U.S. v. Affleck

• Citation: 765 F.2d 944
• Decision Date: 24 May 1985
• Docket Number: 84-2600,Nos. 85-1009,s. 85-1009
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grant C. AFFLECK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank KOWALIK, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 944

765 F.2d 944

53 USLW 2628

UNITED STATES of America, Plaintiff-Appellee, v. Grant C. AFFLECK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Frank KOWALIK, Jr., Defendant-Appellant.

Nos. 85-1009, 84-2600.

United States Court of Appeals Tenth Circuit.

May 24, 1985.

A. Brent Carruth, Carruth & Goodwin, Van Nuys, Cal. (Eric A. Goodwin, Carruth & Goodwin, Van Nuys, Cal., with him on the briefs), for defendant-appellant Affleck.

Brent D. Ward, U.S. Atty., Salt Lake City, Utah (David Schwendiman, Sp. Asst. U.S. Atty., Salt Lake City, Utah, with him on the brief), for plaintiff-appellee U.S. in No. 85-1009.

Albert M. Pearson, University of Georgia School of Law, Athens, Ga., and Scott McLarty, Athens, Ga. (Cecil Hartman, Denver, Colo., with them on the brief), for defendant-appellant, Kowalik.

Thomas M. O'Rourke, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., with him on the brief), for plaintiff-appellee U.S. in No. 84-2600.

Michael L. Bender, Bender & Treece, and Jay P.K. Kenney, Denver, Colo., were on the brief in 84-2600 for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Before HOLLOWAY, Chief Judge, and SETH, BARRETT, DOYLE, McKAY, LOGAN, and SEYMOUR, Circuit Judges ^*.

HOLLOWAY, Chief Judge.

OPINION ON REHEARING EN BANC

These separate appeals from the District of Utah and the District of Colorado present important questions under the Bail Reform Act of 1984 ("Act"), enacted as part of the Comprehensive Crime Control Act of 1984, Title II of Pub.L. No. 98-473, 98 Stat. 1976, approved October 12, 1984. This court ordered rehearings en banc which were heard on March 12, 1985 in each case. This opinion disposes of the issues in both cases concerning bail pending appeal.

I Facts

A. Affleck

Defendant Grant C. Affleck was convicted in the District of Utah on October 5, 1984 after a jury trial of six counts of security fraud, ¹ one count of bankruptcy fraud, ² and one count of interstate transportation of a person to defraud. ³ On that date, the district court ordered Affleck released on a $75,000 bond pending sentencing. The district court found that Affleck did not pose a danger to others or to the community, and that he was not likely to flee.

On November 16, Affleck was sentenced to ten years' imprisonment and five years' probation. On November 19, Affleck filed a notice of appeal. On November 20 the district court, in response to Affleck's ex parte motion, stayed execution of the sentence upon filing of the same bond maintained by Affleck during the trial. The district court found that Affleck posed "no immediate threat of fleeing during appeal and no immediate danger to society during that period." VIII R. 1438-39.

On November 21, the Government filed a motion in the district court to reconsider its order staying execution of Affleck's sentence and ordering his release pending appeal, or in the alternative, to hold an expedited hearing and to make the findings to support such an order as required by 18 U.S.C. Sec. 3143(b), as amended by the new Act. Section 203(a) of the Act changed the standards governing release of convicted defendants on bail pending appeal.

Under former 18 U.S.C. Secs. 3146 and 3148, convicted defendants were entitled to release on bail pending appeal unless no one or more conditions of release would reasonably assure that they would not flee or pose a danger to any other person or to the community, or unless their appeal was frivolous or taken for purpose of delay. The burden was on the Government under the former law to show that the appeal was frivolous and was taken for purpose of delay; the defendant bore the burden of showing he would not flee and was not a danger to any person or the community. See also former Fed.R.App.P. 9(c). The Act changed the criteria for release on bail pending appeal and placed the burden on the convicted defendant to prove that he meets all the new criteria. Current 18 U.S.C. Sec. 3143(b) provides as follows:

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 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.

Act Sec. 203(a), 98 Stat. 1981-82 (emphasis added); see also Fed.R.App.P. 9(c), as amended by Act Sec. 210, 98 Stat. 1987.

Affleck principally argued below that he was entitled to bail pending appeal because the former law entitled him to that relief, and that application to him of the new Act would violate the ex post facto clause. After a hearing, the district court on December 11 vacated its earlier order. The court held that Affleck had established by clear and convincing evidence under Sec. 3143(b)(1) that he was not likely to flee or pose a danger to the safety of any other person or to the community if he were released on a $75,000 bond pending appeal. The court also held that Affleck had established that his appeal was not taken for purpose of delay under Sec. 3143(b)(2). The court denied bail, however, because Affleck did not establish that his appeal raised a substantial question of law or fact likely to result in reversal or an order for a new trial under Sec. 3143(b)(2). VIII R. 1490. The court also held that application of the new criteria of Sec. 3143(b) to deny Affleck bail pending appeal did not violate the ex post facto clause, even though he would have been entitled to bail under the law in effect when the offenses were committed and when the guilty verdicts were returned. Id. at 1491-95.

B. Kowalik

Defendant Frank Kowalik, Jr. was convicted in the District of Colorado on September 19, 1984 after a jury trial of two counts of willfully failing to file federal income tax returns in violation of I.R.C. Sec. 7203. On November 14 the district court sentenced Kowalik to one year of imprisonment and a $10,000 fine on each count. The district court on that date also ordered Kowalik's release pending appeal upon filing of a $20,000 bond. The court found that Kowalik did not pose a danger to the community and was not likely to flee. I R. 123.

Also on November 14 Kowalik filed a notice of appeal and sought release on the appeal bond, but the magistrate concluded that release was inappropriate absent findings by the district court under Sec. 3143(b). Kowalik principally argued that he was entitled to bail pending appeal under the former law. He also contended that he raised substantial questions likely to result in reversal or an order for a new trial under the new Act. He argued that the trial court erred in its instructions because they did not properly treat his defenses of not willfully and knowingly intending a violation of the tax law, and that the instructions did not properly cover the effect of evidence from his character witnesses. After a hearing on November 15, the district court vacated its earlier order permitting Kowalik to be released on bail pending appeal. The court found that Kowalik had established by clear and convincing evidence under Sec. 3143(b)(2) that he was not a threat to any other person or to the community and was not likely to flee. IX R. 4-5. However, the court held that Kowalik's appeal did not raise a substantial question of law or fact likely to result in reversal or an order for a new trial under Sec. 3143(b)(2), and denied bail. Id. at 3.

C. Proceedings in this court

Both Affleck and Kowalik challenge the district courts' denial of their motions for release pending appeal. A panel of this court denied the motions for release pending appeal. ⁴ On its own motion this court, by order of a majority of its active circuit judges on February 1, 1985, granted rehearing en banc of of the court's earlier orders denying the motions for release pending appeal. ⁵ We expedited these cases for argument at our March term of court and asked counsel to brief and argue the effect of the new Sec. 3143(b) standards in these cases. We now address various issues concerning the application to these defendants of the new Sec. 3143(b) criteria for release pending appeal.

II Effective Date and the Ex Post Facto Clause

A. Effective date

Affleck asserts that Congress did not intend the Bail Reform Act to apply to those convicted of crimes before October 12, 1984. He relies on cases holding that other provisions of the Bail Reform Act do not apply to defendants released on bail before that date. See United States v. Fernandez-Toledo, 749 F.2d 703 (11th Cir.1985) (Sec. 3731, which permits the Government to appeal order granting bail); United States v. Mitchell, 600 F.Supp. 164 (N.D.Cal.1985) (Sec. 3142, which provides for pretrial detention). But see United States v. Anguilo, 755 F.2d 969, 970-74 (1st Cir.1985) (application of pretrial detention provisions of new Act to a defendant incarcerated and seeking release on October 12). Affleck also cites Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964), and argues that criminal statutes like Sec. 3143(b) should not be given retrospective operation where to do so would interfere with antecedent rights. See also Fernandez-Toledo, 749 F.2d at 705 (defendant released on bail prior to effective date of the Act had a vested, antecedent right to bail).

We are not persuaded by these cases that the Act should not apply to a defendant like Affleck, convicted before October 12, who seeks bail pending appeal after that date. There is no constitutional right to bail pending appeal. See, e.g., United States v. Provenzano, 602 F.Supp. 230, 232 (E.D.La.1985); United...