United States v. Kenney, Crim. No. 84-00007-01-P.

• Decision Date: 26 February 1985
• Docket Number: Crim. No. 84-00007-01-P.
• Citation: 603 F. Supp. 936
• Court: U.S. District Court — District of Maine
• Parties: UNITED STATES of America v. Edward Patrick KENNEY.

603 F. Supp. 936

UNITED STATES of America v. Edward Patrick KENNEY.

Crim. No. 84-00007-01-P.

United States District Court, D. Maine.

February 26, 1985.

Joseph H. Groff, III, Asst. U.S. Atty., Portland, Me., for plaintiff.

Daniel G. Lilley, Portland, Me., for defendant.

MEMORANDUM AND ORDER ON MOTION FOR RELEASE ON BAIL PENDING APPEAL

GENE CARTER, District Judge.

I.

Before the Court is Defendant's motion, filed on February 11, 1985, for release on bail pending appeal. Defendant was convicted of the offense of conspiracy to possess a substantial quantity of cocaine with intent to distribute, in violation of 21 U.S.C. § 846, by jury verdict on December 17, 1984. On February 11, 1985, the Court imposed a sentence of incarceration for a period of ten (10) years. Defendant was at large on bail throughout the proceedings and up to the time of imposition of sentence in the amount of Thirty Thousand Dollars ($30,000) secured by a cash deposit of Three Thousand Dollars ($3,000). Subsequent to sentencing, the Court revoked the Defendant's bail and remanded the Defendant to the custody of the United States Marshal, pursuant to the applicable provisions of the Bail Reform Act of 1984, Pub.L. No. 98-473, § 203, 98 Stat. 1981-82 (to be codified at 18 U.S.C. § 3143(b). Defendant seeks by the present motion to be admitted to bail pending appeal.

II.

Defendant first argues that his application for bail must be governed by the pertinent provisions of the Bail Reform Act of 1966, 18 U.S.C. § 3148. He contends that since the 1984 Act did not become effective until October 12, 1984, on its signing by the President, its terms may not govern his admission to bail because the offense of which he stands convicted was committed prior to the date. Application of the later Act, he asserts, is barred by the ex post facto clause of the United States Constitution, Art. I, § 9, Cl. 3; see Art. I, § 10, Cl. 1.

This claim cannot succeed. The constitutional provisions cited apply only to laws which impose "punishment." United States v. Miller, 753 F.2d 19 (3d Cir.1985); see Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). Those provisions do not bar application of changes in criminal process. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The device of bail in criminal proceedings is not utilized as a method of punishment. Rather, it is an instrument of criminal process designed to secure the appearance of the defendant before the court. A denial of bail serves the same purpose where the court finds that less intrusive limitations on the defendant are not sufficient to that end. The Bail Reform Act of 1984 in § 3143(b) promulgates a change in the standard for admission to, or denial of, bail pending appeal and accomplishes a reversal of the burden of proof where bail is sought. Miller, 753 F.2d at 22. The application of the provisions of this section to a defendant convicted after October 12, 1984, of an offense occurring prior thereto is not prohibited by the ex post facto clauses. Id., at 21-22. The Court of Appeals for this Circuit has sanctioned such application of the 1984 Act. United States v. Cresta, Crim. No. 85-1010 (1st Cir. Feb. 20, 1985). Therefore, section 3143(b) is the statutory provision which governs this Defendant's admission to bail in this case.

III.

Title 18 U.S.C. § 3143(b) of the 1984 Act provides as follows:

RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT — The judicial officers shall order that a person who has been found guilty of an offense and sentenced for 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 § 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.

If the judicial officer makes such findings he shall order the release of the person in accord with the provisions of § 3142(b) or (c).

The Defendant has not here carried his burden of proving that he is not likely to flee. The record in this case shows him to be presently unemployed. He is subject to execution of a ten-year prison term imposed herein, and he is scheduled to go to trial on March 4, 1985, on a second indictment charging him with a separate offense of conspiracy to violate 21 U.S.C. § 846. If convicted in that case, he will face an additional term of incarceration of fifteen years and a fine of twenty-five thousand dollars.

The evidence adduced at trial displays a course of personal use of cocaine and of trafficking in cocaine in one pound and kilogram quantities over several months during 1984. The codefendant in this case is a fugitive, having failed to appear for trial. The Defendant has shown no objective indicia of rehabilitation.

Against these baleful circumstances, defense counsel urges the Court to set the facts (1) that the Defendant has always appeared before the Court whenever ordered to do so; (2) that he has no significant record of criminal offenses prior to the conduct giving rise to this prosecution; (3) that he owns a home in Portland, Maine; and (4) that he has self-proclaimed, close family ties. Even if it be assumed that these facts are well proven, they would not, taken together, constitute clear and convincing evidence that he will not flee if admitted to bail pending appeal. The risk he now faces is much enhanced over that which he faced prior to trial or even prior to sentencing. He had, prior to trial, some level of belief that he would prevail at trial. That provided a counterbalancing incentive to appear for trial, for to fail to do so would be to wholly forfeit the opportunity to prevail at trial. Even prior to sentencing, he could hope...