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755 F.2d 969 
755 F.2d 969 
(Cite as: 755 F.2d 969) 
other person and the community in a case-
"(1) upon motion of the attorney for the 
Government, that involves-
"(A) a crime of violence; 
"(B) an offense for which the maxim-
um sentence is life imprisonment or 
death; 
"(C) an offense for which a maximum 
term of imprisonment of ten years or 
more is prescribed in the Controlled 
Substances Act (21 U.S.C. 801 et seq.), 
the Controlled Substances Import and 
Export Act (21 U.S.C. 951 et seq.), or 
section 1 of the Act of September 15, 
1980 (21 U.S.C. 955a); or 
"(D) any felony committed after the 
person had been convicted of two or 
more prior offenses described in sub-
paragraphs (A) through (C), or two or 
more State or local offenses that would 
have been offenses described in sub-
paragraphs (A) through (C) if a circum-
stance giving rise to Federal jurisdic-
tion had existed; or 
"(2) Upon motion of the attorney for 
the Government or upon the judicial of-
ficer's own motion, that involves-
"(A) a serious risk that the person 
will flee; 
"(B) a serious risk that the person will 
obstruct or attempt to obstruct justice, 
or threaten, injure, or intimidate, or at-
tempt to threaten, injure, or intimidate, 
a prospective witness or juror. 
The hearing shall be held immediately 
upon the person's first appearance before 
the judicial officer unless that person, or 
the attorney for the Government, seeks a 
Page 11 
continuance. Except for good cause, a con-
tinuance on motion of the person may not 
exceed five days, and continance on mo-
tion of the attorney for the Government 
may not exceed three days. During a con-
tinuance, the person shall be detained, and 
the judicial officer, on motion of the attor-
ney for the Government or on his own mo-
tion, may order that, while in custody, a 
person who appears to be a narcotics addict 
receive a medical examination to determine 
whether he is an addict. At the hearing, the 
person has the right to be represented by 
counsel, and, if he is financially unable to 
obtain adequate representation, to have 
counsel appointed for him. The person 
shall be afforded an opportunity to testify, 
to present witnesses on his own behalf, to 
cross-examine witnesses who appear at the 
hearing, and to present information by 
proffer or otherwise. The rules concerning 
admissibility of evidence in criminal trials 
do not apply to the presentation and con-
sideration of information at the hearing. 
The facts the judicial officer uses to sup-
port a finding pursuant to subsection (e) 
that no condition or combination of condi-
tions will reasonably assure the safety of 
any other person and the community shall 
be supported by clear and convincing evid-
ence. The person may be detained pending 
completion of the hearing. 
"(g) Factors To Be Considered.-The judi-
cial officer shall, in determining whether 
there are conditions of release that will 
reasonably assure the appearance of the 
person as required and the safety of any 
other person and the community, take into 
account the available information concern-
ing-
"(1) the nature and circumstances of the 
offense charged, including whether the 
offense is a crime of violence or involves 
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• 
' 
755 F.2d 969 
755 F.2d 969 
(Cite as: 755 F.2d 969) 
a narcotic drug; 
"(2) the weight of the evidence against 
the person; 
"(3) the history and characteristics of 
the person, including-
"(A) his character, physical and men-
tal condition, family ties, employment, 
financial resources, length of residence 
in the community, community ties, past 
conduct, history relating to drug or al-
cohol abuse, criminal history, and re-
cord concerning appearance at court 
proceedings; and 
*978 "(B) whether, at the time of the 
current offense or arrest, he was on pro-
bation, or parole, or on other release 
pending trial, sentencing, appeal, or 
completion of sentence for an offense 
under Federal, State, or local law; and 
"(4) the nature and seriousness of the 
danger to any person or the community 
that would be posed by the person's re-
lease. In considering the conditions of re-
lease described in subsection (c)(2)(K) or 
(cX2)(L), the judicial officer may upon 
his own motion, or shall upon the motion 
of the Government, conduct an inquiry 
into the source of the property to be des-
ignated for potential forfeiture or offered 
as collateral to secure a bond, and shall 
decline to accept the designation, or the 
use as collateral, of property that, be-
cause of its source, will not reasonably 
assure the appearance of the person as re-
quired. 
"(h) Contents of Release Order.-In a re-
lease order issued pursuant to the provi-
sions of subsection (b) or (c), the judicial 
officer shall-
"(1) include a written statement that 
Page 12 
sets forth all the conditions to which the 
release is subject, in a manner suffi-
ciently clear and specific to serve as a 
guide for the person's conduct; and 
"(2) advise the person of-
"(A) the penalties for violating a con-
dition of release, including the penalties 
for committing an offense while on pre-
trial release; 
"(B) the consequences of violating a 
condition of release, including the im-
mediate issuance of a warrant for the 
person's arrest; and 
"(C) the provisions of sections 1503 
of this title (relating to intimidation of 
witnesses, jurors, and officers of the 
court), 1510 (relating to obstruction of 
criminal 
investigations), 
1512 
(tampering with a witness, victim, or an 
informant), 
and 
1513 
(retaliating 
against a witness, victim, or an inform-
ant). 
"(i) Contents of Detention Order.-In a 
detention order issued pursuant to the 
provisions of subsection (e), the judicial 
officer shall-
"(I) include written findings of fact 
and a written statement of the reasons 
for the detention; 
"(2) direct that the person be commit-
ted to the custody of the Attorney Gen-
eral for confinement in a corrections fa-
cility separate, to the extent practicable, 
from persons awaiting or serving sen-
tences or being held in custody pending 
appeal; 
"(3) direct that the person be afforded 
reasonable opportunity for private con-
sultation with his counsel; and 
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755 F.2d 969 
(Cite as: 755 F.2d 969) 
"(4) direct that, on order of a court of 
the United States or on request of an at-
torney for the Government, the person 
in charge of the corrections facility in 
which the person is confined deliver the 
person to a United States marshal for 
the purpose of an appearance in con-
nection with a court proceeding. 
The judicial officer may, by subsequent or-
der, permit the temporary release of the 
person, in the custody of a United States 
marshal or another appropriate person, to 
the extent that the judicial officer determ-
ines such release to be necessary for pre-
paration of the person's defense or for an-
other compelling reason. 
"(1) Presumption of Innocence.-Nothing in 
this section shall be construed as modify-
ing or limiting the presumption of inno-
cence. 
"§ 3145. Review and appeal of a release 
or detention order 
"(a) Review of a Release Order.-If a person 
is ordered released by a magistrate, or by a 
person other than a judge of a court having 
original jurisdiction over the offense and 
other than a Federal appellate court-
"(1) the attorney for the Government 
may file with the court having original 
jurisdiction over the offense, a motion for 
revocation of the order or amendment of 
the conditions of release, and 
"(2) the person may file, with the court 
having original jurisdiction over the of-
fense,*979 a motion for amendment of 
the conditions of release. 
The motion shall be determined promptly. 
"(b) Review of a Detention Order.-If a per-
son is ordered detained by a magistrate, or 
Page 13 
by a person other than a judge of a court 
having original jurisdiction over the of-
fense and other than a Federal appellate 
court, the person may file, with the court 
having original jurisdiction over the of-
fense, a motion for revocation or amend-
ment of the order. The motion shall be de-
termined promptly. 
"(c) Appeal From a Release or Detention 
Order.-An appeal from a release or deten-
tion order, or from a decision denying re-
vocation or amendment of such an order, is 
governed by the provisions of section 1291 
of title 28 and section 3731 of this title. 
The appeal shall be determined promptly." 
C.A. y ass.,1985. 
U.S. . Angiulo 
755 .2d 969 
END OF DOCUMENT 
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w estlaw
761 F.2d 52 
761 F.2d 52 
(Cite as: 761 F.2d 52) 
H 
U.S. II. Zannino 
C.A. (Mass.),1985. 
United States Court of Appeals,First Cir-
cuit. 
UNITED STATES of America, Plaintiff, 
Appellant, 
v. 
Ilario M.A. ZANNINO, Defendant, Ap-
pellee. 
No. 85-1070. 
Argued March 8, 1985. 
Decided May 3, 1985. 
United States appealed from an order of the 
United States District Court for the District 
of Massachusetts, David S. Nelson, J., 
denying its motion to revoke bail of de-
fendant and to detain him pursuant to the 
Bail Reform Act. The Court of Appeals, 
Torruella, Circuit Judge, held that provi-
sions of Bail Reform Act on pretrial deten-
tion and bail revocation were applicable to 
a defendant released on bail before effect-
ive date of Act where defendant's expecta-
tion of remaining free on bail was both 
minimal, in view of emphatic statement of 
magistrate, upon both granting motion for 
bail under earlier law and denying Govern-
ments motion for revocation of bail, that 
he found defendant to be a danger to com-
munity and that he would detain defendant 
if he had a legal mechanism by which to do 
so, and outweighed by public interest in 
protection from demonstrably dangerous 
defendants. 
Reversed. 
Breyer, Circuit Judge, dissented and filed 
an opinion. 
West Headnotes 
Page 1 
Bail 49 C=39 
49 Bail 
49II In Criminal Prosecutions 
49k39 k. Nature and Scope of Rem-
edy. Most Cited Cases 
Provisions of Bail Reform Act on pretrial 
detention and bail revocation were applic-
able to a defendant released on bail before 
effective date of Act where defendant's ex-
pectation of remaining free on bail was 
both minimal, in view of emphatic state-
ment of magistrate, upon both granting mo-
tion for bail under earlier law and denying 
Government's motion for revocation of 
bail, that he found defendant to be a danger 
to community and that he would detain de-
fendant if he had a legal mechanism by 
which to do so, and outweighed by public 
interest in protection from demonstrably 
dangerous defendants. 18 U.S.C.A. §§ 
3142(e), 3148(b). 
*53 Diane M. Kottmyer, Boston, Mass., 
with whom Ernest S. Dinisco and Jane E. 
Serene, Sp. Attys., William F. Weld, U.S. 
Atty., and Jeremiah T. O'Sullivan, Sp. 
Atty., Boston, Mass., were on brief for 
plaintiff, appellant. 
Joseph J. Balliro, Boston, Mass., with 
whom James L. Sultan, Boston, Mass., was 
on brief for defendant, appellee. 
Before BREYER and TORRUELLA, Cir-
cuit Judges, and SELYA,FN• District Judge. 
FN* Of the District of Rhode Is-
land, sitting by designation. 
TORRUELLA, Circuit Judge. 
The matter is before us on appeal by the 
United States from a denial by the United 
States District Court for the District of 
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761 F.2d 52 
761 F.2d 52 
(Cite as: 761 F.2d 52) 
Massachusetts of its motion to revoke the 
bail of defendant/appellee Ilario M.A. Zan-
nino and to detain him, after hearing, pur-
suant to the Bail Reform Act of 1984, spe-
cifically 
18 
U.S.C. 
§ 3142(e) 
and 
3148(b).FN1 
FNI. Section 18 U.S.C. § 3142(e) 
provides: 
DETENTION.-If, after a hearing 
pursuant to the provisions of sub-
section (f), the judicial officer 
finds that no condition or combin-
ation of conditions will reason-
ably assure the appearance of the 
person as required and the safety 
of any other person and the com-
munity, he shall order the deten-
tion of the person prior to trial. In 
a case described in (t)(1), a rebut-
table presumption arises that no 
condition or combination of con-
ditions will reasonably assure the 
safety of any other person and the 
community if the judge finds that-
11) the person has been con-
victed of a Federal offense that is 
described in subsection (f)(1), or 
of a State or local offense that 
would have been an offense de-
scribed in subsection (f)(1) if a 
circumstance giving rise to Feder-
al jurisdiction had existed; 
"(2) the offense described in para-
graph (1) was committed while 
the person was on release pending 
trial for a Federal, State, or local 
offense; and 
"(3) a period of not more than five 
years has elapsed since the date of 
conviction, or the release of the 
person from imprisonment, for the 
Page 2 of 10 
Page 2 
offense described 
in 
paragraph 
(1), whichever is later. Subjject to 
rebuttal by the person, it shall be 
presumed that no condition or 
combination of conditions will 
reasonably assure the appearance 
of the person as required and the 
safety of the community if the ju-
dicial officer finds that there is 
probable cause to believe that the 
person committed an offense for 
which a maximum term of impris-
onment of ten years or more is 
prescribed in the Controlled Sub-
stances Act (21 U.S.C. 801 et 
seq.), the Controlled Substances 
Import and Export Act (21 U.S.C. 
951 et seq.), section 1 of the Act 
of September 15, 1980 (21 U.S.C. 
955a), or an offense under section 
924(c) of title 18 of the United 
States Code." 
Section 18 U.S.C. § 3148(6) 
provides: 
(b) 
REVOCATION 
OF 
RE-
LEASE.-The 
attorney 
for 
the 
Government may initiate a pro-
ceeding for revocation of an order 
of release by filing a motion with 
the district court. A judicial of-
ficer may issue a warrant for the 
arrest of a person charged with vi-
olating a condition of release, and 
the person shall be brought before 
a judicial officer in the district in 
which his arrest was ordered for a 
proceeding in accordance with 
this section. To the extent practic-
able, a person charged with violat-
ing the condition of his release 
that he not commit a Federal, 
State, or local crime during the 
period of release shall be brought 
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761 F.2d 52 
(Cite as: 761 F.2d 52) 
before the judicial officer who 
ordered the release and whose or-
der is alleged to have been viol-
ated. The judicial officer shall 
enter an order of revocation and 
detention if, after a hearing, the 
judicial officer-
"(1) finds that there is-
"(A) probable cause to believe 
that the person has committed a 
Federal, State, or local crime 
while on release; or 
"(B) clear and convincing evid-
ence that the person has violated 
any other condition of his release; 
and 
"(2) fords that-
"(A) based on the factors set forth 
in section 3142(g), there is no 
condition or combination of con-
ditions of release that will assure 
that the person will not flee or 
pose a danger to the safety of any 
other person or the community; or 
"(B) the person is unlikely to 
abide by any condition or combin-
ation of conditions of release. 
If there is probable cause to be-
lieve that, while on release, the 
person 
committed 
a 
Federal, 
State, or local felony, a rebuttable 
presumption arises that no condi-
tion or combination of conditions 
will assure that the person will not 
pose a danger to the safety of any 
other person or the community. If 
the judicial officer finds that there 
are conditions of release that will 
assure that the person will not flee 
or pose a danger to the safety of 
Page 3 
any other person or the com-
munity, and that the person will 
abide by such conditions, he shall 
treat the person in accordance 
with the provisions of section 
3142 and may amend the condi-
tions of release accordingly." 
*54 On September 19, 1983, a federal 
grand jury returned a twenty count indict-
ment against Zannino and six others. The 
charges related to murders, gambling, and 
other illegal acts. When first brought be-
fore the magistrate on September 20, 1983, 
Zannino was ordered held without bail on 
the grounds that no conditions of pretrial 
release would reasonably assure his ap-
pearance at trial. Eventually, however, 
terms for release on bail were set. In his or-
der dated December 23, 1983, the magis-
trate expressly found that Zannino posed a 
serious and substantial threat to the safety 
of the community and that, were it not for 
the fact that he had no authority to detain 
the defendant under the 1966 Bail Reform 
Act on those grounds, he would unhesitat-
ingly order Zannino held without bail 
pending trial. Zannino was, therefore, re-
leased on bail in early January, 1984. 
Shortly after the passage of the Bail Re-
form Act of 1984 in October of that year, 
the Government filed a motion to revoke 
bail as to Zannino and to hold a detention 
hearing, alleging, as grounds thereof, the 
previous findings of the magistrate con-
cerning dangerousness to the community 
and the provision of the new 1984 Act 
which now provided for restrictive deten-
tion without bail under those circum-
stances. 18 U.S.C. § 3142(e) (1984). Addi-
tionally, the Government submitted affi-
davits to support a finding of probable 
cause that the defendant had committed a 
felony while on pretrial release, which un-
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.761 F.2d 52 
761 F.2d 52 
(Cite as: 761 F.2d 52) 
der the 1984 Act was grounds for revoca-
tion of bail. 18 U.S.C. § 3148(b) (1984). 
The magistrate denied the motion, finding 
that the 1984 Act did not apply to pending 
cases in which the defendant was already 
released on bail. In his order, however, he 
once again reiterated his conclusion that no 
condition or combination of conditions 
could reasonably assure the safety "of any 
other person" or the community in the ab-
sence of Zannino's pretrial detention. The 
magistrate's denial was thereafter affirmed 
by the district court and the government 
appealed. Thus, the specific issue before us 
is 
whether 
Sections 
3142(e), 
which 
provides for the pretrial detention, and 
3148(b), which provides for bail revoca-
tion, apply to a defendant released on bail 
prior to the effective date of the 1984 en-
actmentsim 
FN2. Inasmuch as the constitution-
ality of a retrospective application 
of the 1984 Act is not now being 
challenged, the case must turn on 
the intent of Congress. 
The Supreme Court has held that the feder-
al courts must apply the law in effect at the 
time it renders its decision, unless doing so 
would result in manifest injustice *55 or 
where there is clear statutory direction or 
gislative history to the contrary. Bradley 
Richmond School Board, 416 U.S. 696, 
11, 94 S.Ct. 2006, 2016, 
L.Ed.2d 476 
(1974). See United States 
Gennaro J. 
Angiulo, 755 F.2d 969, 970 1st Cir.198 
(Breyer, J.); New England 
ower Co.
United States, 693 F.2d 239, 244 (1st 
Cir.1982). Furthermore, and more to the 
point, it is clear that the conditions under 
which a defendant is originally released on 
bail are subject to review when changed 
circumstances require that the release be 
reappraised. 
Page 4 of 10 
Page 4 
That the decision releasing Zannino was 
not unalterable and, even as originally is-
sued, was subject to revision at any time 
prior to trial, is particularly, evidenced by 
the text of the section of the pre-1984 Act 
under which he was released: 
A judicial officer ordering the release of a 
person on any condition specified in this 
section may at any time amend his order to 
impose additional or different conditions of 
release. Provided that, if imposition of 
such additional or different conditions res-
ults in the detention of the person as a res-
ult of his inability to meet such conditions 
or in the release of the person on a condi-
tion requiring him to return to custody, 
subsection (d) [requiring review] shall ap-
ply-
(Emphasis in original). Bail Reform Act of 
1966, 18 U.S.C. § 3146(e), repealed by 
Bail Reform Act of 1984, 18 U.S.C. § 
3142(c). Thus the decision regarding the 
terms of bail may be considered to have 
been an open matter, subject to post-bail 
release review, even before the 1984 Act 
was passed on October 12th. 
We thus look to the situation created by the 
passage of the 1984 Act, to ascertain 
whether an individual in Zannino's position 
should in effect receive a privilege vis-
a-vis all defendants charged after October 
12th, notwithstanding the pendency of all 
their proceedings. Since nothing in the new 
Act or its legislative history suggests that 
the new Act does not apply, Bradley re-
quires that we look to the "justice" or 
"injustice" o the new Act's application. 
United States 
Angiulo, supra, at 970. 
In our opinion in Angiulo, for a point of 
comparison with the facts in that case, we 
stated that a defendant released on bail pri-
or to enactment of the new Act might have 
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761 F.2d 52 
(Cite as: 761 F.2d 52) 
a stronger argument to support his conten-
tion that the pretrial detention provisions 
did not apply to his case. Id. By positing 
this hypothetical, we were not creating a 
hard and fast rule. Closer examination, 
within the context of an actual case and 
controversy, does not support this excep-
tion to the retroactivity of the new Act. 
Section 3146(e) of the 1966 Act clearly 
states that conditions of the release can be 
changed, and that the inability to meet such 
conditions could require the return to cus-
tody. Thus the release on bail allowed un-
der the 1966 Act was not an absolute grant; 
defendants were given notice that a change 
in conditions or terms could bring about 
the revocation of the release. That statute, 
furthermore, created no expectation that 
conditions would not change. 
What has actually occurred with the pas-
sage of the pretrial detention provision 
may be considered a statutorily mandated 
change in those conditions. That is, under 
Section 3142(e) of the 1984 Act, for a de-
fendant to be eligible for pretrial bail, he 
must be able in certain instances to rebut 
the presumption that no condition or com-
bination of conditions will reasonably as-
sure the safety of "any other person and the 
community." 18 U.S.C. § 3142(e). We hold 
that defendants released under the 1966 
Bail Act must show their continued eligib-
ility for bail by meeting the newly imposed 
conditions if this issue is affirmatively 
raised by the Government. 
Moreover, in the case at bar, Zannino had 
further indication of possible revocation of 
bail in that the magistrate, upon both grant-
ing the motion for bail and denying the 
government's motion for revocation of bail, 
emphatically stated that he found the ap-
pellee to be a danger to the community and 
that, had a legal mechanism by which he 
Page 5 
could detain Zannino existed, he would 
have done so. This clearly constituted no-
tice*56 to appellee that a change of condi-
tion, such as has occurred by the passage of 
the 1984 Act allowing pretrial detention 
for dangerousness, would call for reevalu-
ation of his release. 
Under the manifest injustice standard of 
Bradley, supra, the disappointment of 
private expectations that results from the 
implementation of a new rule must be bal-
anced against public interest in the enforce-
ment of that rule. New England Power Co., 
supra, 693 F.2d at 245; A 
s Nursing 
dr 
Home of Williamstown, Inc. 
Mathews, 
548 F.2d 1077, 1080 (1st Ci , .1977). Im-
portant public policy considerations dic-
tated the enactment of a pretrial detention 
mechanism whereby the community could 
be safeguarded from the "alarming prob-
lem" of crimes committed "by demon-
strably dangerous defendants" while on 
pretrial release. See Report of the Commit-
tee on the Judiciary, United States Senate, 
on 5.1762, S.Rep. No. 225, 98th Cong., 1st 
Sess. at 1, 5-7(1984), U.S.Code Cong. & 
Admin.News 
1984, 
pp. 
3182, 
3184, 
3187-3189. Logic and common sense, as 
well as the new Act's legislative history, 
dictate application of the new conditions to 
all dangerous defendants, including those 
previously released because of the lack of 
judicial power to prevent such a result. 
Congress could scarcely have been plainer 
in indicating the concerns which prompted 
passage of the 1984 Act. S.Rep. No. 225, 
for example, explicitly remarked the need 
to confer "authority to deny release to 
those defendants who pose an especially 
grave risk to the safety of the community." 
Id. at 5. Furthermore, "[fin the Committee's 
view, it is intolerable that the law denies 
judges the tools to make honest and appro-
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' 
(Cite as: 761 F.2d 52) 
priate decisions regarding the release of 
such defendants." This is strong talk, 
couched in a sense of legislative urgency. 
It is inconceivable to us that, in the face of 
such concerns, the Congress meant for the 
courts to temporize in the application of the 
pretrial release provisions of the 1984 Act 
by interdicting the use of such detention 
powers in any suitable case, whether or not 
the accused had previously been released 
under the more relaxed criteria of the 1966 
Act. The legislative history, fairly read, 
represents a clear statutory directive favor-
ing applicability of the new pretrial release 
scheme across the board. Indeed, the basic 
purposes of the new Act, as we delineated 
them in Angiulo, at 971-972, lead to the 
same conclusion. 
The statistics cited by our dissenting broth-
er are similarly unconvincing. The small-
ness of the potentially affected group is 
transmutable: it can be used just as power-
fully to argue for, as against, the applicab-
ility of the 1984 Act. Neither this conten-
tion nor its corollary-ease in judicial ad-
ministration-therefore cuts much ice. Even 
a single dangerous defendant left free to 
wreak havoc under circumstances where 
pretrial detention is constitutionally per-
missible and legally appropriate is one 
menace too many; and, if the price of pro-
tecting the public is more work for already 
overtaxed judges, it is a small price to pay 
for the wellbeing of the community. 
Finding that, under the circumstances of 
this case, the defendant's expectation to re-
main free on bail is minimal, and is clearly 
outweighed by the public interest in protec-
tion from demonstrably dangerous defend-
ants and that his professed reliance on lim-
itless future liberty up to the date of his tri-
al was, in these circumstances, unjustified, 
we conclude that under the Bradley and 
Page 6 of 10 
Page 6 
New England Power Co. standards, Sec-
tions 3142(e) and 3148(b) apply retroact-
ively to Zannino, and that the government 
is entitled to a hearing before the magis-
trate on the merits of the issues raised by 
its motion to revoke. 
We recognize that other courts have 
reach 
a
et
contrary conclusion, e.g., United 
States 
Ferncindez-Toledo, 749 F.2d 703, 
705 (1 
Cir.1985), and we do not lightly 
create a split among the circuits. Yet, 
mindful of the nature of the rights in-
volved, the impact of the change in law 
upon those rights, the will of the Congress, 
and the substantial public interest which 
we perceive to be at stake, we must re-
spectfully disagree with the rationale of the 
Eleventh 
Circuit. 
The 
Ferniindez-Toledo*S7 panel, without in-
depth analysis of either the provisions of 
the 1966 Act or the legislative history of 
the 1984 Act, held under circumstances 
comparable to those at bar that the defend-
ant's "rights to bail had already vested,"id., 
and therefore declined to give the new law 
retrospective effect in such a situation. We 
are not of a similar mind. To be "vested," a 
thing must be "fixed; ... settled; absolute 
...; not contingent." H. Black, Black's Law 
Dictionary at 1401 (5th Ed.1979). The ces-
sion of bail partakes of none of these char-
acteristics; it is a privilege extended, as 
even the 1966 Act evidenced, on a contin-
gent, nonabsolute basis, entirely. subject to 
the dynamics of change, consistent with 
applicable law and fundamental fairness. 
For the reasons which we have noted 
above, we do not view Zannino's right to 
release on bail as having been "vested" in 
any meaningful sense of that term and we 
see no sufficient reason why he should be 
immune from the provisions of the 1984 
Act in this regard. 
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Page 7 of 10 
761 F.2d 52 
761 F.2d 52 
(Cite as: 761 F.2d 52) 
The decision of the district court is re-
versed. 
BREYER, Circuit Judge (dissenting). 
The issue in this case is whether the provi-
sion of the new Bail Act that provides for 
detention of "dangerous" persons, 18 
U.S.C. § 3142(0, applies to a person 
already released on bail the day the new 
Act was passed (October 12, 1984). This 
court has previously suggested (though it 
did not expressly hold) that Congress did 
not intend this provision of the Act to 
sla
ap-
ply, in a sense "retr ctively," to those 
persons. United States 
Anguilo, 755 F.2d 
969, 970 (1st Cir.198 . I believe the sug-
gestion is correct for the following reasons. 
First, it is "manifestly unfair" to apply the 
new detention provision to those released 
b ore 
on bail b ore the new law was passed. See 
Bradley 
Richmond School Board, 416 
U.S. 69 , 711, 94 S.Ct. 2006, 2016, 40 
L.Ed.2d 476 (1974). Magistrates and 
judges specifically gave those defendants 
their provisional freedom. The defendants 
in all likelihood relied on the fact that (in 
the absence of misbehavior) they would re-
main free to prepare their trial defense, to 
interview witnesses, to consult with their 
attorneys. Trials, for most members of this 
class, must be imminent. Application of the 
new standard to members of this class 
threatens to interfere severely with ongoing 
defense preparations, not only because it 
may place a defendant behind bars just be-
fore trial, but also because even appearance 
at a bail revocation hearing, at this stage in 
the new Act's life, involves briefing and ar-
guing a host of novel and difficult legal is-
sues, threatening significantly to divert 
counsel's and client's attention and energies 
away from the trial on the merits nearly at 
hand. This burden, along with the likely 
surprise, adds up to a serious, adverse in-
Page 7 
I
terference with a settled expec lion. That 
means "unfairness." See Myers 
Hawkins, 
362 So.2d 926, 933 n. 25 ( a.1978) (" 
'One of the fundamental considerations of 
fairness recognized in every legal system is 
that settled expectations honestly arrived at 
with respect to substantial interests ought 
not to be defeated.' ") (quoting 2 Sands, 
Sutherland Statutory Construction § 41.05 
at 261 (4th ed. 1973)). 
Second, not to apply the detention provi-
sion of the new Act to previously released 
defendants does not interfere significantly 
with Congress's objective: giving judges a 
way to deal with "dangerous" defendants. 
The number of persons already free on bail 
(as of October 12) is rapidly diminishing. 
The Director of the Administrative Office 
of the United States Courts reports that ap-
proximately 18,000 indictments or charges 
are pending at any one time. The average 
length of time between charge and trial is 
4.4 months. Thus even if all federal de-
fendants facing charges on October 12 
were on release (with an average time of 
2.2 months remaining before trial), by now 
(April 1985) there must be only a handful 
of pre-October 12 defendants whose trials 
have not yet begun. Can one say that, in 
terms of Congressional purpose, it is of 
critical importance to apply the new Act to 
this small (and diminishing) class of per-
sons,*58 when Congress itself considered 
adoption of this "dangerous person" provi-
sion for almost twenty years? SeeS.Rep. 
No. 225, 98th Cong., 1st Sess. 7 & n. 19 
(1983), reprinted in1984 U.S.Code Cong. 
4Fc Ad.News 3182, 3189 & n. 19 (Supp. 9A). 
Third, the courts that have considered this 
question have held that the Act does not 
to this class of persons. United States 
Fernandez-Toledo, 749 F.2d 703, 705 
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Page 8 of 10 
'761 F.2d 52 
761 F.2d 52 
(Cite as: 761 F.2d 52) 
(11th Cir.1985) (per curiam) (holding that 
such persons have rights that have "vested" 
and that "it would be manifestly unjust" to 
ply the new Act to them); United States 
Mitchell, 
600 
F.Supp. 
164 
.D.Ca1.1985) ("Congress apparently did 
not contemplate that individuals released 
pursuant to [the old Act] would be subject 
to sanctions gilder [the new Act]."); see 
United States I Payden, 759 F.2d 202 (2d 
Cir.1985) (reversing district court decision 
ordering detention, under provisions of the 
new Bail Act, of defendant whose release 
had been ordered pursuant to provisions of 
the old Bail Act). Even were I less con-
vinced of the correctness of Anvil°, I 
would hesitate to create a split in the cir-
cuits over this particular legal issue. 
Fourth, there is additional support in the 
language of the new Bail Act itself. The 
new Act does not contain a provision that 
allows the government to recall a defend-
ant solely for the purpose of applying the 
new, stricter standard of release. The new 
Act (like the old) does provide for recon-
sideration and modification of release con-
ditions, see§ 3142(c) (allowing imposition 
of "additional or different conditions of re-
lease"), but this provision does not author-
ize a "modification" that changes a release 
order into an unconditional detention or-
der. The new Act also permits the govern-
ment to seek bail revocation, see§ 3148, 
but only if the government can show that 
the defendant has violated his release con-
ditions. Of course, there is substantial au-
thority for the proposition that courts have 
an "inherent power" to revoke bail when 
necessary to insure the defendant's appear-
ance 
'
 or to protect the integrity o he judi-
cial process. See, e.g., Carbo 
United 
States, 82 S.Ct. 662, 667-69, 7 L. 
.2d 769 
(Douglas, Circuit Justice) (prof tion of 
witnesses) (1962); Fernandez 
United 
Page 8 
States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961) 
(Harlan, Circuit Judge) (protection of wit-
nesses and "ollerly progress of the trial"); 
United States 
Abrahams, 575 F.2d 3 (1st 
Cir.) (risk of ight), cert. denied,439 U.S. 
821, 99 S.Ct. 1 5, 58 L.Ed.2d 112 (1978); 
United States 
Melville, 306 F.Supp. 124, 
127 (S.D.N.Y. 969) (same); United States 
Graewe, 689 F.2d 54 (6th Cir.1982) (per 
curiam) (protection of witn 
es and judi-
cial process); United States I Gilbert, 425 
F.2d 490 (D.C.Cir.1969) (per curi 
(protection of witnesses); United States 
Bentvena, 288 F.2d 442 (2d Cir.196 
(integrity of judicial proceedings); cf 
United States 
Anguilo, supra, at 972. But 
there is no authority extending that "inher-
ent " power to instances of defendant 
"dangerousness." 
Finally, the legislative history of the new 
Act, as the majority effectively concedes, 
proves little. Its language demonstrates 
congressional concern both for preventing 
crimes and for treating accused persons 
fairly. See, e.g., S.Rep., supra, at 22 
(noting "the importance of the interests of 
the defendant which are implicated in a 
pretrial detention hearing" and the "due 
process" considerations in establishing the 
procedural requirements of the new Act). 
The arguments advanced in favor of apply-
ing the new provision (in a sense) retro-
actively to those previously released are 
unconvincing. The government says that, if 
the new Act does not apply in its entirety to 
these defendants, then no law applies to 
them, for Congress repealed the old 1966 
Bail Reform Act as of October 12, 1984. 
This argument is incorrect. When, for some 
reason or other, a new provision in a new 
law does not (or cannot) apply to a particu-
lar situation or person, courts typically 
hold that the former law survives and gov-
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Page 9 of 10 
761 F.2d 52 
• 
761 F.2d 52 
(Cite as: 761 F.2d 52) 
erns that circumstance or person, whether 
or not the new law "expressly" repeals the 
old law as of a certain date. Thus, for ex-
ample, Congress has repealed the Youth 
Corrections Act as of October 12, 1984, 
see*59Pub.L. No. 98473, Title II, § 
218(a)(8), 98 Stat. 1837, 2027 (1984), but, 
as the Department of Justice has recog-
nized, it may be unconstitutional under the 
ex post facto clause to apply certain por-
tions of Congress's substitute to certain de-
fendants who committed crimes prior to 
that date. See U.S. Dept. of Justice, Hand-
book on the Comprehensive Crime Control 
Act of 1984 and Other Criminal Statutes 
Enacted by the 98th Congress 32 (1984). 
As to those persons, the Department says, 
1
the old (repealed) law wi still apply. Id. 
See also United States 
Romero, 596 
F.Supp. 446 (D.N.M.1984 . A similar ap-
proach in this case is in accord with well 
established lel 
precedent. See, 
e.g., 
United States 
Payden, supra (holding 
that defendant's bail status should be de-
termined under provisions of old Bail Act, 
even after its repeal, where bail application 
had first been considered under provisio 
of old Act); United States Gypsum Co. . 
Uhlhorn, 
232 
F.Supp. 
994, 
1 
(E.D.Ark.1964), aff'd,366 F.2d 211 (8th 
Cir.I966), cert. denied,385 U.S. 1026, 
S.Ct. 753, 17 L.Ed.2d 674 (1967); State
McMillin, 150 Cob. 23, 370 P.2d 435 
1962) (en bane); In re Opinion of the 
Justices, 1 N.H. 563, 198 A. 249 (1938); 
Waddell 
Mamat, 271 Wis. 176, 72 
N.W.2d 7 
(1955); see generally82 C.J.S. 
Statutes § 435 at 1010-11 (1953). Thus, to 
hold that Congress did not intend to apply 
the "dangerous person" provision retroact-
ively does not create a legal vacuum. 
The government also argues that it is not 
unfair to apply the new provision to this 
particular defendant because he did not in 
Page 9 
fact rely upon guarantees of continued 
freedom. It does not make sense here, 
however, to apply an "unfairness" test on a 
case-by-case basis. The very act of doing 
so creates unfair burdens, for it injects a 
new, and potentially unresolvable, issue in-
to each bail revocation proceeding. Rather, 
to prevent serious unfairness the Act must 
not apply to the class of persons already re-
leased on bail on October 12, avoiding un-
fairness by creating a bright, judicially ad-
ministrable line. 
Further, the government argues that not to 
apply the new provision retroactively 
leaves it without a remedy against one 
(allegedly like the defendant here) who 
commits a crime while free on bail. This is 
not so. For one thing the government could 
indict the person for that crime (whether it 
was committed before or after October 12, 
1984), at which point the government 
could seek his detention under the new 
law. For another thing, the new Bail Act al-
lows the magistrate to attach a new condi-
tion to a defendant's pre-October 12 bail 
order-the condition that he not commit new 
crimes while on release. To attach this con-
dition to the bail of one previously released 
does not seem unfair. Indeed, the old Act 
provides magistrates and udges with the 
express authority to modi 
release condi-
tions. Seel8 U.S.C. § 3 46(e) (repealed 
October 12, 1984). In this case, the magis-
trate attached a condition on October 31, 
1984, that Zannino not commit any crimes 
while on release. Thus, Zannino's release 
conditions currently (and lawfully) permit 
revocation if the government shows that he 
has committed crimes after October 31, 
1984. See§ 3148(b). In addition, the gov-
ernment is free to seek his indictment for 
any offense committed before that date, or 
to seek further modification of his release 
conditions, § 3142(c). 
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Page 10 of 10 
'761 F.2d 52 
761 F.2d 52 
(Cite as: 761 F.2d 52) 
Finally, the majority points to a provision 
in the former 1966 law that allows a magis-
trate to impose "additional or different con-
ditions of release" upon a person free on 
bail. Bail Reform Act of 1966, 18 U.S.C. § 
3146(e), repealed by Bail Reform Act of 
1984, 18 U.S.C. § 3142(c). The majority 
thinks the existence of this provision 
makes it more fair to apply the new law 
retroactively to those already free on bail. 
I 
disagree, basically because a new 
"release' condition seems to me very dif-
ferent from an unconditional detention or-
der. 
For the foregoing reasons, I believe Con-
gress did not intend the "dangerous person 
detention" provision of the new Bail Act 
to apply to those already free on bail on 
October 12. 
And, I would affirm the judgment of the 
district court. 
C.A.).(Mass.),1985. 
U.S. 
Zannino 
761 .2d 52 
END OF DOCUMENT 
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Page 1 of 24 
Westlaw. 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
U.S. It Affleck 
C.A. ,1985. 
United States Court of Appeals,Tenth Cir-
cuit. 
UNITED STATES of America, Plaintiff-
Appellee, 
v. 
Grant C. AFFLECK, Defendant-Appellant. 
UNITED STATES of America, Plaintiff-
Appellee, 
v. 
Frank KOWALIK, Jr., Defendant-Appel-
lant. 
Nos. 85-1009, 84-2600. 
May 24, 1985. 
Defendants challenged 
denial 
by 
the 
United States District Court for the District 
of Utah, David K. Winder, J., and the 
United States District Court for the District 
of Colorado, Zita L. Weinshienk, J., of mo-
tions for bail pending appeal. After panel 
denied motions for release pending appeal, 
rehearing en banc was granted, with the 
Court of Appeals, Holloway, Chief Judge, 
holding that: (1) Bail Reform Act section 
setting forth standards governing release of 
defendants on bail pending appeal applied 
to defendants even though they were con-
victed before effective date of the Act; (2) 
application of the new standards to defend-
ants convicted before effective date of the 
Act did not disadvantage them in any way 
prohibited by the ex post facto clause; (3) 
two-step analysis for determining whether 
to grant bail pending appeal would be ad-
opted, though with stricter interpretation of 
what constitutes "substantial" question of 
law or fact than that applied by the Third 
Circuit; and (4) need for a clear record at 
district court hearing warranted partial re-
Page 1 
mand. 
Cases partially remanded. 
McKay, Circuit Judge, dissented and filed 
opinion, in which Seymour, Circuit Judge, 
joined, also filing a separate dissenting 
opinion. 
West Headnotes 
Ill Bail 49 C=.44(1) 
49 Bail 
491I In Criminal Prosecutions 
49k41 Right to Release on Bail 
49k44 Pending Appeal or Other 
Proceeding for Review 
49k44(1) k. In General; Con-
ditions. Most Cited Cases 
There is no constitutional right to bail 
pending appeal. 
[2] Bail 49 C=39 
49 Bail 
4911 In Criminal Prosecutions 
49k39 k. Nature and Scope of Rem-
edy. Most Cited Cases 
Section of Bail Reform Act [18 U.S.C.A. § 
3143(b)] setting forth standards governing 
release of defendants on bail pending ap-
peal, became fully effective on October 12, 
1984 and applied to defendants seeking 
bail pending appeal after that date, even 
though they were convicted before the 
Act's effective date. 
[3] Bail 49 €=.39 
49 Bail 
4911 In Criminal Prosecutions 
49k39 k. Nature and Scope of Rem-
edy. Most Cited Cases 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
Constitutional Law 92 41:=2810 
92 Constitutional Law 
92XXIII Ex Post Facto Prohibitions 
92XXIII(B) Particular Issues and 
Applications 
92k2809 Criminal Proceedings 
92k2810 k. In General. Most 
Cited Cases 
(Formerly 92k203) 
Application of new Bail Reform Act [18 
U.S.C.A. § 3143(b)] standards governing 
release of defendants on bail pending ap-
peal to defendants convicted before effect-
ive date of the Act did not disadvantage de-
fendants in any way prohibited by the ex 
post facto clause, though the sentences and 
the district court orders denying bail 
pending appeal were entered after that 
date; the Act introduced significant proced-
ural change, disadvantageous to defend-
ants, but it did not change the quantum of 
punishment 
attached 
to 
the 
crimes. 
U.S.C.A. Const. Art. 1, § 9, cl. 3. 
[4] Bail 49 C=44(4) 
49 Bail 
49II In Criminal Prosecutions 
49k41 Right to Release on Bail 
49k44 Pending Appeal or Other 
Proceeding for Review 
49k44(3) Grounds for Grant or 
Denial 
49k44(4) k. Substantiality 
of Grounds for Review; Delay. Most Cited 
Cases 
Two-s 
sis announced in United 
tsp
States I 
for determining whether to 
grant bail pending appeal under the Bail 
Reform Act [18 U.S.C.A. § 3143(b)] would 
be adopted in the Tenth Circuit, with first 
inquiry 
being 
whether 
appeal 
raises 
"substantial" question of law or fact, and, 
secondly, whether resolution of that ques-
tion in favor of defendant is likely to result 
Page 2 of 24 
Page 2 
in reversal or order for new trial of all 
counts on which imprisonment has been 
imposed; however, Tenth Circuit will apply 
stricter interpretation of what constitutes 
"substantiliestion of law or fact than 
applied in 
[5] Bail 49 4=.44(4) 
49 Bail 
49I1 In Criminal Prosecutions 
49k41 Right to Release on Bail 
49k44 Pending Appeal or Other 
Proceeding for Review 
49k44(3) Grounds for Grant or 
Denial 
49k44(4) k. Substantiality 
of Grounds for Review; Delay. Most Cited 
Cues 
For purposes of determining whether de-
fendant seeking bail pending appeal under 
the Bail Reform Act [18 U.S.C.A. § 
3143(b)] has raised a substantial question 
of law or fact, a "substantial" question is 
one of more substance than would be ne-
cessary to a finding that it was not frivol-
ous; it is a close question or one that very 
well could be decided the other way, but 
whether it has been treated by controlling 
precedent is not determinative; whether 
particular question is "substantial" must be 
determined on case-by-case basis. 
[6] Criminal Law 110 C=1181.5(3.1) 
110 Criminal Law 
110XXIV Review 
110XXIV(11) 
Determination 
and 
Disposition of Cause 
110k1181.5 Remand in General; 
Vacation 
110k1181.5(3) 
Remand 
for 
Determination or Reconsideration of Par-
ticular Matters 
110k1181.5(3.1) k. In Gen-
eral. Most Cited Cases 
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Page 3 of 24 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
(Formerly 110k1181.5(3)) 
Need for a clear record at hearing in the 
district court in order to resolve question 
whether defendants were entitled to bail 
pending appeal under Bail Reform Act [18 
IJ.S.C. 
U.S.C.A. § 3143(b)] standards warranted 
partial remand for such hearings and recon-
sideration of denials of motions for bail 
pending appeal under standards adopted 
herein. 
*945 A. Brent Carruth, Carruth & Good-
win, 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, Cob., with them on the brief), for 
defendant-appellant, Kowalik. 
Thomas M. O'Rourke, Asst. 
Atty., 
Denver, Colo. (Robert N. 
U.S. 
Atty., with him on the brief), 
'ntiff-
appellee U.S. in No. 84-2600. 
Michael L. Bender, Bender & Treece, and 
Jay P.K. Kenney, Denver, Cob., 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, LO-
GAN, and SEYMOUR, Circuit Judges rte. 
FN* 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 de-
Page 3 
termination upon their election and 
designation. See28 U.S.C. § 46(c). 
HOLLOWAY, Chief Judge. 
OPINION ON REHEARING EN BANC 
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 is-
sues in both cases concerning bail pending 
appeal. 
I 
Facts 
A. Affleck 
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,FNI 
one 
count 
of 
bankruptcy 
fraud,FN2 and one count of interstate 
transportation of a person to defraud."° 
On that date, the district court ordered Af-
fleck released*946 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. 
FN1. 15 U.S.C. § 78j; 17 C.F.R. § 
240-10b-5. 
FN2. 18 U.S.C. §§ 152, 2. 
FN3. 18 U.S.C. § 2314. 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
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 sen-
tence upon filing of the same bond main-
tained by Affleck during the trial. The dis-
trict court found that Affleck posed "no im-
mediate 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 sen-
tence and ordering his release pending ap-
peal, or in the alternative, to hold an exped-
ited hearing and to make the findings to 
support such an order as required by 18 
§ 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. §§ 3146 and 3148, 
convicted defendants were entitled to re-
lease on bail pending appeal unless no one 
or more conditions of release would reas-
onably 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. § 3143(b) provides as follows: 
Page 4 of 24 
Page 4 
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 certi-
oran, be detained, unless the judicial of-
ficer 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 
pursuant to section 3142(b) or (c); and 
(2) that the appeal is not for purpose 
of delay and raises a substantial ques-
tion of law or fact likely to result in re-
versal or an order for a new trial. 
Act § 203(a), 98 Stat. 1981-82 (emphasis 
added); see alsoFed.R.App.P. 9(c), as 
amended by Act § 210, 98 Stat. 1987. 
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 a 
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 § 
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 re-
leased on a $75,000 bond pending appeal. 
The court also held that Affleck had estab-
lished that his appeal was not taken for 
purpose of delay under § 3143(bX2). The 
court denied bail, however, because Af-
fleck 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 § 3143(bX2). VIII R. 1490. 
The court also held that application of the 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
new criteria of § 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 
Defendant Frank Kowalik, Jr. was con-
victed in the District of Colorado on 
September 19, 1984 after a jury trial of two 
*947 counts of willfully failing to file fed-
eral income tax returns in violation of 
I.R.C. § 7203. On November 14 the district 
court sentenced Kowalik to one year of im-
prisonment 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 IL 123. 
Also on November 14 Kowalik filed a no-
tice of appeal and sought release on the ap-
peal bond, but the magistrate concluded 
that release was inappropriate absent find-
ings by the district court under § 3143(b). 
Kowahk principally argued that he was en-
titled 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 will-
fully 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 hear-
ing on November 15, the district court va-
cated its earlier order permitting Kowalik 
to be released on bail pending appeal. The 
Page 5 of 24 
Page 5 
court found that Kowalik had established 
by clear and convincing evidence under § 
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 § 3143(bX2), and denied 
bail. Id. at 3. 
C. Proceedings in this court 
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."" On its own motion 
this court, by order of a majority of its act-
ive circuit judges on February 1, 1985, 
granted rehearing en banc of of the court's 
earlier orders denying the motions for re-
lease pending appeal.nd We expedited 
these cases for argument at our March term 
of court and asked counsel to brief and ar-
gue the effect of the new § 3143(b) stand-
ards in these cases. We now address vari-
ous issues concerning the application to 
these defendants of the new § 3143(b) cri-
teria for release pending appeal. 
FN4. Kowalik's petition for a stay 
pending appeal was denied by order 
of a panel of this court on Decem-
ber 4, 1984. Affleck's motion for re-
lease pending appeal was denied by 
order of a panel of this court on 
December 27, 1984. 
FNS. Chief Judge Holloway and 
Judge Barrett voted to deny rehear-
ing en banc. 
• 
II 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
Effective Date and the Ex Post Facto 
Clause 
A. Effective date 
Affleck asserts that Congress did not in-
tend 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 
bail before 
gp
that date. See United States I Fernandez-
Toledo, 749 F.2d 703 (11th Cir.1985) (§ 
3731, which permits the Government to 
real order granting bail); United States 
Mitchell, 600 F.Supp. 164 (N.D.Ca1.198 
(§ 3142, which provides for retrial deten-
tion). But see United States I Anguilo, 755 
F.2d 
969, 
970-74 
(1st 
Cir.1985) 
(application of pretrial detention provi-
sions of new Act to a defendant incarcer-
ated and seeking release r October 12). 
Affleck also cites Greene 
United States, 
376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 
(1964), and argues that criminal statutes 
like § 3143(b) should not be given retro-
spective 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 effect-
ive date of the Act had a vested, antecedent 
right to bail). 
*948 [1][2] We are not persuaded by these 
cases that the Act should not apply to a de-
fendant like Affleck, convicted before Oc-
tober 12, who seeks bail pending appeal 
after that date. There is no constitutional 
right to bail 
ending appeal. See, e.g., 
United States 
Provenzano, 602 F.Supp. 
230, 232 (E.D a.1985); United States a 
rel. Cameron 
New York, 383 F.Supp. 
182, 183 (E.D. .Y.1974).ms In these cir-
cumstances, we hold that § 3143(b), in the 
Page 6 of 24 
Page 6 
absence of a showing of congressional in-
tent to the contrary, became fully effective 
on October 12 when the President ap-
proved the Act. Section 3143(b) therefore 
applies to Affleck even though he was con-
victed before the effe 've date of the Act. 
See United States 
Cirrincione, 600 
F.Supp. 1436, 1438 
.D.I11.1985); see 
also United States 
Chiattello, 599 
F.Supp. 
970, 
71- 
(N.D.Ind.1985); 
United States 
Hazzard, 598 F.Supp. 
1442, j154 n. 
(N.D.I11.1984); United 
States I 
Kowa!, 596 F.Supp. 375, 37
(D.Conn.1984); see also United States 
Gavrilovic, 551 F.2d 
099, 1103 (8 
Cir.1977); United States 
Claret.,
l
 464 F.2d 
121, 123 n. 2 (9th Cir.i , cert. denied,409 
U.S. 1080, 93 S.Ct. 67 , 34 L.Ed.2d 669 
(1972). 
FN6. The legislative history of the 
Bail Reform Act notes that "there is 
clearly no constitutional right to 
bail once a person has been con-
victed." S.Rep. No. 98-225, 98th 
Cong., 
2d 
Sess. 
26, 
reprinted 
in1984 U.S.Code Cong. & Ad.News 
3182, 3209 (footnote omitted). 
B. The ex post facto clause 
[3] Affleck and Kowalik both argue that 
application 
to 
them of the 
new
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. 
The Constitution provides that no "ex post 
facto [1]aw shall be passed." U.S. Const. 
art. I, i 9, cl. 3.Fro The a post facto 
clauses forbid the enactment by Congress 
and the states of any law that "imposes a 
punishment for an act which was not pun-
ishable at the time it was committed; or im-
poses additional punishment to that then 
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765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 9441 
prescribed; or changes the rules of evid-
ence by which less or different testimony is 
sufficient to convig than was then 
1
re-
quired." Cummins I Missouri, 71 U.S. (4 
Wall.) 277, 325- , 18 L.Ed. 356 (1867); 
see also Weaver 
Graham, 450 U.S. 24, 
28, 101 S.Ct. 9 , 963, 67 L.Ed.2d 17 
(1981)." 
FN7. The Constitution also prohib-
its the states from passing ex post 
facto laws. U.S. Const. art. I, § 10, 
cl. 1 ("No State shall ... pass any ... 
ex post facto Maw...."). 
FN8. The Court has emphasized 
that "[t]he mark of an ex post facto 
law is the imposition of what can 
!
fairly be designated 
unishment for 
past acts." De Veau 
Braisted, 363 
U.S. 144, 160, 80 S. t. 1146, 1154, 
4 L.Ed.2d 1109 (1960) (plurality 
1 6
opinion) 
mphasis added). See also 
Beazell 
Ohio, 269 U.S. 167, 
169-70, 
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 ac-
cording to law at the time when the 
act was committed, is prollited as 
ex post facia"); Paschal 
Wain-
wright, 738 F.2d 1173, 1 6 n. 4 
(11th Cir.1984) (emphasis in origin-
al) (For ex post facto violation to 
have occurred, "the legislature must 
provide punishment for past con-
duct."). 
The Court has stated that "no ex post facto 
violation occurs if the change effected is 
merely procedural, and does `not increase 
Page 7 of 24 
Page 7 
the punishment[,] nor change the ingredi-
ents of the offen[cJe or the ultimate facts 
necessary to establish guilt.' " Id. at 29 I. 
12,101 S.Ct. at 964 n. 12 (quoting Hop . 
Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 21 , 
28 L.Ed. 262 (1884) (brackets added to 
conform to origll quotation in Hopt )); 
see also Dobbert ■ Florida, 432 U.S. 282, 
293, 97 S.Ct. 22 , 2298, 53 L.Ed.2d 344 
(1977) ("Even though it may work to the 
uri
disadvantage of a defendant, a proced 
I 
change is not ex postfacia"); Beazell . 
Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 6 , 
70 L.Ed. 216 (1925) (ex post facto clause 
not intended to "limit the legislative con-
trol of remedies and modes of procedure 
which do not affect matters of substance"). 
The Court has held that "two critical ele-
ments must be present for a *949 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 disadv 
ge the offender affected 
by it." Weaver 
Graham, 450 U.S. at 29, 
101 S.Ct. at 964 footnotes omitted).tra 
FN9. See also Paschal 
Wain-
wright, 738 F.2d 11g, 
175-76 
(11th Cir.1984); Artez 
Mulcrone, 
673 
F.2d 
1169, 
71 
(10th 
Cir.I982); see generally J. Nowak, 
R. Rotunda & J. Young, Constitu-
tional Law 477-78 (2d ed. 1983); L. 
Tribe American Constitutional Law 
477-84 (1978). 
We hold that application of the new § 
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. Sec-
tion 3143(b)(2) represents a significant 
procedural change in the requirements that 
a convicted defendant must meet to obtain 
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