On Motion for Release on Bail Pending Appeal United States District Court for the Eastern District of Pennsylvania.
Hunter, Weis and Sloviter, Circuit Judges.
Before us is a motion by appellants under Fed. R. App. P. 9(b) for release upon bail pending appeal. Because this motion raises an issue of the interpretation of the Bail Reform Act of 1984 which has not previously been considered by this court, we have considered this matter on an expedited basis. Specifically, we focus on the meaning of the statutory language conditioning the grant of bail pending appeal upon 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." Bail Reform Act of 1984, Pub. L. No. 98-473, § 203, 98 stat. 1981-82 (to be codified at 18 U.S.C. § 3143).
Appellants Stanton and Robert Miller are brothers who were convicted following a jury trial of one count of conspiracy to defraud the United States, two counts of filing false income tax returns, and one count of conducting an illegal gambling business. Stanton Miller was also convicted on one count of making a false oath in a bankruptcy proceeding. Briefly, the convictions arose out of defendants' operation of a large scale nightly bingo game at a Philadelphia hotel managed and partly owned by them. The bingo game was ostensibly, but not actually, church sponsored. Each defendant was sentenced to fines and terms of imprisonment concurrent with the longest sentence, 18 months imprisonment on the conspiracy count.
Defendants' motion before the district court for bail pending appeal was denied, pursuant to that court's interpretation of the Bail Reform Act of 1984, a part of the Comprehensive Crime Control Act of 1984, which became effective on October 12, 1984. The jury's verdict of conviction was returned October 19, 1984 and defendants' sentences were imposed on November 30, 1984. Defendants have appealed from their convictions, and those appeals are presently pending in this court. Appellants' briefs on the merits are not due until next month. After denying bail, the district court ordered defendants to surrender on January 28, 1985.
Appellants contend that because all of the criminal events alleged in the indictment took place between September 1971 and February 1981, the proper Act governing bail on appeal, see 18 U.S.C. § 3148 (1982) (repealed by 1984 Act), should be applied to them. They contend that application of the 1984 Act to them constitutes a violation of the Ex Post Facto Clause of the Constitution.
The ex post facto prohibitions of the Constitution, which are found in Article I, § 9, Cl. 3, and Article I, § 10, Cl. 1, are inapplicable here. They apply only to laws which impose "punishment". See Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). They are designed to require the legislature to give individuals fair warning, and are not applicable to procedural changes in the criminal process. See Dobbert v. Florida, 432 U.S. 282, 293, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977).
The availability ven 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 Post Facto Clauses apply. Therefore, we reject appellants' contention that the ...