United States v. Austin, CR 84-151-01.

• Citation: 614 F. Supp. 1208
• Decision Date: 19 August 1985
• Docket Number: No. CR 84-151-01.,CR 84-151-01.
• Parties: UNITED STATES of America, Plaintiff, v. Olin AUSTIN, Defendant.
• Court: United States District Courts. 10th Circuit. District of New Mexico

614 F. Supp. 1208

UNITED STATES of America, Plaintiff, v. Olin AUSTIN, Defendant.

No. CR 84-151-01.

United States District Court, D. New Mexico.

August 19, 1985.

COPYRIGHT MATERIAL OMITTED

Richard J. Smith, Asst. U.S. Atty., Albuquerque, N.M., for the U.S.

James Brandenburg, Albuquerque, N.M., for defendant.

MEMORANDUM OPINION

BALDOCK, District Judge.

THIS MATTER comes on for consideration of defendant Austin's motion for release pending appeal pursuant to the standards announced by the Tenth Circuit¹ after Austin's initial motion had been denied.² Austin was convicted by a jury of conspiracy to distribute marijuana in excess of 1000 pounds.³

I. Facts.

The trial evidence reflected that early on March 28, 1983, a DC-6 aircraft carrying some 409 bales of marijuana weighing 18,580 pounds landed on Austin's 10,640 acre ranch in Torrance County, New Mexico. The plane landed on a cow pasture lit by flares attached to rebar. A ground crew loaded the bales of marijuana into a tractor-trailer rig before being apprehended by police.

Briefly, the evidence at trial indicated that once before, in February 1983, a DC-6 with a cargo of some 14-15,000 pounds of marijuana had landed on Austin's ranch. That time, however, the marijuana successfully was unloaded, transported and distributed. Austin took pictures of the tracks left by the airplane and of the tractor-trailer rig used in the operation just in case something came up.

Austin's involvement in these circumstances began the day after Thanksgiving in November of 1982 when three men, Jerry Busher, C.B. Hill and Ray Valdez, viewed the Austin Ranch ostensibly to purchase it. Hill claimed to represent five buyers from Honduras who wanted the ranch in the event the Honduran government was overthrown. Austin got the impression that the purchasers would use the ranch not only for raising cattle but also for farming alfalfa and corn. The three men looked at the ranch for four or five hours.

The next day, Austin and Hill reached an agreement for the sale of the ranch for $1.5 million. Austin would retain possession until his cattle could be sold or moved. Hill told Austin that Austin's son, who was caring for the cattle, would have to go to town once in a while at night, whenever he was told. This was unacceptable to Austin, as it was calf season, so Hill agreed to purchase all 350 head of cattle for $156,000 and pay the son $1,200 a month for his services.

Austin sought no financial or background information concerning the purchasers but did want the terms of the transaction copied down so he would have some sort of record. Hill wrote down the terms on a yellow piece of paper on Austin's kitchen table. Not until receiving all of an $800,000 down payment did Austin plan to execute any deeds, notes and mortgages.

Austin received a phone call from Hill in Miami a few days later. Hill wanted to substitute Valdez in his place as purchaser of the ranch and wondered whether Austin would agree to the substitution. Providing the terms of the ranch and livestock sale were the same, Austin agreed. Austin received $67,000⁴ in cash in December, 1982, from Valdez toward the purchase. Austin offered a receipt for the cash but Valdez refused.

In the first part of March, 1983, Austin received another $40,000 payment from Valdez. He confronted Valdez about the suspicious airplane tracks on the ranch and threatened to call the law. Austin never saw Valdez again. Austin figured that something illegal was occurring on the ranch, yet he took the $40,000 anyway. Austin maintained that he was taken in by the members of the conspiracy and, had he known their true activities, would never have become involved. Once he became involved, however, he was afraid to tell anyone.

After conviction, Austin was sentenced to fifteen years of imprisonment and his initial motion for release pending appeal was denied for want of an appeal that raised a "substantial question of law or fact likely to result in reversal or an order for a new trial."⁵ Subsequently, the Tenth Circuit considered defendant's renewed application for bail pending appeal.⁶ In the interest of justice, a divided panel partially remanded the case to this court for reconsideration of Austin's application for release pending appeal under the standards announced in United States v. Affleck.⁷

In this opinion, I discuss the four written standards for bail pending appeal since 1891, including the present standard as interpreted by the various circuits. Then I apply the new standard to this case.

II. Historical Standard for Bail Pending Appeal

Unlike bail prior to trial,⁸ there is no common law,⁹ constitutional¹⁰ or statutory¹¹ right to bail pending appeal. Indeed, review as of right of a federal criminal conviction is a development of the last century.¹² Since 1891, there have been four standards used in deciding whether bail pending appeal should be granted.¹³ Under the standards, one of the most important factors has been the legal merit of the appeal. The standards can be viewed as the balance between two conflicting interests. On the one hand, a person who has been convicted should not be forced to undergo punishment if it is later determined that his conviction is invalid.¹⁴ On the other, a person who is validly convicted ought to begin serving his sentence without delay.¹⁵ These two interests are not perfectly compatible given the inherent delay of the appeal process. In absence of a statute, the Court, ad hoc or by rule, may arrive at the balance. That is not the case where Congress has weighed conflicting policy considerations and enacted a controlling statute.

A. First Standard 1891-1934.

From 1891 to 1934, Supreme Court Rule 36(2) contained the formal grant of power to allow bail pending appeal.¹⁶ Justice Gray, in Hudson v. Parker,¹⁷ announced the policy behind this rule. He wrote:

The statutes of the United States have been framed upon the theory that a person accused of a crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction and pending a writ of error.¹⁸

Most of the controversy surrounding bail pending appeal was whether bail was mandatory or discretionary under the rule.

One circuit court of appeals concluded that, absent a capital offense, bail pending appeal was mandatory if there was not a risk of flight.¹⁹ The majority view was otherwise; bail pending appeal was a matter of judicial discretion.²⁰ The merit of the appeal was considered, though not always under the same rubric.²¹ The general rule was that bail pending appeal would be granted in most non-capital cases unless there was a clear showing that the appeal was frivolous or taken for delay.²² Applicants for bail were not required to show they were entitled to reversal.²³

B. Second Standard 1934-1956.

From 1934 to 1956, Criminal Appeals Rule VI²⁴ and then Rule 46(a)(2) (1946)²⁵ of the Federal Rules of Criminal Procedure provided for bail pending appeal only if the appeal involved "a substantial question which should be determined by the appellate court." With the adoption of Criminal Appeals Rule VI, the standard for granting bail pending appeal was more restrictive. The appeal had to involve a substantial question, not merely one which was not frivolous, and the burden of proof was transferred from the government to the defendant to make such a showing.²⁶ Once a substantial question was shown to exist, bail was a matter of discretion,²⁷ although one court of appeals thought it a matter of right.²⁸ The various definitions of what constituted a substantial question from 1934 to 1956 are of current interest because the present standard in title 18 U.S.C. section 3143(b)(2) also requires a substantial question and is similarly constructed.²⁹ Justice Jackson as a Circuit Justice thought a "question should be substantial in the sense of fairly doubtful and in the sense that it is not trivial or merely technical but has substantial importance to the merits."³⁰

Justice Douglas had two occasions as a Circuit Justice to discuss comprehensively what constituted a substantial question.³¹ In 1950, he said that a question may be substantial even though the judge hearing the application for bail would affirm on the merits.³² A substantial question would arise if the appeal presented a question which: 1) was new and novel, or 2) was not controlled by existing precedent, or 3) involved important interpretation of Supreme Court precedent, or 4) involved application of settled law to particular facts so as to raise a fairly debatable issue.³³

In 1955, Justice Douglas further elaborated on the substantial question standard. First, one had to consider the soundness of errors alleged, but even if the judge reviewing the bail application were unimpressed, the issue was whether "there was a school of thought, a philosophical view, a technical argument, an analogy, an appeal to precedent or to reason commanding respect that might possible prevail."³⁴ Because there is room for argument on most law and its applications, the shadow of a doubt about the conclusion would suffice for a substantial question.³⁵ Even if there was "no appellate judge who would likely reverse the judgment of conviction," there still might be a substantial question that ought to be determined in the interest of judicial administration.³⁶

This broad view of what constitutes a substantial question appears to have been rejected by the drafters of the current statute.³⁷ Congress is presumed to know the law including the construction of previous law.³⁸ When Congress used the term "substantial question" in 1984, it did not modify it with the phrase "which should be determined by an appellate court."³⁹ Rather, Congress modified the term with the more restrictive phrase "of fact or law likely to result in reversal or an...