Jack E. Chapman, Jr. v. United States

408 F.2d 1276, 133 U.S. App. D.C. 73, 1969 U.S. App. LEXIS 9213

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 24, 1969
• Docket: 21951_1
• Status: Published

Opinions

ORDER

PER CURIAM.

On consideration of appellant’s application for release on bail pending appeal and of appellee’s opposition thereto, and this Court having undertaken a de novo consideration of appellant’s motion and having made a finding of dangerousness to the community on the uncontroverted record supplied by the United States Attorney, it is

Ordered by the Court that appellant’s motion for release on bail pending appeal be denied, and it is

Further ordered by the Court, sua sponte, that the order of the District Court setting bail pending appeal in the amount of $500.00 is hereby vacated. See Russell v. United States, 131 U.S.App.D.C. 44, 402 F.2d 185 (1968).

DANAHER, Circuit Judge:

A majority of the sitting division previously entered an order denying Chapman’s application for release pending appeal. Our colleague would have taken other action along lines noted in his dissent.

The majority’s comments are now adduced because after our examination of the presentence report and our consideration of the nature of the evidence offered at trial, it seems to us that the trial judge quite justifiably must have concluded that Chapman might pose a danger¹ to some other person or to the community.

Chapman had been convicted of unauthorized use of an automobile which the owner had parked in Maryland on April 13, 1967. That ear then carried Ohio plates. Police maintained a lookout for the missing automobile, and about 2 A. M. on April 22, 1967, Maryland police commenced pursuit of the wanted vehicle. Metropolitan police joined in the chase. Near the Sousa Bridge, the car jumped a curb, hit a guard rail and finally stopped just short of the river. Maryland police identified Chapman as the driver. At the time of the crash, the ear bore Maryland plates.

It is trite enough to say that gasoline and alcohol do not readily mix. Even assuming that Chapman had been shown to be addicted to the excessive use of alcoholic beverages, it might well have seemed to the District Judge that releasing this convicted person, possessed of such a propensity, would indeed compound possible danger to some other person or to the community. The statute provides that if a risk of danger “is believed to exist” the convicted person may be ordered detained.

But that is not all. Chapman had been arrested some 20 times on charges of being drunk or disorderly and had failed to appear in court, having forfeited collateral every time. He had been convicted of housebreaking and had been placed on probation. Having become a fugitive from Maryland, Chapman was apprehended and returned to prison only to be paroled in 1965. Even after the date of the instant offense, he had been convicted of larceny and unauthorized use of an automobile and had received a sentence of 6 months and probation.

Granting that a judge must take people as he finds them, section 3148 reposes in the trial judge authority to make his determination upon what he “has reason to believe” with reference to the convicted person. Like any other judgment, that determination is presumably correct, ² and we of the majority have not been shown that the District Judge erred.³ We are willing to think that even if Chapman were an alcoholic, one crash while driving a stolen car is one too many and that a drunken driver is still a menace.

1 . The applicability of that criterion in a post-conviction situation has been recognized by this court in Russell v. United States, 131 U.S.App.D.C. 44, 402 F.2d 1S5 (1968) ; for a discussion of the provisions of 18 U.S.C. § 3148 in a capital ease, see m.y dissent in White v. United States, U.S.App.D.C. (No. 22303, Nov. 22, 1968)..

2 . Miller v. United States, 78 U.S. (11 Wall.) 268, 299-300 (1871) ; Wabash Ry. Co. v. Bridal, 94 F.2d 117, 121 (8 Cir.), cert. denied, 305 U.S. 602, 59 S.Ct. 63, 83 L.Ed. 382 (1938) and see T.V.T. v. Basiliko, 103 U.S.App.D.C. 181, 183, 257 F.2d 185, 187 (1958).

3 . Even if the order under review had been brought here pursuant to 18 U.S.C. § 3147, we would be bound to affirm since it “is supported by the proceedings below.”