297 F. Supp. 1117 | D.D.C. | 1969
MEMORANDUM OPINION
The Court denied defendant’s motion for release pending appeal following his conviction of robbery by a jury. An order setting forth the Court’s reasons for so exercising its discretion was filed in full conformity with the requirements of Rule 9(b) of the Federal Rules of Appellate Procedure, as expanded and interpreted in Weaver v. United States, 405 F.2d 353 (D.C.Cir. 1968). Defendant has now filed a motion for rehearing.
Defendant misconceives the nature of a Rule 9 proceeding and the meaning of Weaver:
A hearing in the adversary sense involving the making of a record does not occur. The convicted defendant makes unverified representations to the Court through his counsel appealing to the Court’s discretion. Where the Court, in the exercise of that discretion, denies release he must do no more than state his reasons, as was done fully here. The matter of release then lodges in the Court of Appeals. The subsequent proceedings in the Court of Appeals do not involve a review of findings on a record but merely a determination by that Court as to whether the trial court has abused its discretion following a review of the reasons stated in the order denying release under Rule 9(b).
When the Court indicates its reasonable grounds for a belief, the Court draws on experience with many cases and considers the demeanor of the defendant at the trial, the facts of the case, and the patterns of his behavior demonstrated by the presentence report in reaching what is at best an educated guess. This is done with proper attention to the rights of the individual but without ignoring the countervailing interests of the community.
In refusing release in this case the Court relies on the record made at the trial at which the Court presided and upon the presentence report dated June 10, 1968, which was then available. This Court has recently filed a Memorandum Opinion in United States v. Conway, 296 F.Supp. 1284 (March 19, 1969), stating its reasons for not making presentence reports available to defense counsel and the U. S. Attorney at time of sentence. There is, of course, no requirement in the Federal Rules of Criminal Procedure that the presentence report be made available to the defendant at any stage. To the extent the present motion raises the closely related question whether presentenee reports used by the Court in the exercise of its discretion when denying release pending appeal must be made available to defense counsel, the Court believes the same general considerations mentioned in Conway apply and reaches the same result.
This motion was first brought to the attention of the Court on March 17,1969.
Movant’s counsel, appointed by the Court of Appeals after the trial was over, is apparently quite unfamiliar with trial procedures, and indeed he is apparently not a member of the bar of the U. S. Court of Appeals or of this Court. In the motion papers counsel improperly requests access to the trial court’s bench notes and erroneously contends that the trial court considered the appeal meritorious because it permitted the defendant to exercise his rights of appeal in forma pauperis. It is the Court’s experience that the substitution of new counsel at the appellate stage when defendant, as here, was represented by experienced trial counsel often leads to excessive paper work.