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The 1984 Bail Reform Act’s enumeration of a defendant’s rights at a hearing on pretrial release were not repeated when Congress turned to the hearings on bail revocation. To fill this gap, the Second Circuit has held that the defendant must be allowed to testify and present evidence, and the district court must make specific findings and give reasons if bail is revoked. U.S. v. Davis, 845 F.2d 412, 413 (2d


Cir. 1988). The Court held that a pretrial release hearing and a bail revocation hearing are similar and thus the same protections should be provided. U.S. v. Davis, 845 F.2d 412, 413 (2d Cir. 1988).




The Fifth Circuit has held that a preponderance of the evidence standard applies in revoking bail based on a belief that released defendant has violated his conditions of release. U.S. v. Aron, 904 F.2d 221(5th Cir. 1990) (revocation of release order allowed because defendant’s attempt to intimidate witness violated release condition and was sufficient to establish be preponderance of evidence that defendant would violate conditions again); See also U.S. v. Gatti, 794 F.2d 773 (2d Cir. 1986) (noting government has lesser burden in revocation of bail than at initial detention hearing which requires clear and convincing evidence).




After trial, the Defendant may also seek release on Bail pending sentencing or otherwise, persons seeking bail pending appeal may obtain it upon showing that they will not flee, are not a danger to the community and that their appeals raise a substantial question of law which is likely to result in reversal or an order for a new trial.

The statute sounds as if bail is entirely unavailable in drug cases where the punishment exceeds 10 years; is a crime of violence or has a sentence of life or death. 18 U.S.C. § 3143 (b)(2). However 18 U.S.C. § 3143 (c) allows release of such persons if “there are exceptional reasons why such person’s detention would not be appropriate.” The fact that an appeal will likely be successful provides an “exceptional reason.” U.S. v. DiSomma, 769 F. Supp. 575, 576 (S.D.N.Y.) affirmed 951F.2d 494 (2nd Cir. 1991).




Of course, the fact that the Trial Court has already ruled adversely on issues raised by a defendant’s appeal is not the appropriate inquiry, U.S. v. Valera-


Elizondo, 761 F.2d 1020 (5th Cir. 1985)12, otherwise no Appellant would be eligible for bail pending appeal. The statute does not require a court to second guess its own decisions in order to determine that an individual should be released pending his appeal. Instead the court must make two inquiries. First, it must ask whether the appeal raises questions which could be decided either way. Second, it must assume such questions will be decided in Defendant’s favor and then decide whether this will result in a reversal of the conviction or the grant of a new trial.

U.S. v. Powell, 761 F.2d 1227, 1233-1234 (8th Cir. 1985).





A substantial question is one that is either novel or is fairly debatable, not one which would require the District Court to determine the likelihood of its own error. U.S. v. Handy, 761 F.2d 1279 (9th Cir. 1985). Moreover, to be entitled release pending appeal the Defendant must demonstrate that this “fairly debatable” question is of the type that can result in a reversal of Defendant’s conviction.


“‘Substantial’ defines the level of merit of the question presented and ‘likely to result in reversal or an order for a new trial’ defines the type of question that must be presented’… ‘[T]he statute simply requires the defendant demonstrate the existence of a substantial or ‘fairly debatable’ question of the type that calls into question the validity of the judgment.’” U.S. v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir. 1985) (quoting U.S. v. Handy, 753 F.2d 1487 (9th Cir. 1985)).


12 “‘The statutory language requiring a finding that the appeal “raises a substantial question of law or fact likely to result in reversal or an order for a new trial” cannot be read as meaning, as the district court apparently believed, that the district court must conclude that its own order is likely to be reversed…[W]e are willing to attribute to Congress the cynicism that would underlie the provisions were it to be read as requiring the district court to determine the likelihood of its own error. A district judge who, on reflection, concludes that s/he erred may rectify that error when ruling on post-trial motions. Judges do not knowingly leave substantial errors uncorrected, or deliberately misconstrue applicable precedent. Thus, it would have been capricious of Congress to have conditioned bail only on the willingness of a trial judge to certify his or her own error.”’ U.S. v. Valera-Elizondo, 761 F.2d 1020, 1022-1023 (5th Cir. 1985)[quoting U.S. v. Miller, 753 F.2d 19, 23 (3d Cir. 1985).


This seminal case applying the statutory requirements for bond pending appeal, U.S. v. Powell, 761 F.2d 1227, 1233-34 (8th Cir. 1985), sets out a “close question” test for determining whether a question is substantial.


“[A] defendant who wishes to be released on bail after the imposition of a sentence including a term of imprisonment must first show that the question presented by the appeal is substantial, in the sense that it is a close question or one that could go either way…If this part of the test is satisfied, the defendant must then should that the substantial question he or she seeks to present is so integral to the merits of the conviction that it is more probably than not that reversal or a new trial will occur if the question is decided in the defendant’s favor. In deciding whether this part of the burden has been satisfied, the court or judge to whom application for bail is made must assume that the substantial question presented will go the other way on appeal and then assess the impact of the assumed error on the conviction.” Powell at 1233-34.


See also       U.S. Giancola, 754 F.2d 898 (11th Cir. 1985) (stating appeal must raise a “substantial question of law or fact, if resolved in favor of defendant, result will be reversal or new trial);


U.S. v. Miller, 753 F.2d 19 (3rd Cir. 1985)(maintaining a “substantial question of fact or law” must be either novel, not decided or controlling precedent, or fairly doubtful);


U.S. v. Smith, 793 F.2d 85 (3rd Cir. 1986)(clarifying Miller; a substantial question is one that is “fairly debatable among jurists of reason”);


Valera-Elizondo, 761 F.2d 1020 (5th Cir. 1985)(following Miller

subject to limitations imposed by Giancola);


U.S. v. Lamp, 606 F.Supp. 193 (W.D. Tex. 1985), cert. denied, 476

U.S. 1144 (1986), cert. denied sub nom, Eberwine v. U.S. 477 U.S. 908 (1986);


U.S. v. Crabtree, 754 F.2d 1200 (5th Cir. 1985); U.S. v. Bayko, 774

F.2d 516 (1st Cir. 1985); U.S. v. Randell, 761 F.2d 122 (2nd Cir.

1985); U.S. v. Pollard, 778 F.2d 1177 (6th Cir. 1985); U.S. v.

Bilanzich, 771 F.2d 292 (7th Cir. 1985).


But see         U.S. v. McManus, 651 F.Supp. 382, 383-4 (D.Md. 1987)(extenuating circumstances, innumerable letters showing community support, the defendant’s charitable and civic work and his devotion to family and handicapped wife, entitled defendant to bail pending appeal).

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