U.S. v. Crabtree
| Decision Date | 22 February 1985 |
| Docket Number | No. 85-3050,85-3050 |
| Citation | 754 F.2d 1200 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Hubert T. CRABTREE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Daniel A. McGovern, IV, New Orleans, La. (Court appointed) for manzella.
G. Patrick Hand, Jr., Wm. J. O'Hara, III, New Orleans, La., for Thibodaux.
Provino Mosca, Patrick Fanning, New Orleans, La., for Provenzano.
Edward J. Castaing, Jr., New Orleans, La. (Court appointed), for Blachard.
Virginia L. Schlueter, Asst. Federal Public Defender, New Orleans, La., for Jimenez.
Ralph Capitelli, New Orleans, La., for Dr. Canale.
John P. Volz, U.S. Atty., New Orleans, La., for U.S.
Application for Release related to Appeal from the United States District Court for the Eastern District of Louisiana.
After conviction and sentence, Hubert T. Crabtree applied to the district court to continue his bail terms pending appeal. The district court denied the application, finding that the trial generated no substantial questions of law or fact that were likely to result in reversal on appeal or an order for a new trial. Crabtree has now applied to me as a judicial officer authorized to order release from detention pending appeal under 18 U.S.C. Sec. 3141 to allow him to retain his bail status pending appeal of the district court's ruling on his application and our ruling on his appeal from his conviction and sentence.
Crabtree indicates he will raise five issues on the latter appeal: (1) the presence of a "contaminated" juror on the panel during trial; (2) the lack of evidence of two separate predicate acts required under 18 U.S.C. Sec. 1962; (3) the lack of evidence with respect to the court's ruling on a motion under U.S. v. James, 590 F.2d 575 (5th Cir. en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979); (4) the impropriety of government counsel's rebuttal argument; and (5) the admissibility of prejudicial tapes concerning Crabtree's spouse.
18 U.S.C. Sec. 3143(b) provides in pertinent part:
(b) 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 3143(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.
Under Federal Rule of Appellate Procedure 9(c), the burden of establishing the criteria enumerated in Sec. 3143(b) rests with Crabtree. In this application proceeding, he need not be concerned with the need for a showing by clear and convincing evidence that he was not likely to flee or pose a danger to the community. The district court made that finding in his favor and I will not disturb it. The remaining tests are whether the appeal (a) is taken for the purpose of delay, (b) raises a substantial question of law or fact, and (c) is likely to result in reversal or an order for a new trial.
There is no reason to pass on whether delay or insubstantiality are present because Crabtree has failed to carry the burden imposed on him to show that his appeal is likely to result in reversal or a new trial order. Crabtree's application is presented to me without a transcript. Crabtree acknowledges that the issue he raises as to improper argument of counsel must depend on an examination of the transcript. In the brief he has filed in support of his application, the remaining issues are discussed in factual terms which Crabtree proffers without record support. The brief of the government in opposition contends that I cannot find that the district judge who heard the case abused his discretion in ruling that the appeal was not likely to result in a reversal or an order for a new trial. Regardless of whether this application should be considered as a review of the action of the district judge and, if so, whether the proper standard of review is abuse of discretion or the clearly erroneous test, or whether the...
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