765 F.

2d 944
53 USLW 2628

UNITED STATES of America, Plaintiff-Appellee,

v.
Grant C. AFFLECK, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Frank KOWALIK, Jr., Defendant-Appellant.
Nos. 85-1009, 84-2600.

United States Court of Appeals,

Tenth Circuit.
May 24, 1985.

A. Brent Carruth, Carruth & Goodwin, Van Nuys, Cal. (Eric A. Goodwin,
Carruth & Goodwin, Van Nuys, Cal., with him on the briefs), for
defendant-appellant Affleck.
Brent D. Ward, U.S. Atty., Salt Lake City, Utah (David Schwendiman,
Sp. Asst. U.S. Atty., Salt Lake City, Utah, with him on the brief), for
plaintiff-appellee U.S. in No. 85-1009.
Albert M. Pearson, University of Georgia School of Law, Athens, Ga.,
and Scott McLarty, Athens, Ga. (Cecil Hartman, Denver, Colo., with them
on the brief), for defendant-appellant, Kowalik.
Thomas M. O'Rourke, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller,
U.S. Atty., with him on the brief), for plaintiff-appellee U.S. in No. 842600.
Michael L. Bender, Bender & Treece, and Jay P.K. Kenney, Denver,
Colo., were on the brief in 84-2600 for amicus curiae Nat. Ass'n of
Criminal Defense Lawyers.
Before HOLLOWAY, Chief Judge, and SETH, BARRETT, DOYLE,
McKAY, LOGAN, and SEYMOUR, Circuit Judges* .
HOLLOWAY, Chief Judge.

OPINION ON REHEARING EN BANC

1

These separate appeals from the District of Utah and the District of Colorado
present important questions under the Bail Reform Act of 1984 ("Act"), enacted
as part of the Comprehensive Crime Control Act of 1984, Title II of Pub.L. No.
98-473, 98 Stat. 1976, approved October 12, 1984. This court ordered
rehearings en banc which were heard on March 12, 1985 in each case. This
opinion disposes of the issues in both cases concerning bail pending appeal.

2* Facts
A. Affleck
3

Defendant Grant C. Affleck was convicted in the District of Utah on October 5,

1984 after a jury trial of six counts of security fraud,1 one count of bankruptcy
fraud,2 and one count of interstate transportation of a person to defraud.3 On
that date, the district court ordered Affleck released on a $75,000 bond pending
sentencing. The district court found that Affleck did not pose a danger to others
or to the community, and that he was not likely to flee.

On November 16, Affleck was sentenced to ten years' imprisonment and five
years' probation. On November 19, Affleck filed a notice of appeal. On
November 20 the district court, in response to Affleck's ex parte motion, stayed
execution of the sentence upon filing of the same bond maintained by Affleck
during the trial. The district court found that Affleck posed "no immediate
threat of fleeing during appeal and no immediate danger to society during that
period." VIII R. 1438-39.

On November 21, the Government filed a motion in the district court to

reconsider its order staying execution of Affleck's sentence and ordering his
release pending appeal, or in the alternative, to hold an expedited hearing and to
make the findings to support such an order as required by 18 U.S.C. Sec.
3143(b), as amended by the new Act. Section 203(a) of the Act changed the
standards governing release of convicted defendants on bail pending appeal.

Under former 18 U.S.C. Secs. 3146 and 3148, convicted defendants were
entitled to release on bail pending appeal unless no one or more conditions of
release would reasonably assure that they would not flee or pose a danger to
any other person or to the community, or unless their appeal was frivolous or

taken for purpose of delay. The burden was on the Government under the
former law to show that the appeal was frivolous and was taken for purpose of
delay; the defendant bore the burden of showing he would not flee and was not
a danger to any person or the community. See also former Fed.R.App.P. 9(c).
The Act changed the criteria for release on bail pending appeal and placed the
burden on the convicted defendant to prove that he meets all the new criteria.
Current 18 U.S.C. Sec. 3143(b) provides as follows:
7
Release
or Detention Pending Appeal by the Defendant.--The judicial officer shall
order that a person who has been found guilty of an offense and sentenced to a term
of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be
detained, unless the judicial officer finds-8

(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 pursuant
to section 3142(b) or (c); and

(2) that the appeal is not for purpose of delay and raises a substantial question
of law or fact likely to result in reversal or an order for a new trial.

10

Act Sec. 203(a), 98 Stat. 1981-82 (emphasis added); see also Fed.R.App.P.
9(c), as amended by Act Sec. 210, 98 Stat. 1987.

11

Affleck principally argued below that he was entitled to bail pending appeal
because the former law entitled him to that relief, and that application to him of
the new Act would violate the ex post facto clause. After a hearing, the district
court on December 11 vacated its earlier order. The court held that Affleck had
established by clear and convincing evidence under Sec. 3143(b)(1) that he was
not likely to flee or pose a danger to the safety of any other person or to the
community if he were released on a $75,000 bond pending appeal. The court
also held that Affleck had established that his appeal was not taken for purpose
of delay under Sec. 3143(b)(2). The court denied bail, however, because
Affleck did not establish that his appeal raised a substantial question of law or
fact likely to result in reversal or an order for a new trial under Sec. 3143(b)(2).
VIII R. 1490. The court also held that application of the new criteria of Sec.
3143(b) to deny Affleck bail pending appeal did not violate the ex post facto
clause, even though he would have been entitled to bail under the law in effect
when the offenses were committed and when the guilty verdicts were returned.
Id. at 1491-95.

B. Kowalik

12

13

Defendant Frank Kowalik, Jr. was convicted in the District of Colorado on

September 19, 1984 after a jury trial of two counts of willfully failing to file
federal income tax returns in violation of I.R.C. Sec. 7203. On November 14
the district court sentenced Kowalik to one year of imprisonment and a $10,000
fine on each count. The district court on that date also ordered Kowalik's
release pending appeal upon filing of a $20,000 bond. The court found that
Kowalik did not pose a danger to the community and was not likely to flee. I R.
123.
Also on November 14 Kowalik filed a notice of appeal and sought release on
the appeal bond, but the magistrate concluded that release was inappropriate
absent findings by the district court under Sec. 3143(b). Kowalik principally
argued that he was entitled to bail pending appeal under the former law. He
also contended that he raised substantial questions likely to result in reversal or
an order for a new trial under the new Act. He argued that the trial court erred
in its instructions because they did not properly treat his defenses of not
willfully and knowingly intending a violation of the tax law, and that the
instructions did not properly cover the effect of evidence from his character
witnesses. After a hearing on November 15, the district court vacated its earlier
order permitting Kowalik to be released on bail pending appeal. The court
found that Kowalik had established by clear and convincing evidence under
Sec. 3143(b)(2) that he was not a threat to any other person or to the
community and was not likely to flee. IX R. 4-5. However, the court held that
Kowalik's appeal did not raise a substantial question of law or fact likely to
result in reversal or an order for a new trial under Sec. 3143(b)(2), and denied
bail. Id. at 3.

C. Proceedings in this court

14

Both Affleck and Kowalik challenge the district courts' denial of their motions
for release pending appeal. A panel of this court denied the motions for release
pending appeal.4 On its own motion this court, by order of a majority of its
active circuit judges on February 1, 1985, granted rehearing en banc of of the
court's earlier orders denying the motions for release pending appeal.5 We
expedited these cases for argument at our March term of court and asked
counsel to brief and argue the effect of the new Sec. 3143(b) standards in these
cases. We now address various issues concerning the application to these
defendants of the new Sec. 3143(b) criteria for release pending appeal.

II
Effective Date and the Ex Post Facto Clause
15

A. Effective date
16

Affleck asserts that Congress did not intend the Bail Reform Act to apply to
those convicted of crimes before October 12, 1984. He relies on cases holding
that other provisions of the Bail Reform Act do not apply to defendants
released on bail before that date. See United States v. Fernandez-Toledo, 749
F.2d 703 (11th Cir.1985) (Sec. 3731, which permits the Government to appeal
order granting bail); United States v. Mitchell, 600 F.Supp. 164 (N.D.Cal.1985)
(Sec. 3142, which provides for pretrial detention). But see United States v.
Anguilo, 755 F.2d 969, 970-74 (1st Cir.1985) (application of pretrial detention
provisions of new Act to a defendant incarcerated and seeking release on
October 12). Affleck also cites Greene v. United States, 376 U.S. 149, 84 S.Ct.
615, 11 L.Ed.2d 576 (1964), and argues that criminal statutes like Sec. 3143(b)
should not be given retrospective operation where to do so would interfere with
antecedent rights. See also Fernandez-Toledo, 749 F.2d at 705 (defendant
released on bail prior to effective date of the Act had a vested, antecedent right
to bail).

17

We are not persuaded by these cases that the Act should not apply to a
defendant like Affleck, convicted before October 12, who seeks bail pending
appeal after that date. There is no constitutional right to bail pending appeal.
See, e.g., United States v. Provenzano, 602 F.Supp. 230, 232 (E.D.La.1985);
United States ex rel. Cameron v. New York, 383 F.Supp. 182, 183
(E.D.N.Y.1974).6 In these circumstances, we hold that Sec. 3143(b), in the
absence of a showing of congressional intent to the contrary, became fully
effective on October 12 when the President approved the Act. Section 3143(b)
therefore applies to Affleck even though he was convicted before the effective
date of the Act. See United States v. Cirrincione, 600 F.Supp. 1436, 1438
(N.D.Ill.1985); see also United States v. Chiattello, 599 F.Supp. 970, 971-72
(N.D.Ind.1985); United States v. Hazzard, 598 F.Supp. 1442, 1454 n. 8
(N.D.Ill.1984); United States v. Kowal, 596 F.Supp. 375, 376 (D.Conn.1984);
see also United States v. Gavrilovic, 551 F.2d 1099, 1103 (8th Cir.1977);
United States v. Clizer, 464 F.2d 121, 123 n. 2 (9th Cir.), cert. denied, 409 U.S.
1080, 93 S.Ct. 679, 34 L.Ed.2d 669 (1972).

B. The ex post facto clause

18

Affleck and Kowalik both argue that application to them of the new Sec.
3143(b)(2) standards governing bail pending appeal violates the ex post facto
clause because they were convicted before the effective date of the Act. We
disagree.

19

The Constitution provides that no "ex post facto [l]aw shall be passed." U.S.
Const. art. I, Sec. 9, cl. 3.7 The ex post facto clauses forbid the enactment by
Congress and the states of any law that "imposes a punishment for an act which
was not punishable at the time it was committed; or imposes additional
punishment to that then prescribed; or changes the rules of evidence by which
less or different testimony is sufficient to convict than was then required."
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867); see
also Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17
(1981).8

20

The Court has stated that "no ex post facto violation occurs if the change
effected is merely procedural, and does 'not increase the punishment[,] nor
change the ingredients of the offen[c]e or the ultimate facts necessary to
establish guilt.' " Id. at 29 n. 12, 101 S.Ct. at 964 n. 12 (quoting Hopt v. Utah,
110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884) (brackets added to
conform to original quotation in Hopt )); see also Dobbert v. Florida, 432 U.S.
282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) ("Even though it may
work to the disadvantage of a defendant, a procedural change is not ex post
facto."); Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216
(1925) (ex post facto clause not intended to "limit the legislative control of
remedies and modes of procedure which do not affect matters of substance").
The Court has held that "two critical elements must be present for a criminal or
penal law to be ex post facto: it must be retrospective, that is, it must apply to
events occurring before its enactment, and it must disadvantage the offender
affected by it." Weaver v. Graham, 450 U.S. at 29, 101 S.Ct. at 964 (footnotes
omitted).9

21

We hold that application of the new Sec. 3143(b)(2) standards governing bail
pending appeal to a defendant convicted before the effective date of the Act
does not disadvantage the defendant in any way prohibited by the ex post facto
clause. Section 3143(b)(2) represents a significant procedural change in the
requirements that a convicted defendant must meet to obtain bail pending
appeal, one seriously disadvantageous to him in that respect, but the statute
does not change the "quantum of punishment attached to the crime." Dobbert,
432 U.S. at 294, 97 S.Ct. at 2298. We agree with other cases, which have
similarly held that Sec. 3143(b) does not violate the ex post facto clause. See
United States v. Powell, 761 F.2d 1227, 1234 (8th Cir.1985) (en banc)
(footnote omitted) ("Admission to bail pending appeal is, for Ex Post Facto
Clause purposes, 'procedural'. It does not increase the punishment for a crime
already committed, but simply regulates the time at which imprisonment for
that crime will begin after conviction"); United States v. Molt, 758 F.2d 1198,
1200-01 (7th Cir.1985) ("We think the change in the standard for bail pending

appeal is not an ex post facto law.... [T]he presumption is against construing a

procedural change as an ex post facto law, and must carry the day in the
absence of a stronger showing than made in this case that the change works an
increase in punishment.... The change in the balance of advantages against the
defendant is too slight to bring the change within the scope of the ex post facto
clause."); United States v. Miller, 753 F.2d 19, 21 (3d Cir.1985) ("The
availability vel non of bail pending appeal, albeit extremely important to the
individual involved, is a procedural issue rather than a type of punishment to
which the Ex Post Facto Clauses apply."); United States v. Crabtree, 754 F.2d
1200, 1201-02 (5th Cir.1985) (opinion of Chief Judge Clark as a single circuit
judge) ("[ (Section 3143(a)(1) ] is merely procedural and does not alter a
substantive right. [It] does not increase the punishment nor change the
ingredients of the offense or the ultimate facts necessary to establish guilt.");
United States v. Chiattello, 599 F.Supp. 970, 971 n. 1 (N.D.Ind.1985) ("The
method governing the release of a defendant on appeal following a conviction
is a matter of procedure and does not bear on substantive rights."); United
States v. Davis, 598 F.Supp. 453, 468 (S.D.N.Y.1984) (on motion to revoke
bail) ("[Defendant's] entitlement to bail, and the criteria by which that
entitlement will be measured, constitute 'modes of procedure' falling outside the
ex post facto rule, notwithstanding the fact that increased restrictions upon bail
pending appeal may undoubtedly 'work to the disadvantage' of defendants.").
22

In reaching this conclusion, we are mindful of the Supreme Court's decision in

Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883). In Kring,
the Court held that an ex post facto violation had occurred where the Missouri
courts had imposed a death penalty by a second sentence in a murder case. A
former plea of guilty to a second degree murder charge had resulted in a
twenty-five year sentence; the defendant appealed and the judgment was
reversed. Under Missouri law in force when the homicide was committed, the
first sentence constituted an acquittal of first degree murder. Before retrial, the
state law was changed so that this effect of an acquittal of first degree murder
no longer operated. The defendant refused to withdraw his plea of guilty to
second degree murder or to reenter a not guilty plea to the first degree murder
charge. The trial court ordered a general not guilty plea entered to the first
degree murder charge. The retrial, guilty verdict and death sentence followed,
which the Missouri courts affirmed. The Supreme Court reversed. The Court
upheld the ex post facto claim and rejected the contention that the change in
state law was merely a change in criminal procedure. Id. at 232-36, 2 S.Ct. at
452-55. The troublesome discussion is as follows:

23

But it cannot be sustained without destroying the value of the constitutional

provision, that a law, however it may invade or modify the rights of a party

charged with crime, is not an ex post facto law, if it comes within either of
these comprehensive branches of the law designated as Pleadings, Practice, and
Evidence.
24

Can the law with regard to bail, to indictments, to grand jury, to the trial jury,
all be changed to the disadvantage of the prisoner by State legislation after the
offence was committed, and such legislation not held to be ex post facto
legislation, because it relates to procedure, as it does according to [Bishop on
Criminal Procedure ]?

25

And can any substantial right which the law gave the defendant at the time to
which his guilt relates be taken away from him by ex post facto legislation,
because, in the use of a modern phrase, it is called a law of procedure? We
think it cannot.

26

Id. at 232, 2 S.Ct. at 452 (emphasis added).

27

We believe that Kring and its dictum respecting bail must be read in light of
later Supreme Court opinions on the ex post facto clause. In Beazell, for
example, the Court stated that "[e]xpressions are to be found in earlier judicial
opinions to the effect that the [ex post facto clause] may be transgressed by
alterations in the rules of evidence or procedure." 269 U.S. at 170, 46 S.Ct. at
68 (citing Kring, inter alia ). The Court conceded that there "may be procedural
changes which operate to deny to the accused a defense available at the time of
the commission of his offense, or which otherwise affect him in such a harsh
and arbitrary manner as to fall within the constitutional prohibition." Id. The
Court noted that "[j]ust what alterations of procedure will be held to be of
sufficient moment to transgress the constitutional prohibition cannot be
embraced within a formula or stated in a general proposition. The distinction is
one of degree. But the constitutional provision was intended to secure
substantial rights against arbitrary and oppressive legislation." 269 U.S. at 171,
46 S.Ct. at 69.

28

In Kring, the Court explained that the effect of the change in state law, which
was denied application there as ex post facto, was that formerly conclusive
evidence of innocence of the higher grade of murder could not be received at
all, or was given no weight, and that the law on punishment was changed from
a bar against the death penalty in such circumstances to a new law permitting
such punishment. 107 U.S. at 228, 2 S.Ct. at 449. Although we are bound by
that holding in Kring, we must view the statements concerning bail and
procedural changes in Kring in light of the ex post facto standards applied by

the Court in subsequent cases. We are particularly persuaded by the Court's

more recent focus in ex post facto cases on the elements of the offense, the
conditions and quantum of punishment, and the quantity and degree of proof
necessary to establish guilt. See, e.g., Weaver v. Graham, 450 U.S. at 32-33,
101 S.Ct. at 966-967; Dobbert, 432 U.S. at 295, 97 S.Ct. at 2299. In light of
these standards, we conclude that there is no ex post facto violation here by
application of the new restrictive rules governing bail pending appeal, as now
prescribed by Sec. 3143(b)(2).
29

We are unpersuaded by the reasoning in United States v. Cirrincione, 600

F.Supp. 1436 (N.D.Ill.1985). There the district court held that Sec. 3143(b)(2)
violates the ex post facto clause. The court reasoned that a sentence which
begins immediately is more severe than a sentence which commences after an
unsuccessful appeal. Id. at 1443-46. The court said that "[w]hile the Supreme
Court has not always been clear on the underlying rationales for the ex post
facto clause, certainly one rationale is that an individual who acts in reliance
upon the known criminal penalties for his acts must be punished in accordance
with that reliance." Id. at 1444.

30

Although we agree that the ex post facto clauses protect an individual who acts
in reliance on the known criminal penalties for his conduct, we cannot accept
the Cirrincione court's view that Sec. 3143(b)(2) affects the punishment
imposed for such conduct. A convicted defendant may wish to postpone
serving his sentence until his appeal is decided, and certainly the Sec. 3143(b)
(2) standards for granting bail pending appeal are "more onerous" than those
under the former law. However, Sec. 3143(b)(2) does not in any way alter the
"quantum of punishment" imposed on criminal defendants, or the elements and
required proof of the offense, which are the main focus of the Supreme Court's
more recent decisions. Dobbert illustrates the fact that significant changes, even
in the procedure for imposition of the death penalty, do not necessarily violate
the ex post facto clause.

31

Our conclusion is also supported by state court decisions which have upheld
changes in statutes governing bail pending appeal against ex post facto
challenges. For example, the Indiana Supreme Court has held that a state statute
denying bail pending appeal by a habitual criminal was not ex post facto as
applied to a defendant who committed the offense and was convicted before the
effective date of the statute. State ex rel. Dorton v. Circuit Court of Elkhart
County, 274 Ind. 373, 412 N.E.2d 72 (1980).10 The court explained that the
superseding statute did "not make an act criminal which was legal before the
statute; nor [did] it 'provide a greater punishment therefor than was prescribed
at the time of its commission.' " Id. at 74 (quoting Hopt v. Utah, 110 U.S. 574,

579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884)).

32

Moreover, the Oklahoma Court of Criminal Appeals has held that a state statute
prohibiting bail pending appeal if a defendant was convicted of rape or forcible
sodomy, among other things, was not ex post facto as applied to a defendant
who committed the offense before the effective date of the statute. Spitznas v.
State, 648 P.2d 1271 (Okla.Crim.App.1982). The court concluded that the
statute was procedural and did not inflict greater punishment than the law
imposed at the time the offense was committed. Id. at 1275-76.

33

In addition, the District of Columbia Court of Appeals has held that a statute
providing for pretrial detention of defendants charged with first degree murder
was not ex post facto as applied to a defendant who committed the crime before
the effective date of the statute. De Veau v. United States, 454 A.2d 1308
(D.C.App.1982), cert. denied, 460 U.S. 1087, 103 S.Ct. 1781, 76 L.Ed.2d 351
(1983). The court emphasized that the statute did not "impose (or increase)
punishment ... or [make] formerly legal conduct a crime." Id. at 1314.11

34

We therefore hold that the Sec. 3143(b)(2) standards governing bail pending
appeal are not ex post facto as applied to a defendant where the offenses
charged and the resulting convictions occurred before the effective date of the
Act, but the sentences and the order by the district court denying bail pending
appeal were entered after that date.III

Interpretation of 18 U.S.C. Sec. 3143(b)(2)

35
36

Section 3143(b)(2) as amended by the Bail Reform Act requires that bail
pending appeal be denied unless the court finds that the appeal "raises a
substantial question of law or fact likely to result in reversal or an order for a
new trial." The parties in both the Affleck and Kowalik cases contend that we
should interpret this requirement in light of the two-step analysis announced by
the Third Circuit in United States v. Miller, 753 F.2d 19 (3d Cir.1985). The
Government, however, argues that a stricter interpretation than that of Miller
should be applied to determine what constitutes a "substantial" question of law
or fact.

37

In Miller, the Third Circuit held that the language quoted above requires the
court to make two determinations in order to grant bail pending appeal. First,
the court must decide that the appeal raises a "substantial" question of law or
fact. Second, "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." Id. at 24. This
approach has been followed in other cases. See United States v. Powell, 761
F.2d 1227, 1230-1234 (8th Cir.1985) (en banc); United States v. Handy, 761
F.2d 1279, 1280 (9th Cir.1985) (per curiam); United States v. Giancola, 754
F.2d 898, 900-901 (11th Cir.1985); see also United States v. Polin, Nos. 855009, 85-5010, slip op. at 2 (4th Cir. March 4, 1985) (opinion of Murnaghan,
Circuit Judge, as a single circuit judge). We adopt the Miller two-step analysis
for determining whether to grant bail pending appeal under Sec. 3143(b), but
we apply a somewhat stricter interpretation of what constitutes a "substantial"
question of law or fact, which we believe the statute and its purpose require.
38

What constitutes a "substantial" question under the first prong of this test must
be considered in light of congressional intent. Under former Sec. 3148, bail
pending appeal would be denied if the appeal was "frivolous." The new Act
was intended to reverse the presumption in favor of bail pending appeal under
the former law and to make the standards for granting bail pending appeal more
stringent. See S.Rep.No. 225, 98th Cong., 1st Sess. 26-27, reprinted in 1984
U.S.Code Cong. & Ad.News 3182.

39

Accordingly, we agree with the Eleventh Circuit that "a 'substantial question' is
one of more substance than would be necessary to a finding that it was not
frivolous. It is a 'close' question or one that very well could be decided the
other way." Giancola, 754 F.2d at 901. In Miller, the Third Circuit said that a
"substantial" question under Sec. 3143(b)(2) "is one which is either novel,
which has not been decided by controlling precedent, or which is fairly
doubtful." Miller, 753 F.2d at 23.12 We agree with the Eleventh Circuit,
however, that a question "which has not been decided by controlling precedent"
may not be "substantial" under Sec. 3143(b)(2). For example, an issue may be
"so patently without merit that it has not been found necessary for it to have
been resolved.... Similarly, there might be no precedent in this circuit, but there
may also be no real reason to believe that this circuit would depart from
unanimous resolution of the issue by other circuits." Giancola, 754 F.2d at
901.13 In the final analysis, we cannot define blanket categories for what will
constitute "substantial" questions under Sec. 3143(b)(2). Therefore, whether a
particular question is "substantial" must be determined on a case-by-case basis,
under the general guidelines we adopt as quoted above. See Giancola, 754 F.2d
at 901.

40

The second prong of the Miller test poses less of a definitional problem. Under
this second prong, bail pending appeal is appropriate if, assuming that the
"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." Miller, 753 F.2d at 24. The Third
Circuit further explained that this language
41 be read as going to the significance of the substantial issue to the ultimate
must
disposition of the appeal. A question of law or fact may be substantial but may,
nonetheless, in the circumstances of a particular case, be considered harmless, to
have no prejudicial effect, or to have been insufficiently preserved. A court may find
that reversal or a new trial is "likely" only if it concludes that the question is so
integral to the merits of the conviction on which defendant is to be imprisoned that a
contrary appellate holding is likely to require reversal of the conviction or a new
trial.
Id. at 23.14
42

In sum, we hold that in order to grant bail pending appeal, a court must find
that the defendant has met his burden of proving by clear and convincing
evidence that he is not likely to flee or pose a danger to the safety of any other
person or to the community if released under Sec. 3143(b)(1), and that he has
established under Sec. 3143(b)(2)15 that the appeal is not for purpose of delay,
and:

[1.] that the appeal raises a substantial question of law or fact; and
43
44 that if that substantial question is determined favorably to defendant on appeal,
[2.]
that decision is likely to result in reversal or an order for a new trial of all counts on
which imprisonment has been imposed.
45

Id. at 24.

IV
Disposition
46

In Affleck, both the defendant and the Government agree that we should
remand the case to the district court to reconsider the issue of bail pending
appeal under the Miller two-part standard, disagreeing only on how to
determine a "substantial" question of law or fact, which we have resolved. In
Kowalik, however, both the defendant and the Government apparently agree
that a remand is not appropriate. Kowalik argues that we should grant him bail
pending appeal under the test he espouses, while the Government argues that
we should deny bail under the standard it proposes.

47

We conclude that the proper disposition is to remand both cases for the district
court to make findings and conclusions under the standard for determining bail
on appeal which we adopt today. The Third and Eleventh Circuits made this
disposition in Miller and Giancola. Miller, 753 F.2d at 24; Giancola, 754 F.2d
at 901 & n. 5.16 This disposition comports with Fed.R.App.P. 9(b). Rule 9(b)
requires that applications for bail pending appeal be made "in the first instance
in the district court." Id. The rule also requires the district court to "state in
writing the reasons" if the court denies release pending appeal or imposes
conditions on release. Id. The rule contemplates that the district court is in a
better position to evaluate, in the first instance, the propriety of granting bail
pending appeal. The rule also aids our appellate function by requiring the
district court to make written findings and conclusions.

48

These proceedings obviously present difficulties for the parties, as well as for
the trial and appellate courts. We are convinced that those difficulties will be
lessened if a clear record at a hearing is made in the trial court. As noted, the
defendant bears the burden of making the showings outlined above on the facts
and the law, and he must present sufficient portions of the record to support the
questions he raises. If this is not done, as to evidentiary matters we must give
considerable deference to the trial court's determination on the substantiality of
questions of fact. We can, like the trial court, independently consider questions
of law.

49

Accordingly, we partially remand these cases to the district courts for hearings
and reconsideration of the denials of the motions for bail pending appeal under
the standards we adopt today, and for the district courts to make new written
findings, conclusions and orders under these standards. This court otherwise
retains jurisdiction of the principal appeals in these cases. The mandates for the
partial remands shall issue forthwith.
McKAY, Circuit Judge, dissenting:

50

Since our country's inception, liberty has held a preeminent place in our
pantheon of values. Our founding fathers took care to preserve it through a
wealth of carefully crafted constitutional safeguards. Among them are the
eighth amendment's proscription of excessive bail, the due process clause, and
the ex post facto clause. In my view, the court has trivialized each of these
safeguards in sustaining the constitutionality of the bail pending appeal
provisions of the Bail Reform Act of 1984, and in approving the application of
these provisions to defendants who were convicted of crimes committed before
the Act's passage.

51

I believe that this is, in large measure, a consequence of the court's

preoccupation with attempting to ameliorate the harsh effects of these
provisions. Had the court held fast to the actual intent of Congress, the
constitutional infirmity of the statute would have been readily apparent.

52

When the standard for release of a convicted person pending appeal under 18
U.S.C. Sec. 3143 was first considered by trial courts and by a panel of this
court, they all concluded that Congress did indeed mean what it said--bail
should be denied unless the trial court finds:

53 the appeal is not for purpose of delay and raises a substantial question of law or
that
fact likely to result in reversal or an order for a new trial.
54

18 U.S.C. Sec. 3143(b).

55

These early decisions took the statute to mean that for all practical purposes
Congress intended to eliminate bail pending appeal in all but the most
extraordinary cases. Subsequently, the Third Circuit fabricated from rules of
judicial construction an intent that gives the appearance of significantly
ameliorating the harshness of the provision--even though there is no evidence
that Congress had such a construction in mind. United States v. Miller, 753
F.2d 19 (3rd Cir.1985). Other circuits quickly fell in line. United States v.
Handy, 761 F.2d 1279 (9th Cir.1985) (per curiam); United States v. Giancola,
754 F.2d 898 (11th Cir.1985); see also United States v. Polin, Nos. 85-5009,
85-5010, slip op. at 2 (4th Cir. March 4, 1985) (opinion of Murnaghan, C.J., as
a single circuit judge).

56

In this case the majority, adopting the reasoning of both the Third and Eleventh
Circuits, rewrites the statutory provision to read that bail may be granted by the
trial court if:

1. the appeal raises a substantial question of law or fact; and

57
58if that substantial question is determined favorably to the defendant on appeal, the
2.
decision is likely to result in reversal or an order for a new trial on all counts for
which imprisonment has been imposed.
59

Thus, under the majority's attempted emasculation of the provisions of the Act,
no determination need be made whether the substantial question is likely to be
determined favorably upon appeal; it need only be decided whether that
substantial question would likely result in reversal if it is so resolved on appeal.

60

In my view, it is regrettable that the courts have not held fast to the actual intent
of Congress. This supposed amelioration will likely prove to be no amelioration
at all. I am fully satisfied that the result will be essentially the same as it would
were the statute interpreted literally--the denial of bail to the overwhelming
majority of persons who previously would have received bail pending appeal.
Such exceptions as may exist under the newly established standards will be at
best quixotic.1

61

More important, in sorting through the theoretical niceties of supposedly

ameliorative standards the courts have lost sight of the fact that the statute both
as written by Congress and as rewritten by them allows for the punishment of a
substantial class of individuals who have not yet been finally adjudicated guilty.
I am convinced that denying bail under the test set forth in the panel's opinion
is contrary to the Constitution of the United States.

CONSTITUTIONAL RIGHTS ON APPEAL

62

Until recently, it might have been argued that the constitutional rights that
normally would attend preconviction proceedings do not accompany the
appellate process. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d
341 (1974). However, the recent Supreme Court case of Evitts v. Lucey, --U.S. ----, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), has drastically changed this
analysis. In Evitts the Court found that, where a state provides for an appeal as
a matter of right, "the procedures used in deciding appeals must comport with
the demands of the Due Process and Equal Protection clauses of the
Constitution." --- U.S. at ----, 105 S.Ct. at 834. In holding that a defendant has a
due process right to effective assistance of counsel on appeal, the Court stated
that "in establishing a system of appeal as of right, the state had implicitly
determined that it was unwilling to curtail drastically a defendant's liberty
unless a second judicial decisionmaker, the appellate court, was convinced that
the conviction was in accord with law." --- U.S. at ----, 105 S.Ct. at 840. The
state was thus found to have "made the appeal the final step in the adjudication
of guilt or innocence of the individual."2 Id. Accordingly, in a system where a
defendant has an appeal as of right, his guilt or innocence is not finally
determined until the conclusion of his appeal. Under this rationale, all rights
that apply to protect a defendant at the trial stage also apply at the appellate
level, provided the appeal is a matter of right.

63

As the Supreme Court has stated, "[p]resent federal law has made an appeal
from a district court's judgment of conviction in a criminal case what is, in
effect, a matter of right." Coppedge v. United States, 369 U.S. 438, 441, 82
S.Ct. 917, 918, 8 L.Ed.2d 21 (1962) (citing 28 U.S.C. Secs. 1291, 1294;

Fed.R.Crim.P. 37(a)). The federal courts have, therefore, made the appeal "the
final step in the adjudication of guilt or innocence" and, under Evitts, the full
panoply of constitutional rights applies until the conclusion of the appeal.
THE EIGHTH AMENDMENT
64

The traditional purpose of bail has been to ensure the presence of the defendant
at trial. Higher bail than that amount reasonably calculated to fulfill this
purpose is "excessive" in violation of the eighth amendment. Stack v. Boyle,
342 U.S. 1, 5, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951). It remains an open question,
however, whether the eighth amendment provides a right to bail in cases where
the defendant is not likely to flee. Compare Escandar v. Ferguson, 441 F.Supp.
53, 58 (S.D.Fla.1977) (finding that likelihood of flight is the only
constitutionally permissible justification for denial of bail) with United States v.
Edwards, 430 A.2d 1321 (D.C.App.1981), cert. denied, 455 U.S. 1022, 102
S.Ct. 1721, 72 L.Ed.2d 141 (1982) (upholding the denial of bail for the purpose
of protecting the community).3 The Supreme Court has expressly reserved the
question. Bell v. Wolfish, 441 U.S. 520, 534 n. 15, 99 S.Ct. 1861, 1871 n. 15,
60 L.Ed.2d 447 (1979) (refusing to decide whether any objective other than
ensuring the defendant's presence at trial may constitutionally justify pretrial
detention).

65

I would resolve the question left open in Wolfish by finding that prevention of
flight is the only constitutionally permissible justification for the denial of bail.
In my view, to say that the eighth amendment does not prevent Congress from
defining classes of cases in which bail shall not be allowed but only provides
that bail shall not be excessive in those cases where it is allowed "is a classic
case of the cart pulling the horse since the Congress could abrogate the right to
bail altogether, making the eighth amendment absolutely meaningless."
Edwards, 430 A.2d at 1365 (Mack, J., dissenting). See also Carlson v. Landon,
342 U.S. 524, 556, 72 S.Ct. 525, 542, 96 L.Ed. 547 (1951) (Black, J.,
dissenting). Regardless of whether the English provision that provided the basis
for the eighth amendment was more narrowly structured,4 the Bill of Rights
"was written and adopted to guarantee Americans greater freedom than had
been enjoyed by their ancestors who had been driven from Europe by
persecution." Edwards, 430 A.2d at 1366 (Mack, J., dissenting) (quoting
Carlson v. Landon, 342 U.S. 524, 556, 72 S.Ct. 525, 542, 96 L.Ed. 547 reh.
denied, 343 U.S. 988, 72 S.Ct. 1069, 96 L.Ed. 1375 (1952)). See also Foote,
The Coming Constitutional Crisis in Bail, 113 U.Pa.L.Rev. 959, 1125 (1965).

66

Although there have been hints to the contrary in recent Supreme Court
opinions, see Carlson, 342 U.S. at 545-46, 72 S.Ct. at 536-37, and Schall v.

Martin, --- U.S. ----, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984), it would be
a travesty if we glibly abandoned the observations of the Supreme Court in
Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951):
67 the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal
From
Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided
that a person arrested for a non-capital offense shall be admitted to bail. This
traditional right to freedom before conviction permits the unhampered preparation of
a defense, and serves to prevent the infliction of punishment prior to conviction. See
Hudson v. Parker, 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424 (1895).
Unless this right to bail before trial is preserved, the presumption of innocence,
secured only after centuries of struggle, would lose its meaning.
68

Thus, in my view, the Bail Reform Act violates the eighth amendment by
allowing the denial of bail on grounds unrelated to the defendant's likelihood of
flight.

69

Even if Congress is free to define nonbailable offenses, certainly the allowable

justifications are limited. Justice Black, sitting as a Circuit Justice, stated that
"the command of the eighth amendment that 'excessive bail shall not be
required * * * ' at the very least obligates judges passing upon the right to bail
to deny such relief only for the strongest of reasons." Sellers v. United States, -- U.S. ----, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (1968). See also Truong Dinh Hung
v. United States, 439 U.S. 1326, 99 S.Ct. 16, 58 L.Ed.2d 33 (Brennan, Circuit
Justice 1978); Harris v. United States, 404 U.S. 1232, 92 S.Ct. 10, 30 L.Ed.2d
25 (1971) (Douglas, Circuit Justice 1971). At a minimum, the eighth
amendment must prohibit unreasonable denial of bail. Carlson, 342 U.S. at 569,
72 S.Ct. at 548 (Burton, J., dissenting). See also Hunt v. Roth, 648 F.2d 1148,
1161 (8th Cir.1981), vacated as moot in Murphy v. Hunt, 455 U.S. 478, 102
S.Ct. 1181, 71 L.Ed.2d 353 (1982) ("... Congress and the states may reasonably
legislate as to the right to bail for certain offenses provided the power is
exercised rationally, reasonably, and without discrimination.") Surely we
cannot condone the position that bail may be denied for the primary purpose of
punishing a defendant prior to the final determination of his guilt, as defined in
Evitts.

70

The government has a compelling interest in safeguarding the integrity of the

judicial system. Denial of bail on the ground that the defendant is likely to flee
furthers this interest by ensuring the defendant's presence at trial. Certainly,
from the perspective of the individual denied bail on this ground, the bars are
just as cold and the cell is just as bleak as if he were being punished. Whatever
penal aspects are attendant to such incarceration, however, are incidental to the

achievement of the state's principle purpose--the protection of the integrity of

the judicial system.
71

This justification is, however, inapplicable in the cases before us, since the
district court found on a sufficient record that bail would ensure the presence of
the defendants and that neither defendant is a danger to the community
requiring immediate isolation. Thus, the only possible purpose for detaining
them before the guilt determination is complete, as defined by Evitts, is
punitive. While this conclusion is not difficult to divine from the face of the
statute, Congress has made our analytic task even easier by explicitly stating
the intent of the statutory provisions governing bail pending appeal to be
punitive. The legislative history accompanying the Act indicates that Congress
believed swifter punishment is a greater deterrent to criminal conduct: "release
of a criminal defendant into the community after conviction may undermine the
deterrent effect of the criminal law, especially in those situations where the
appeal of the conviction may drag on for many months or even years." Senate
Report No. 98-225 at 26, 98th Cong., 2d Sess. (1984), U.S.Code Cong. &
Admin.News 1984, p. 3209; Senate Report No. 98-147 at 562, 98th Cong., 1st
Sess. (1983); Senate Report No. 97-317 at 15-56, 97th Cong., 2d Sess. (1982).
As the court noted in its memorandum opinion and order in United States v.
Cirrincione, 600 F.Supp. 1436, 1443 (N.D.Ill.1985):

72 viewing the restrictions on release pending appeal to be a deterrent to crime,

By
Congress must have concluded that a sentence that commences immediately upon
conviction is somehow more severe than a sentence which commences only after
appeal. Certainly a sentence which commences before, rather than after, appeal, is
more certain to be served.
73

Indeed, in the approximately ten percent of all criminal cases in which the
appellate courts reverse convictions,5 there is a substantial likelihood that
persons will serve time in prison who would not otherwise have served at all,
since some of these reversals will result in dismissals and even retrial will not
necessarily result in conviction.

74

Denial of bail for the primary purpose of punishing the defendant is

unreasonable, and therefore a violation of the eighth amendment. Accordingly,
I can only conclude that, because under the statute as written by Congress and
as rewritten by our court and others the denial of post-conviction bail is
principally a punitive act, the statute is unconstitutional under the eighth
amendment. In addition, the punitive nature of the statute leads me to conclude
that the statute also violates the due process clause and the ex post facto clause.

THE DUE PROCESS CLAUSE

75

The liberty protected by the fifth amendment includes freedom from

punishment. Bell v. Wolfish, 441 U.S. 520, 535 n. 17, 99 S.Ct. 1861, 1871, n.
17, 60 L.Ed.2d 447 (1978). Thus, under the due process clause, a person may
not be punished prior to an adjudication of guilt in accordance with due process
of law. Wolfish, 441 U.S. at 535, 99 S.Ct. at 1871. Since a defendant is not
finally adjudicated guilty until after the conclusion of his appeal, Evitts, --- U.S.
at ----, 105 S.Ct. 831, the prohibition against punishment is still applicable
while the defendant is awaiting his appeal.

76

The Supreme Court "has recognized a distinction between punitive measures

that may not constitutionally be imposed prior to a determination of guilt and
regulatory measures that may." Wolfish, 441 U.S. at 537, 99 S.Ct. at 1873.
Thus, in analyzing the denial of bail, "the court must decide whether the
disability is imposed for the purpose of punishment or whether it is but an
incident of some other legitimate governmental purpose." Id. at 538, 99 S.Ct. at
1873. As discussed, the legislative history makes clear that the statutory
restrictions on bail pending appeal were "imposed for the purpose of
punishment." Wolfish, 441 U.S. at 538, 99 S.Ct. at 1873. The statute thus
violates the due process clause by imposing punishment prior to a final
adjudication of guilt.

77

The infirmity of the new statute has another dimension under the due process
clause as well--one which stems from the critically overburdened state of our
docket. In my view, the risk of erroneous deprivation of liberty under the new
provisions will be great, for I am persuaded that in practice the substance of the
legal issues raised in the petitions for bail pending appeal will receive only
slight consideration.

78

While I have been unable to make a precise calculation, such figures as are
available suggest that approximately sixty-three percent of all direct criminal
appeals to this circuit involve persons who have been granted bail pending
appeal. Because of the Bail Reform Act, we have pending a large number of
petitions to this court to grant bail pending appeal after denial by the trial court.
It is quite possible that we would have little difficulty continuing to work into
our calendar an examination of cases where the only test for denial of bail is
frivolity. But the test that the majority imposes ensures, as night to day, that if
we take our duties under Rule 9 of the Rules of Appellate Procedure seriously,
we have just added a mini-appeal in a large percentage of direct criminal
appeals to our already unmanageable docket. Even the majority admits that "
[i]n the final analysis, we cannot define blanket categories for what will

constitute 'substantial' questions under Sec. 3143(b)(2)." Op. at p. 952. The

court's self-injunction that such issues must be determined on a "case-by-case
basis" is the administrative equivalent of handing a rock to a drowning man.
Even in the cases in which we ultimately determine that the question is not
"substantial," the effort required to give conscientious judicial scrutiny to the
determination of that issue will be substantial.
79

Notwithstanding the fact that the trial court makes the initial determination, the
substantiality of an issue of law is one that this court must determine and no
presumption can properly be given to the trial court's predetermination of that
issue. Once a question is found to be substantial, the court must also make a
determination tantamount to a harmless error determination. At this point the
mini-appeal is no longer a mini-appeal. We have a duty to find harmlessness
only in light of the entire record. One need say no more in order to suggest the
damage we have done to our dockets, and the risk that in our overburdened
state the bail decisions will not be adequately reviewed. In addition, the process
impinges on the fundamental fairness of the review of the merits of each
criminal appeal, for our final determination on the merits will inevitably be
affected by the fact that we have already found that the legal issues raised lack
substantiality. By this I do not intend even remotely to impugn either the ability
or intent of the judges. The problems are simply the inevitable product of the
pressures of our dockets and the nature of the human mind.

EX POST FACTO
80

The ex post facto clause was adopted, in part, to protect an individual's right to
fair notice when the government "increases punishment beyond what was
prescribed when the crime was consummated." Weaver v. Graham, 450 U.S.
24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). In Weaver the Court noted
that two elements must be present for a criminal law to be held ex post facto: it
must apply to acts occurring before its enactment into law, and it must function
to the disadvantage of the offender affected by it. The Supreme Court has
repeatedly recognized, however, that a purely procedural change in the law is
not ex post facto, even if a defendant is disadvantaged thereby. See, e.g.,
Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), reh.
denied, 434 U.S. 882, 98 S.Ct. 246, 54 L.Ed.2d 166 (1977); Beazell v. Ohio,
269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925); Hopt v. Utah, 110 U.S. 574, 4
S.Ct. 202, 28 L.Ed. 262 (1884). In other cases, however, the Court has noted
that a procedural change may so affect substantial rights as to fall within the ex
post facto prohibition. See, e.g., Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443,
27 L.Ed. 506 (1883); Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed.
1061 (1898). I need not linger long over the body of law addressed to the fine

distinctions between those procedural changes that do affect substantial rights

and those that do not, however, in light of the legislative history indicating that
Congress intended the provision to be punitive. As the Court noted in Deveau
v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109, reh.
denied, 364 U.S. 856, 81 S.Ct. 30, 5 L.Ed.2d 80 (1960):
81 mark of an ex post facto law is the imposition of what can fairly be designated
The
as punishment for past acts. The question in each case where unpleasant
consequences are brought to bear upon an individual for prior conduct, is whether
the legislative aim was to punish that individual for past activity, or whether the
restriction comes about as a relevant incident to a regulation of a present situation....
82

As the court found in Cirrincione, "the post-conviction bail restrictions are not
unrelated to punishment nor merely incidental to regulation of a present
situation." 600 F.Supp. at 1443. Rather, the provisions impose on defendants
what Congress viewed as the harsher punishment of a sentence that must be
served immediately rather than after the conclusion of the appeal. Indeed, for
those defendants whose convictions are reversed and who are not thereafter
reconvicted, the statute imposes the punishment of imprisonment on those who
would not otherwise be forced to bear it. To fall into the "procedure" versus
"substance" trap is intolerable under the circumstances and trivializes the
seriousness of incarceration. Because the provisions are principally and
fundamentally penal, they are irreconcilable with the notion that a person may
be punished only to the extent that the law allowed at the time he committed
the crime.

PRE-TRIAL DETENTION
83

Finally, I address the issue that alarms me most of all about the court's opinion-the implications for the concept of pretrial bail inherent in the method by
which the court has reached its result. I think it likely that the trivialization of
premature incarceration of convicted persons prior to appeal as merely
procedural will result in the same trivialization of premature incarceration of
accused persons prior to trial. I hold with Justice Jackson who, sitting as a
circuit justice, said:

84is difficult to reconcile with traditional American law the jailing of persons by the
It
courts because of anticipated but as yet uncommitted crimes. Imprisonment to
protect society from predicted but unconsummated offenses is so unprecedented in
this country and so fraught with danger of excesses that I am loath to resort to it,
even as a discretionary judicial technique....
85

Williams v. United States, 184 F.2d 280, 282-83 (2d Cir.1950). Professor Tribe

85

Williams v. United States, 184 F.2d 280, 282-83 (2d Cir.1950). Professor Tribe
has noted that this approach bears a striking similarity to the exchange in Lewis
Carroll's Through the Looking Glass:

86 Queen observes that the King's Messenger is "in prison now, being punished;
The
and the trial doesn't even begin till next Wednesday; and of course the crime comes
last of all." Perplexed, Alice asks, "Suppose he never commits the crime?" "That
will be all the better, wouldn't it?" the Queen replies.
87

Tribe, An Ounce of Detention: Preventive Justice in the World of John

Mitchell, 56 Va.L.Rev. 371, 374 (1970) (quoted in Edwards, 430 A.2d at 1368
(Mack, J., dissenting)).

88

What one thinks of the role of the eighth amendment and the due process
clause in restraining unjustified detention prior to trial or pending appeal
undoubtedly depends on one's experience. From our privileged position it
would be quite normal for us to assume that the spectre of unjustified detention
looms only in such countries as Poland or South Africa. Perhaps we would be
more mindful of the past failings of our own country in this regard, and more
inclined to bolster the safeguards against future lapses, if we were of Japanese
origins. See Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed.
194 (1944), reh. denied, 324 U.S. 885, 65 S.Ct. 674, 89 L.Ed. 1435 (1945). Our
sensitivity to the dangers of unjustified or discriminatory detention might be
similarly heightened if we were black or poor. See Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), reh. denied, 409 U.S. 902, 93
S.Ct. 89, 34 L.Ed.2d 163 (1972) (Douglas, J., concurring) (in which the
Supreme Court chronicled our history of racial and economic disparity in the
execution of accused persons).

89

Crime is indeed one of the most serious of the problems that threaten our
society, and the goal of enhancing the security of our citizenry is an important
one. We should not seek to achieve it through the circumvention of
constitutional safeguards, however. To fall into the "procedure" versus
"substance" trap is intolerable when human liberty hangs in the balance. To
punish an individual before he has been finally adjudicated guilty or to
retroactively enhance the punishment for a crime is a perversion of our system
of justice. In the end it will not bring either credit or enhanced effectiveness to
the criminal justice system.

90

I would grant both petitions to admit to bail pending appeal.

91

SEYMOUR, Circuit Judge, dissenting.

92

I generally agree with most of what Judge McKay has written and I therefore
join his dissent. I write separately to note two things.

93

First, I am not convinced that likelihood of flight is the sole consideration that
may be given to a bail decision pending appeal. I believe that circumstances
could justify a denial of bail where the defendant has been convicted of a
violent crime and has otherwise indicated that he is a danger to the community.
Nonetheless, I fear that the language of the statute is sufficiently vague to
encompass far more situations than I would consider constitutional. That is not
the case here, however, and the proper contours of "likely to ... pose a danger to
the safety of any other person or the community," 18 U.S.C. Sec. 3143(b)(1),
must be left to the appropriate cases.

94

Second, it is unfortunate that Congress has chosen to limit bail pending appeal
as a reaction to the sad state of the circuit court dockets. In 1979, there were
1194 appeals filed in the Tenth Circuit; in 1984, there were 1922.
Administrative Office of the United States Courts, Federal Court Management
Statistics 11 (1984). The average time it is currently taking this circuit to
handle a criminal appeal from the date of the notice to oral argument is 368
days.

95

In a bail opinion in 1956, Justice Frankfurter addressed the growing length of

time of criminal appeals:

96

"Nothing has disturbed me more during my years on the Court than the time
span, in so many cases that come here, between the date of an indictment and
the final appellate disposition of a conviction. Such untoward delays seem to
me inimical to the fair and effective administration of the criminal law. I see no
reason whatever why we in this country cannot be as expeditious in dealing
with criminal appeals as is true of England. Applications for appeals are heard
in the English Court of Criminal Appeal within eight weeks of conviction; in
murder cases appeals 'are generally before the Court not later than three weeks
after the conviction.' "

97

Ward v. United States, --- U.S. ----, 76 S.Ct. 1063, 1066, 1 L.Ed.2d 25 (1956).
When Justice Frankfurter expressed these concerns, the case before him had
been pending on appeal for four months and he expected that it would not be
heard on the merits for another two months. Given this time frame, which he
viewed as far too lengthy, he said:

"The Government should, I believe, be the active mover for an early hearing, thus
98

putting upon the convicted defendant the responsibility for setting forth sound
reasons for postponing such a hearing. I am not able to understand why it should not
become the settled practice for the Government to move, after an appeal is taken
from a conviction, for the hearing of the appeal on the stenographic minutes at the
earliest possible moment that a Court of Appeals can accommodate its calendar to
the disposition of business that has first call, namely, a criminal appeal. This is
especially desirable in a case where bail has been denied."
99

Id. 76 S.Ct. at 1067.

100 I agree with Justice Frankfurter. I believe that Congress should have addressed
its concern for the length of the appeal process by enacting some form of
speedy appeals act rather than limiting bail. Judge McKay correctly envisions
that the circuits soon will be mired in mini-appeals over the bail issues if we
exercise our duty as Article III judges to review seriously the trial judge's
determination that no "substantial" issue is presented. For this reason, I urge
this court to expedite all criminal appeals where bail has been denied, to deny
extensions of time to court reporters and brief writers, and to hear oral argument
on the merits within 90 days of conviction. If at the time of oral argument the
panel determines that an issue is in fact substantial and likely to result in
reversal, it can immediately order that bail be set pending the final decision on
appeal. In this manner, the court can ameliorate the deprivation of liberty
involved where bail has been denied to a defendant whose conviction is
thereafter overturned on appeal.

Senior Circuit Judges Seth and Doyle, as members of the panel which initially
ruled on defendants' motions for release pending appeal, are participating in
this en banc determination upon their election and designation. See 28 U.S.C.
Sec. 46(c)

15 U.S.C. Sec. 78j; 17 C.F.R. Sec. 240-10b-5

18 U.S.C. Secs. 152, 2

18 U.S.C. Sec. 2314

Kowalik's petition for a stay pending appeal was denied by order of a panel of
this court on December 4, 1984. Affleck's motion for release pending appeal
was denied by order of a panel of this court on December 27, 1984

Chief Judge Holloway and Judge Barrett voted to deny rehearing en banc

The legislative history of the Bail Reform Act notes that "there is clearly no
constitutional right to bail once a person has been convicted." S.Rep. No. 98225, 98th Cong., 2d Sess. 26, reprinted in 1984 U.S.Code Cong. & Ad.News
3182, 3209 (footnote omitted)

The Constitution also prohibits the states from passing ex post facto laws. U.S.
Const. art. I, Sec. 10, cl. 1 ("No State shall ... pass any ... ex post facto
[l]aw....")

The Court has emphasized that "[t]he mark of an ex post facto law is the
imposition of what can fairly be designated punishment for past acts." De Veau
v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (1960)
(plurality opinion) (emphasis added). See also Beazell v. Ohio, 269 U.S. 167,
169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925) ("[A]ny statute which punishes
as a crime an act previously committed, which was innocent when done; which
makes more burdensome the punishment for a crime, after its commission, or
which deprives one charged with crime of any defense available according to
law at the time when the act was committed, is prohibited as ex post facto.");
Paschal v. Wainwright, 738 F.2d 1173, 1176 n. 4 (11th Cir.1984) (emphasis in
original) (For ex post facto violation to have occurred, "the legislature must
provide punishment for past conduct.")

See also Paschal v. Wainwright, 738 F.2d 1173, 1175-76 (11th Cir.1984); Artez
v. Mulcrone, 673 F.2d 1169, 1171 (10th Cir.1982); see generally J. Nowak, R.
Rotunda & J. Young, Constitutional Law 477-78 (2d ed. 1983); L. Tribe
American Constitutional Law 477-84 (1978)

10

The court explained that "[t]he necessity to protect society against further
criminal acts by a convicted, but unpunished, person [by denying bail pending
appeal] outweighs society's interest in protecting persons who may have a
reversible conviction." 412 N.E.2d at 74

11

But see Greene v. State, 238 So.2d 296, 300-01 (Fla.1970) (application of bail
statute to deny bail pending appeal from conviction on second felony violated
ex post facto clauses where bail statute became effective after commission of
second felony); Cunningham v. State, 423 So.2d 580 (Fla.Dist.Ct.App.1982)
(per curiam) (ex post facto clause prohibited application of statute denying bail
pending appeal of drug trafficking conviction to defendant who committed
offense before effective date of statute); cf. Parker v. State, 667 P.2d 1272
(Alaska Ct.App.1983) (right to bail pending appeal sufficiently accrued at time
of offense under state statute so that statute passed after date of offense but
before conviction which eliminated bail for persons convicted of certain
felonies did not apply to defendant); Ellis v. State, 544 S.W.2d 908, 911

(Tenn.Crim.App.1976) (statute denying bail pending appeal to defendants

convicted of possession of controlled substances with intent to sell had "ex post
facto overtones" when applied to defendants who were arrested after effective
date of statute)
12

See also Handy, 761 F.2d at 1281 ("substantial" question is one that is "fairly
debatable")

13

Of course, a "substantial" question must be one which can be properly raised on

appeal. See Gianola, 754 F.2d at 901 n. 4

14

The Third Circuit rejected the view that Sec. 3143(b)(2) requires the district
court to grant bail pending appeal only upon finding that its own rulings were
likely to be reversed on appeal for two reasons:
In the first place, such a reading would render language in the statute
surplusage because every question that is likely to be reversed must by
definition be "substantial". In the second place, we are unwilling to attribute to
Congress the cynicism that would underlie the provision were it to be read as
requiring the district court to determine the likelihood of its own error. A
district judge who, on reflection, concludes that s/he erred may rectify that
error when ruling on post-trial motions. Judges do not knowingly leave
substantial errors uncorrected, or deliberately misconstrue applicable precedent.
Thus, it would have been capricious of Congress to have conditioned bail only
on the willingness of a trial judge to certify his or her own error.
For a similar reason, the phrase "likely to result in reversal or an order for a
new trial" cannot reasonably be construed to require the district court to predict
the probability of reversal. The federal courts are not to be put in the position of
"bookmakers" who trade on the probability of ultimate outcome.
Miller, 753 F.2d at 23; see also Polin, slip op. at 2 n 2; Handy, 761 F.2d at
1280; Giancola, 754 F.2d at 900.

15

We note that, unlike Sec. 3143(b)(1), Sec. 3143(b)(2) does not require that the
showing be made by "clear and convincing evidence." We therefore conclude
that a defendant must only prove the Sec. 3143(b)(2) criteria under the ordinary
preponderance of the evidence standard

16

In Polin, a single judge of the Fourth Circuit adopted the Miller standard and
agreed with the district court's denial of bail pending appeal because the
defendant did not meet his burden of showing that his appeal raised a
"substantial" question. Polin, slip op. at 3-4

In Handy, the Ninth Circuit adopted the Miller standard and disagreed with the
district court's denial of bail pending appeal. The Ninth Circuit granted bail
pending appeal and held that the defendant had met his burden of proving that
his appeal raised a "substantial or 'fairly debatable' question of the type that
calls into question the validity of the judgment." Handy, 761 F.2d at 1283. The
Ninth Circuit remanded to the district court for imposition of the appropriate
conditions of release.
1

By my calculation, sixty-three percent of direct appeals handled by this court in

the most recent reporting period involved persons who were free on bail
pending appeal. The new standards will not only eliminate bail in the
overwhelming majority of those cases, but I am satisfied that it will be accident
rather than design if even a substantial majority of those cases that we reverse
coincide with the cases in which bail pending appeal is granted

Justice Rehnquist, writing in dissent, vehemently objected to this

characterization as "inconsistent with the general view of state appellate review
expressed ... in Ross v. Moffitt, supra, at 610-11 [, 94 S.Ct. at 2443-44]." --U.S. at ----, 105 S.Ct. at 844. Ross can be distinguished, however, on the
ground that the appeal involved in that case was discretionary rather than as of
right

The denial of bail has historically been allowed in all capital cases, but this
exception falls within the traditional justification of prevention of flight. United
States v. Kennedy, 618 F.2d 557, 559 (9th Cir.1980) ("It has been thought that
most defendants facing a possible death penalty would likely flee regardless of
what bail was set, but those facing only a possible prison sentence would not if
bail were sufficiently high.")

See Duker, The Right to Bail: An Historical Inquiry, 42 Alb.L.Rev. 33, 58-66
(1977) (finding that the English provision did not limit Parliament's ability to
define offenses as nonbailable)

Annual Report of the Director of the Administrative Office of the United States
Courts, Table B-1, p. 228 (1984)