Before Garth, Rosenn and Higginbotham, Circuit Judges.
Opinion SUR MOTION FOR RELEASE PENDING APPEAL
Gerald Leycock seeks an order granting him bail pending his appeal from a judgment of conviction and sentence entered by the district court of the Virgin Islands on charges of grand larceny and robbery in the first degree. The district court denied Leycock's petition for habeas corpus which sought bail pending appeal. We will treat Leycock's appeal of the district court's order as an appeal of a denial of a motion for release pending appeal*fn1 and we will remand the case for further proceedings in the district court.
Leycock and a co-defendant were arrested on November 21, 1981 and charged with the armed robbery of more than $30,000 worth of jewelry. Leycock was 19 at the time, and, according to his counsel, had no prior criminal record, juvenile or otherwise. Leycock currently lives with his paternal grandmother in St. Croix, where he has resided continuously except for one year in 1978-79 when he lived in Texas with an aunt. Pending trial, he was released on a $20,000 property bond, which was posted by a member of the community.
On January 27, 1982, Leycock was convicted by a jury of two counts of grand larceny and one count of first-degree robbery. At trial, two female salespersons from whom the jewelry was taken identified Leycock as one of the two armed robbers. The district court immediately revoked Leycock's bail pending sentencing. On February 24, 1982, Leycock was given concurrent sentences of eight years' imprisonment on each count. On March 23, 1982, Leycock, through his counsel, filed a petition for a writ of habeas corpus in the district court in which he renewed an earlier (oral) request for bail pending appeal. The district court denied the petition without hearing on March 26, finding that:
Defendant Leycock ... (is) (1) a danger to the community, in particular to the three eyewitnesses who testified against him and (2) a prime candidate for flight, in view of the time he spent on the mainland and the easy opportunity to return there if freed on bail.... (N)one of the conditions of release provided for in 18 U.S.C. § 3146 will reasonably assure that defendant Leycock will not flee or pose a danger to any other person.
The case arrives in this court in something of a procedural tangle. The defendant's application to the district court for bail pending appeal should have been made pursuant to Rule 9, Federal Rules of Appellate Procedure, rather than as a petition for a writ of habeas corpus. Rule 9 provides in pertinent part:
Rule 9. Release in Criminal Cases
(b) Release Pending Appeal from a Judgment of Conviction. Application for release after a judgment of conviction shall be made in the first instance in the district court. If the district court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the court of appeals or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The court of appeals or a judge thereof may order the release of the appellant pending disposition of the motion.
(c) Criteria for Release. The decision as to release pending appeal shall be made in accordance with Title 18, U.S.C. § 3148. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
We have jurisdiction over an appeal for a denial of bail pending appeal under 28 U.S.C. § 1291,*fn2 regardless of how the appeal is denominated, and we will, in the interests of expedition, treat the defendant's appeal from the denial of habeas relief as an appeal from a denial of a motion for release pending appeal.*fn3
The Bail Reform Act of 1966, 18 U.S.C. §§ 3146-3148 (1976) governs both our consideration and the district court's consideration of Leycock's application. The Act includes a strong presumption of a defendant's right to bail pending appeal.
A person.... who has been convicted of an offense and ... has filed an appeal ... shall be treated in accordance with the provisions of section 3146 (affording a right to bail generally) unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the ...