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UNITED STATES v. DAVIS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


November 21, 1984

UNITED STATES OF AMERICA, against GEORGE G. DAVIS, Defendant.

The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

On June 17, 1984, this Court sentenced defendant George G. Davis to a term of three years' imprisonment and a fine of $10,000, following his conviction by a jury on charges of one count of conspiracy in violation of 18 U.S.C. ยง 371. While defendant's conviction was pending appeal, the Government moved to revoke his bail and remand him to commence service of the sentence. The Government based that motion upon the Bail Reform Act of 1984, P.L. No. 98-473, signed by the President into law on October 12, 1984. Section 3143(b) of that statute provides:

 "(b) RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT. -- The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds --

 "(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety or any other person or the community if released pursuant to section 3142(b) or (c); and

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

 "If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c)." (emphasis added).

 The use of the conjunctive indicates that the judge is under an obligation to detain the defendant -- the statute uses the phrase "shall order" that the convicted defendant be detained -- unless the separate findings summarized by subsection (b)(1) and (2) are both made.

 In the case at bar, during the pendency of the Government's application, the Court of Appeals for the Second Circuit affirmed Davis's conviction by order filed on November 5, 1984. The conviction was affirmed summarily on the basis of this Court's prior opinions in the case; the Court of Appeals states: "We have considered all of appellant's arguments and they are without merit."

 While defendant still has the right to petition the United States Supreme Court for a writ of certiorari, the statute by its own terms embraces that additional appellate step; and I am hardly in a position, in these circumstances, to find that Davis's further appeal would raise "a substantial question of law or fact likely to result in reversal or an order for a new trial," as required by subsection (b)(2).

 While the statute significantly reduces the availability of bail following conviction in criminal cases, that was the clear intent of Congress. The Senate Judiciary Committee Report accompanying the bill, S.Rep. 98-225, 98th Cong., 1st Sess. (September 12, 1983) at 26 observed: ". . . the current statute incorporates a presumption in favor of bail even after conviction.It is the presumption that the Committee wishes to eliminate in Section 3143." The requisite judicial findings that the appeal not be taken for the purpose of delay and that it raises a substantial question of law or fact; likely to result in reversal or order for a new trial, are characterized collectively as "a further restriction on postconviction release." Id. at 27.

 Davis's primary argument in resisting revocation of bail and remand is that the 1984 statute should not be applied "retroactively," so as to govern the bail and remand status of a defendant convicted prior to the date when the statute became effective. His argument must be that the statute has impermissible ex post facto characteristics; but it does not. Dobbert v. Florida, 432 U.S. 282, 293, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977), clearly holds within a sentencing context that "the prohibition of ex post facto laws does not extend to every change of law that "may work to the disadvantage of a defendant". It is intended to secure "substantial personal rights' from retroactive deprivation and does not "limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Rehnquist, Circuit Justice, in Portley v. Grossman, 444 U.S. 1311, 1312, 62 L. Ed. 2d 723, 100 S. Ct. 714 (1980). These principles govern the case at bar. Davis's substantive personal rights, in contesting his guilt or pressing an appeal, are not affected by the Bail Reform Act of 1984. His entitlement to bail, and the criteria by which that entitlement will be measured, constitute "modes of procedure" falling outside the ex post facto rule, notwithstanding the fact that increased restrictions upon bail pending appeal may undoubtedly "work to the disadvantage" of defendants.

 At oral argument on the application, the prosecutor pressed for instant remand, or at the most at bench warrant with execution stayed for 24 hours. The Court raised the question of the voluntary surrender program. That program received the endorsement of Deputy Attorney General Charles B. Renfrew (a former federal district judge) in his letter of April 28, 1980 to the Director of the Administrative Office of the United States Courts. The Deputy Attorney Genereal wrote:

 "Over 20 percent of all commitments from the Federal courts how voluntarily place themselves in the custody of the U.S. Marshall or report to the institution where they are designated to serve their sentencves. The cost savings to the government are significant; a study by the Bureau of Prisons of all voluntary surrenders for the three months of July, August, and September, 1979, found that the cost savings to the Federal government amounted to over $500,000 during that short period. In addition to savings in the costs of transportation and temporary imprisonment, voluntary surrender in most instances is also preferable to the inmate and to the inmate's family."

 * * *

 "I would like to urge all Federal judges to give serious consideration to the possibility of ordering voluntary surrender when persons are committed to serve time in Federal custody. I would expect that voluntary surrender might be found appropriate for a majority of offenders at los custody levels, and may also be possible for many offenders at higher custody levels. From the standpoints both of costs to the Federal government and the sensibilities of inmates and their families, voluntary surrender ought to be preferred whenever it is consistent with the public safety and the orderly administration of justice."

 The prosecutor's response at oral argument, if I understand it correctly, would as a practical matter do away with this salutary program, since the Government appears to construe the statutory phrase "be detained" to mean "be detained immediately." But I may enforce the Bail Reform Act of 1984 without scuttling a program which, for obvious reasons, the Justice Department holds in high regard; and I decline to do so in the case at bar.

 Defendant Davis will accordingly be directed to surrender voluntarily, and at his own expense, to the facility designated by the Bureau of Prisons. I am informed in the Government's letter to me of November 16, 1984 that the Bureau of Prisons has in fact designated the defendant to commence service of his sentence at the Federal Correctional Institution in Tallahassee, Florida. While typically the advice as to the designated institution comes from the Bureau of Prisons directly, I have no reason to doubt the representation of counsel. Accordingly defendant Davis is directed to report directly to that institution, at his own expense, not later than 12:00 noon on November 26, 1984. I hereby direct that a bench warrant for the arrest of defendant Davis be issued, but stay its execution until the same date and hour.

 I have considered defendant's other arguments on the present application, and find them to be without merit.

 The Government's motion for revocation of bail and remand is granted, consistent with this opinion.

 It is SO ORDERED.

19841121

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