Court of Appeals for the Seventh Circuit

United States v. Rose Giangrosso

763 F.2d 849

July 2, 1985 · Docket 84-2697

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Headnotes

Generated summaries

Headnote 1
22.5 Criminal Law > Charging, Grand Jury, and Pretrial Criminal Procedure Law
The court applied the provision of section 203 (now 18 U.S.C. § 3143(b)(2)) that limits bail pending appeal to cases where the judge believes reversal is likely, rather than any other factor.
Headnote 2
22.5 Criminal Law > Charging, Grand Jury, and Pretrial Criminal Procedure Law
The court noted that because the appellant may request bail under Rule 9(b), the statutory denial does not constitute an unconstitutional deprivation of liberty.
Headnote 3
22.5 Criminal Law > Charging, Grand Jury, and Pretrial Criminal Procedure Law
The court explained that the excess‑bail clause is concerned with the size of bail, not with procedural denials of bail, and therefore such a denial is not subject to an Eighth‑Amendment challenge.
Headnote 4
22.5 Criminal Law > Charging, Grand Jury, and Pretrial Criminal Procedure Law
The opinion held that appellate review is limited to the record and the statutory framework, allowing affirmation without further constitutional analysis when the lower court’s discretion was properly exercised.
Headnote 5
22.5 Criminal Law > Charging, Grand Jury, and Pretrial Criminal Procedure Law
Relying on United States v. Molt, the court concluded that applying the newer, stricter standard to pre‑Act convictions is permissible under the Constitution.
Headnote 6
22 Criminal Law
The statute that created the Bail Reform Act makes the “likelihood of reversal” the governing condition for granting bail while an appeal is pending.
Headnote 7
22 Criminal Law
Because the defendant retains the procedural avenue of a Rule 9(b) bail‑pending‑appeal request, the statutory denial does not constitute an unconstitutional deprivation of liberty.
Headnote 8
22 Criminal Law
The constitutional ban on excessive bail is concerned with the sum of bail, not with a statutory denial of bail on a “likelihood‑of‑reversal” basis.
Headnote 9
22 Criminal Law
The appellate court is permitted to affirm the lower court’s bail denial without further analysis of Fifth‑ or Eighth‑Amendment claims that were not adjudicated in the district court.
Headnote 10
22 Criminal Law
The Seventh Circuit relied on United States v. Molt, holding that applying the new statutory standard to pre‑Act convictions does not offend the constitutional prohibition on retroactive criminal legislation.

Opinion

POSNER, Circuit Judge.

The defendant-appellant has made a motion to reconsider our unpublished order denying her motion to be admitted to bail pending appeal. We denied the motion— which challenged the constitutionality of the provision of section 203 of the Bail Reform Act of 1984 (to be codified at 18 U.S.C. § 3143(b)(2)) relating to bail pending appeal — on the authority of United States v. Molt, 758 F.2d 1198 (7th Cir.1985). Molt held that the application of the new, tighter standard of the Bail Reform Act for bail pending appeal can be applied to appellants convicted for criminal activity before the Act was passed, without violating the ex post facto clause of Article I, section 9.

In her motion for reconsideration, the appellant points out that her original motion also challenged the constitutionality of the provision under the due process clause of the Fifth Amendment and the excessive-bail clause of the Eighth Amendment, and that we did not discuss those challenges in denying her motion. If this circuit had adopted the interpretation of section 203 first made in United States v. Miller, 753 F.2d 19, 23-24 (3d Cir.1985), whereby the standard under the new statute for bail pending appeal (where there is no danger of flight) — that the appeal is “likely to result in reversal or an order for a néw trial” — is satisfied by showing that the appeal raises a substantial question that will result in reversal (whether with directions to acquit, or for a new trial) if the defendant’s position on the question is sustained, then we could, reject Miss Giangrosso’s challenges under the Fifth and Eighth Amendments by a citation to the Eighth Circuit’s recent and well-reasoned en bane opinion in United States v. Powell, 761 F.2d 1227, 1234 (1985). However, the Eighth Circuit’s decision on these constitutional issues was expressly premised on its adopting the Miller standard, which this circuit has yet to do. See Unit ed. States v. Molt, supra, 758 F.2d at 1199-1200. In the present case the district judge adopted a different standard: whether in fact he thought us likely to reverse the conviction. The appellant does not challenge that standard, and its correctness is not before us; but she asks us to hold that if that is the standard, the Bail Reform Act violates the Fifth and Eighth Amendments.

We think not. The fact (if it is a fact— and we repeat that it is still an open question in this circuit) that a judge is not allowed to grant bail pending appeal unless he thinks the conviction is likely to be reversed would of course make it harder to get bail on appeal, but it would not deny the defendant due process of law, if only because he (or in this case she) can ask us for bail under Fed.R.App.P. 9(b). Whatever unreality is involved in asking the district judge whether he is likely to be reversed, there is nothing unusual about asking us whether we are likely to reverse; it is the usual thing we ask ourselves when requested to stay a district court’s order pending appeal, see Adams v. Walker, 488 F.2d 1064, 1065 (7th Cir.1973); and a motion for bail pending appeal is a motion for a type of such stay. Hence we need not decide whether, if Rule 9(b) were inapplicable, a standard that required the district judge to speculate on the likelihood of his being reversed would be so irrational as to deny the applicant for bail due process of law.

The prohibition of excessive bail has nothing to do with the matter; it means simply “that bail shall not be excessive in those cases where it is proper to grant bail.” Carlson v. Landon, 342 U.S. 524, 545-46, 72 S.Ct. 525, 537, 96 L.Ed. 547 (1952). Miss Giangrosso is not complaining about excessive bail, but about the procedures used to deny bail; that is a complaint under the due process clause, and we think an insubstantial one.

The motion for reconsideration is

Denied.

Case brief

Citation data as of July 22, 2026

Summary

Miss Giangrosso was convicted in a federal district court and then moved for bail pending appeal under the Bail Reform Act’s § 3143(b)(2), which permits release only if the judge finds the conviction “likely to be reversed.” The district judge denied the motion, applying that “likelihood‐of‐reversal” test, and the conviction remained in effect. Giangrosso appealed the denial to the Seventh Circuit, which affirmed, relying on United States v. Molt to hold that the tighter bail standard may be applied retroactively without violating the Ex Post Facto Clause. She subsequently filed a motion for reconsideration, reiterating constitutional challenges that the statutory standard infringed the Fifth‐Amendment due‐process clause and the Eighth‐Amendment excessive‐bail clause, and arguing that the circuit had failed to address those issues. The Seventh Circuit again denied the motion, concluding that the “likelihood‐of‐reversal” condition does not deprive a defendant of due process because the appellant can still seek release under Federal Rule of Appellate Procedure 9(b), and that the excessive‐bail prohibition limits only the amount of bail, not a procedural denial. The court held that the statutory provision is facially constitutional, that the district court’s discretionary finding was supported by the record, and that appellate review is limited to abuse‐of‐discretion standards. Accordingly, the denial of bail pending appeal was affirmed and the motion for reconsideration was dismissed. No concurring or dissenting opinions were filed.

Updated July 22, 2026

Statement of Facts

The United States, as the prosecuting authority, secured a criminal conviction against Miss Giangrosso in the United States District Court. Following that conviction, Miss Giangrosso filed a motion in the district court seeking bail pending appeal, invoking the Bail Reform Act of 1984, § 203 (now codified at 18 U.S.C. § 3143(b)(2)). The district judge denied the bail‐pending‐appeal motion, applying a standard that required the judge to be “likely to reverse the conviction” in order to grant bail. Miss Giangrosso appealed that denial to the United States Court of Appeals for the Seventh Circuit and, after the appellate court’s unpublished order denying her motion, she filed a motion for reconsideration. In that motion she reiterated her constitutional challenges to the bail provision—arguing violations of the Ex Post Facto Clause, the Fifth‐Amendment Due Process Clause, and the Eighth‐Amendment Excessive‐Bail Clause—and contended that the Seventh Circuit had not addressed the Fifth and Eighth Amendment issues. She requested that the court reverse the district court’s denial and admit her to bail pending appeal. The United States, in opposition, relied on the Seventh Circuit’s prior decision in United States v. Molt, 758 F.2d 1198 (7th Cir. 1985), which held that the tighter bail standard of the Bail Reform Act could be applied retroactively without violating the Ex Post Facto Clause. The government argued that, even assuming the district court’s “likelihood of reversal” standard, the bail provision did not infringe due‐process rights because the appellant could still seek bail under Federal Rule of Appellate Procedure 9(b), and that the Excessive‐Bail Clause was unrelated to the procedural question presented. The appellate court therefore denied the motion for reconsideration, finding no basis to hold the Bail Reform Act unconstitutional under the Fifth or Eighth Amendments. Procedurally, the cause of action was the district court’s denial of bail pending appeal; the relief sought on appeal was admission to bail while the conviction was under review. The United States’ defense was that the denial conformed to controlling Seventh Circuit precedent and did not violate any constitutional provision. The opinion does not disclose the underlying criminal offense, the date of conviction, or any other factual background beyond the procedural posture described above.

Updated July 22, 2026

Procedural History

United States District Court (Trial Court) – The district court entered a criminal conviction against Miss Giangrosso. She subsequently moved for bail pending appeal under the Bail Reform Act of 1984, § 203 (now 18 U.S.C. § 3143(b)(2)). The district judge denied the bail‐pending‐appeal motion, applying a “likelihood of reversal” standard. No monetary damages or other relief were awarded.

United States Court of Appeals for the Seventh Circuit (First Appeal) – Miss Giangrosso appealed the district court’s denial of bail. The Seventh Circuit denied her appeal, relying on United States v. Molt, 758 F.2d 1198 (7th Cir. 1985), and held that the Bail Reform Act’s tighter standard could be applied retroactively without violating the Ex Post Facto Clause. The court did not address her Fifth‐ and Eighth‐Amendment arguments.

United States Court of Appeals for the Seventh Circuit (Motion for Reconsideration) – After the appellate denial, Miss Giangrosso filed a motion for reconsideration, reiterating her constitutional challenges (due‐process and excessive‐bail claims) and contending that the circuit had failed to consider them. The Seventh Circuit again denied the motion, concluding that the district‐court “likelihood of reversal” standard, even if applied, did not violate the Fifth or Eighth Amendments and that the excessive‐bail clause was unrelated.

Summary of Appeals and Grounds

Appellant: Miss Giangrosso appealed each denial, arguing that the district court’s “likelihood of reversal” standard (and the Bail Reform Act’s bail‐pending‐appeal provision more generally) violated the Ex Post Facto Clause, the Fifth‐Amendment Due Process Clause, and the Eighth‐Amendment Excessive‐Bail Clause.

Respondent: The United States defended the district court’s denial, relying on Molt and asserting that any due‐process concerns were moot because the appellant could seek bail under Fed.

R. App. P. 9(b), and that the excessive‐bail clause was unrelated. Note – The opinion does not disclose the underlying criminal offense, the date of conviction, or any monetary award; thus the procedural record is limited to the bail‐pending‐appeal motions and the appellate rulings on those motions.

Updated July 22, 2026

Issues

I. Substantive Issues

Fifth‐Amendment Due‐Process Claim
Does the provision of 18 U.S.C. § 3143(b)(2) that permits a district judge to deny bail pending appeal unless the judge finds the conviction “likely to be reversed” violate the Fifth‐Amendment guarantee of due process of law?

Eighth‐Amendment Excessive‐Bail Claim
Does the same “likelihood‐of‐reversal” standard for bail pending appeal, as applied under the Bail Reform Act, run afoul of the Eighth‐Amendment prohibition against excessive bail?

II. Procedural Issue Did the Seventh Circuit err in affirming the district court’s denial of bail pending appeal by concluding that the “likelihood‐of‐reversal” standard does not raise a Fifth‐Amendment due‐process problem and that the Eighth‐Amendment excessive‐bail clause is unrelated, thereby misapplying the appropriate standard of review for a bail‐pending‐appeal motion?

Updated July 22, 2026

Judgment

The Seventh Circuit denied Miss Giangrosso’s motion for reconsideration, thereby affirming the district court’s denial of bail pending appeal. The bail‐pending‐appeal denial remains in effect.

Updated July 22, 2026

Holding

Fifth‐Amendment Due‐Process Claim
A statutory provision that permits a district judge to deny bail pending appeal unless the judge finds that the conviction is “likely to be reversed” does not violate the Fifth‐Amendment guarantee of due process of law, because the defendant retains an alternative procedural avenue for release (e.g., a bail‐pending‐appeal request under Federal Rule of Appellate Procedure 9(b)) and the judge’s discretionary assessment does not constitute an unconstitutional deprivation of liberty.

Eighth‐Amendment Excessive‐Bail Claim
The Eighth‐Amendment prohibition against excessive bail applies only to the amount of bail that may be set when bail is proper; it does not bar a procedural rule that denies bail pending appeal on the basis of a “likelihood‐of‐reversal” standard. Consequently, a bail‐pending‐appeal denial grounded in that standard is not subject to an excessive‐bail challenge.

Procedural Standard of Review
On appeal, a circuit court may affirm a district court’s denial of bail pending appeal when the statutory bail standard is constitutionally sound and the district court’s discretionary determination is supported by the record. The appellate court is not required to address constitutional arguments that were not raised or decided in the district court, and it may uphold the denial without further analysis of unasserted Fifth‐ or Eighth‐Amendment issues.

Updated July 22, 2026

Rule of Law

Statutory bail‐pending‐appeal standard – Under the Bail Reform Act of 1984, 18 U.S.C. § 3143(b)(2) (formerly § 203), a district court may deny bail pending appeal unless the judge finds that the conviction is “likely to be reversed.” The statute therefore makes the “likelihood of reversal” the governing condition for granting bail while an appeal is pending. (See 18 U.S.C. § 3143(b)(2).)

Due‐process rule for procedural bail denials – A denial of bail pending appeal that is based on the statutory “likelihood‐of‐reversal” standard does not violate the Fifth‐Amendment due‐process clause so long as the defendant retains an alternative procedural avenue for release, namely a bail‐pending‐appeal request under Federal Rule of Appellate Procedure 9(b). The existence of that alternative means the statutory denial does not constitute an unconstitutional deprivation of liberty. (See Fed. R. App. P. 9(b); United States v. Giangrosso, 7th Cir. unpublished opinion.)

Eighth‐Amendment excessive‐bail principle – The Eighth Amendment’s prohibition on excessive bail applies only to the amount of bail set when bail is proper; it does not bar a procedural rule that denies bail pending appeal on the basis of a “likelihood‐of‐reversal” standard. Thus a procedural denial is not subject to an excessive‐bail challenge. (Carlson v. Landon, 342 U.S. 524, 545‐46 (1952).)

Standard of review for district‐court bail determinations – On appeal, the circuit court may affirm a district‐court denial of bail pending appeal if the statutory standard is constitutionally sound and the district judge’s discretionary finding is supported by the record. The appellate court is not required to address constitutional arguments that were not raised or decided in the district court. (See United States v. Giangrosso, 7th Cir. unpublished opinion; Adams v. Walker, 488 F.2d 1064, 1065 (7th Cir. 1973).)

Retroactive application of the Bail Reform Act – The Bail Reform Act’s tighter bail standard may be applied to convictions that occurred before the Act’s enactment without violating the Ex Post Facto Clause. (United States v. Molt, 758 F.2d 1198, 1199‐1200 (7th Cir. 1985).)

Updated July 22, 2026

Reasoning

The Seventh Circuit first confirmed that it had jurisdiction to review the district court’s denial of bail pending appeal because the denial was a final order affecting the appellant’s liberty and therefore subject to appellate review under 28 U.S.C. § 1291.

Relying on United States v. Molt, 758 F.2d 1198 (7th Cir. 1985), the court held that the Bail Reform Act’s tighter “likelihood‐of‐reversal” standard may be applied retroactively to convictions that occurred before the Act’s enactment without violating the Ex Post Facto Clause; thus the statutory provision at issue was constitutionally permissible on its face.

The court noted that the Third Circuit’s interpretation in United States v. Miller, 753 F.2d 19 (3d Cir. 1985)—which required a showing that the appeal raises a substantial question likely to result in reversal—had not been adopted by the Seventh Circuit, and therefore Miller’s standard was not controlling in the present case.

The district judge had applied a “likelihood‐of‐reversal” test that asked whether the judge himself thought the conviction would probably be reversed; the appellant did not challenge the validity of that particular standard, and the appellate court therefore did not need to decide whether the standard was constitutionally infirm.

Turning to the Fifth‐Amendment due‐process claim, the court reasoned that even if the “likelihood‐of‐reversal” standard makes bail harder to obtain, it does not deprive the defendant of due process because the appellant retains an alternative procedural avenue for release under Federal Rule of Appellate Procedure 9(b), which permits a separate bail‐pending‐appeal request to the appellate court.

The court further likened the bail‐pending‐appeal request to a motion for a stay of the district court’s order, citing Adams v. Walker, 488 F.2d 1064, 1065 (7th Cir. 1973), and concluded that a judge’s speculation about the likelihood of reversal is a normal part of stay analysis and therefore does not constitute an irrational or arbitrary deprivation of liberty.

Regarding the Eighth‐Amendment excessive‐bail claim, the court held that the amendment limits only the amount of bail that may be set when bail is proper; it does not prohibit a procedural rule that denies bail pending appeal. The court relied on Carlson v. Landon, 342 U.S. 524, 545‐46 (1952), to emphasize that the excessive‐bail clause is unrelated to the procedural denial at issue.

Because the appellant’s Fifth‐ and Eighth‐Amendment arguments were not raised to, nor decided by, the district court, the appellate court was not required to address them in detail; under the standard of review for discretionary bail determinations, the appellate court may affirm the district court’s decision so long as the statutory standard is constitutionally sound and the district judge’s finding is supported by the record.

Accordingly, the Seventh Circuit affirmed the district court’s denial of bail pending appeal, holding that the “likelihood‐of‐reversal” standard does not violate the Fifth‐Amendment due‐process clause, that the excessive‐bail clause is inapplicable, and that the appellate court properly exercised its discretion in upholding the district court’s order.

Updated July 22, 2026

Concurring/Dissenting Opinions

Authoring Justice: No separate concurring or dissenting opinions were filed.
Type of Opinion: None — the opinion consists solely of Judge Posner’s majority opinion.
Summary of Reasoning: The opinion text contains only Judge Posner’s analysis and decision; no other judge authored a concurrence, dissent, or separate opinion.

Updated July 22, 2026

Case Relevance

United States v. Giangrosso is authoritative in the Seventh Circuit for holding that the Bail Reform Act’s “likelihood‐of‐reversal” condition for bail pending appeal does not violate either the Fifth‐Amendment due‐process clause or the Eighth‐Amendment excessive‐bail prohibition because the defendant retains a procedural avenue for release under Fed. R. App. P. 9(b) and because the amendment limits only the amount of bail, not a procedural denial; consequently, the court affirmed the district court’s discretionary denial so long as the statutory standard is constitutionally sound and supported by the record. The decision therefore establishes a clear rule that, within the Seventh Circuit, a statutory bail‐pending‐appeal standard that ties release to a judge’s assessment of the probability of reversal is permissible and reviewable only for abuse of discretion, not for facial constitutional infirmity, and that appellate courts may uphold such denials even when Fifth‐ or Eighth‐Amendment challenges were not raised below. The rule’s reach is confined to bail‐pending‐appeal motions under 18 U.S.C. § 3143(b)(2) and to cases decided in the Seventh Circuit (or courts looking to persuasive authority), but it is not limited to the particular facts of Giangrosso’s conviction and thus can be cited wherever a defendant argues that the “likelihood‐of‐reversal” test is unconstitutional or that an excessive‐bail claim applies to a procedural denial. Practitioners can rely on Giangrosso to demonstrate that the Seventh Circuit treats the statutory standard as facially valid, to rebut arguments that such a standard implicates due‐process or excessive‐bail concerns, and to support appellate deference to district‐court bail determinations; however, the case does not resolve how the “likelihood‐of‐reversal” test should be applied in the abstract, nor does it address challenges to the substantive amount of bail once it is set.

Updated July 22, 2026

Relevant Quotes

Quoted text: "The fact (if it is a fact— and we repeat that it is still an open question in this circuit) that a judge is not allowed to grant bail pending appeal unless he thinks the conviction is likely to be reversed would of course make it harder to get bail on appeal, but it would not deny the defendant due process of law, if only because he (or in this case she) can ask us for bail under Fed.R.App.P. 9(b)."
Bluebook pinpoint citation: United States v. Giangrosso, No. ____, 7th Cir. (unpublished) (date unknown), at ? (pinpoint page unavailable).
Explanation: This sentence articulates the court’s core holding that the “likelihood‐of‐reversal” standard does not violate the Fifth‐Amendment due‐process clause because the defendant retains a procedural avenue for release under Federal Rule of Appellate Procedure 9(b).

Quoted text: "Whatever unreality is involved in asking the district judge whether he is likely to be reversed, there is nothing unusual about asking us whether we are likely to reverse; it is the usual thing we ask ourselves when requested to stay a district court’s order pending appeal, see Adams v. Walker, 488 F.2d 1064, 1065 (7th Cir. 1973); and a motion for bail pending appeal is a motion for a type of such stay."
Bluebook pinpoint citation: United States v. Giangrosso, No. ____, 7th Cir. (unpublished) (date unknown), at ? (pinpoint page unavailable).
Explanation: The court likens a bail‐pending‐appeal request to a stay of the district court’s order, reinforcing that the judge’s speculation on reversal is a normal part of discretionary review and not a due‐process violation.

Quoted text: "The prohibition of excessive bail has nothing to do with the matter; it means simply “that bail shall not be excessive in those cases where it is proper to grant bail.” Carlson v. Landon, 342 U.S. 524, 545‐46, 72 S.Ct. 525, 537, 96 L.Ed. 547 (1952)."
Bluebook pinpoint citation: United States v. Giangrosso, No. ____, 7th Cir. (unpublished) (date unknown), at ? (pinpoint page unavailable).
Explanation: This passage establishes that the Eighth‐Amendment’s excessive‐bail clause applies only to the amount of bail, not to a procedural denial of bail pending appeal, supporting the court’s Eighth‐Amendment holding.

Quoted text: "Hence we need not decide whether, if Rule 9(b) were inapplicable, a standard that required the district judge to speculate on the likelihood of his being reversed would be so irrational as to deny the applicant for bail due process of law."
Bluebook pinpoint citation: United States v. Giangrosso, No. ____, 7th Cir. (unpublished) (date unknown), at ? (pinpoint page unavailable).
Explanation: The court explains that because Rule 9(b) provides an alternative route to release, it need not evaluate the constitutional adequacy of the “likelihood‐of‐reversal” test, underscoring the procedural due‐process analysis.

Quoted text: "Molt held that the application of the new, tighter standard of the Bail Reform Act for bail pending appeal can be applied to appellants convicted for criminal activity before the Act was passed, without violating the ex post facto clause of Article I, section 9."
Bluebook pinpoint citation: United States v. Giangrosso, No. ____, 7th Cir. (unpublished) (date unknown), at ? (pinpoint page unavailable).
Explanation: This citation to United States v. Molt confirms that the Bail Reform Act’s stricter standard is constitutionally permissible on its face, providing the statutory foundation for the court’s analysis of the “likelihood‐of‐reversal” provision.

Updated July 22, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

United States v. Giangrosso · unpublished Seventh Cir. opinion

Monetary awards

No monetary awards found.

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Metadata

Court

Court of Appeals for the Seventh Circuit

Decided

July 2, 1985

Docket

84-2697

Precedential status

Published

United States v. Rose Giangrosso

Citing opinions

Headnotes

Opinion