United States v. Thomas E. Stanley

body sponsibility to Party officials, extends by acceptance its body recently legislature view ourselves had alone. the California agent on all as the of that Convention matter plan.2 the the When reaffirmed delegate Committee, related selection. matters Credentials the came before Party the Convention Unless chooses however, agency inter of the any steps Commission has review the of the resolution preted the reform taken, regard guide our Guidelines together the with Convention, delegate binding selection adopted by as the National thereafter lines states. the Committee, to furnish basis apportioning the rendered it decision me, guide- Thus, it the as seems agrees delegates. one not Whether lines, in their reference the 1972 Con- it and interpretation, in I find this with greater vention, latitude the afford particular violation the in its result no making Credentials in Committee its upon provision the Constitution recommendations to the Convention than provision any rely, appellants or of permits. the court polit the Constitution. Whatever of the of the Com of members motivations ical thereby taken is action mittee the I add that

rendered unconstitutional. Committee

my the action merely overturned because should not be any retroactively, operated decision as it agency usually does. a court or Cf. Chenery Corporation, U.S. SEC L.Ed. 1995 America UNITED STATES accordingly the leave I would Party, by soon for resolution matter STANLEY, Appellant. E. Thomas Convention, to meet intervening by without 71-1641. No.

decree to set aside action of the Committee. Appeals, Court appear the fair- It to me that does Circuit. of Columbia electing process Presi- ness of the Aug. endangered dent of United States is by Credentials action either delega- apportioning the Committee according can- to the votes each tion by primary, Com- in the didate authority, interpretation of its

mittee’s

stemming primarily from the 1968 Con- guide-lines

vention, with considered promulgated by subsequently Mc- Commission, and Govern-Fraser

proved by Committee. the National by upon guide-lines, largely relied These court, provide re- as follows

spect own to their status: created

Because Commission virtue actions taken legal Convention, we believe our capacity the voters partisan on behalf detrimental reliance 2. The extent sought par- primary has in the California candidates Cal- affected litigation to contest wholly ticipation specula- plan me seems to ifornia Committee. acting Moreover, the Credentials non- action of no one tive. Stanley, also, States v. F.2d 810 Gary Simpson, Chevy Chase, H. Mr. Md., appellant. was on motion for Titus, Jr., Harold H. U. S. Messrs. Atty., Terry and Robert Alan John A. Jones, Attys., were on the Asst. U: S. opposition appellant’s Mr. motion. Atty., Flannery, Thomas at the A. U. S. filed, time the record also entered was appearance appellee. BAZELON, Judge, Before and Chief WILKEY, Circuit ROBINSON and Judges. ROBINSON, III, W. SPOTTSWOOD Judge:

Circuit appel- on is before the court This case custody motion for release lant’s pending appeal from a conviction the federal narcotic laws.1 violation of fraudulently twenty years and, addition, knowingly or im than “Whoever brings any drug $20,000. ports or narcotic into be fined not more than For a any territory subsequent (as offense deter- or under second or contrary 7237(c) jurisdiction, law, of the In- its control or under section mined 1954), receives, conceals, buys, sells, the of- or or in ternal Revenue Code of imprisoned any transporta than manner less facilitates fender shall forty years tion, concealment, any and, in addi- more than or sale of such ten or $20,000. drug being imported tion, may than be fined not more narcotic after or brought in, knowing this on trial for a violation of the same to have Whenever imported brought have or the defendant is shown to into the section contrary possession law, conspires had the narcotic to have possession drug, shall be deemed suf- commit such such acts violation evidence to authorize conviction the laws of the shall be ficient explains posses- imprisoned the defendant less than five or more unless plated by police appeal. denying bail,6 In Appellant officers was arrested judge, warrant, relying provisions who, entered and on armed with of the Dis apartment he and trict Columbia wherein Court searched an Reform and setting present, uncov- Criminal Procedure Act of three others were quantity ap District, of heroin for the standards ruled that ered substantial pellant items narcotics had not satisfied various the criteria specified legislation. paraphernalia.2 was An indictment sub- against sequently appellant returned Subsequent sentencing, granted others,3 two of the applications held for re personal bond.4 persons lease of Dis convicted in the later, following Some thirteen months under hav trict federal criminal statutes ten-day trial, appellant guilty was found ing application, app nationwide as was by jury. a ellant,8 must considered under the 9 Upon verdict, Bail Reform Act of and not return of 1966 judge ap custody Court Reform and Procedure Criminal directed that pellant sentencing, appellant, having Act.10 Thereafter for be resumed. At appeal judge imposed five-year conviction, malized mandatory an a judge imprisonment,5 moved the trial for term of reconsidera and refused to enlarge appellant pending denied motion and his contem tion. custody, jury. form sion to of release from with or the satisfaction judicial pro- security, pending (1964). without 21 ...” U.8.C. § 174 This ceedings. provision, others, has since been re- pealed by Comprehensive Drug Abuse 7. The District of Columbia Court Reform Prevention and Control Act of Pub. Act of and Criminal Procedure Ill, 1101(b)(3)(a), L. tit. § (1970), D.C.Code 23-1321 § Stat. (1970), although Stat. 1292 in conse- supersedes seq. (Supp. 1972), et Y quence saving conviction, of a clause the (1966), Act, Bail Reform Stat. valid, if otherwise is unaffected amended, seq. 3146 et as U.S.C. § repeal. (1970). 84 Stat. Columbia, (1970), in the District of D.C. (Supp. 1970), V § 2. Code provides 23-1332 See note infra. appellant an a criminal 3. In addition to the offense of which unless” it is found case “shall be detained pellant convicted, 1, supra, was see note “by convincing that” clear and evidence against the two-count indictment him also likely pose danger he “is not to flee or charged a violation of 26 § U.S.C. any person property of or to the to (a) (1964), repealed, since see note appeal presents others, “a and” that his supra, guilty but a verdict of not was likely question substantial of law or fact rendered on that count. No indictment in a reversal or an order for to result against persons was returned one of the (c) § new trial.” D.C.Code 23-1325 apartment, in the and a motion for a (Supp. 1972). V As to the shift of bur- judgment acquittal granted was as to den, H.R.Rep.No.91-907, Cong., see 91st another. A third was convicted of a (1970). 2d Sess. 185-87 4704(a) violation §of as well as of 21 supra. (1964), 1, supra, 8. U.S.C. § see note See possession mail, and of of stolen (1966), amended, as 9. 80 Stat. (1970). U.S.C. § 1708 seq. (1970). et Release U.S.C. § pending appeal promise pay 4. Personal from federal convictions bond is a to specified (1970), nonappear- sum in the is dealt with event of U.S.C. recognizance quoted part promise, ance. in relevant Personal is a infra monetary provisions penalty, Implementing appear. are Fed.R.Crim. without a to Fed.R.App.P. 9(b), 46(a)(2) bond, Unlike conventional P. neither en- part deposit. quoted Wald, tails cash D. latter relevant Freed & P. infra Bail the United : States 61-62 (1964). Thompson, App.D.C. 1, 1, supra. 452 F.2d See note context, 6. Unless modified its the term any “bail” is used herein to refer to no in this there is reason to believe that condi application renewed the bail remanding reasonably tions of release will assure order an court.11 entered pose an that he will not flee District Court for record community.12 another or acceptable reasons Act statement favoring strongly keep appel- policy thus reflects a led posttrial release,13 as well as Our order stated in confinement. lant interpretation both its fol- structure and its court would delicacy underscore the of the determi

low. ruling precede any nations which must I on that A conclusion as score.14 appeal whether “an is frivolous taken requires Reform The Bail Act explora delay” demands a careful defendant release of a convicted potentialities merits tion into its appeal is frivolous unless underlying maneuver, procrastinating and the its or unless seriousness or a 9(b), quoted Fed.R.App.P. us, resources, 1 character rele financial length part happen condition, These mental resi note 34. vant infra responsible community, ap ings primarily in the crimi dence were any flight pelPnt’s record, leno+hv incar or failures nost-eonviction nal appear judges, ceration, refers, post proceedings. the dissent court For to which course, p. task remains often difficult 589. assigning proper weight to these fac of tors, singly charged person (1) 12. “A is an who with combination, and in punishable death, (2) or who offense enlarge assessing the risks incidental convicted of an offense and is has been efficacy imposition and the of an ment awaiting sentence or sentence re- either them. of conditions to minimize See section of this title or view under 3576 Forrest, U.S.App. v. 135 United States petition appeal an or a for a has filed 1186, 350, 351-352, 418 F.2d 1187-1188 D.C. certiorari, writ shall be in ac- treated (1 ; Jackson, 969) v. United States provisions with cordance of section 5, 207, U.S.App.D.C. n.& 417 135 208 [dealing un- 3146 release] ; 1154, (1969) & n. 5 1155 United less the or has reason to U.S.App.D.C. Harrison, v. 131 States believe that no one or more conditions of (1968), 390, 392, 355, cert. 405 F.2d 357 reasonably release will person assure that 465, denied, 974, 24 90 S.Ct. pose danger will not flee or a (1969). L.Ed.2d 442 United States Cf. person community. or to the 1, Cook, U.S.App.D.C. 442 F.2d v. 143 flight danger If such risk of or is be- Bronson, (1970) ; v. 723 United exist, appears lieved to or if it that an U.S.App.D.C. 379, 433 F.2d 139 537 delay, is frivolous or taken for (1970) ; States, supra White v. United person may be ordered detained. 13; States, Allen v. 128 note United ” (1970). . . 18 . U.S.C. § 3148 U.S.App.D.C. 207, (1967). 386 F.2d 634 imposable upon Conditions a release are specified 3146(a) 12, supra. generally (1970). in 18 15. Bow § U.S.C. note See See States, 232, 13 man v. 85 S.Ct. United States, U.S.App. 13. Banks v. United 134 Doug (1964) (Mr. L.Ed.2d Justice 171 254, 257, 1150, D.C. 414 F.2d 1153 States, las) ; v. 82 S.Ct. Carbo United (1969) ; States, White v. United 134 (Mr. (1962) 662, Justice L.Ed.2d 769 7 U.S.App.D.C. 14, 145, 16 n. 412 F.2d States, Douglas) ; v. United Di Candia (1969) ; States, n. 8 147 Wood v. United (Mr. (1958) 2 L.Ed.2d 78 S.Ct. U.S.App.D.C. 143, 391 F.2d States, Harlan) ; Ward v. United Justice (1968). Bandy also See v. United (1956) (Mr. 1063, 1 L.Ed.2d 25 76 S.Ct. States, 197, 198, 5 L.Ed.2d 218 Frankfurter) ; Justice Jackson, (1960) (Mr. Douglas); Justice Hans U.S.App.D.C. States, U.S.App.D.C. ford v. United F.2d at 1155-1157 353 F.2d States, (1969) ; v. United Weaver 388, 389, 3146(b) 14. 405 F.2d U.S.C. and Fed. States, 46(c) specify ; Byrd (1968) R.Crim.P. 130 U.S. circumstances to (1968) ; making App.D.C. F.2d 748 considered the determina tion offense, : the nature and circumstances of the Vauss United (1966); weight against Hans 365 F.2d evidence accused, States, supra family ties, employment 13. stat ford v. United

5«1 purpose.16 surprisingly, then, Save for situations where Not initial flight community application the unlikelihood of danger or resolution of an for release plain, judicial relatively pending appeal historically is a function hangs availability judges.22 decision and committed to trial It cannot capability gainsaid keynote to reduce those be conditions that “the to success safety.17 risks to a level of ful any system reasonable administration of bail adequacy The Act directs that that determination of the information be made on the basis of what the which the decisions are based.”23 The believe,” proc ample particu “has reason to and the need for information is deriving way larly investigations potential ess of one belief acute to exacting danger findings community, other is ofttimes an task. For rela which, imposition aptly said, tive “reason to believe that” an as has ‘scrupulous inquiry’ “must conditions will or will “reason rest into dang ably against flight appellant’s past, prospects assure” if re leased, attempt “involve to miti [s] erousness19 predict gate danger.” future behavior on the basis The trial court present requires supe information”20 and the traditional also the weighing probabilities rior close of the tribunal for the kind of information- light gathering which a relevant circumstances.21 sound foundation 12, supra. Chapman States, supra 18. White v. See note also See U.S.App.D.C. 73, U.S.App.D.O. 412 F.2d at v. United 74, 1276, 1277 (1969). 408 F.2d might 12, supra. risks See note Conditions that reduce acceptable flight levels Bronson, supra States v. feasible, and, be considered if uti must 433 F.2d Bronson, supra States v. lized. United at 539. 14, U.S.App.D.C. 381, note 139 at 433 States, supra 13, 539; note Seegers, White v. United F.2d at v. United States U.S.App.D.C. 15, 412 at 146. 134 at F.2d U.S.App.D.C. 335, 337-338, 139 433 F.2d requires 493, (1970) ; law reasonable assurance “The 495-496 United States v. certainty,” not demand absolute Kelley, but does U.S.App.D.C. 239, 240, 136 420 Alston, U.S.App. v. 81, (1969) (dissenting opinion) 136 ; United States F.2d 82 336, 176, (1970), 334, D.C. 420 F.2d 178 Jackson, supra 14, United States v. note judge’s U.S.App.D.C. and the task is to ascertain 208, 209-210, 135 at 417 degree whether is at of sureness 1155, 1156-1157; F.2d at Banks v. States, tained. See also Ward v. United States, supra 13, United note 134 U.S. supra 15, 1065-1066; note 76 at S.Ct. App.D.C. 256, 1152; at 414 F.2d at Seegers, supra 17, United States v. note Leathers, U.S.App. United States v. 134 U.S.App.D.C. 139 at 336 & ns. 38, 433 40, 42, 169, 171, D.C. 412 F.2d 173 8-12; ns. F.2d at 494 & United States v. (1969) ; Harrison, v. United States su Jackson, supra 14, U.S.App. note 135 pra 14, U.S.App.D.C. 392, note 131 at 5, at n. F.2d at 1155 & D.C. 208 & 417 356; F.2d 405 States, at Weaver v. United n. 5. supra 15, U.S.App.D.C. note 131 354; 389, at at 405 F.2d Russell v. See, g., States, e. Dixon v. United 112 States, U.S.App.D.C. 44, 45, 131 United 366, 368, 226, U.S.App.D.C. F.2d 228 303 185, ; (1968) 402 F.2d 186 Wood v. (1965) ; Hansell, v. 109 United States, supra 13, United note 129 U.S. 613, (2d 1940). F.2d 614 Cir. App.D.C. 145, 983; at 391 F.2d at Stin States, 23. Pannell v. 115 U.S. United U.S.App.D.C. nett v. 128 United 698, App.D.C. 379, 383, 320 F.2d 702 238, (1967) ; F.2d 387 240 (dissenting opinion). (1963) States, supra 14, Allen v. United note 128 U.S.App.D.C. 211, at 386 F.2d at 638 States, supra v. note Hansford (dissenting opinion). explained As we 323, 13, U.S.App.D.C. F.2d at 353 supra Jackson, 14, United States v. note quoting (dissenting opinion), at 861 “[tjhese . risks . . are to be mea U.S.App. States, 120 Hairston v. United only in sured terms of conduct that can 317, 35, 313, 31, de F.2d cert. D.C. nied, reasonably safeguarded against not be 110, 15 L.Ed. imposition upon an (dissenting opinion) (foot conditions (1965) 2d 94 omitted). release.” Id. at F.2d at 1155. imparts inevitably requires. often to those facts a ruling demeanor almost

a bail significance pa- hearing, from the that, not discernible aat it is there For per which bail decisions record with come face-to-face can sources, appellate must be achieved.28 courts primary informational danger Findings obscure, trap what is risks probe what is for particular flight, efficacy on elusive, controversial. and settle what is sufficiently min- there, at release too, has that the It is obviously risks, enriched judicial machinery neces imize those are disposal “the only typically a feel of the case that rele comes sary marshal the facts participation Indeed, in the live trial. inquiry.” release vant to the respect customarily the dis- accord practical the District matter “as judge’s ‘scrupulous determinations29 attests trict conduct Court can intangi- findings appraisal value of the con inquiry’26 and make the ”27 ultimately make or break the bles templated . . . . for bail. case Moreover, familiarity judge’s trial So, ready even to the Re Bail ordinarily enables with the case practice Act, form our for settled called facts association relevant applications submission of propriate relationships the criteria appeal pending governing custody. to the District Court release from decision in the first judge's evolving instance.30 With evidence role advent of Rules of Crim- the Federal accused’s trial his observation of the ruling, Sard, U.S.App.D.C. Part II. adverse v. Baker infra Compliance requirements with these 140, 420 F.2d assuring ordinarily safeguard “[D]enial [of apparent significant considerations not community] ground gotten paper from the are before record supported by scrupulous in- must us. history past appellant’s quiry into Long, U.S.App. 29. United States v. Hair- other relevant circumstances.” all supra D.C. F.2d ston United U.S.App.D.C. (“deference”) ; Forrest, (dis- at at F.2d senting opinion). weight”) ; (“entitled 418 F.2d at States, supra note 27. Hansford Jackson, supra States v. 417 F.2d at opinion). (dissenting at 861 (“deference”) ; v. United 1156 Banks Seegers, supra supra U.S.App.D.C. States, 13, v. note 134 See 339, opin 17, U.S.App.D.C. 258, (dissenting 433 139 at at 414 at 1154 note F.2d ; (dissenting opinion) ion) (“great ; weight”) Banks at White v. United F.2d 497 States, 13, supra supra U.S.App.D.C. States, 13, 134 note U.S. v. United note 134 App.D.C. 258-259, (“deference”) ; 16, 1154- at 414 F.2d at at Chapman 412 at F.2d 147 (dissenting opinion) ; States, supra v. Weaver 1155 v. note United States, supra 15, 74, 18, 131 note U.S. 408 United 133 at F.2d at So, 389, correct”) ; App.D.C. (“presumably at F.2d at 354. 405 1277 post pp. dissenting colleague, U.S.App.D.C. 344, Blyther, unlike our 132 great 589, 590, 591, denied, 1279, attach F.2d cert. 394 cannot 407 953, U.S. importance (1969) 1296, that circumstance 488 22 L.Ed.2d may (“deference”) ; States, be the written record before us Weaver v. United supra 15, same as that before which was at 389 judge. every (“deference”). bail In in which case trial 405 F.2d at 354 court, sought pending appeal in this U.S.App. States, 123 30. Jones v. United by simply that or can be made so is so 543, 544, F.2d cert. D.C. supplementation. process If iden of the tity denied, S.Ct. U.S. redeeming were virtue of record (opinion of Chief L.Ed.2d bail-pending-appeal cases, or in little Judge Bazelon) ; Pelletier v. United by require nothing would be served U.S.App.D.C. 40, States, judge ini ments make the that also, See Hans F.2d decision, tial text at notes ford v. United U.S.App.D.C. infra 353 F.2d at furnish his reasons at a statement of recognition ini- that Procedure,31 practice a nated instead from became that inal judge judi processing by the tial trial requirement in federal all uniform any apt 38(c) provided con- that to make a contribution Rule cial circuits. appeals might for release in of motions pending appeal courts of that later be sideration ap show that must quired level. at another judge plication had been to a district impracticable,32 made denied or was II nothing Bail the scheme of the in change signaled 9(b) in that Appellate couples Reform Act Rule 9(b) regard.33 recently, requirement Rule More second to the one that re Appellate sought pending appeal Proce the Federal lease Rules be first explicated “[application judge dure has It is that trial court. judgment writing of convic release after a the event state reasons instance tion shall made in the first either denied or court”, Quite obviously, in the district conditioned.36 the val for re could “a motion ues initial consideration a district “[thereafter” lease, judge sig modification of condi are lost to that the extent release, pending assigned review tions nificance to the various and ap conflicting legal be made to the court often and fac factors— peals judge or to a thereof.”34 Since tual —is left unknown. the set Without jurisdiction appeals tling at a court effect of a reasoned treatment of filing immediately upon judge, taches of a the relevant information appeal,35 requirement apt notice of did we are to confront “a welter as spring any power [by from lack of on sertion and counter-assertion part parties] that court’s to deal mat with bail . . . we have which very beginning. emerging.”37 adequate ters from the It ema- no means (dissenting opinion) ; judg- “Application Hairston for release after a States, supra v. App.D.C. ment of conviction shall be made U.S. (dis 343 F.2d at first instance the district court. If senting opinion). the district court refuses release appeal, imposes release, conditions 31. The effective on Criminal Rules became writing state in the rea- the court shall 59; March 1946. See Fed.R.Crim.P. Thereafter, for the action if sons taken. Singleton Botkin, (D.D.C. 5 F.R.D. 173 release, appeal pending, a motion for 946) ; Claus, 1 5 F.R. United States v. or for modification (E.D.N.Y.1940). D. release, pending review be made application 32. “If is made to a court of appeals there- the court of or to a ” appeals jus Fed.R.App.P. 9(b) or to circuit or to a . of. .. pend Supreme tice of the Court for bail States, supra Wood v. United ing appeal or for an time extension of F.2d filing the record on or for 983; Pratti might relief have (9th 1965) ; Cain v. Cir. United granted by application district, the 182, (9th 1945), States, 148 F.2d Cir. shall be application notice and shall show that denied, 760, 115, cert. U.S. to the court below or a Donovan 91 L.Ed. 655 See also practicable appli thereof or that Co., 65, Shipping 259 F.2d v. Esso denied, cation has been made and with the (3rd 1958), denied, cert. 359 U.S. Cir. given denial, reasons for or that (1959) ; 907, 583, S.Ct. 3 L.Ed.2d 572 application action on the did not afford 578, Hogg 411 F.2d v. United applicant the relief which consid (6th 1969) ; Smith, v. Cir. Cord ers himself to be entitled.” Fed.R.Crim. (9th 1966). 418, 421-422 Cir. 38(e). provision abrogated P. This July 1, 1968, supra. 34, Dec. effective 36. See note latter which date the Federal Rules of States, supra note 37. Hansford v. United operation. Appellate Procedure went into 323, U.S.App.D.C. 353 F.2d at Hansell, Advisory quoting 33. See States v. Committee Note to Fed. at R.App.P. (footnote 9(b). supra at 614 109 F.2d omitted). factual, considerations, legal for the elucidation bases

Without fairly him conclusion. If judge’s action, which led to that evaluate we cannot posing appellant’s application release as or views the merits either danger flight, he should judge’s we risk of thereon. As decision point out, to those in the record point factors had occasion to “[t]he have possibility. Judge’s reasoning de- which foreshadow such District must be concerning inquire ap- He should also of fairness to lineated both out nonfinancial financial and pellant this in its available and as an aid to offer reasons of release and read in bail administration.” role per- 9(b)— why they specifications do not “assure that of Rule the twin pose pending flee or ap- son will not applications release for person the communi- or to peal adjudicated in be first district ty.” judges supply courts and district dispositions their other than reasons for “[o]nly these when rea- We added that unconditional a mandate that release—as spelled appellant in- out can an sons are telligently judges give circuit spectful those reasons before this renew his motion arriving consideration at court; only court fair- then can their own decisions on bail. ly the merits.” review States,39 In v. de- Weaver United bar, we are not In case at duty judge’s fined the trial in these Weaver-type statement favored with a words: judge’s denying of the trial reasons appeal. Judge pending appellant’s The release The should indicate not 9(b) judge’s response is little Rule one or more of [the statu- tory] prompted of certain more than a recitation reasons him to has during prosecution deny release, procedural should also events delineate expression that re basis for and an his utilization such suitably safe reason or lease conditions If he would reasons. deems dangerousness.42 appeal guard against flight frivolous, he should state officer, supra Department politan 38. v. Weaver Police sentencing. this fact at at 405 F.2d at re-affirmed (footnote August 2, 1971, omitted). defendant was also 4. On See imprisonment supra Jackson, to a term of sentenced per- App.D.C. years, minimum sentence five F.2d at 1156. § for a violaion 21 U.S.C. 174. mitted Supra 39. note 15. Court, date, this sua that same 5. On spante, 40. 131 405 F.2d at defendant determined (footnote omitted). appeal. pending not be released should defendant On October Jackson, Id. also United States motion, arguing that within filed referring to 23 D.C. erred this Court F.2d at appropriate stand- 1325 for the Code judging pending judge’s 9(b) release ards statement con- Rule peal. findings sisted of and conclusions as fol- LAW OF II. CONCLUSIONS : lows appropriate standard I. FACT FINDINGS OF May judging follow- 1. On defendant was ing guilty by jury § 174 receipt under 21 U.S.C. a conviction found drugs knowing as de- 3146 and §§ is 18 U.S.C. concealment of narcotic Benjamin imported contrary termined have same to 1, U.S.App.D.C. Thompson, 452 law, [147 § U.S.C. 174. de- No. 71-1182 1333] F.2d D.C.Cir. 2. The introduced at evidence subsequent 7, 1971; e., i. cided October more sustain de- was than sufficient to on Au- defendant's release to denial fendant’s and the Court can conviction gust 2, proceeding. 1971. recall no in that error foregoing By find- During pre-sentence reason 2. defendant’s opinion that ings no using is of the this Court interview he narcotics admitted release as during employment more conditions one or as a Metro- enough aside, convincingly Vague facts which to no been clear lead to insinuations magnitude might augur release, are of that but one conclusion on we risks have impo question why identified, an resolved the ourselves without a and no reasons might not remand for a sufficient further statement sition of ly The state reasons.43 the same minimize them is We have followed offered. fairly appeared ex ment envisions must course in where it Weaver situations ruling plain judge’s it in order that that cause elucidation would not intelligently by The be served But where we remand.44 reviewed. presented soundly have felt unable to with which we are resolve statement way wholly conclusory com and in no issue the information available ports upon Weaver to and a further the trial standards. us call judge promised assistance, real have we amplification remanded suitable Ill 9(b) That, the Rule statement.45 we milieu, problem In we confront think, disposition is the incumbent past: to in the which have had face we us here. appropriately taken to be the course comply question has when a trial failed at hand is not the 9(b). have Our mo with Rule decisions standard we are to decide possible routes, custody during ac- tions for release each two from traveled cording opportunity pendency ques appeal. an for a to whether justifiably pro this court on bail tion is we solid decision whether can soliciting present. any relevant have ceed to decision Where the facts without purpose.” in IS U.S.C. 3146 will United outlined no useful And see reasonably Alston, supra 21, will assure defendant v. States note 335, App.D.C. 2, pose at n. F.2d at not flee or appeal 2, community. 177, (jerson n. a second where on or to release, judge’s we a denial statement note that We inadequate obliquely opines appellant’s with our found comx>liance Appellant remanding for reconsidera- claims order See ¶ frivolous. explanation, instructing failing out that tion and and to instruct error irointed already admitting allegedly jury, had once “the Court lias evidence refusing opportunity grant appel hearsay, the factors consider against [indicating judgment acquittal. a reasonable for a assurance lant’s motion express flight] so” . . . but failed to do no on the merits of has We appeared that “little use” it there was save that we are these contentions satis- pre- requiring in- are continued that nonfrivolous issues accused’s fied through remand. second carceration sented. States, supra Jones v. United See also supra Harrison, v. See note 30. U.S.App.D.C. 392, 14, note at 17, supra 357, Seegers, showing note “the 45. United States v. [was] F.2d at where U.S.App.D.C. at so that we are confident that our clear Jackson, juncture disposition 495-496; at this no dif- makes at supra 14, U.S.App.D.C. also at 209- the final note ference result.” States, supra 1156-1157; at Russell v. United note 417 F.2d Weaver States, U.S.App.D.C. supra at 131 U.S. 402 F.2d at App.D.C. F.2d at where the Government’s uncontroverted at Leathers, representation as to crim- accused’s See also United States supra at inal record led to our conclusion that Blyth danger precluded 173; risk of United States v. 412 F.2d at appeal. er, supra Judge (opinion F.2d at States, supra In Banks v. United Byrd Fahy) ; v. United 414 F.2d practice That was our usual note 15. prior already con- had also Act. See the Bail Reform appellant’s fronted motion for release on U.S. Febre v. separate (Mr. three occasions. felt “that 19, 24 L.Ed.2d 48 thoroughly supra, Harlan) [had] views solicited” and note Justice accompanying text. “[a]nother would serve remand it, conceivably helpful judge it is with all deference consider trial from the duty due.50 can no more remain faithful do have. Our We we information venturing responsibilities by statutory a de- is to insure to our scheme in the potentially valuable views of against cision when administration indiscriminate judge and, indubitably, function remain unknown than “[t]he bail pend- information application when other material on a court bail ungathered. merely ing mains ... duty pellate make an but includes the proceed confidently cannot to a independent of all rele- determination present appellant’s resolution pertinent in- all factors.”46 Once vant expression motion without developed has been formation judge’s denying trial reasons it. subjected parties to the decision- and The information does not before us judge, making process by we trial single conclusion; point inexorably to a leeway assessing the are accorded rather, respects, it lends itself critical the information and the merits of both duplicitous interpretations. On the judge’s But this does not decision.47 appellant’s impressive one hand is show- ignore the are free to rea- mean that we ing, predicated largely personal and assigned by judge for a his sons trial family District,51 ties to the absence ruling or, except action48 where rec- substantial criminal very properly to be made on release good ord;52 performance on a clear, adjudicate application when release,53 and home and a the offer a neglected has a statement job pending appeal.54 the other On requirement The reasons.49 hand, appellant guilty found has been statement, furnish such a said, past offense,55 in turn is a direction that we he admits to have a heinous supra States, accompanying supra, note 46. Hansford v. United 48. note and See F.2d at text. States, at See also Russell v. United 860. supra 49. notes 43-45. text at See supra note supra following Byrd States, 186; note 38. 50. text See F.2d at v. United 402 supra note Appellant in the District all lived 51. has Compare v. F.2d at Cohen 749. young wife, chil- His his two his life. dren, States, L.Ed.2d United S.Ct. parents a number col- and (Mr. Douglas); (1961) Fern Justice How- here also. lateral relatives reside States, andez v. United 81 S.Ct. relationships solidity ever, with of his (Mr. (1961) 5 L.Ed.2d 683 Justice family members is his wife Harlan) ; Bandy supra States, v. United questioned. note 81 S.Ct. 5 L.Ed.2d only prior was for dis- conviction His (Mr. Douglas) ; v. Unit Justice Guterma orderly for which conduct States, ed L.Ed.2d 735 fine. $10 drew (Mr. Harlan) ; United Justice Motlow, (7 v. F.2d States appellant Pending trial, for his worked 1926) (Mr. Butler). Cir. Justice always appeared in father-in-law required. when given in United the treatments See Forrest, 14; supra v. Banks States note employ of his in the He can continue States, Chap supra 13; v. note United wife reside father-in-law and supra 18; States, note man v. United parents. her in the home and children supra Harrison, note 1, supra. raid of the States, supra 14; Russell appellant Byrd supra apartment was found 17; States, which v. United milligrams 17,000 supra 15; States, than netted more Vauss v. United pure. Government’s States, 15; heroin v. United Conners 65% appellant place ; foot (1966) App.D.C. 312, tended to evidence away 365 F.2d 503 atop were cut supra 30; States, from dresser v. United note U.S.App. Jones McCoy para- quinine heroin, and uncut v. United phernalia packaging These it. cir- (1966) ; Hansford D.C. trafficking, indicated cumstances note 13. narcotics,56 and he faces five do not know the use of We whether Dis- Judge proba- appellant poten- years prison hope of deemed a in without trict fugitive Contrary potential parole.57 tial to the or menace to or a tion dissenting community, praisal colleague, pre- the or in either of our we event why. just cisely “over- do do rate the Nor we know case bail not grant given whelming” may of what consideration he have a imposition “inescapable.”59 completely to in of conditions with a are an We minimizing flight to view the of the dark as treatment to risks the danger. judge gave already These, course, and the we are ini- circumstances subjects and, beyond that, tially Judge’s know remarkable for the more District inquiry decision, nonreleasability may and indicia of reside and we intimate contrary, no as to not view them. On circumstances we do know.60 We the practice possibil- our to is to defer to cannot afford either discount Judge’s ity; judge appellant’s defer- revoked determinations when due, preference immediately jury’s upon ence is de to a novo return of the investigation reconsider, ruling and, our and on own verdict when asked to against —either for or emphatically With stated that no release. ways pointing provide here evidence both on release could a reasonable assur- flight danger, danger against flight to issues and ance perform intelligently community. cannot our re- On information before responsibilities nearly positive, view an un- us so without we could derstanding Judge’s realize benefit but we that we lack the of the District thinking judge’s as his ob- as well decisional basis.63 impressions from the servations and realize, course, that re ten-day presided.61 at which he trial to ob mands necessitated failures affairs, principle In this state of both 9(b) may of Rule serve the commands against attempt and reason caution an occasion on ac some encroachment safeguard against and assess right speedy resolution cused’s flight community risks of however, enroachment, That appellant’s bail.64 which be incidental slight. enlargement. A remand need not than predicament be more Our current simply trial comparable calls is we found that already has. Jackson,62 of reasons articulation in United ourselves Prompt compliance or with the remand we were remand where forced to may be expected, indeed unrevealing der similarly record : prime appel- form of a reasoned ment issue at trial was whether explanation that engaged. it evident evi- makes so was lant had been There fully ruling incorporated. tending appellant, his basis dence to show way judge’s own police key officer, of no know And we then a had impressions con- apartment. can be observations veyed He lie admitted through except statement friendly to us convicted codefendant apartment be- reasons. that he had visited knowledge fore, although he denied misreadings Among our 61. the dissent’s drugs presence there. of what is its misconstruction p. 590, precise degree text at Post extent use and seeks. our remand addiction, any, how we if a loss as to are unknown are at 9. We signify primary plainly our us. more could explanation reasoned interest 7237(d) 57. See 26 U.S.C. action. for his p. 58. Post Supra note 14. p. 59. Post 63. 135 possibility too The dissenter deems omitted). (footnotes at 1156-1157 (post pp. merit remote to consideration judge’s 590). 64. See note The fact state- infra. matter is but also to emasculate

required.65 The truth policies undergirding responsively judge can act wholesome that and the quickly de novo. of the Bail Reform Act we can about as as scheme implementing incom Rules.68 We admonish no substantial Thus we discern judges tap promptness ev patibility counsel and trial alike between po ery information To available in bail determinations.66 source soundness helpful tentially scrap to a solid decision on in this case not a remand is releasibility.69 judges uproot previous As likewise decisions this frequently specify son, supra 14, U.S.App.D.C. note at Our remand orders 209-210, required 1156-1157, F.2d at and we time limits within which sponse persuaded accept forthcoming. is are not that we must be There should why agree cannot set it do not that remands no reason short limits be now. We type requiring potentially fruitless, fulfillment of remands noth- of this are for ignore ing im- than a of reasons in that we are free to the clear more statement frequently plications Fed.R.App.P. 9(b). bail cases. That we have done past. in the is The extremes to which the dissent point. argues point departure It 66. This is the for the forced illustrate the that majority dissenting approaches 9(b) in this the statement of reasons ex- Rule brought pending appeal plicitly requires case. Motions for release need not be passed attention; indeed, “promptly.” are on Fed.R. to our that we App.P. 9(b). Compare pro- interposing the similar “act without court”. Act, p. majority visions in the Bail Reform Post in the 18 U.S.C. 589. We would (b) imposition (appeal practices. such It also ar- tolerate gues release). also that since we cannot be certain that Boyle, judge concluding 1, 4, right Stack v. 72 S.Ct. 1, (pretrial release). appellant apt 96 L.Ed. 3 that is to flee or menace say, appears community, That is not to as the dissent we should exercise dis- our argue, post pp. 589-590, releasing cretion in him Rule favor until consequent upon accepts 9 outlaws remands omit- we are sure. think the Rule inadequate ted or statements of reasons. remand in wisdom our the circum- expedition, With a view to the Rule iden- stances here. steps prerequisite tifies the in the trial States, supra note See Febre v. United paperwork court and streamlines the 45; Bandy States, supra v. United note appellate consideration, hardly but it sac- 13, 198, 218; at 5 L.Ed.2d Ward 81 S.Ct. decision-making rifices sound on the altar States, supra 15, v. United note speed. evident, That if not from 1065, 25; at L.Ed.2d States logic, “[ejqual- from the admonition that supra U.S.App. Seegers, note ly just important speedy dis- 337-338, D.C. at 433 F.2d at 495-496. position appeals require- of [bail] is the supra Long, See also ment that the district court state the rea- U.S.App.D.C. 276-277, note at Advisory sons for its decision.” Commit- 713-714; 422 F.2d at 9(a). dissent, tee Note Rule The more- Jackson, supra U.S.App.D.C. note over, purpose, mislabels our which is not 209-210, at 417 F.2d at 1156- “foray evidence,” post p. [] more 1157; States, supra Banks v. United note quest reasons; and distorts U.S.App.D.C. at 414 F.2d position, our which is not “that we will 1153; Leathers, supra at United States v. remand the record whenever a District U.S.App.D.C. 41-42, note at adequately Court has failed to state Chapman 172-173; F.2d at v. United post p. 590, reasons” but rather is that supra States, U.S.App.D.C. note obliged we are to do so when we cannot 1277, 1278; at at Unit 408 F.2d responsibly otherwise, act supra see text Blyther, supra 29; ed States v. note at notes 43-45. supra Harrison, United States v. note Seemingly, position (post in dissent at p. 590) court, 357; in lieu of re- at Weaver v. United manding, proceed Byrd 15; States, supra should to resolve note v. United plications pending appeal McCoy 15; States, supra for bail in all v. United instances supply where the has failed to at acceptable 273; statement of rea- F.2d at supra Hansford v. United sons for 13; his actions. We have declined v. United Hairston invitation, plainer records, States, supra even on past, g., 314-315; e. United States v. Jack- 343 F.2d charged both the rule bail misconceives the thrust of with administration less, construing liberty it. system, to do and our decisions we are proce- overriding purpose of the dissenting-

BAZELON, Judge, Chief expedi- requirements dural rule of the expense to tion—even at the “tra- some large part agree I with that which, role of the ditional” trial court. in de- out sets Court’s Advisory Notes make clear Committee’s having scriptive of the wisdom fashion provision that for court deter- the trial determina- make the bail the trial in first no mination in instance was the instance, necessity the tion in the first discourage way appellate intended to out reasons trial set that the acting: “[Sjpeedy determi- courts pending appeal, denying the and necessary] if nation the motion is [of ade- reasons when deference due those relief to effective.” To this end is be quately the view stated. I also share provides the if District rule that the in of this that the statement reasons imposes condi- Court refuses release or parroting case little more than tions, reasons, it must its and the state satisfy to insufficient the statute and appellant move the then Court Fed.R.App.P. 9(b) and the demands of Appeals or lift con- to order release disagreement goes My our case law. If read without reference to ditions. disposi- proper only of the to the issue exception by our case the narrow added let- the in I believe that tion this court. law, deter- the then commands us to rule governing spirit of the rules ter and motion, it mine hold we that while quire the that we reach substantive both engage forays for In- in more evidence. and that we issues in this motion now goes specify deed, evi- it on to that the subject Stanley released, order to condi- be dentiary of our decision is to basis tions, pending of his determination portions papers, affidavits, and “such peal. parties shall the record as the leaving present”; parties to thus the I put the to the trial decision whether majority justifies underlying The remand of its record and court’s invoking by Fed.R.App.P. this record 9(b) into does the And not evidence. support of contemplate its assertion that rule that will with- act “appraisal intangibles court, the which ulti- interposing it out mately the empowers make or break case for explicitly to order also us by performed bail” can best be the Dis- pending release our determina- movant’s my opinion trict In Court. the Court tion of motion.4 Bennett, (9th 9(b). States v. Fed.R.App.P. 444 F.2d 535 Cir. 1971) ; Baca, United States v. of the record Id. The Court’s remand (10th 1971). Cir. 1290-1297 explicit appears to for an call this case Majority opinion at 582. dis- invoke our determination whether to provision. cretion under Appellate Procedure, 2. Federal Rules pro- very Indeed, of this existence Advisory Note, 9(b), Committee’s Rule appropriate that release vision indicates reprinted F.R.D. The to least some cases both quotation asserting specific, full is more despite motion determination procedure speedy that should as contrary conclusion. a District Court’s as the review the Committee de- by sought Where, here, the evidence as 9(a) in its scribes Note Rule in these release, support denial would Court words: unable conclude itself shows Court purpose subdivision is [this] subject in- to conditions release that expeditious to insure the determination safety guarantee sufficient appeals respecting orders, release availability community mov- of the expedition by 18 commanded U.S.C. require inability appears This ant. § 3147 the Bail Reform [of Act] determination Boyle, movant’s Court Stack v. [342 though (1951)]. motion, remand U.S. even 96 L.Ed. 3 necessary however, today majority, errors, chooses to correct trial court exception general judicially cannot be made the invoke the created rule. ignore urgency permeating the II choice rule itself. This leads Court motion, the record to to hold the remand acknowledges The Court that “re- Court, Stanley con- and let mands necessitated fail- [trial court] post- year tinue to suffer his second ures to observe the commands of Rule In think it trial incarceration.5 this I 9(b) may occasion some encroachment goes too right far. Our decision Weaver speedy accused’s to a reso- did, require true, it is justifies States6 giving lution on bail.”8 It District Court reasons state its contrary short shrift to the rule’s com- attaching to release alto- by observing, first, mand judge gether. holding But the basis has viewed the demeanor of the requiring trial, and, was belief that such a state- second, movant at that there subsequent ment in may all cases would facil- be some “remarkable indicia of expeditious itate an determination of nonreleasibility ... in circum- subsequent motions addressed to this Again, stances we do not know.”9 I read, par- Court. Weaver should not be ticularly 9(b) think that Rule itself strikes the light experience, in advantages of our later balance between the of testi- an announcement will remand as that we monial necessity inferences and the of a speedy the record whenever a District Court determination, and strikes it judge adequately to wisely regards has failed state rea- at least as the two classes Every proceeding re- additional hypothesized sons. of inference the Court imposes quired in these cases an addi- here. moving liberty tional denial of predictions The value of of future appellant.7 Consequently, to remand is conduct based on observations of a de- punish solely the movant because the during fendant’s behavior the extraordi- trial court denied him his clear statuto- nary stress of trial has itself been se- ry right statement of reasons. —a verely insightful questioned by trial emasculation of the Bail Reform Act of judges.10 possible, Here even less is fears, already 1966 that the Court if not produce a will remand the unrecord- fact, through a application will come ed prescient witness; observations of a logic through of like this rather than but faded recollections of a any abandonment of the busy judge. trial court. countenance, I cannot nor remand, The Weaver exception as an permits, believe that rule the saeri- may produce supporting evidence denial 10. The use of demeanor a decision such pending of release pending appeal, determination as release trial or appeal. Cf. (1970), proper sentence, U.S.C. 3146-48 §§ determination of a is requiring requisite release delay required unless the de even troublesome when the termination According has been ignored. made. to obtain it to an judge: eminent Stanley 5. The trial ordered held com- judge’s The trial observation the de- of mencing May 21, 1971, day on which a minor and fendant ... is often lie was convicted. is, fleeting folklore factor. It 6. 131 405 F.2d 353 system, judicial of our overdrawn (1968). overweighed. Frankel, Sentencing, Lawlessness in 41 U. In Banks v. United 134 U.S. (1972). See Statement Cin.L.Rev. App.D.C. 254, (1969), 414 F.2d 1150 Judge Stanley IVeigel, Appellate A. example, elapsed five full months Hearings Sentences, on S. Review entry per of our euriam order remand Im- on 2722 Before Subcommittee ing finally the record until we determined Machinery provements Judicial the motion. Judiciary, 89th Senate Committee Majority opinion at 587. Cong., 2d Sess. 75-76 9. Id. at 587. required peared to do of freedom when so. sole be months fice what points possibility factor which flight pursuit such chimera. to the facing five-year that he is a specula- reject similarly Court’s I relevant, sentence. it does not While judge may have that the trial tion outweigh overwhelming sup- factors indicia possessed “remarkable of some conditions, porting release on strict only out- nonreleasibility” that were outweigh it is doubtful it would record, that the trial side on lesser ones. thought unnecessary even mention finding support Nor can record take I of reasons. cannot his statement Stanley pose improper will a remote account such community Only if two released. facts possibility.11 give any in the record indication dan- gerousness Stanley’s current conviction — Ill and his admission that used narcotics jus no we have I conclude that Since employed police while he was as a offi- returning the record tification cer. Court, the merits I turn to person Certainly the act for which Reform Act motion. The Bail seeking convicted rele- release stands requires offender convicted assessing communi- vant whether the unless released be ty’s safety imperiled would appeal is frivolous that the court finds however, Here, lease. the is- substantial or delay, unless no one or or taken for directly Stanley on sues raises reasona of release will more conditions not concern whether or he committed the person not flee the will bly assure that In for he was offense convicted. danger any person pose other or to or cases, appeals the such unlike where fact community.12 one as Since no to unchallenged, the infer- of the is offense frivolous, Stanley’s appeal is serts that guilty ence to be drawn from the verdict our is with the likelihood concern And, questionable.14 in is more Stan- flight danger community. to and ley’s case, is the inference atten- further showing question of on the Movant's uated total absence the almost flight is, majority concedes, “im- as the prior activity. criminal His Stanley pressive.” to close ties has a disor- involvement with law was par- community. children, His wife and derly charge in which re- conduct ents, brothers, sisters, seven three six fine. sulted in a ten dollar uncles, parents and and re- aunts wife’s pre-sentence in re- remaining side concerns area. factor Stan- Stanley’s port ley’s drug past usage, includes wife’s characteri- admission marriage “solid,”13 Stanley zation as he their that not claims addiction. December, Stanley using drugs stopped and has been assured in work in his father-in-law’s if released. is not ad- business he and it is uncontested that Moreover, prior Further, appears liberty to and it time. while dicted at this during always trial, Stanley pre-sentence report has that from the Stan- opposition 11. In the for re- in rare case which the trial to motion ment’s Stanley reported information, lease, did have such remarkable that a cousin put upon having it had could and be difficulties record before marital n argued Court on of his fam- the Government’s to with other members motion support ily. in revoke no bail. has This assertion and, indeed, in direct contradic- is record pro- 12. 18 U.S.C. § 3148 This Stanley’s appraisal. wife’s tion to governs precisely vision because this quest a de novo Banks motion rather than an Cf. appeal. proviso Thus the does apply. (Leventhal, J., dissenting). (1969) only countervailing suggestion 13. The an assertion contained the Govern- sought drug ley stopping help employment Washington his lar within the

usage present Metropolitan Area, when arrested he shall released. be Stanley prom- Finally, (2) has employer report crime. His shall immedi- - ately work upon Stanley’s ised his father-in-law’s business if released and his present father-in-law would failure to himself for work at - position Stanley proper time, in a be to see con- and during properly himself report ducts the work- shall that failure to .counsel ing day. Stanley, counsel for and the Criminal Clerk’s Office sum, Stanley super- In would have a Court for the job; vised no has convictions Stanley District of shall Columbia. arrests, even a ten dollar save fine of reside with his wife and children vintage, apparently some and he is Washington Metropolitan not leave the drugs. addicted to On the identical permission area without of the District court, record that was before the trial I Stanley’s report Court. wife inescapable think conclusion - immediately Stanley can be released without un- Stanley’s overnight their absence from flight reasonable risk (4) Stanley report residence. shall community under the conditions or weekly Agency Bail D. C. release of the forth in sort set the form - person. (5) Stanley appended opinion. order to this I be- any drug shall not narcotic use shall obligated so, lieve we are to do report (or weekly as otherwise be therefore dissent from the remand reasonably required) Bail C.D. this record. Agency testing to determine whether ORDER drug. he has used narcotic (6) Stanley, employer wife, Ordered that Thomas E. sign indicating shall Jr., a statement their Stanley, per- shall released on his understanding recognizance set following sonal con- promising compliance forth (1) Upon representation above and ditions: regu- Stanley counsel that has obtained with them.

Case Details

Case Name: United States v. Thomas E. Stanley

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 14, 1972

Citation: 469 F.2d 576

Docket Number: 71-1641

Court Abbreviation: D.C. Cir.