761 F.2d 1227 (8th Cir. 1985), 84-2430, United States v. Powell

Docket Nº:84-2430, 84-2439, 84-2449, 84-2493, 84-5223 and 84-5225.
Citation:761 F.2d 1227
Party Name:UNITED STATES of America, Appellee, v. Geary David POWELL, James F. Barfield, and Bill Barfield, Appellants. UNITED STATES of America, Appellee, v. Charles Bruce NABORS, Appellant. UNITED STATES of America, Appellee, v. Louis Kenneth RISKEN, Appellant. UNITED STATES of America, Appellee, v. Bayard SPECTOR, Appellant. UNITED STATES of America, Appel
Case Date:January 22, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1227

761 F.2d 1227 (8th Cir. 1985)

UNITED STATES of America, Appellee,

v.

Geary David POWELL, James F. Barfield, and Bill Barfield,

Appellants.

UNITED STATES of America, Appellee,

v.

Charles Bruce NABORS, Appellant.

UNITED STATES of America, Appellee,

v.

Louis Kenneth RISKEN, Appellant.

UNITED STATES of America, Appellee,

v.

Bayard SPECTOR, Appellant.

UNITED STATES of America, Appellee,

v.

Kent August MOECKLY, Appellant.

UNITED STATES of America, Appellee,

v.

William Joseph COULOMBE, Appellant.

Nos. 84-2430, 84-2439, 84-2449, 84-2493, 84-5223 and 84-5225.

United States Court of Appeals, Eighth Circuit

January 22, 1985

Argued Jan. 17, 1985.

[*]

Opinion Filed May 1, 1985.[*]

Rehearing and Rehearing En Banc in Nos. 84-5223 and 84-5225

Denied June 10, 1985.

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[Copyrighted Material Omitted]

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Donald Wolff, Ir. Baris, St. Louis, Mo., Philip Resnick, Mark W. Peterson, Minneapolis, Minn., and Philip Miller, Des Moines, Iowa, for appellants.

Sam Rosenthal, Washington, D.C., for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD,

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JOHN R. GIBSON, FAGG, and BOWMAN, Circuit Judges, en banc.

ARNOLD, Circuit Judge, with whom LAY, Chief Judge, and HEANEY, BRIGHT and ROSS, Circuit Judges, join.

On October 12, 1984, the Comprehensive Crime Control Act of 1984, Title II of Pub.L. No. 98-473, 98 Stat.1976, became law. Chapter I of this Act is known as the Bail Reform Act of 1984, and Section 203(a) of this chapter, 98 Stat.1976, 1981-82, enacts new standards for the admission to bail of convicted persons pending their direct appeal. The new provision, to be codified as 18 U.S.C. Sec. 3143(b), provides as follows:

(b) Release or Detention Pending Appeal by the Defendant.--

The judicial officer [usually a district judge, a circuit judge, or a court of appeals] 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 pursuant to section 3142(b) or (c); and

(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).

In each of the appeals now before us, the District Court found that the defendants were not likely to flee or pose a danger to the safety of any person or the community. Bail pending appeal was nevertheless denied, the Court being convinced that the requirements set forth in paragraph (2), quoted above, had not been met. In each case, the District Court held that the appeal did not raise "a substantial question of law or fact likely to result in reversal or an order for a new trial." Our first task is to interpret this phrase and to describe, as helpfully as possible, how it is to be applied. Next, we must consider whether the statute, as so interpreted, is constitutional. And finally, we shall explain how this standard has been applied in the individual cases before us.

The United States takes the position that the portion of the statute in question requires two separate determinations: (1) whether the appeal raises a substantial question, and (2) whether, if the defendant prevails on this question, reversal or an order for a new trial is likely. The government further argues that a question is "substantial" for this purpose if the defendant's argument on the question has a substantial chance or a substantial likelihood of prevailing on appeal. This requirement, according to the government, means that an argument must be more than simply nonfrivolous, but need not be so compelling as to require the conclusion that it is more likely that the defendant will win the argument than lose it. Rather, the government says, an argument is "substantial" for this purpose if the question is a close one or one that could very well go either way.

If a question presented by an appellant passes this part of the test, the government continues, it should then be asked whether, assuming the question is decided in favor of the defendant, it is more probable than not that reversal of the conviction or a new trial will be required. To make this determination, the Court must assume that the defendant's argument will prevail on appeal and assess the impact of the assumed error on the conviction in view of the entire record. If, for example, the strength of the prosecution's case makes clear that the assumed error had no effect on any substantial right of the defendant, or if the assumed error, even though not harmless, would affect fewer than all the counts on which defendant has been sentenced to imprisonment, release pending appeal would not be appropriate, despite the existence of a "substantial question."

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We hold that this interpretation of the statute is correct and that the new law, as so construed, is constitutional.

I.

We have the benefit of opinions on this question from three other circuits, the Third, the Eleventh, and the Ninth.

United States v. Miller, 753 F.2d 19 (3d Cir.1985), was the first appellate opinion filed on the subject. The Court held that two separate showings must be made by a defendant to satisfy the language in question: first, that the question of law or fact presented by the appeal is "substantial; " and second, that if the defendant prevails on that question, either a reversal or an order for a new trial, of all counts on which imprisonment has been imposed, is likely. By "substantial," the Court explained, it meant 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. The second part of the statutory standard, the one referring to likelihood of reversal, the Court read as requiring that the question presented, assuming its decision in appellant's favor, be "important to the merits," ibid., or "so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial," ibid. As examples of questions that would not qualify under this second element of the standard, the Court mentioned errors that are "harmless, ... have no prejudicial effect, or ... have been insufficiently preserved." Ibid. Miller thus requires appealing defendants (the burden rests upon them to establish their right to bail) to make two kinds of showings relevant in the present context: that the question is substantial, and that reversal or a new trial is likely if it goes in defendant's favor.

The next case decided by a court of appeals on this issue was United States v. Giancola, 754 F.2d 898 (11th Cir.1985) (per curiam). The Eleventh Circuit, referring to "the thoughtful analysis of ... Judge Sloviter" for the Third Circuit in Miller, 754 F.2d at 900, adopted the same basic two-part approach, subject to one important qualification with respect to the first part of the analysis. It defined a "substantial question" not simply as one on which there is no controlling precedent, but as "a 'close' question or one that very well could be decided the other way." 754 F.2d at 901. Such a question, the Court said, "is one of more substance than would be necessary to a finding that it was not frivolous." Ibid. "[A]n issue could well be insubstantial even though one could not point to controlling precedent.... [T]here 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." Ibid.

The last appellate opinion (as of this writing) on the subject is United States v. Handy, 753 F.2d 1487 (9th Cir.1985) (per curiam). Like Giancola, Handy followed the two-part analytical framework first set out in Miller. The statute, Handy said,

should be interpreted to read that "substantial" defines the level of merit of the question presented and "likely to result in reversal or an order for a new trial" defines the type of question that must be presented.

753 F.2d at 1489 (emphasis in original). The Handy Court appeared to adopt Miller so far as the second part of the analysis is concerned. As for the meaning of "substantial," it offered the phrase " 'fairly debatable,' " 753 F.2d at 1490, as a definition.

These opinions make our task considerably easier. We need not repeat much of the history and analysis contained in them. Like the Ninth and Eleventh Circuits in Handy and Giancola, we are indebted to the Third Circuit's pathfinding effort in Miller, and we also adopt the basic two-part approach to the statute it put forward. We do so with certain observations and qualifications of our own, however. First, as to whether a question is "substantial," we choose to follow Giancola ("a 'close' question or one that very well could be decided the other way") rather

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than Miller ("novel," "not ... decided by controlling precedent," or "fairly doubtful") or Handy (" 'fairly debatable' "). We believe Giancola is more responsive to the announced purpose of Congress, which was, bluntly, that fewer convicted persons remain at large while pursuing their appeals.

Under prior law, release on bail pending appeal was the normal practice. It was the rule, not the exception, and there was a presumption in favor of release...

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