United States District Court, Northern District of Illinois, E.D
February 22, 1985
UNITED STATES OF AMERICA, PLAINTIFF,
MARVIN HALL, DEFENDANT.
The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendant Marvin Hall's motion for bail
pending appeal. For the reasons stated below, defendant's
motion is denied.
Defendant was convicted following a jury trial on November 28,
1984 of stealing over $100 from the United States in violation
of 18 U.S.C. § 641. The crime charged in the indictment
occurred in September, 1984. On January 14, 1985, defendant was
sentenced to two years imprisonment and ordered to make
restitution to the United States in the amount of $1,650. On
February 1, 1985, the Court denied defendant's motions to
vacate conviction, for acquittal, and for a new trial.
Defendant's surrender date is set for February 26, 1985.
In his motion for bail pending appeal, defendant argues that he
is entitled to bail pending appeal under the law that existed
at the time the offense occurred. That law provided:
A person . . . who has been convicted of an offense and . . .
has filed an appeal . . . shall be treated in accordance with
the provisions of Section 3146 unless the court or judge 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
18 U.S.C. § 3148, repealed by, Comprehensive Crime Control
Act of 1984, ch. I § 203, 98 Stat. 1976.
Section 3146 provided:
Any person charged with an offense, other than an offense
punishable by death, shall . . . be ordered released pending
trial on his personal recognizance or upon the execution of an
unsecured appearance bond . . . unless the [judicial] officer
determines, in the exercise of his discretion, that such a
release will not reasonably assure the appearance of the person
as required. . . .
18 U.S.C. § 3146, repealed by, Comprehensive Crime Control
Act of 1984, ch. I, § 203, 98 Stat. 1976.
The government argues that defendant should be denied bail
under the Comprehensive Crime Control Act of 1984, Pub.L. No.
98-473, 98 Stat. 1976, ("the Act"). Specifically, the
government argues that defendant is unable to qualify for
release pending appeal under Chapter I of the Act (the Bail
Reform Act of 1984), Pub.L. No. 98-473, 98 Stat. 1976,
1976-1985 (codified at 18 U.S.C. § 3141-3150) (effective
October 12, 1984). Regarding the criteria for determining
whether a convicted defendant should be released on bond
pending appeal, the Act now provides:
The judicial officer shall order that a person who has been
found guilty and sentenced to a term of imprisonment, and who
has filed an appeal . . . 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 . . . and
(2) that the appeal is not for the purpose of delay and
raises a substantial question of law or fact likely to result
in reversal or an order for a new trial.
18 U.S.C. § 3143(b).
Defendant argues that application of the Act in this case would
violate the ex post facto clause, Article I, § 9 of the United
States Constitution, because the crime charged in the
indictment occurred before the effective date of the Act.
Defendant relies upon the recent decision of U.S. v.
Cirrincione, 600 F. Supp. 1436 (N.D.Ill. 1985), decided by
In Cirrincione, the court held that the Act's "standards for
release pending appeal cannot be applied to offenses committed
before October 12, 1984 without offending the ex post facto
clause." Id. at 1445.
The court construed the Act's new standards as "more than
`merely procedural'" and, in fact, as enhancing the punishment
of the defendant. Id. at 1444-1445. The court reasoned that
"most rational persons desire to put off punishment as long as
they may." Id. at 1445.
After Cirrincione was decided, however, Judge Roszkowski held
that the Act "does not amount to a retrospective enhancement of
punishment" and therefore does not offend the ex post facto
clause. U.S. v. Giangrosso, 605 F. Supp. 697, 700 (N.D.Ill.
1985). In holding the ex post facto clause does not apply, the
court in Giangrosso relied upon U.S. v. Davis, 598 F. Supp. 453
(S.D.N.Y. 1984), a decision which construed the Act's bail
modifications as procedural and not substantive. Judge
Roszkowski reasoned that the Act's bail modifications affect
only the procedure for determining whether a defendant's
sentence should commence immediately following conviction, and
not any of the defendant's substantive rights. Id. at 701.
The Third Circuit also has recently decided that the Act's new
standards for release pending appeal involve "a procedural
issue rather than a type of punishment to which the Ex Post
Facto Clauses apply." U.S. v. Miller, 753 F.2d 19, 21 (3d
Cir. 1985). In a similar case, Judge Shadur held that § 3143(a)
(the Act's modified procedures for release pending sentencing)
may be applied retroactively without violating the ex post
facto clause. U.S. v. DiVarco, No. 84 CR 507, slip op.
(N.D.Ill. February 6, 1985).
Reviewing the above opinions, this Court is convinced that the
Third Circuit's opinion in Miller, Judge Roszkowski's opinion
in Giangrosso and the New York district court's opinion in
Davis are persuasive and decided correctly. In Dobbert v.
Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977),
the Supreme Court upheld retroactive application of a statute
which allowed the trial judge, in a capital case, to disregard
the jury's recommendation of life imprisonment, and instead
sentence the defendant to death. The Court construed the change
in the statute as "clearly procedural," and resulted in "no
change in the quantum of punishment." Id. at 293-94, 97 S.Ct.
at 2298-99. The Court noted that even though the statute
disadvantaged the defendant, such a procedural change was not
ex post facto. Id. 293, 97 S.Ct. at 2298.
Like the defendant in Dobbert, defendant here will be
disadvantaged under the Act's new bail procedures. Defendant
will serve his sentence sooner under the Act than under the old
law. The Act's new bail provisions, however, similar to the
statutory changes in Dobbert, are procedural. Section 3143(b)
does not create a new crime, enhance the defendant's
punishment, or deprive the defendant of any defense to the
charges. As such, its application to this case does not violate
the ex post facto clause.
Applying § 3143(b) to this case, defendant has failed to meet
his burden justifying bond on appeal. The Third Circuit
recently interpreted § 3143(b) and held that a defendant bears
the burden of proving four conditions before a court may grant
(1) that the defendant is not likely to flee or pose a danger
to the safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or
(4) that if that substantial question is determined favorably
to defendant on appeal, that decision is likely to result in
reversal or an order for a new trial of all counts on which
imprisonment has been imposed.
U.S. v. Miller, 753 F.2d 19
(3d Cir. 1985). Without passing
on elements 1 and 2, defendant has failed to establish that
"the appeal raises a substantial question of law or fact" as
required by the third and fourth elements. The two errors
alleged in defendant's post trial motion — failure to instruct
the jury on entrapment and improper instruction on the
definitions of "steal" and "convert" — fail to raise a
substantial question of law or fact. See Order Denying
Defendant's Post-Trial Motions, February 1, 1985.
For the above reasons, defendant has failed to meet his burden
under § 3143(b) and therefore his motion for bail pending
appeal is denied. Defendant is ordered to surrender to the
United States Marshal in Chicago before 12:00 p.m. (noon) on
February 26, 1985.
IT IS SO ORDERED.
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