U.S. v. Koon, Nos. 93-50561

• Decision Date: 24 September 1993
• Docket Number: 93-50562,Nos. 93-50561
• Citation: 6 F.3d 561
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stacey C. KOON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Laurence M. POWELL, Defendant-Appellant. . Order Filed
• Court: U.S. Court of Appeals — Ninth Circuit

Page 561

6 F.3d 561

UNITED STATES of America, Plaintiff-Appellee, v. Stacey C. KOON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Laurence M. POWELL, Defendant-Appellant.

Nos. 93-50561, 93-50562.

United States Court of Appeals Ninth Circuit.

Order Filed Sept. 24, 1993.

As Amended Oct. 1, 1993.

Joel Levine, Encino, CA, for defendant-appellant-cross-appellee Stacey C. Koon.

William J. Kopeny, Santa Ana, CA, for defendant-appellant-cross-appellee Laurence M. Powell.

Steven D. Clymer, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee-cross-appellant.

Before: PREGERSON, BRUNETTI and RYMER, Circuit Judges

ORDER

The Order and Dissents filed September 24, 1993, as amended October 1, 1993, are designated for publication.

Before: PREGERSON and RYMER, Circuit Judges.

The panel has voted to deny appellants' petitions for rehearing and to reject the suggestions for rehearing en banc.

The full court was advised of the suggestions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petitions for rehearing are denied and the suggestions for rehearing en banc are rejected.

Judges Reinhardt, Kozinski and Noonan dissent from the failure of the court to rehear the case en banc. Judge Rymer separately concurs in the decision of the court not to rehear the case en banc.

RYMER, Circuit Judge, concurring:

In their request for bail pending appeal, Stacey Koon and Laurence Powell have shown only ordinary reasons relating to flight risk, danger to the community and issues on appeal; they have not in addition shown, as the Mandatory Detention Act requires, "exceptional reasons" which make detention in their case inappropriate. Congress has declared that all persons who are found guilty of crimes of violence must be detained--even though they individually pose no risk of flight or danger to the community and despite the fact that they may raise substantial issues on appeal--unless they clearly show "exceptional reasons" why detention is not appropriate. 18 U.S.C. Secs. 3143(b)(2) and 3145(c). These two officers were convicted of a violent act, and neither has shown "exceptional reasons" why he should be treated differently from everyone else who has committed a crime of violence.

Whether "exceptional reasons" exist must be determined case-by-case. Because "exceptional" means more than ordinary, and there is nothing out of the ordinary about the reasons offered by Koon and Powell, this matter does not require us to decide what will comprise "exceptional reasons" in some other case. The trial judge's decision denying bail in this case was within his discretion, complies with the bail statutes, and is consistent with the law of other circuits ¹ and our own. ² Our full court therefore properly decided not to rehear the matter en banc, and I write separately to explain why I concur.

The Koon and Powell motions for bail pending appeal raise two issues. The first is whether they were convicted of a "crime of violence" for purposes of the Bail Reform Act, 18 U.S.C. Sec. 3156(a)(4). Assuming they were, and that they pose no risk of flight or danger and raise a substantial question on appeal, the second issue is whether they have clearly shown "exceptional reasons" why detention is not appropriate under the Mandatory Detention Act, 18 U.S.C. Secs. 3143(b)(2) and 3145(c).

On the first issue, the bail statutes distinguish between violent and non-violent offenders. A non-violent offender may be released pending appeal if he shows that he is not likely to flee or pose a danger to the safety of anyone else or the community, and that the appeal raises a substantial question. 18 U.S.C. Sec. 3143(b)(1). A violent offender, on the other hand, may only be released when he meets those same conditions and if it is clearly shown there are exceptional reasons why detention would not be appropriate. 18 U.S.C. Secs. 3143(b)(2), ³ 3145(c). ⁴

The district court found that beating Rodney King was a crime of violence. I agree. This finding triggers the mandatory detention provision of Sec. 3143(b)(2).

Next, the district court found that neither Koon nor Powell was likely to flee or pose a danger to the community, and that both appeals raise substantial questions. These findings satisfy the conditions for release of an ordinary, non-violent offender. 18 U.S.C. Sec. 3143(b)(1). Because these conditions are met, the threshold requirement for the exception to mandatory detention is also met. 18 U.S.C. Sec. 3145(c).

The remaining question, therefore, is whether "it is clearly shown that there are exceptional reasons why [Koon's and Powell's] detention would not be appropriate." Id. The answer is no, because no facts or reasons have been adduced in this case which amount to anything more than the normal Sec. 3143(b)(1) threshold requirements. The record suggests nothing clearly "out of the ordinary," "uncommon" or "rare" ⁵ about Koon and Powell which sets them apart from any one else convicted of a crime of violence, or of violating a suspect's constitutional rights.

Koon ⁶ and Powell advanced numerous reasons in their request for release which they argue qualify as "exceptional": their offense was "highly situational" and their release poses no danger to the community; there are unusual and weighty issues on appeal; they had been acquitted in state court; the victim's conduct contributed to the offense; a lengthy sentence and detention will adversely affect police morale; Koon is involved in civil litigation; there will be difficulty in assuring safety while incarcerated; and the sentence is relatively short in comparison to the relatively long process for appeal.

None of these reasons is exceptional; each is an ordinary corollary of being a law enforcement officer convicted of violating another's civil rights under 18 U.S.C. Sec. 242. Any police officer convicted of a Sec. 242 offense faces civil liability, a difficult time in prison, and unemployment; may have already been prosecuted by the state; has probably been the subject of adverse publicity; and his or her family will undoubtedly suffer hardship. Congress created no law enforcement official exception to mandatory detention. Therefore, unless we are willing to say that all Sec. 242 defendants who are police officers are "exceptional," there is no way these defendants meet the "exceptional reasons" standard.

The most arguably "exceptional reason" proffered by Koon and Powell, is that they may have served a substantial part of their relatively short sentence before the appeal is resolved. While the length of sentence compared with the length of appeal may well be "exceptional" in a particular case, there is no basis for finding any unusual delay in processing the Koon and Powell appeals. We have already issued an expedited briefing schedule requiring all briefs to be filed by mid-February.

Otherwise, Powell's (and Koon's) arguments for why their case is "exceptional" are typical arguments relating to flight, risk of violence, and the merits of an appeal. Though it's true that the boundaries of "exceptional reasons" are undefined, "exceptional" necessarily means more than what the typical nonviolent offender must show to merit bail pending appeal--and in turn, what the violent offender must show as a prerequisite to release under the "exceptional reasons" exception to mandatory detention.

To be eligible for the "exceptional reasons" exception to mandatory detention, the defendant must have shown by clear and convincing evidence that he does not pose a danger to society or a risk of flight, and that the appeal raises a substantial question. 18 U.S.C. Sec. 3143(b)(1). Showing just these things cannot be "exceptional." ⁷ They are foundational. Otherwise, every violent offender would have as good a chance of getting bail on appeal as every nonviolent offender. This, of course, would be inconsistent with Sec. 3143(b)(2), which mandates detention for persons found guilty of a violent crime. "Exceptional," therefore, necessarily means more than what the typical nonviolent offender must show; and for there to be "exceptional reasons" in addition to meeting the conditions of release set forth in Sec. 3143(b)(1), the violent offender has to show more than the fact that he or she is neither a danger to the community nor likely to flee. Thus, no matter how broadly "exceptional" is defined, there is no way that it could be contoured in keeping with the Congressional mandate so as to make the reasons advanced by Koon or Powell out of the ordinary for a police officer convicted of violating a person's constitutional rights by an act of violence.

Nor is it necessary or helpful to use this case to construct a framework for deciding future cases. We are not called upon here to decide whether reasons of health, or infirmity, might qualify as exceptional. ⁸ Rather, as both the Second Circuit and the Seventh have said, the determination of whether "exceptional reasons" have been clearly shown is quintessentially a fact-intensive inquiry requiring case by case analysis. United States v. Herrera-Soto, 961 F.2d 645, 647 (7th Cir.1992) (per curiam); United States v. DiSomma, 951 F.2d 494, 497 (2d Cir.1991).

For these reasons, "exceptional reasons" is not a question of exceptional importance for purposes of en banc rehearing. ⁹ Fed.R.App.P. 35(a). No constitutional issue is raised. In any event, section 3143(b)(2) on its face reveals a congressional determination that it does not matter whether certain offenders--those who commit crimes of violence--can prove they will stay put and won't bother anyone else while pursuing their appeals. Congress has said as to them, the nature of the underlying offense justifies imprisonment immediately upon conviction. This is a rational distinction. As it is...