally, this Court believes that the Eighth Circuit was inaccurate in its criticism of Handy's definition of "substantial question.” According to the Eighth Circuit, the Ninth Circuit in Handy relied on authorities that “reflect the previous view ... that bail is the rule rather than the exception, to be granted whenever a nonfrivolous question is raised.” At 1232. The Eighth Circuit is incorrect.

        In defining a "substantial question” as one that is "fairly debatable,” Handy was guided by cases interpreting the “substantial question” requirement of former Rule 46(a)(2) of the Federal Rules of Criminal Procedure. See 753 F.2d at 1489-90 (citing Herzog v. United States, 75 S.Ct. 349, 99 L.Ed. 1299 (1955) and D’Aquino v. United States, 180 F.2d 271 (9th Cir.1950). This Court was similarly aided by these cases. The United States Supreme Court, however, in 1956, believed the standard under Rule 46(a)(2) to be too stringent and thus amended the rule. The amended rule “greatly liberalized" the requirements for bond pending appeal. Ward v. United States, 76 S.Ct. 1063, 1065, 1 L.Ed.2d 25 (1956) (Frankfurter, Circuit Justice). While the former rule required the defendant to establish that his appeal raised a “substantial question," the amended rule permitted bond unless the government demonstrated “that the appeal is frivolous or taken for delay.” Id. at 1064 (citation omitted). As Justice Frankfurter explained, “[the non-frivolous standard] expressed] a general attitude ... that inasmuch as an appeal from a conviction is a matter of right, the risk of incarceration for a conviction that may be upset on appeal is normally to be guarded against by allowing bail unless the appeal is so baseless as to deserve to be condemned as ‘frivolous’ or is sought as a device for delay.” Id. It was this standard — release if appeal is not “baseless” or "frivolous” — that was modified by the Bail Reform Act of 1984, which reimposed the “substantial question” requirement.
      Thus, Handy did not rely on authorities reflecting the view that "bail is the rule rather than the exception, to be granted whenever a nonfrivolous question is raised.” At 1232. Handy looked to cases defining "substantial question" — a requirement reimposed by the Bail Reform Act of 1984.

      . The government contends that bond pending appeal should be denied because more than a year has elapsed since the Defendant’s conviction. According to the government, the Defendant should now begin serving his sentence. While this Court agrees that the delay is unfortunate, such delay has become unavoidable because of the heavy caseload in the Southern District of Florida. In any event, the delay cannot be considered in determining whether the Defendant should be granted bond pending appeal. Section 3143(b) of the Bail Reform Act of 1984 states that the court “shall order the release" of the defendant if the necessary findings are made. (Emphasis added). Thus, contrary to the government’s position, the granting of bond is not "discretion[ary].” See Government's Response in Opposition to Defendant’s Motion to Release pending Appeal page 2. Because this Court has made the necessary findings, the Defendant is entitled to bond pending appeal.

      . The original personal surety bond filed with this Court and the mortgages collateralizing that bond may be used in response to this Memorandum Opinion and Order. This may be accomplished by the Defendant and the respective co-sureties/mortgagors appearing before the United States Magistrate and reaffirming under oath their respective intents that the same are to be considered in full force and effect for the Defendant’s release pending appeal.

      . The effective date and time of this Memorandum Opinion and Order is stayed until 12 noon on June 5, 1985 to allow the government, if it so desires, to seek any additional stay of this Memorandum Opinion and Order and a review in the United States Court of Appeals for the Eleventh Circuit.