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April 8, 1983


The opinion of the court was delivered by: Prentice H. Marshall, District Judge.


On March 31, 1983, this court sentenced defendant, Roy L. Williams, for a period of observation and study concerning his physical health, pursuant to 18 U.S.C. § 4205(c) (1976). Because that subsection requires that commitment pursuant to it "shall be deemed to be for the maximum sentence of imprisonment prescribed by law," we imposed a sentence of 55 years in custody. We utilized § 4205(c) in response to Williams' allegation that because of acute emphysema, he is physically unable to withstand conventional incarceration. We noted that in our opinion his position regarding his physical incapacity to withstand incarceration was inconsistent with his discharge of the demanding duties required of him in his position as president of the International Brotherhood of Teamsters. In these circumstances, we expressed the view that it was contrary to the best interests of the administration of justice for Williams' final sentence to be deferred until all appellate avenues were exhausted. Accordingly, we ordered him to report to the federal correctional facility at Springfield, Missouri on April 15, 1983 and we directed the Bureau of Prisons to return Williams to open court and produce with a report on June 28, 1983, at which time we would modify the sentence pursuant to § 4205(c). By reason of our utilization of observation of study under § 4205(c), we were unable to consider and rule upon the government's request that we impose a sentence of probation on at least one of the counts of this eleven count indictment with a special condition thereof that Williams resign his presidency of the International Brotherhood of Teamsters.

Williams has now moved, pursuant to rule 9 of the Federal Rules of Appellate Procedure and 18 U.S.C. § 3146 and 3148 (1976) for an order directing his release on bail (preferably his own recognizance) pending his appeal to the United States Court of Appeals for the Seventh Circuit and, if necessary, a petition for certiorari to the United States Supreme Court. Williams has already filed a timely notice of appeal.

At the threshold is the question whether Williams is entitled to the benefits of rule 9 and §§ 3146 and 3148 in light of the "temporary" sentence imposed under § 4205(c). Clearly he is. He is entitled to appeal from the entry of the conditional or temporary judgment and sentence. Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963). Section 3148 provides that "A person . . . who has been convicted of an offense and . . . has filed an appeal . . . shall be treated in accordance with the provisions of § 3146 [the general bail statute] . . ." In United States v. Fort, 409 F.2d 441 (D.C.Cir. 1969), the court concluded that § 3148 was applicable to a sentence of observation and study imposed under the Federal Youth Corrections Act, 18 U.S.C. § 5010(e) (1976). For our purposes, the two observation and study statutes are virtually identical. Accordingly, we have concluded that Williams is entitled to seek bail pending appeal from the sentence we imposed under § 4205(c).

Under 18 U.S.C. § 3148, a person is entitled to release after conviction unless the court "has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained." Rule 9(c) of the Federal Rules of Appellate Procedure places "the burden of establishing that the defendant will not flee or pose a danger to any other person or to the community [on] . . . the defendant."

Williams' appeal is neither frivolous nor taken solely for the purpose of delay. As he points out in his memorandum in support of his present motion, the appeal will involve substantial issues concerning, inter alia, the legality of electronic surveillance, admissibility of evidence, denial of motions for severance and mistrial, and the sufficiency of the evidence.

Nor does Williams present a significant risk of flight if he is admitted to bail. The office he holds with the International Brotherhood of Teamsters coupled with his poor health condition provide reasonable assurance that he will not flee the jurisdiction.

Thus, the question comes down to whether Williams has sustained the burden of establishing that he "will not . . . pose a danger to any other person or to the community . . ." Rule 9(c). We hold that he has not.

Williams argues that we have already recognized on at least two occasions that he does not present a danger to the community. We are told that this was true when we permitted him to remain at liberty following the return of the verdict and before we considered post-trial motions and again when we permitted him to remain at liberty following sentencing until April 15. The first occasion was governed solely by §§ 3146 and 3148 under which the burden is upon the government to establish danger to the community. The government did not undertake to do so. Indeed, it acquiesced in Williams being permitted to remain at liberty on his pretrial bail pending consideration of the post-trial motions and sentencing. In the exercise of our discretion, that was the ruling.

Insofar as the second instance is concerned, we reject the notion that a stay of execution for 15 days in order that Williams can place his personal affairs in order is a manifestation of any conclusion that he does not pose a danger to the community.

Next Williams argues that the offense of which he stands convicted is a non-violent crime suggesting that it is only violent danger to the community of which we should be concerned under rule 9(c) and §§ 3146 and 3148. But the authorities which have considered the question do not agree. The fact that the community may suffer only a pecuniary harm if the defendant is released justifies denial of bail. United States v. Provenzano, 605 F.2d 85, 95-96 (3d Cir. 1979) (labor corruption); United States v. Karmann, 471 F. Supp. 1021 (C.D.Cal. 1979) (failure to file tax returns); United States v. Miranda, 442 F. Supp. 786, 792 (S.D.Fla. 1977) (drug trafficking); United States v. Parr, 399 F. Supp. 883, 888 (W.D.Tex. 1975) (misappropriation of public funds); United States v. Louie, 289 F. Supp. 850 (N.D.Cal. 1968) (interstate transportation of forged securities).

In Provenzano the court observed,

  The trial court found, on the basis of the Union's
  largess toward Provenzano during previous
  incarcerations and the continued control exercised by
  Provenzano's family, that if released Provenzano
  would have additional opportunity to exercise a
  substantial and corrupting influence within the
  Union. In the absence of any evidence produced by
  Provenzano that he would not continue to corruptly
  utilize his influence in the Union, other than his
  personal assurances that at the age of 62 he would no
  longer participate in its affairs, we conclude that
  he has not met his burden of ...

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