483 F.2d 1314 (D.C. Cir. 1973), 72-2080, United States v. Brown

Docket Nº:72-2080.
Citation:483 F.2d 1314
Party Name:UNITED STATES of America v. William BROWN, Appellant
Case Date:August 03, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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483 F.2d 1314 (D.C. Cir. 1973)



William BROWN, Appellant

No. 72-2080.

United States Court of Appeals, District of Columbia Circuit.

Aug. 3, 1973

Argued April 12, 1973.

Fred Warren Bennett, Washington, D. C. (appointed by this Court), was on the brief for appellant.

Harold H. Titus, Jr., U. S. Atty., John A. Terry, John T. Kotelly, and Richard L. Beizer, Asst. U. S. Attys., were on the brief for appellee. Frederick C. Moss and John J. Mulrooney, Asst. U. S. Attys., also entered an appearance for appellee.

Marilyn Cohen, Washington, D. C., was on the brief for the Public Defender Service as amicus curiae.

Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.

BAZELON, Chief Judge:

This case raises difficult questions about a matter of importance that is

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continually before this court: the resolution of motions for bail pending appeal. The movant, William Brown, was convicted in federal District Court of armed robbery and assault with a dangerous weapon-both D.C. Code offenses. 1 Brown subsequently filed notice of appeal, and presented a motion in the District Court for release pending appeal. The trial judge denied the motion, stating that Brown did not meet the criteria for release set forth at 23 D.C.Code § 1325.

On this appeal, Brown argues that his motion was decided under the wrong statute. He maintains that motions for release in the federal courts of the District must be decided on the basis of the federal statute governing bail-The Bail Reform Act of 1966, 18 U.S.C. § 3148- rather than the D.C. Code provisions. The trial judge explicitly noted that Brown would be entitled to release under the federal bail statute, even though he could not be released under the harsher local code provisions. Accordingly, we proceed to determine which bail statute should apply to motions for release pending appeal in the federal courts of our jurisdiction. 2

Prior to 1971, the right to bail pending appeal for any appellant in this court was determined in accordance with the Federal Bail Reform Act. In the D.C. Court Reform Act of 1970, 3 Congress enacted the harsher bail provisions codified at 23 D.C.Code § 1325(c). 4 We were first called upon to gauge the applicability of those provisions in United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972). After a careful review of the language of the statute, the intent of Congress, and relevant Constitutional considerations, we held, in that case, that the bail provisions of the local code did not apply to an appellant who was convicted in the federal courts of a federal (U.S.Code) offense.

U. S. Code

D. C. Code

The Thompson opinion did not reach the question before us today-the applicability of the local provisions to an appellant convicted in federal court of a local (D.C.Code) offense. Thompson recognized the possibility that Congress might have intended the D.C.Code bail provisions to apply in such cases. The government now argues that what we recognized as "possible" in Thompson is in fact correct. The movant, on the other hand, argues that that possibility cannot govern this case, first because of statutory changes since the Thompson opinion was issued, and second because of Constitutional infirmities in the D.C.

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Code bail provisions. 5 We need decide only the first of these questions today.


On April 24, 1972, some six months after United States v. Thompson was issued, the Supreme Court adopted amendments to Fed.R.App.P. 9, and Fed.R. Crim.P. 46, providing that motions for release pending appeal in all federal courts should be determined in accordance with the Federal Bail Reform Act of 1966. 6 Those amendments became effective on October 1, 1972; under the clear command of statute, 7 any contrary provision of law became ineffective after that date. On this basis, appellant maintains that, even if the D.C. Court Reform Act did make the local bail provisions applicable to defendants in the federal courts, that statute was superseded by the subsequent action of the Supreme Court.

There is no question but that the Supreme Court has the authority to establish the rules at issue here 8 and that these rules have the force of law. Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941). The government contends that the new rules promulgated by the Court cannot repeal statutory provisions; but it is well settled that the Federal Rules can have that effect, Mookini v. United States, 303 U.S. 201, 206, 58 S.Ct. 543, 82 L.Ed. 748 (1938); indeed, the Supreme Court reiterated that position just a few weeks ago. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (U.S. 1973). Nor is there any question but that the Federal Rules apply to all criminal cases in the Federal Courts. 9 It seems to logically follow that the federal courts of this jurisdiction should adhere to dictates of the Federal Rules, as amended, rather than to the provisions of the D.C. Court Reform Act, which were thereby superseded.

At oral argument, government counsel recognized the cogency of this reasoning; he suggested, however, that neither Congress nor the Supreme Court could have intended this result. He argued that the Court's issuance of general rules on bail pending appeal for the nation as a whole was not meant to affect the application by the federal courts of the district of the provisions previously enacted by Congress for this particular jurisdiction. He said that the failure to exempt this circuit from the general rule was an "oversight" 10 on the part of the Court. We recognize at the core of this argument a salient principle: that courts should be wary of broad, general legislative pronouncements which appear to subsume specific provisions of prior law. In United States v. Wallace & Tiernan, Inc., 121 U.S.App.D.C. 245, 349 F.2d 222 (1965), we observed that those who prepare general codifications "must of necessity rely to a considerable extent

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on the work of their staff, 11 into which some errors will inevitably creep." 12 On the facts of that case, we refused to recognize as law a "clerical oversight" of drafting which superseded a specific prior rule. But, this case differs in many ways from Wallace & Tiernan.

A court of appeals is not generally inclined to assert that the Supreme Court has erred, either through "over-sight" or otherwise. And it is particularly difficult in this case to suggest that the Court was unaware of the situation in the District of Columbia. Just one month before the Court issued the Federal Rules amendments, it had denied certiorari in United States v. Thompson, supra.13 We recognize the dangers of attempting to draw meaning from a denial of certiorari, cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562 (1950), but we think it safe to assume from such action at least that the Court was familiar with the facts and the statute at issue in this case. Thus, we must be hesitant to accept the U.S. Attorney's "oversight" argument. In addition, our rejection of the "oversight" argument does not render the D.C.Code bail provisions a nullity for they remain applicable to offenders convicted in local courts. Accordingly, we agree with appellant and amicus that the amendments to Fed.R. App.P. 9, and Fed.R.Crim.P. 46, should be taken at face value; that this federal court, like all other federal courts, should determine motions for bail pending appeal in accordance with the Federal Bail Reform Act, 18 U.S.C. § 3148.


Ascertaining an unstated legislative purpose is a hazy business at best, but we are fortified in our conclusion by a well-recognized cannon of statutory construction-"when one interpretation of a statute would create a substantial doubt as to the statute's constitutional validity, the courts will avoid that interpretation absent a 'clear statement' of contrary legislative intent." United States v. Thompson, supra, 146 U.S. App.D.C. at 5, 452 F.2d at 1337. As appellant suggests, adoption of the government's construction would necessarily pose difficult questions of constitutional law.

Appellant and amicus curiae argue that the D.C.Code bail provisions, by creating a harsher standard for release than that embodied in the Federal Bail Reform Act, violate the Constitutional guarantee of equal protection of the laws; cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). This suggestion follows from our discussion of the D.C.Code provisions in United States v. Thompson, supra. We noted there that the D.C.Code bail provisions single out a "powerless, voteless minority" the residents of the District of Columbia 14 for special, and harsher,

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treatment in regard to a right " fundamental" in the sense that it "involves issues of personal freedom." 15 We determined that a limiting interpretation of the statute was necessary to avoid unconstitutional discrimination. Accordingly, we held that the D.C.Code bail provisions could not be applied to a federal offender in a federal court.

Such considerations might also apply to the situation before us: application of the D.C.Code bail provisions to local offenders in a federal court. If we were to accept the government's contention that the local provisions do apply, then certain defendants in the federal courts of this jurisdiction would be treated more harshly than defendants in any other federal court-at least as far as bail pending appeal is concerned. As we noted in Thompson such discrimination might be justified if this court were dealing with crimes that are prosecuted in no other federal court. 147 U.S.App. D.C. at 7, 452 F.2d at 1340...

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