United States v. Stanley, No. 71-1641.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , and ROBINSON and WILKEY, Circuit
• Citation: 469 F.2d 576
• Docket Number: No. 71-1641.
• Decision Date: 14 August 1972
• Parties: UNITED STATES of America v. Thomas E. STANLEY, Appellant.

469 F.2d 576 (1972)

UNITED STATES of America
v.
Thomas E. STANLEY, Appellant.

No. 71-1641.

United States Court of Appeals, District of Columbia Circuit.

August 14, 1972.

469 F.2d 577

COPYRIGHT MATERIAL OMITTED

469 F.2d 578

Mr. Gary H. Simpson, Chevy Chase, Md., was on the motion for appellant

Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry and Robert Alan Jones, Asst. U. S. Attys., were on the opposition to appellant's motion. Mr. Thomas A. Flannery, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and ROBINSON and WILKEY, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This case is before the court on appellant's motion for release from custody pending his appeal from a conviction of violation of the federal narcotic laws.¹

469 F.2d 579

Appellant was arrested by police officers who, armed with a warrant, entered and searched an apartment wherein he and three others were present, and uncovered a substantial quantity of heroin and various items of narcotics paraphernalia.² An indictment was subsequently returned against appellant and two of the others,³ and he was granted pretrial release on personal bond.⁴ Some thirteen months later, following a ten-day trial, appellant was found guilty by a jury

Upon return of the verdict, the trial judge directed that custody of appellant be resumed. At sentencing, the judge imposed a mandatory five-year term of imprisonment,⁵ and refused to enlarge appellant pending his contemplated appeal. In denying bail,⁶ the judge, relying on provisions of the District of Columbia Court Reform and Criminal Procedure Act of 1970⁷ setting standards for the District, ruled that appellant had not satisfied the criteria specified in that legislation.

Subsequent to the sentencing, this court held that applications for release of persons convicted in the District under federal criminal statutes having nationwide application, as was appellant,⁸ must be considered under the Bail Reform Act of 1966⁹ and not the Court Reform and Criminal Procedure Act.¹⁰ Thereafter appellant, having formalized an appeal from his conviction, moved the trial judge for reconsideration. The judge denied the motion and

469 F.2d 580

the bail application was renewed in this court.¹¹ We entered an order remanding the record to the District Court for an acceptable statement of the reasons which led the trial judge to keep appellant in confinement. Our order stated that this opinion for the court would follow

I

The Bail Reform Act requires release of a convicted defendant pending an appeal unless the appeal is frivolous or a procrastinating maneuver, or unless there is reason to believe that no conditions of release will reasonably assure that he will not flee or pose a danger to another or to the community.¹² The Act thus reflects a policy strongly favoring posttrial as well as pretrial release,¹³ but both its structure and its interpretation underscore the delicacy of the determinations which must precede any ruling on that score.¹⁴ A conclusion as to whether "an appeal is frivolous or taken for delay"¹⁵ demands a careful exploration into its potentialities on the merits and the seriousness of its underlying

469 F.2d 581

purpose.¹⁶ Save for situations where the unlikelihood of flight or community danger is relatively plain, the judicial decision hangs on the availability and capability of conditions to reduce those risks to a level of reasonable safety.¹⁷ The Act directs that that determination be made on the basis of what the judge "has reason to believe,"¹⁸ and the process of deriving a belief one way or the other is ofttimes an exacting task. For "reason to believe that" an imposition of conditions will or will not "reasonably assure" against flight or dangerousness¹⁹ "involves an attempt to predict future behavior on the basis of present information"²⁰ and requires a close weighing of the probabilities in light of the relevant circumstances.²¹

Not surprisingly, then, initial resolution of an application for release pending appeal is a function historically committed to trial judges.²² It cannot be gainsaid that "the keynote to successful administration of any system of bail is the adequacy of the information upon which the decisions are based."²³ The need for ample information is particularly acute to investigations of potential danger to the community, findings relative to which, as has aptly been said, "must rest on a `scrupulous inquiry' into appellant's past, his prospects if released, and conditions of release to mitigate the danger."²⁴ The trial court is not only the traditional but also the superior tribunal for the kind of information-gathering which a sound foundation for

469 F.2d 582

a bail ruling almost inevitably requires. For it is there that, at a hearing, the judge can come face-to-face with the primary informational sources, and probe for what is obscure, trap what is elusive, and settle what is controversial. It is there, too, that the judge has at his disposal "the judicial machinery necessary to marshal the facts typically relevant to the release inquiry."²⁵ Indeed, "as a practical matter only the District Court can conduct the `scrupulous inquiry'²⁶ and make the findings contemplated. . . ."²⁷

Moreover, the trial judge's familiarity with the case ordinarily enables ready association of the relevant facts in appropriate relationships with the criteria governing release from custody. The judge's role in evolving trial evidence and his observation of the accused's trial demeanor often imparts to those facts a significance not discernible from the paper record upon which bail decisions in appellate courts must be achieved.²⁸ Findings on the risks of danger or flight, and on the efficacy of particular conditions of release to sufficiently minimize those risks, are obviously enriched by a feel of the case that comes only from participation in the live trial. The respect we customarily accord the district judge's determinations²⁹ attests the value of his appraisal of the intangibles which ultimately make or break the case for bail.

So, even prior to the Bail Reform Act, our settled practice called for submission of applications for release pending appeal to the District Court for decision in the first instance.³⁰ With the advent of the Federal Rules of Criminal

469 F.2d 583

Procedure,³¹ that practice became a uniform requirement in all federal judicial circuits. Rule 38(c) provided that motions in courts of appeals for release pending appeal must show that prior application to a district judge had been made and denied or was impracticable,³² and nothing in the scheme of the Bail Reform Act signaled a change in that regard.³³ More recently, Rule 9(b) of the Federal Rules of Appellate Procedure has explicated that "application for release after a judgment of conviction shall be made in the first instance in the district court", and that only "thereafter" could "a motion for release, or for modification of the conditions of release, pending review . . . be made to the court of appeals or to a judge thereof."³⁴ Since jurisdiction of a court of appeals attaches immediately upon the filing of a notice of appeal,³⁵ this requirement did not spring from any lack of power on that court's part to deal with bail matters from the very beginning. It emanated instead from recognition that initial processing by the trial judge was apt to make a contribution to any consideration of bail that might later be required at another level

II

Appellate Rule 9(b) couples a second requirement to the one that release pending appeal be first sought in the trial court. It is that the trial judge state in writing his reasons in the event that release is either denied or conditioned.³⁶ Quite obviously, the values of initial consideration by a district judge are lost to the extent that the significance he assigned to the various and often conflicting factors—legal and factual—is left unknown. Without the settling effect of a reasoned treatment of the relevant information by the judge, we are apt to confront "a welter of assertion and counter-assertion by the parties . . . from which we have no adequate means of emerging."³⁷

469 F.2d 584

Without elucidation of the bases for the judge's action, we cannot fairly evaluate the merits of either the application or the judge's decision thereon. As we have had occasion to point out, "the District Judge's reasoning must be delineated both out of fairness to the appellant and as an aid to this court in its role in bail administration."³⁸ We read the twin specifications of Rule 9(b)— that applications for release pending appeal be first adjudicated in district courts and that district judges supply their reasons for dispositions other than unconditional release—as a mandate that circuit judges give those reasons respectful consideration in arriving at their own decisions on bail.

In Weaver v. United States,³⁹ we defined the trial judge's duty in these words:

The District Judge should indicate not only which one or more of the statutory reasons has prompted him to deny release, but should also delineate the basis for his utilization of such reason or reasons. If he deems the appeal frivolous, he should state the considerations, legal and factual, which led him to that conclusion. If he views appellant\'s release as posing a risk of danger or flight, he should point to those factors in the record which foreshadow such a possibility. He should also inquire concerning available financial and nonfinancial conditions of release and offer reasons why they do not "assure that the person will not flee or pose a danger to any other person or to the community."⁴⁰

We added that "only when these reasons are spelled out can an appellant intelligently renew his motion before this court; and only then can this court fairly review the merits."⁴¹

In the case at bar, we are not favored with a Weave...