U.S. v. McCahill

• Citation: 765 F.2d 849
• Decision Date: 09 July 1985
• Docket Number: Nos. 84-5331,84-5334,s. 84-5331
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William McCAHILL and Ronald Congelliere, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 849

765 F.2d 849

UNITED STATES of America, Plaintiff-Appellee, v. William McCAHILL and Ronald Congelliere, Defendants-Appellants.

Nos. 84-5331, 84-5334.

United States Court of Appeals Ninth Circuit.

Submitted April 29, 1985.

Decided July 9, 1985.

Mark Bonner, Asst. U.S. Atty., Los Angeles, Cal., Roger Jon Diamond, Pacific Palisades, Cal., for plaintiff-appellee.

Ronald Kreber, Newport Beach, Cal., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, ALARCON and FERGUSON, Circuit Judges.

KENNEDY, Circuit Judge:

The question presented to us is whether the denial of bail in reliance upon a statute that becomes effective after the commission of the crime and, in this case, after the entry and acceptance of a guilty plea, violates the ex post facto clause of the Constitution. See U.S. Const. art. I, Sec. 9, cl. 3. The trial court denied bail on appeal, apparently in reliance upon standards contained in the newly enacted Bail Reform Act of 1984 (the Act), 98 Stat. 1976-85, to be codified at 18 U.S.C. Secs. 3141-3150 (1984). We find no constitutional violation or other error in the trial court's ruling, and affirm.

The Act became effective on Oct. 12, 1984. Before this date, William McCahill and Ronald Congelliere entered conditional guilty pleas to various offenses involving the possession and distribution of cocaine, reserving the right to appeal a ruling to admit certain wiretap evidence. The plea was accepted. After the Act took effect, appellants were sentenced to fifteen years imprisonment; and the district court, relying upon the new standards contained in the Act, refused to grant bail pending appeal.

Before the Act took effect, a trial court could deny bail pending appeal, absent either risk of flight or danger to the public safety, only "if it appears that an appeal is frivolous or taken for delay." 18 U.S.C. Sec. 3148 (repealed 1984). The Act tightens the standard, and bail pending appeal is authorized now only if the court concludes "that the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial." Bail Reform Act of 1984, Sec. 203, 98 Stat. 1981-82, to be codified at 18 U.S.C. Sec. 3143(b)(2). The new standard makes it more difficult for a defendant to obtain bail pending appeal. United States v. Handy, 761 F.2d 1279, 1283 (9th Cir.1985); United States v. Molt, 758 F.2d 1198, 1199 (7th Cir.1985).

We conclude the change in the standard for bail pending appeal does not violate the ex post facto prohibition of the Constitution. Even if a retroactive change in the law is a disadvantage to the criminal defendant, it does not violate the ex post facto clause if the change is procedural rather than substantive. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). Though the distinction between substance and procedure in the context of the ex post facto clause may not be easy to discern in every case, it is an analytic form essential to the resolution of ex post facto cases. Dobbert, 432 U.S. at 292, 97 S.Ct. at 2297. The dichotomy, we think, is an attempt to reconcile the necessity for continuous legislative refinement of the criminal adjudication and corrections process with the constitutional requirement that substantial rights of a criminal defendant remain static from the time of the alleged criminal act. See Beazell v. Ohio, 269 U.S. 167, 170-71, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925).

Applying the distinction between substance and procedure to the case before us, we find the change is procedural. As the time served in custody pending appeal will be credited to the ultimate sentence imposed, see 18 U.S.C. Sec. 3568 (1982), the change merely advances the date of custody. The law does not alter or affect the length, severity, weight, or other significant condition of the punishment. The law is procedural because it does not alter the quantum of punishment. See Dobbert, 432 U.S. at 293-94, 97 S.Ct....