decided: August 21, 1979.
UNITED STATES OF AMERICA
ANTHONY PROVENZANO, APPELLANT IN NO. 79-1912 AND THOMAS ANDRETTA, APPELLANT IN NO. 79-1913
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Adams, Rosenn and Higginbotham, Circuit Judges.
Opinion OF THE COURT
The present appeal raises important questions concerning motions for bail pending review of judgments of conviction.
It is this nation's policy that one convicted of a crime shall be entitled to bail while appealing his conviction, unless no set of conditions upon release will reasonably assure that he will not flee or pose a danger to the community.*fn1 Here, the district court denied two motions for release on bail pending appeal solely on the second of these grounds, namely, that no set of conditions could assure that the defendants, if left free, would not pose a danger to the community. The applicants now renew their motions for release on bail in this Court. Resolution of these motions requires us to decide initially the standard by which an appellate court should review district court orders denying bail during the pendency of judicial review. Our answer to that question then renders necessary consideration of the allocation of the burden of establishing that a defendant poses a risk of flight or a risk of harm to the community, as well as the kinds of harm and particular factors pertinent to that determination.
Anthony Provenzano and Thomas Andretta have moved this Court for an order releasing them on bail pending their appeal from convictions in federal district court of violations of the federal racketeering laws.*fn2 The indictment charged and the jury found that the appellants, along with two co-defendants,*fn3 corruptly used their positions of influence over the Teamsters Union for their own pecuniary gain. On July 10, 1979, the trial judge imposed on each defendant a sentence of twenty years imprisonment and a fine of $20,000.00.
Immediately following the imposition of the sentences, the prosecution requested the trial judge to remand the appellants into custody without bail.*fn4 The appellants, in turn, moved the trial judge, pursuant to Federal Rule of Appellate Procedure 9(b), for an order releasing them on bail pending appeal of their convictions. Although explicitly recognizing the strong presumption inherent in the Bail Reform Act in favor of granting bail pending appeal, the trial judge denied the motions on the ground that Provenzano and Andretta, if left free pending appeal, would each constitute a danger to the community.*fn5
The trial judge specifically refused to base his decision, even in part, on the grounds that the appellants either posed a risk of flight or were pursuing frivolous appeals. Indeed, he declared that given appellants' ties to the community and their record of previous court appearances, bail could be set so as to minimize risk of flight. Similarly, while doubting the merits of the appeals and disclaiming the existence of any judicial error, the trial judge emphasized that such judgments should more aptly be left to this Court, and also declined to deny bail on that ground. In predicating his decision solely on the determination that the appellants pose a danger to the community, the trial judge recognized the ambiguity inherent in the clause "danger to . . . the community." His review of cases interpreting that provision, however, convinced him that pecuniary harm, as well as physical danger, was clearly contemplated within the meaning of the Act.*fn6
In reaching his decision that Provenzano and Andretta posed a danger to the community, the trial judge considered the appellants' histories, including information contained in their presentence reports. He noted in particular that this was Provenzano's third federal felony conviction dealing with some form of labor extortion or racketeering. Of even greater significance to the trial judge was Provenzano's continued "substantial and undesirable" influence within the Teamsters Union, as evidenced by Local 560's munificence toward him during his previous incarcerations as well as his continued control, through his family, of the union.*fn7 Concluding that he would continue to exercise his influence within the union corruptly and in violation of the criminal law, the trial judge found that Provenzano's freedom pending appeal would constitute a danger to the community.
The trial judge dealt similarly with Andretta's motion for release. Andretta possesses a record of violent criminal activity which includes one grand larceny and five felony convictions. On the basis of this background, the trial judge declared that Andretta "was probably incapable of leading a life free from the commission of crime,"*fn8 and that he, too, therefore constituted a community danger.
Accordingly, on July 12, 1979, the district court ordered the bail previously imposed on the defendants revoked, and remanded them into custody. Provenzano and Andretta then renewed their motions in this Court for an order releasing them on reasonable bail pending appeal.*fn9
Federal Rule of Appellate Procedure 9(c),*fn10 by expressly incorporating the criteria for release enunciated in the applicable provisions of the Bail Reform Act,*fn11 governs an applicant's eligibility for bail or other release pending review of his conviction in federal court. Although there is no absolute right to release on bail pending appeal,*fn12 the Bail Reform Act favors post-trial as well as pre-trial release. Its directive that courts must consider a convicted appellant's potential danger to another person or to the community distinguishes such treatment from that accorded non-convicted persons, however, and reflects Congress's attempt to reconcile the appellant's interest in freedom during the pendency of judicial review and society's interest in preventing individuals convicted of crimes from absconding or endangering the community.*fn13
Section 3148 of the Act lists the three questions courts must answer in the negative before admitting an applicant to bail pending disposition of his appeal:
(1) Is the appeal frivolous or taken for delay?
(2) Is there reason to believe that no set of conditions will reasonably assure that the person will not flee?
(3) Is there reason to believe that no set of conditions will reasonably assure that the person will not pose a danger to any other person or to the community?
If it appears that an appeal lacks requisite legal merit or is taken for delay, or that the applicant poses an unreasonable risk of flight or danger, the court possesses discretion to order his detention. If not, then the court must order the applicant's release, albeit with appropriate conditions, in accordance with the provisions of section 3146.*fn14 Despite the Act's embodiment of a strong presumption in favor of post-trial as well as pretrial release, "both its structure and its interpretation underscore the delicacy of the determinations which must precede any ruling on that score."*fn15
The initial resolution of a convicted defendant's motion for release pending appeal has traditionally been entrusted to the trial judge.*fn16 Federal Rule of Appellate Procedure 9(b) now explicitly provides what the Bail Reform Act contemplated: that an application for release after a judgment of conviction be made in the first instance to the district court, notwithstanding that the jurisdiction of the court of appeals has already attached by virtue of the appeal from the judgment of conviction.*fn17 The justification for such a requirement stems from the trial court's superior capacity, at least in the first instance, to gather and sift the pertinent information necessary to the correct determination of motions for release pending appeal. Once the district court refuses release, however, Rule 9(b) permits the applicant to submit a motion for release to the court of appeals or a judge thereof.
The "need for ample information," as the Court of Appeals for the District of Columbia Circuit recently emphasized, "is particularly acute to investigations of potential danger to the community."*fn18 A finding that one convicted of a crime poses a danger to the community necessitates predictions of future behavior that "must rest on a "scrupulous inquiry' "*fn19 into an applicant's past, his prospects if released, and any possible conditions of release that might mitigate the danger he poses. Evaluating the harvest of such an inquiry necessarily implicates elements of discretion peculiarly within the competence and experience of the trial court. Given the trial judge's familiarity with the circumstances of a case, his opportunity to observe an applicant's demeanor at trial, and his ability to marshal the relevant informational sources in order to "probe for what is obscure, trap what is elusive, and settle what is controversial,"*fn20 sound practice dictates that applicants seek release in the first instance in the trial court.
These considerations have led a number of courts to declare that the determinations involved in the consideration of motions for release pending appeal rest in the trial court's sound discretion.*fn21 And indeed, the deference and respect appellate courts accord such determinations evidence the genuine importance of a trial court's careful exercise of this discretion. But our recognition of the trial court's central role in the resolution of a bail application in the first instance does not compel our acceptance of the government's contention, supported by some authority,*fn22 that only a clear abuse of discretion justifies reversal of a trial court's order denying bail. We adhere instead to the view that courts of appeals must independently assess the merits of applications for release on bail pending appeal once denied by the trial court. Even though initial processing by the trial judge is apt to make a contribution to any subsequent consideration of bail, our responsibility in the statutory scheme, as the Court of Appeals for the District of Columbia has asserted, "is not merely appellate but includes the duty to make an independent determination of all relevant factors."*fn23
The propriety of an independent assessment by the court of appeals derives support from the employment of a corresponding standard of review by individual Justices of the Supreme Court, sitting as Circuit Justices, when adjudicating a bail application that both the district court and the court of appeals have disposed of otherwise than by unconditional release.*fn24 A series of recent in-chambers opinions uniformly establish that although district court decisions respecting bail are entitled to "great deference," a Circuit Justice has a non-delegable responsibility to make an independent determination of the merits of the application.*fn25 We can perceive no reasons of policy for expecting a Circuit Justice independently to assess the merits of an application for release pending appeal and yet not expect a panel of a court of appeals to assume that same obligation. Indeed, as a practical matter, such a procedure would risk burdening Circuit Justices with a stream of unnecessary motions for release. For applicants denied release in the court of appeals would still have reason to hope for a favorable decision under the less restrictive standard of review that a Circuit Justice would be expected to apply in reviewing a subsequent motion.
The specific provisions of both the Bail Reform Act and Rule 9 of the Federal Rules of Appellate Procedure furnish additional support for this position. Although the Act requires a court to affirm an order detaining a person prior to trial "if it is supported by the proceedings below,"*fn26 it expressly exempts from that requirement decisions regarding motions for release on bail after conviction.*fn27 On the contrary, decisions as to release pending appeal from conviction, in the court of appeals as well as the district court, explicitly depend on what "the court or judge has reason to believe."*fn28 Moreover, Rule 9(b) instructs both the district court and the court of appeals to decide motions for release "promptly upon such papers, affidavits, and portions of the record as the parties shall present."*fn29 Because this requirement permits consideration by the court of appeals of evidence that may not have been before the trial judge, it, too, indicates that the court of appeals should independently determine such applications.
The standard of review announced here, however, does not imply that courts of appeals are free to ignore a trial judge's supporting statement of reasons for his action. Rather, as Judge Robinson has indicated, Rule 9(b)"s twin requirements that release pending judicial review be sought initially in the district court and that trial judges state their reasons when refusing release or imposing conditions thereon "mandate that circuit judges give those reasons respectful consideration in arriving at their own decisions on bail."*fn30 But if after careful assessment of the trial judge's statement explaining the reasons for the order regarding the applicant's motion, together with such papers, affidavits and portions of the record as the parties present, the court of appeals or a judge thereof independently reaches a conclusion different from the trial judge's, we have no doubt of this Court's power to set bail pending appeal.*fn31
Having determined our obligation to assess independently an applicant's motion for release as well as the trial judge's decision thereon, we now proceed to ascertain whether any set of conditions would reasonably assure that releasing the applicants in this case would not pose a danger to the community. We note that this determination represents a critical decision that courts must face in their evaluation of motions for release pending appeal. "Superficial treatment of this question will lead to neither justice for the individual nor safety for the community."*fn32
Before the enactment of the Bail Reform Act, in the absence of any specific provision governing release pending appeal, federal courts exercised broad discretion in bail matters, taking into account an array of various considerations.*fn33 The Act's provisions regarding bail pending appeal, however, now effectively limit judicial consideration in these matters to two relevant criteria: the risk that the defendant will flee and the risk that he will pose a danger if admitted to bail.*fn34 Furthermore, the Bail Reform Act imposes a duty on federal courts not only to determine whether an applicant poses such risks, but also to measure them "in terms of conduct that cannot be reasonably safeguarded against by an imposition of conditions upon the release."*fn35 Given this statutory responsibility to set whatever restrictions on release are necessary to ensure against an applicant's flight or potential danger, bail should be denied under the Bail Reform Act only as a matter of last resort. In particular, the danger to the community posed by the defendant must be of such dimension that only his incarceration can protect against it.*fn36 Whenever a court can fashion the conditions of an applicant's release in such manner that the danger may be averted, it must do so and grant the motion for release. Decisions in cases involving bail applications pending appeal prior to the Bail Reform Act clearly placed the burden of establishing the risk of danger to the community on the government,*fn37 and firmly established the principle that doubts whether bail should be granted or denied should be resolved in the applicant's favor.*fn38 The Act left these principles essentially unchanged specifying that a denial of bail is justified only if a "court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger"*fn39 and courts interpreting the Act's provisions continued to abide by them in subsequent decisions.*fn40 But the enactment of Federal Rule of Appellate Procedure 9(c), inverted both this burden of proof allocation and the attendant principle of resolving doubts in the applicant's favor at the same time it incorporated the Bail Reform Act's criteria for release.*fn41 In effect, the rule thus combined "criteria devised to liberalize the granting of bail pending appeal with an allocation of the burden of proof designed to have the opposite effect."*fn42
Rule 9(c) provides in part: "The burden of establishing that the defendant will not flee or pose a danger to . . . the community rests with the defendant." The Advisory Committee's Note to this rule explains that the burden of persuasion is placed upon the defendant in the case of bail applications pending appeal because "the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal."*fn43 Although Andretta nowhere mentions or alludes to Rule 9(c), Provenzano concedes that a defendant has the burden of establishing that he does not pose a danger to the community. But Provenzano contends nevertheless that "the cases have uniformly looked to the evidence submitted by the Government in order to determine whether the defendant represents such a danger."*fn44 As the Government's brief indicates,*fn45 however, all the cases cited by Provenzano in support of that contention are not persuasive here inasmuch as they predate the amendment.
One commentator has recently argued that Rule 9(c)"s displacement of the burden "abrogates the policy cornerstone"*fn46 upon which the Bail Reform Act's criteria rest, "rendering hollow"*fn47 its requirement that one convicted of a crime shall be entitled to bail "unless the court or judge has reason to believe"*fn48 that no conditions of release will reasonably assure that he will not pose a danger to the community. However that may be, we believe that Rule 9(c), by explicitly requiring the defendant to shoulder the burden of persuading the court that he will neither flee nor pose a danger to the community, elevates these factors to a higher level of importance.*fn49 Moreover, judicial decisions subsequent to the 1972 amendment appear to have accepted without question the intent of Rule 9(c) that applicants for bail pending appeal establish that they pose neither a risk of flight nor a risk of harm.*fn50
The Bail Reform Act specifies neither the kinds of harm nor the particular factors to be considered in determining whether a defendant poses a danger to the community. The trial judge's study of decisions interpreting the Act's "danger to . . . the community" provision, however, convinces him that courts are not confined in such cases to considering only harms involving an aura of violence. We agree and hold that a defendant's propensity to commit crime generally, even if the resulting harm would be not solely physical, may constitute a sufficient risk of danger to come within the contemplation of the Act.*fn51
In reaching a decision whether a defendant, if released pending appeal, would pose a danger to the community, a trial judge may properly consider the nature and circumstances of the crime.*fn52 In addition, a court may take notice of the defendant's presentence report, including information regarding the accused's prior criminal record, pending criminal charges, his demeanor at trial, and any other information indicative of the defendant's propensity to commit crime generally, or otherwise endanger the community.*fn53 Our review satisfies us that all these factors properly played a role in the trial judge's ultimate determination that Provenzano and Andretta each posed a danger to the community.
As the district court noted, Provenzano has had three federal felony convictions, all dealing with some form of labor extortion or racketeering. Moreover, the trial court found, on the basis of the Union's largess toward Provenzano during previous incarcerations and the continued control exercised by Provenzano's family, that if released Provenzano would have additional opportunity to exercise a substantial and corrupting influence within the Union. In the absence of any evidence produced by Provenzano that he would not continue corruptly to utilize his influence in the Union, other than his personal assurances that at the age of 62 he would no longer participate in its affairs, we conclude that he has not met his burden of demonstrating that he does not pose a danger to the community, or that conditions exist which if imposed would protect society against such a danger.*fn54
Andretta also has a substantial criminal record, that includes violent acts and threats among convictions of one grand larceny and five felony charges. Although the mere recitation of a defendant's criminal record is not sufficient to establish his potential danger to the community, relevant portions of a defendant's criminal record certainly may be selectively considered.*fn55 Andretta's record, as the trial judge observed, reveals a marked propensity to commit serious crime that poses a substantial danger to the community. On the basis of the papers, briefs, and other portions of the record, we conclude that Andretta has similarly failed to meet his burden of establishing that no one or more conditions of release will ensure against such a danger.*fn56
Accordingly, the applicants' motions for an order releasing them on bail during the pendency of their appeal are hereby denied.