U.S. v. Bayko, 85-1252

• Decision Date: 27 September 1985
• Docket Number: No. 85-1252,85-1252
• Citation: 774 F.2d 516
• Parties: UNITED STATES of America, Appellant, v. Mark Allan BAYKO, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 516

774 F.2d 516

UNITED STATES of America, Appellant, v. Mark Allan BAYKO, Defendant, Appellee.

No. 85-1252.

United States Court of Appeals First Circuit.

Argued Aug. 7, 1985.

Decided Sept. 27, 1985.

Bruce E. Kenna, Asst. U.S. Atty., Concord, N.H., for appellant.

Jean-Claude Sakellarios, Manchester, N.H., court appointed counsel for defendant, appellee.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This appeal presents us with a question of first impression in this circuit concerning the application of the new requirements for post-conviction release on bail pending appeal in the Comprehensive Crime Control Act of 1984. 18 U.S.C.A. Sec. 3143(b) (1985). The district court found the defendant, Mark Allan Bayko, guilty of a violation of 18 U.S.C.App. Sec. 1202(a)(1) (1982), possession of a firearm by one previously convicted of a felony. The court released defendant on bail pending final decision of his appeal. The government has appealed defendant's release claiming that the district court failed to apply the new standards properly and that proper application prohibits his release on bail pending appeal. Defendant argues that the application of the new requirements to him was a violation of the ex post facto clause of the Constitution because his crime was committed prior to the effective date of the new act. Alternatively, he argues that the district court properly applied the new standard in releasing him on bail during the pendency of his appeal.

A brief summary of the events leading to defendant's conviction on charges of possessing a firearm after previously being convicted of a felony is in order. On January 25, 1984, at 4:30 in the morning, Police Officer Jeffrey Koehler was sent to a three-story residential building to investigate an anonymous citizen's complaint about a loud party. When Officer Koehler arrived at the building and entered the main hallway, he heard nothing resembling a loud party. The only noise he could hear was from a television set on the second floor. He knocked on the door of the apartment from which the television sound came to inform the occupants of the complaint that had been received. He made no announcement that he was a police officer. The door swung open into the hallway and when Officer Koehler looked into the apartment he saw Bayko standing there pointing a gun at him. As soon as Bayko realized that a police officer was at the door, he lowered the gun and tossed it away. Officer Koehler recognized Bayko as one who had previously been convicted of a felony--dealing in counterfeit federal reserve notes--and arrested him. After Bayko was in custody, Officer Koehler searched the area where he had seen him toss the gun and found it in a pile of clothes. The gun was a Colt .38 Special Trooper model revolver loaded with three standard .38 bullets and two hollow point .38 bullets. A motion to suppress the evidence seized during Officer Koehler's search was denied by the trial court and Bayko was convicted of violating 18 U.S.C.App. Sec. 1202(a)(1).

We have reviewed the record below and can find no objection by defendant to the use of the new bail requirements. Having failed to raise the ex post facto argument below, defendant may not now raise it upon appeal. Tarrant v. Ponte 751 F.2d 459, 461 n. 5 (1st Cir.1985); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979). Although we will make an exception for an issue not raised below if it is "plain error," Fed.R.Crim.P. 52(b), or "so compelling as virtually to insure appellant's success," United States v. West, 723 F.2d 1, 2 n. 1 (1st Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985) (quoting Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir.1974) ), that exception does not apply here. Those circuits which have considered this issue have all found that the ex post facto clause is not violated by retroactive application of the post-conviction bail standards to defendants who had committed crimes prior to the effective date of the Act. United States v. Miller, 753 F.2d 19 (3d Cir.1985); United States v. Crabtree, 754 F.2d 1200 (5th Cir.1985) (Opinion of Chief Judge Clark as a single circuit judge), cert. denied, --- U.S. ----, 105 S.Ct. 3528, 87 L.Ed.2d 652 (1985); United States v. Molt, 758 F.2d 1198 (7th Cir.1985); United States v. Powell, 761 F.2d 1227 (8th Cir.1985); United States v. McCahill, 765 F.2d 849 (9th Cir.1985); United States v. Affleck, 765 F.2d 944 (10th Cir.1985); United States v. Ballone, 762 F.2d 1381 (11th Cir.1985). While we do not decide the ex post facto issue, we do find that the application of the new bail standards to defendant does not reach the level of error necessary to overcome a failure to object below. ¹

We turn, therefore, to the government's contention that the district court improperly applied the new bail requirements when it released defendant on bail pending the results of his appeal. The new standards are set out in 18 U.S.C.A. 3143(b) (1985) and provide:

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.

We consider first the scope of our review. The new provisions concerning the appeal of release or detention orders, 18 U.S.C.A. Secs. 3145, 3731 (1985), ² contain no standard of appellate review, as was also the case under the provisions previously in effect, ³ 18 U.S.C. Sec. 3148 (repealed 1984), ⁴ and, up until now, we have not had to consider what standard of review should be used. An examination of the cases reviewing district court decisions allowing release on bail pending appeal prior to the 1984 Act shows that both the courts of appeals ⁵ and Supreme Court Justices sitting as Circuit Justices ⁶ utilized a standard of review less restrictive than the "clearly erroneous" and "abuse of discretion" standards ordinarily applied in appellate review. These decisions held that while the court of appeals should give deference to the decision made by the district court, it should nonetheless make an independent determination of the merits of the bail application.

The Third Circuit considered the standard of review under former Sec. 3148 in United States v. Provenzano, 605 F.2d 85 (3d Cir.1979), and the current Sec. 3145 in United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985). It grounded its more expansive standard of review upon Federal Rule of Appellate Procedure 9(b), which states that motions for release or modification of the conditions of bail "shall be determined promptly on such papers, affidavits, and portions of the record as the parties shall present...." In its ruling under the old provision, Sec. 3148, the Third Circuit pointed out that since Rule 9(b) "permits consideration by the court of appeals of evidence that may not have been before the trial judge," independent review by the court of appeals must have been contemplated by Congress. Provenzano, 605 F.2d at 93; 3A Wright, Federal Practice and Procedure Sec. 767, at 142-43 (2d ed. 1982). Rule 9(b) continues to apply to the appeal of release or detention orders under new Sec. 3145, see S.Rep. No. 225, 98th Cong., 1st Sess. at 29 n. 92 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, at 3212 n. 92. The Third Circuit, therefore, recently reaffirmed its expansive standard of review for orders granting or denying bail pending appeal under the new bail statute. United States v. Delker, 757 F.2d at 1399-40.

In Delker, the Third Circuit also pointed out that the new provision permitting the government to appeal district court release orders, 18 U.S.C.A. Sec. 3731 (1985), was designed to vindicate the "clear public interest in permitting review of release orders which may be insufficient to prevent a defendant from fleeing or committing further crimes," S.Rep. No. 225, 98th Cong., 1st Sess. at 30 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3213. It reasoned that such interest would be most effectively served by a standard of review more rigorous than "abuse of discretion." 757 F.2d at 1399.

We agree with the Third Circuit's approach. An "abuse of discretion" standard does not make sense in light of the procedures set up in Appellate Rule 9(b) and only a more rigorous review can provide the kind of protection of both the defendant's liberty interests and the public interest in crime prevention and punishment which Congress felt was necessary in this area. An independent review of the bail decision tempered by deference to the district court's firsthand judgment of the situation would seem to provide the level of protection Congress had in mind for both the defendant and the public. This is not to say, of course, that we will countenance end runs around the district court. Rule 9(a) requires the district court to "state in writing the reasons for the action taken." As the Third Circuit wrote in Delker, 757 F.2d at 1400, "courts of appeals are not free to ignore a trial court's supporting statement of reasons for his or her actions." Moreover, while courts of appeals may on occasion consider evidence not first presented to the district court, this will be a rare circumstance. Normally, all issues and facts to be considered on appeal should first have been put to the lower court. Appellate courts are not equipped to try factual disputes, or, ordinarily, to resolve credibility issues. And the district judge's opportunity to view the accused at trial, and to hear the evidence,...