EFTA00191587

765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
bail pending appeal, one seriously disad-
vantageous to him in that respect, but the 
statute does not change the "quantum of 
punishment attached to the crime." Dob-
bert, 432 U.S. at 294, 97 S.Ct. at 2298. We 
agree with other cases, which have simil-
arly held that § 3143(b) does not violate 
r
ira post facto clause. See United States 
Powell, 761 F.2d 1227, 1234 (8th 
.1985) (en bane) (footnote omitted) 
("Admission to bail pending appeal is, for 
Ex 
Post 
Facto 
Clause 
purposes, 
'procedural'. It does not increase the pun-
ishment for a crime already committed, but 
simply regulates the time at which impris-
onment
t
for that crime w' begin after con-
viction"); United States 
Molt, 758 F.2d 
1198, 1200-01 (7th Cir. 85) ("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 pro-
cedural 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 pun-
ishment.... The change in the balance of ad-
vantages against the defendant is too slight 
to bring the change within the scope of tT 
li
t facto 
clause."); 
United
 States 
753 F.2d 19, 21 (3d Cir.1985) ( 
e 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 cirst Facto Clauses apply."); United 
States 
Crabtree, 754 F.2d 1200, 1201-02 
(5th 
ir.1985) (opinion of Chief Judge 
Clark as a single circuit judge) ("[ (Section 
3143(a)(I) ] is merely procedural and does 
not alter a substantive right. [It) does not 
increase the punishment nor change the in-
g
ients of the offense or the ultimate 
facts (nii:ssary to establish guilt."); United 
States 
Chiattello, 599 F.Supp. 970, 971 
n. 1 
. Ind.1985) ("The method govern-
Page 8 of 24 
Page 8 
ing the release of a defendant on appeal 
following a conviction is a matter of 
*
pro-
cedure and does not bearylin 
live 
rights."); United States 
598 
F.Supp. 453, 468 (S.D.N. 
9 
mo-
tion to revoke bail) ("[Defendant's] entitle-
ment 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."). 
In reaching this conclusion, we are mind 
of the Supreme Court's decision in Kring 
Missouri, 107 U.S. 221, 2 S.Ct. 443, 
L.Ed. 506 (1883). In Krin,g, 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 defend-
ant appealed and the judgment was re-
versed. Under Missouri law in force when 
the homicide was committed, the first sen-
tence constituted an acquittal of first de-
gree murder. Before retrial, the state law 
was changed so that this effect of an ac-
quittal of first degree murder no longer op-
erated. 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 *950 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: 
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EFTA00191707

765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
But it cannot be sustained without des-
troying the value of the constitutional 
provision, that a law, however it may in-
vade 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. 
Can the law with regard to bail, to in-
dictments, to grand jury, to the trial jury, 
all be changed to the disadvantage of' the 
prisoner by State legislation after the of-
fence was committed, and such legisla-
tion not held to be ex post facto legisla-
tion, because it relates to procedure, as it 
does according to [Bishop on Criminal 
Procedure]? 
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 a post facto legislation, be-
cause, in the use of a modem phrase, it is 
called a law of procedure? We think it 
cannot. 
Id. at 232, 2 S.Ct. at 452 (emphasis added). 
We believe that Kring and its dictum re-
specting 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 lepcpressions are to be 
found in earlier judicial opinions to the ef-
fect that the [a 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 Kraig, 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 
Page 9 of 24 
Page 9 
constitutional prohibition." Id. The Court 
noted that "[j]ust what alterations of pro-
cedure will be held to be of sufficient mo-
ment to transgress the constitutional pro-
hibition cannot be embraced within a for-
mula or stated in a general proposition. The 
distinction is one of degree. But the consti-
tutional provision was intended to secure 
substantial rights against arbitrary and op-
pressive legislation."269 U.S. at 171, 46 
S.Ct. at 69. 
In Kring, the Court explained that the ef-
fect 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 a post 
facto standards applied by the Court in sub-
sequent cases. We are particularly per-
suaded 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 nr
 , to establish guilt. See, e.g., 
Weaver 
Graham, 450 U.S. at 32-33, 101 
S.Ct. at 
6-967; Dobbert, 432 U.S. at 295, 
97 S.Ct. at 2299. In light of these stand-
ards, we conclude that there is no ex post 
facto violation here by application of the 
new 
restrictive 
rules 
goveming bail 
pending appeal, as now prescribed by § 
3143(b)(2). 
ril
We are unpe 
aded by the reasoning in 
United States 
Cirrincione, 600 F.Supp. 
1436 (N.D.I11. 985). There the district 
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Page 10 of 24 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
court held that § 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 reli-
ance." Id. at 1444. 
*951 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 Cir-
rincione court's view that § 3143(bX2) af-
fects the punishment imposed for such con-
duct. A convicted defendant may wish to 
postpone serving his sentence until his ap-
peal is decided, and certainly the § 
3143(b)(2) standards for granting bail 
pending appeal are "more onerous' than 
those under the former law. However, § 
3143(b)(2) does not in any way alter the 
"quantum of punishment' imposed on 
cnminal 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 pen-
alty, do not necessarily violate the ex post 
facto clause. 
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 ex-
ample, the Indiana Supreme Court has held 
that a state statute denying bail pending ap-
peal by a habitual criminal was not ex post 
facto as applied to a defendant who com-
Page 10 
mitted the offense and was convicted be-
fore the effectiv date of the statute. State 
. 
ex rel. Dorton 
 Circuit Court of Elkhart 
County, 274 Ind. 373, 412 N.E.2d 72 
(1980).Ft The court explained that the 
superseding statute did "not make an act 
cnminal which was legal before the statute; 
nor [did] it 'provide a greater punishment 
therefor than was prescribed at the time of 
commission.' 
" Id. at 74 (quoting Hopt 
Utah, 110 U.S. 574, 579, 4 S.Q. 202, 
, 28 L.Ed. 262 (1884)). 
FN10. 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 pro-
tecting persons who may have a re-
versible conviction." 412 N.E.2d at 
74. 
Moreover, the Oklahoma Court of Criminal 
Appeals has held that a state statute prohib-
iting .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 
1
the offense befo 
he effective date of the 
statute. Spitznas ■ State, 648 P.2d 1271 
(Okla.Cnm.App.I 
2). 
The 
court con-
cluded 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. 
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 
ffective 
date of the statute. De Veau 
United 
States, 454 A.2d 1308 (D.C. 
p.1982), 
cert. denied,460 U.S. 1087, 1 3 S.Ct. 
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Pagc 11 of 24 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
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.nm 
FN11. But see Greene' 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 be-
came effective after commission 
second 
felony); 
Cunningham 
State, 
423 
So.2d 
5 
(Fla.Dist.Ct.App.1982) (per curiam) 
(a post facto clause prohibited ap-
plication of statute denying bail 
pending appeal of drug trafficking 
conviction to defendant who com-
mitted offense before 
active date 
of statute); cf. Parker 
State, 667 
P.2d 1272 (Alaska 
t.Ap .1983) 
(right to bail pending appeal suffi-
ciently accrued at time of offense 
under state statute so that statute 
passed after date of offense but be-
fore conviction which eliminated 
bail for persons convicted of certain 
Ellis 
State, 544 S.W.2d 908, 911 
felon'
 did not apply to defendant); 
(Tenn. rim.App.1976) 
(statute 
denying bail pending appeal to de-
fendants 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). 
We therefore hold that the § 3143(6)(2) 
standards governing bail pending appeal 
are not ex post facto as applied to a defend-
ant where the offenses charged and the res-
ulting convictions occurred before the ef-
Page 11 
fective date of the Act, but the sentences 
and the order by the district court denying 
bail pending appeal were entered after that 
date. 
*952 III 
Interpretation of 18 U.S.C. § 3143(b)(2) 
[4] 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 Afileck and Kowalik cases contend that 
we should interpret this requirement in 
light of the two-step analysis ann n 
the Third Circuit in United States I 
753 F.2d 19 (3d Cir.1985). The 
overn-
ment, however, argue 
stricter inter-
pretation
*
 than that of 
should be ap-
plied to determine w a 
constitutes a 
"substantial" question of law or fact. 
In 
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 de-
termined 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 bee followed 
in other cases. See United States 
Powell, 
761 F.2d 1227, 1230-1234 8th 
ir.1985) 
(en banc); United States 
Handy, 761 
F.2d 1279, 1280 (91 Cir.1 5) (per curi-
am); United States 
Giancola, 754 F.2d 
898, 900-901 (lth Cir.1985); see also 
United States 
Polin, Nos. 85-5009, 
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Page 12 of 24 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
85-5010, slip. op. at 2 (4th Cir. March 4, 
1985) (opinion of Mumaghan, Circuit 
Jud 
single circuit judge). We adopt 
the 
two-step analysis for determin-
ing w e er to grant bail pending appeal 
under § 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 re-
quire. 
What constitutes a "substantial" question 
under the first prong of this test must be 
considered in light of congressional intent. 
Under former § 3148, bail pending appeal 
would be denied if the appeal was 
"frivolous." The new Act was mtended 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 
stnngent. 
SeeS.Rep.No. 225, 98th Cong., 1st Sess. 
26-27, reprinted in1984 U.S.Code Cong. & 
Ad.News 3182. 
[5] Accordingly, we agree with the Elev-
enth Circuit that "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 othe 
" Gi-
ancola, 754 F.2d at 901. In 
the 
Third Circuit said that a "substan r 
ues-
tion under § 3143(6)(2) is one white 
is 
either novel, which has not been decided 
by controllaedent, or which is fairly 
doubtful." 
753 F.2d at 23.F*02 We 
agree with 
eventh Circuit, however, 
that a question "which has not been de-
cided by controlling precedent" may not be 
"substantial" under § 3143(b)(2). For ex-
ample, an issue may be "so patently 
without merit that it has not been found ne-
cessary for it to have been resolved.... Sim-
ilarly, there might be no precedent in this 
Pane 12 
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.FN13 In the final analysis, we cannot 
define blanket categories for what will con-
stitute "substantial" questions under § 
3143(b)(2). Therefore, whether a particular 
question is "substantial" must be determ-
ined on a case-by-case basis, under the 
general guidelines we adopt as quoted 
above. See Giancola, 754 F.2d at 901. 
FN12. See also Handy, 761 F.2d at 
1281 ("substantial" question is one 
that is "fairly debatable). 
FN13. Of course, a "substantial" 
question must be one which can be 
properly raised on appeal. See Gi-
anola, 754 F.2d at 901 n. 4. 
The second prong of the p ttjest poses 
less of a definitional pro em. 
nder this 
second prong, bail pending appeal is *953 
appropriate 
if, 
assuming 
that 
the 
"substantial question is determined favor-
ably to defendant on appeal, that decision 
is likely to result in reversal or an order for 
. 
. 
a new trial of all counts on w 
pns-
onment has been imposed." 
753 
F.2d at 24. The Third Circuit 
er ex-
plained that this language 
must be read as going to the significance 
of the substantial issue to the ultimate 
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 
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Page 13 of 24 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
imprisoned that a contrary appellate hold-
ing is likely to require reversal of the 
conviction or a new trial. 
Id. at 23.nm 
FN14. The Third Circuit rejected 
the view that § 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 reas-
ons: 
In the first place, such a reading 
would render language in the stat-
ute 
surplusage 
because 
every 
question that is likely to be re-
versed 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 
applic-
able 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 reas-
onably be construed to require the 
district court to predict the prob-
ability of reversal. The federal 
courts are not to be put in the pos-
ition of "bookmakers" who trade 
Page 13 
on the probability of ultimate out-
come. 
753 F.2d at 23; see also 
Po  slap op. at 2 n 2; Handy, 
761 F.2d at 1280; Giancola, 754 
F.2d at 900. 
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 com-
munity if released under § 3143(6)(1), and 
that he has established under § 3143(b)(2) 
FN15 that the appeal is not for purpose of 
delay, and: 
FNI5. We note that, unlike § 
3143(b)(1), § 3143(b)(2) does not 
require that the showing be made by 
"clear and convincing evidence.' 
We therefore conclude that a de-
fendant must only prove the § 
3143(b)(2) criteria under the ordin-
ary preponderance of the evidence 
standard. 
[1.] that the appeal raises a substantial 
question of law or fact; and 
[2.] that if that substantial question is de-
termined favorably to defendant on ap-
peal, that decision is likely to result in re-
versal or an order for a new trial of all 
counts on which imprisonment has been 
imposed. 
Id. at 24. 
IV 
Disposition 
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Page 14 of 24 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
[6] In Affieck both the defendant and the 
Government agree that we should remand 
the case to the district court to reconsider 
•• ue of bail pending appeal under the 
two-part standard, disagreeing only 
on now to determine a "substantial' ques-
tion of law or fact, which we have re-
solved. In Kowalik, however, both the de-
fendant 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 es-
pouses, while the Government argues that 
we should deny bail under the standard it 
proposes. 
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 Elev-
enth
.'
Circuits made this 
' 
sition in 
*954Miller and Giancola. 
753 F.2d 
at 24; Giancola, 754 F. 
a 901 & n. 
5.FNI6 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 dis-
trict 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 ap-
pellate function by requiring the district 
court to make written findings and conclu-
sions. 
FN16. In Polin, a single judge of 
ourth Circuit 
adopted 
the 
standard and agreed with the 
istricci
court's 
denial 
of 
bail 
pending appeal because the defend-
Page 14 
ant did not meet his burden of 
showing that his appeal raised a 
"substantial" question. Polin, slip 
op. at 3-4. 
In Hand 
inth Circuit adop-
ted the 
standard and dis-
agreed wi 
e 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 Cir-
cuit remanded to the district court 
for imposition of the appropriate 
conditions of release. 
These proceedings obviously present diffi-
culties for the parties, as well as for the tri-
al 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. 
Accordingly, we partially remand these 
cases to the district courts for hearings and 
reconsideration of the denials of the mo-
tions for bail pending appeal under the 
standards we adopt today, and for the dis-
trict courts to make new written findings, 
conclusions and orders under these stand-
ards. This court otherwise retains jurisdic-
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Page 15 of 24 
765 F.2d 944 
765 F.2d 944. 53 USLW 2628 
(Cite as: 765 F.2d 944) 
tion of the principal appeals in these cases. 
The mandates for the partial remands shall 
issue forthwith. 
McKAY, Circuit Judge, dissenting: 
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 proscrip-
tion 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 constitutional-
ity of the bail pending appeal provisions of 
the Bail Reform Act of 1984, and in ap-
proving the application of these provisions 
to defendants who were convicted of 
crimes committed before the Act's passage. 
I believe that this is, in large measure, a 
consequence of the court's preoccupation 
with attempting to ameliorate the harsh ef-
fects 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. 
When the standard for release of a con-
victed person pending appeal under 18 
U.S.C. § 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: 
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. 
18 U.S.C. § 3143(b). 
These early decisions took the statute to 
mean that for all practical purposes Con-
Page 15 
gress intended to eliminate bail pending 
appeal in all but the most extraordinary 
cases. Subsequently, the Third Circuit fab-
ricated from rules of judicial construction 
an intent that gives the appearance of signi-
ficantly ameliorating the harshness of *955 
the provision-even though there is no evid-
ence that Congress had fiu 
nstruction 
in mind. United States 
753 F.2d 
19 (3rd Cir.1985). Other 
tuts quickly 
fell in line. United States 
Handy, 761 
F.2d 1279 (9 
Cir.1985) 
r curiam); 
United States 
Giancola, 
4 F.2d 8 
Pofin, Nos. 85-5009, 85-5010, slip op. at
(11th Cir.1985 ; see also United States 
(4th Cir. March 4, 1985) (opinion of 
Mumaghan, C.J., as a single circuit judge). 
In this case the majority, adopting the reas-
oning of both the nuird and Eleventh Cir-
cuits, 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 
2. if that substantial question is determ-
ined favorably to the defendant on ap-
peal, the decision is likely to result in re-
versal or an order for a new trial on all 
counts for which imprisonment has been 
imposed. 
Thus, under the majority's attempted emas-
culation of the provisions of the Act, no de-
termination need be made whether the sub-
stantial question is likely to be determined 
favorably upon appeal; it need only be de-
cided whether that substantial question 
would likely result in reversal if it is so re-
solved on appeal. 
In my view, it is regrettable that the courts 
have not held fast to the actual intent of 
Congress. This supposed amelioration will 
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Page 16 of 24 
765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
likely prove to be no amelioration at all. I 
am fully satisfied that the result will be es-
sentially the same as it would were the stat-
ute 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.1N1
FN1. By my calculation, sixty-three 
percent of direct appeals handled by 
this court in the most recent report-
ing 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 substan-
tial majority of those cases that we 
reverse coincide with the cases in 
which bail pending appeal is gran-
ted. 
More important, in sorting through the the-
oretical niceties of supposedly ameliorative 
standards the courts have lost sight of the 
fact that the statute both as written by Con-
gress and as rewritten by them allows for 
the punishment of a substantial class of in-
dividuals who have not yet been finally ad-
judicated guilty. I am convinced that deny-
mg bail under the test set forth in the pan-
el's opinion is contrary to the Constitution 
of the United States. 
CONSTITUTIONAL RIGHTS ON AP-
PEAL 
Until recently, it might have been argued 
that the constitutional rights that normally 
would attend preconviction proceedings do 
not ar mpany the appellate process. See 
Ross 
Moffitt, 417 U.S. 600, 94 S.Ct. 
Page 16 
2437, 41 L.Ed.2d 341 (1974). Howevi 
the recent Supreme Court case of Evius 
Lum, 469 U.S. 387, 105 S.Ct. 830, 
L.Ed.2d 
821 
(1985), 
has 
drastically 
changed this analysis. In Evicts 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 Constitu-
tion." 469 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 establish-
ing a system of appeal as of right, the state 
had implicitly determined that it was un-
willing to curtail drastically a defendant's 
liberty unless a second judicial decision-
maker, the appellate court, was convinced 
that the conviction was in accord with 
law." 469 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." re
Id. *956 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 pro-
tect a defendant at the trial stage also apply 
at the appellate level, provided the appeal 
is a matter of right. 
FN2. Justice Rehnquist, writing in 
dissent, vehemently objected to this 
characterization 
as 
"inconsistent 
with the general view of state app 
late review expressed ... in Ross 
Moffitt, supra, at 610-11 [, 94 S. 
at 2443-44]." 469 U.S. at ----, 105 
S.Ct. at 844. Rays can be distin-
guished, however, on the ground 
that the appeal involved in that case 
was discretionary rather than as of 
right. 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
As 
the 
Supreme 
Court 
has 
stated, 
"[p]resent federal law has made an appeal 
from a district court's judgment of convic-
tion
'
in a criminal case what is, ' effect, a 
matter of right." Coppedge 
United 
States, 369 U.S. 438, 441, 82 
.Ct. 917, 
918, 8 L.Ed.2d 21 (1962) (citing 28 U.S.C. 
H 1291, 1294; Fed.R.Crim.P. 37(a)). The 
federal courts have, therefore, made the ap-
peal "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 
The traditional purpose of bail has been to 
ensure the presence of the defendant at tri-
al. Higher bail than that amount reasonably 
calculated 
to 
fulfill 
this 
purpose 
is 
"excessive" in 
lation of the eighth 
amendment. Stack ■ Boyle, 342 U.S. 1, 5, 
72 S.Ct. 1, 3, 96 L. 
. 1 (1951). It remains 
an open question, however, whether the 
eighth amendment provides a right to bail 
in cases where the defendant' not likely 
to flee. Compare Escandar 
Ferguson, 
441 F.Supp. 53, 58 (S.D.Fla.1 
7) (finding 
that likelihood of flight is the only 
r
consti-
tutionally permissible justificati 
for deni-
al of bail) with United States 
Edwards, 
430 A.2d 1321 
(D.C.App.1 81), 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) T, The Supreme Court h
expressly reserved the question. Bell
Vol fish, 441 U.S. 520, 534 n. 15, 99 S.
1861, 1871 n. 15, 60 L.Ed.2d 447 (1979) 
(refusing to decide whether any objective 
other than ensuring the defendant's pres-
ence at trial may constitutionally justify 
pretrial detention). 
Page 17 
ally been allowed in all capital 
cases, but this exception falls within 
the traditional justification of p 
vention of flight. United States
Kennedy, 618 F.2d 557, 559 (9 
Cir.1980) ("It has been thought that 
most defendants facing a possible 
death penalty would likely flee re-
gardless of what bail was set, but 
those facing only a possible prison 
sentence would not if bail were suf-
ficiently high.") 
I would resolve the question left open in 
Wolfish by finding that prevention of flight 
is the only constitutionally permissible jus-
tification 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 excess-
ive 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." Ed-
wards, 430 A.2d at 1365 adiack, J., dis-
senting). See also Carlson I Landon, 342 
U.S. 5₹4, 556, 72 S.Ct. 525, 542, 96 L.Ed. 
547 (1951) (Black, J., dissenting). Regard-
less of whether the English provision that 
provided the basis for the eighth amend-
ment was more narrowly structured,FM 
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 per-
secution." Edwards, 430 A.2d at 13 
(Mack, J., dissenting) (quoting Carlson i 
Landon, 342 U.S. 524, 556, 72 S.Ct. 52 , 
542, 96 L.Ed. 547reh. 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). 
FN3. The denial of bail has historic-
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
FN4. 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). 
Although there have been hints to the con-
trary in recent Supreme Court opinions, see 
*957Carlson, 342 U.S. ft 545-46, 72 S.Ct. 
ein
at 536-37, and Sch 
Martin, 467 U.S. 
253, 104 S.C. 2403, 2 0, 81 L.Ed.2d 207 
(1984), it would be a travesty if we glibly 
abandoned the *servations of the Supreme 
Court in Stack 
Boyle, 342 U.S. 1, 4, 72 
S.Ct. 1, 3, 96 L. . 1 (1951): 
From the passage of the Judiciary Act of 
1789, 1 Stat. 73, 91, to the present Feder-
al Rules of Criminal Procedure, Rule 
46(a)(1), federal law has unequivocally 
provided that a person attested for a non-
capital offense shall be admitted to bail. 
This traditional right to freedom before 
conviction permits the unhampered pre-
paration of a defense, and serves to pre-
vent the infliction of punitment prior to 
conviction. See Hudson 
Parker, 156 
U.S. 277, 285, 15 S.Ct. 450, 453, 39 
Ltd. 424 (1895). Unless this right to bail 
before trial is preserved, the presump-
tion of innocence, secured only after cen-
turies of struggle, would lose its mean- ing. 
Thus, in my view, the Bail Reform Act vi-
olates the eighth amendment by allowing 
the denial of bail on grounds unrelated to 
the defendant's likelihood of flight. 
Even if Congress is free to define nonbail-
able offenses, certainly the allowable justi-
fications are limited. Justice Black, sitting 
as a Circuit Justice, stated that "the com-
mand of the eighth amendment that 
`excessive bail shall not be required * * * ' 
Page 18 
at the very least obligates judges passing 
upon the right to bail to deny such relief 
y for the strongest of reasons." Sellers 
■ 
Dinh Hung 
United States, 
21 L.Ed.264 (1968). See also Truon 
United States, --- U.S. ----, 89 S.Ct. 36, 
1326, 99 S.Ct.
 6, 58 L.Ed.2d 33 
Circuit Justice 1978); Harris 
nt eel 
States, 404 U.S. 1232, 92 S. 
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 51 (Burton, J., dissenting). See 
also Hunt 
Roth, 648 F.2d 114 
1
th Cir.19 ), vacated as moot in 
.Ed.2d 353 (1982) ( "... Congress and the 
Hunt, 455 U.S. 478, 102 S.Ct. I 
, 
states may reasonably legislate as to the 
right to bail for certain offenses provided 
the power is exercised rationally, reason-
ably, 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 de-
termination of his guilt, as defined in Evitts. 
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 pres-
ence at trial. Certainly, from the perspect-
ive 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 pun-
ished. VThatever penal aspects are attendant 
to such incarceration, however, are incid-
ental to the achievement of the state's prin-
ciple purpose-the protection of the integrity 
of the judicial system. 
This justification is, however, inapplicable 
in the cases before us, since the district 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
court found on a sufficient record that bail 
would ensure the presence of the defend-
ants and that neither defendant is a danger 
to the community requiring immediate isol-
ation. Thus, the only possible purpose for 
detaining them before the guilt &tenths-
lion is complete, as defined by Evens, is 
punitive. While this conclusion is not diffi-
cult 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 his-
tory 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 under-
mine 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. & Ad-
min.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 Cons., 2d Sess. (1982). As the court 
D(
noted in its memorandu *958 opinion and 
order in United States 
Cirrincione, 600 
F.Supp. 1436, 1443 (N. . 11.1985): 
By viewing the restrictions on release 
pending appeal to be a deterrent to crime, 
Congress must have concluded that a sen-
tence that commences immediately upon 
conviction is somehow more severe than 
a sentence which commences only after 
appeal. Certainly a sentence which com-
mences before, rather than after, appeal, 
is more certain to be served. 
Indeed, in the approximately ten percent of 
all criminal cases in which the appellate 
courts reverse convictionspo there is a 
Page 19 
substantial likelihood that persons will 
serve time in prison who would not other-
wise have served at all, since some of these 
reversals will result in dismissals and even 
retrial will not necessarily result in convic-
tion. 
FNS. Annual Report of the Director 
of the Administrative Office of the 
United States Courts, Table B-1, p. 
228 (1984). 
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 con-
clude 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 punit-
ive nature of the statute leads me to con-
clude that the statute also violates the due 
process clause and the ex post facto clause. 
THE DUE PROCESS CLAUSE 
The liberty protected by the fifth amend-
men includes freedom from punishment. 
Belli 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, 469 U.S. at 
----, 105 S.Ct. 831, the prohibition against 
punishment is still applicable while the de-
fendant is awaiting his appeal. 
The Supreme Court "has recognized a dis-
tinction between punitive measures that 
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765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
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 gov-
ernmental 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 im-
posing punishment prior to a final adjudic-
ation of guilt. 
The infirmity of the new statute has anoth-
er 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. 
While I have been unable to make a precise 
calculation, such figures as are available 
suggest that approximately sixty-three per-
cent 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 in-
to our calendar an examination of cases 
where the only test for denial of bail is 
frivolity. But the test that the majority im-
poses ensures, as night to day, that if we 
take our duties under Rule 9 of the Rules of 
Page 20 of 24 
Page 20 
Appellate Procedure seriously, we have 
*959 just added a mini-appeal in a large 
percentage of direct criminal appeals to our 
already unmanageable docket. Even the 
majority admits that "[ijn the final analys-
is, we cannot define blanket categories for 
what will constitute `substantial' questions 
under § 3143(6)(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 re-
quired to give conscientious judicial scru-
tiny to the determination of that issue will 
be substantial. 
Notwithstanding the fact that the trial court 
makes the initial determination, the sub-
stantiality 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 tan-
tamount to a harmless error determination. 
At this point the mini-appeal is no longer a 
mini-appeal. We have a duty to find harm-
lessness 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 nsk that in our overburdened state 
the bail decisions will not be adequately re-
viewed. 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 prob-
lems are simply the inevitable product of 
the pressures of our dockets and the nature 
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765 F.2d 944. 53 USLW 2628 
(Cite as: 765 F.2d 944) 
of the human mind. 
EX POST FACTO 
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 
cruse
tie
was consummated." 
Weaver 
Graham, 450 U.S. 24, 30, 101 
S.Ct. 96 , 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 oc-
curring 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 di 
vantaged thereby. See, e.g., Dobbert 
Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 
L.Ed.2d 344 (1977), reh. denied,434 U.S. 
882, 93.Ct. 246, 54 L.Ed.2d 166 (1977); 
Beate!! 
Ohio, 269 U.S. 16;:i46 S.Q. 68, 
70 L. . 216 (1925); Hopt 
Utah, 110 
U.S. 574, 4 S.Ct. 202, 28 L. 
262 (1884). 
In other cases, however, the Court has 
noted that a procedural change may so af-
fect substantial rights as to fall within tip 
s(
ex post facto prohibition. See, e. ., Kring 
Missouri, 107 U.S. 221, 2 
. 443, 27 
L.Ed. 506 (1883); Thompson 
Utah, 170 
U.S. 343, 18 S.Ct. 620, 42 
.Ed. 1061 
(1898). I need not linger long over the 
body of law addressed to the fine distinc-
tions between those procedural changes 
that do affect substantial rights and those 
that do not, however, in light of the legis-
lative history indicating that Congress in-
tended the provision to b 
unitive. As the 
Court noted in Deveau 
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): 
Page 21 of 24 
Page 21 
The mark of an ex post facto law is the 
imposition of what can fairly be desig-
nated 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 in-
dividual for past activity, or whether the 
restriction comes about as a relevant in-
cident to a regulation of a present situ-
ation.... 
As the court found in Cirrincione,"the 
post-conviction bail restrictions are not un-
related to punishment nor merely incidental 
to regulation of a present situation." 600 
F.Supp. at 1443. Rather, the provisions 
*960 impose on defendants what Congress 
viewed as the harsher punishment of a sen-
tence that must be served immediately 
rather than after the conclusion of the ap-
peal. 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 serious-
ness of incarceration. Because the provi-
sions are principally and fundamentally 
penal, they are irreconcilable with the no-
tion that a person may be punished only to 
the extent that the law allowed at the time 
he committed the crime. 
PRE-TRIAL DETENTION 
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 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
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: 
It is difficult to reconcile with traditional 
American law the jailing of persons by 
the courts because of anticipated but as 
yet uncommitted crimes. Imprisonment 
to protect society from predicted but un-
consummated offenses is so unpreceden-
ted in this country and so fraught with 
danger of excesses that I am loath to re-
sort to it, even as a discretionary judicial 
technique.... 
Williams 
United States, 184 F.2d 280, 
282-83 (2 Cir.1950). Professor Tribe has 
noted that this approach bears a striking 
similarity to the exchange in Lewis Car-
roll's Through the Looking Glass: 
The Queen observes that the King's Mes-
senger is "in prison now, being punished; 
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. 
Tribe, An Ounce of Detention: Preventive 
Justice in the World of John Mitchell, 56 
Va.L.Rev. 371, 374 (19'70) (quoted in Ed-
wards, 430 A.2d at 1368 (Mack, J., dis-
senting)). 
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 de-
pends on one's experience. From our priv-
ileged 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 
Page 22 
be more mindful of the past failings of our 
own country in this regard, and more in-
clined to bolster the safeguards against fu-
ture lapses, if wi were of Japanese origins. 
See Korematsu 
United States, 323 U.S. 
214, 65 S.Ct. 1 3, 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 de-
tention might be similarly heightened
we were black or poor. See F'urman 
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 
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 Su-
preme Court chronicled our history of ra-
cial and economic disparity in the execu-
tion of accused persons). 
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 circum-
vention 
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 fi-
nally 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 *961 
enhanced effectiveness to the criminal 
justice system. 
I would grant both petitions to admit to bail 
pending appeal. 
SEYMOUR, Circuit Judge, dissenting. 
I generally agree with most of what Judge 
McKay has written and I therefore join his 
dissent. I write separately to note two things. 
First, I am not convinced that likelihood of 
flight is the sole consideration that may be 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
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 other-
wise 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 con-
tours of "likely to ... pose a danger to the 
safety of any other person or the corn-
mumty,"18 U.S.C. § 3143(b)(1), must be 
left to the appropriate cases. 
Second, it is unfortunate that Congress has 
chosen to limit bail pending appeal as a re-
action 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 Man-
agement 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. 
In a bail opinion in 1956, Justice Frank-
furter addressed the growing length of time 
of criminal appeals: 
"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 ap-
pellate 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. Applica-
tions for appeals are heard in the English 
Court of Criminal Appeal within eight 
weeks of conviction; in murder cases ap-
peals `are generally before the Court not 
Page 23 of 24 
Page 23 
later than three weeks after the convic-
tion.' " 
Ward 
6United States, --- U.S. ----, 76 
S.Ct. 
3, 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 putting upon the convicted defend-
ant 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 ap-
peal 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 ap-
peal. This is especially desirable in a case 
where bail has been denied." 
Id. 76 S.Ct. at 1067. 
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 
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765 F.2d 944 
765 F.2d 944, 53 USLW 2628 
(Cite as: 765 F.2d 944) 
days of conviction. If at the time of oral ar-
gument the panel determines that an issue 
is in fact *962 substantial and likely to res-
ult 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 in-
volved where bail has been denied to a de-
fendant whose conviction is thereafter 
overturned on appeal. 
C.A.)1,1985. 
U.S. . Affleck 
765 .2d 944, 53 USLW 2628 
END OF DOCUMENT 
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
Case No: 
D 
18 U.S.C. § 371 
18 U.S.C. § 1591(a)(1) 
18 U.S.C. § 1591(a)(2) 
18 U.S.C. § 2422(b) 
18 U.S.C. § 2423(e) 
18 U.S.C. § 2423(d) 
18 U.S.C. § 2423(b) 
UNITED STATES OF AMERICA 
vs. 
R 
JEFFREY EPSTEIN, 
SARAH KELLEN, 
ADRIANA ROSS, a/k/a "Adriana Mucinska," 
and NADIA MARCINKOVA, 
Defendants. 
INDICTMENT 
The Grand Jury charges that: 
BACKGROUND 
At all times relevant to this Indictment: 
1. 
Defendant JEFFREY EPSTEIN employed defendants SARAH KELLEN, 
ADRIANA ROSS, a/k/a "Adriana Mucinska," and NADIA MARCINKOVA to perform, 
among other things, services as personal assistants. 
dl
4 
EFTA00191724

2. 
Defendant JEFFREY EPSTEIN employed L.G. to perform, among other 
things, services as a personal assistant. 
3. 
Defendants JEFFREY EPSTEIN and SARAH KELLEN paid T.M., H.R., and 
A.F. to pe orrn, among other things, recruiting services. 
4. 
Defendant JEFFREY EPSTEIN owned a property located at 358 El Brillo Way, 
Palm Beach, Florida, in the Southern District of Florida (hereinafter referred to as "358 El 
Brillo Way"). 
5. 
DefendRJEFFREY EPSTEIN owned a property located at 9 East 71st Street, 
New York, New York (hereinafter referred to as "the New York residence"). 
6. 
Defendant JEFFREY EPSTEIN was the principal owner of JEGE, INC., a 
Delaware corporation. JEGE, INC.'s sole business activities related to the operation and 
ownership of a Boeing 727-31 aircr# bearing tail number N908JE. 
7. 
Defendant JEFFREY EPSTEIN served as president, sole director, and sole 
shareholder of JEGE, INC., and had the power to direct all of its operations. 
8. 
Defendant JEFFREY EPSTEIN was the principal owner of Hyperion Air, Inc., 
a Delaware corporation. Hyperion Air, Inc.'s soled, iness activities related to the operation 
and ownership of a Gulfstream G-1159B aircraft bearing tail number N909JE. 
9. 
Defendant JEFFREY EPSTEIN served as president, sole director, and sole 
shareholder of Hyperion Air, Inc., and had the power to direct all of its operations. 
T 
2 
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10. 
Pursuant to Florida Statutes Section 794.05, a "person 24 years of age or older 
who engages in sexual activity with a person 16 or 17 years of age commits a felony of the 
second degree." For purposes of "this section, `sexual activity' means oral, anal, or vaginal 
penetrabby, or union with, the sexual organ of another; however, sexual activity does not 
include an act done for a bona fide medical purpose." Florida Statutes Section 794.021 states 
that "ignorance of the age [of the victim] is no defense," and that neither "misrepresentation 
of age by [the victim] nor a bona fide belief that such person is over the specified age [shall] 
be a defense." 
R 
11. 
Pursuant to Florida Statutes Sections 800.04(5)(a) and 800.04(5)(c)(2), an adult 
"who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, 
or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or 
entices a person under 16 years of agpcso touch the perpetrator, commits lewd or lascivious 
molestation," which is a felony of the second degree if the victim is 12 years of age or older 
but less than 16 years of age. 
12. 
Pursuant to Florida Statutes Sections 800.04(6)(a) and 800.04(6)(b), an adult 
"who [i]ntentionally touches a person under 16 yr of age in a lewd or lascivious manner 
or [s]olicits a person under 16 years of age to commit a lewd or lascivious act commits lewd 
or lascivious conduct," which is a felony of the second degree. 
3 
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