United States v. James B. Seegers, Jr.

433 F.2d 493, 139 U.S. App. D.C. 335, 1970 U.S. App. LEXIS 10638

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 19, 1970
• Docket: 23621_1
• Status: Published

Opinions

PER CURIAM:

Appellant was convicted in the District Court of second degree burglary¹ and sentenced under the provisions of the Federal Youth Corrections Act² He duly noted an appeal and at sentencing moved for his continued release ³ pending that appeal.⁴ The motion was denied on the ground that appellant presents a risk of danger to the community.⁵

Appellant then filed in this court a motion for release during the pendency of his appeal.⁶ The motion was accompanied by affidavits by the Director of the Columbia Heights Community Association and appellant’s work counselor attesting appellant’s participation and progress in a rehabilitative program prior to sentencing. On consideration of that motion, the record was read as indicating that the affidavits were not available to the trial judge at the time of her ruling. The motion was accordingly denied without prejudice to appellant’s filing of a new motion in the District Court.

Appellant moves for reconsideration,⁷ and it now appears that while the affidavits were not before the trial judge at the hearing on the motion for release, they were filed by appellant’s counsel and were considered by the judge prior to entry of the order denying release. Since the record was interpreted differently when the matter was here originally, we have granted appellant a rehearing to enable a determination of his motion on that factual basis.

On the merits, the prominent fact is that neither the transcript of the hearing on release nor the order denying release reflects any consideration of a release on conditions.⁸ At the same time, the affidavits present the basic ingredients from which conditions conceivably could be fashioned to reduce any danger to the community to a degree permitting appellant’s release.⁹ In these circumstances, it seems clear that the requirements of Appellate Rule 9(b)¹⁰ have not been met. In Weaver v. United States,¹¹ we interpreted Rule 9(b) as imposing upon the judge the duty, inter alia, to

inquire concerning available financial and nonfinancial conditions of release and offer reasons why they do not “assure that the person will not flee or pose a danger to any other person or to the community.” 18 U.S.C. § 3148 (S.upp. Ill, 1965-67). Only when these reasons are spelled out can an appellant intelligently renew his motion before this court; and only then can this court fairly review the merits.¹²

While a release pending appeal is not allowable “if it appears that [the] appeal is frivolous or taken for delay,” ¹³ we cannot agree with our dissenting colleague that this case falls within that category. In the motion filed in this court, appellant’s counsel, who was his trial counsel, explained that he was unable to define the issues to be presented on appeal because he had not received a copy of the trial transcript. He did, however, list tentatively three questions which in our view, without more, afford a plausible basis¹⁴ for this appeal.¹⁵ Neither the District Court nor the Government has made the claim that the appeal is frivolous or a delaying tactic, and we do not think we could so conclude.¹⁶ We recognize the obvious difficulties inherent in any endeavor to fully articulate and substantiate the basis for the appeal prior to counsel’s receipt of the trial transcript, which necessarily may take quite some time. Delay in furnishing the transcript should not be allowed to engender delay in release pending appeal where the appellant provides the essentials of his appeal basis and is otherwise entitled to release.

Nor, unlike our dissenting colleague,¹⁷ do we consider adherence to Rule 9(b) requirements an exercise in futility in this case. While the District Court’s order denying appellant’s release refers to “an outstanding probation commitment issued” by the District of Columbia Court of General Sessions, appellant’s counsel advises, and the Government does not deny,¹⁸ that the so-called “commitment” is in reality an attaeh-

ment for appellant’s appearance before that court for purposes of a hearing and determination as to whether his probation following a conviction in another case should be revoked. Since we do not know whether revocation will follow in that case,¹⁹ we remain sensitive to a responsibility to decide whether appellant is entitled to release insofar as the case at bar is concerned.²⁰ Our order of release in this case would not, of course, affect any commitment for probation violation that the Court of General Sessions, in its independent judgment, might see fit to order in the case before it.²¹

We remand the record herein to the District Court .to allow the trial judge to make suitable inquiry concerning the availability and efficacy of financial and nonfinancial conditions of release and to dispose of appellant’s motion accordingly. We intend, of course, no intimation as to what that disposition should be. Should the motion be again denied, the judge must, compliably with Rule 9(b), offer reasons why any available financial or nonfinancial conditions of release do not provide a reasonable assurance that appellant will not pose a danger to any other person or to the community; and, in that event, the judge is requested .to file an augmentation, within ten days from the date of our order, of her statement of reasons elucidating the unavailability or inefficacy of such conditions, including those suggested by the affidavits. Promptly upon the conclusion of the remand proceedings, the clerk of the District Court will return the record to this court, supplemented by those proceedings.

So ordered.

1 . D.C.Code § 22-1801 (b) (Supp. I 1968).

2 . 18 U.S.C. § 5010(b) (1964).

3 . Appellant remained at liberty on personal recognizance, without incident, throughout the proceedings in the District Court.

4 . 18 U.S.C. § 3148 (Supp. II 1967).

5 . Id.

6 . Fed.R.App.P. 9(b).

7 . Fed.R.App.P. 40.

8 . See 18 U.S.C. §§ 3147, 3148 (Supp. II 1967). See also the cases cited infra notes 11, 12.

9 . See Banks v. United States, 134 U.S.App.D.C. 254, 258, 414 F.2d 1150, 1154 (1969) (dissenting opinion).

¹⁰

11 . 131 U.S.App.D.C. 388, 405 F.2d 353 (1968).

12 . Id. at 389, 405 F.2d at 354. See also Banks v. United States, supra note 9, 134 U.S.App.D.C. at 257, 414 F.2d at 1153; United States v. Leathers, 134 U.S.App.D.C. 38, 41-42, 412 F.2d 169, 172-173 (1969).

13 . 18 U.S.C. § 3148 (Supp II 1967).

14 . See Coppedge v. United States, 369 U.S. 438, 444-445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962) ; Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958).

15 . We are informed that although the evidence showed that appellant was found inside a service station, it did not show that he had committed any further crime upon the premises or that he had either weapons or tools with which to do so. In this context, counsel poses as issues (a) whether there was error in instructing the jury that it might find guilt of burglary if it found that appellant had unlawfully entered the premises in question “with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same,” in view of the fact that the indictment charged only that appellant unlawfully entered the premises “with intent to commit a criminal offense”; (b) whether the indictment and the trial court’s instructions were defective in not defining what “criminal offense” appellant allegedly intended to commit; and (c) whether appellant’s request for an instruction on the lesser included offense of unlawful entry was wrongfully refused.

16 . Compare Sellers v. United States, 89 S.Ct. 36, 38-39, 21 L.Ed.2d 64, 67 (1968) (Mr. Justice Black in chambers).

17 . Infra p. 496.

18 . On this score, the Government argues only that “[i]n view of the outstanding commitment order for violation of probation, it appears that appellant may serve an additional or concurrent term of imprisonment to the instant commitment for his rehabilitation.”

19 . See Ellis v. Chappell, 230 F.Supp. 164, 167 (D.D.C.1964). Compare United States v. Minker, 326 P.2d 411 (3d Cir. 1964).

20 . See Ellis v. Chappell, supra note 19, 230 F.Supp. at 167.

21 . The pretrial release sought in United States v. Minker, supra note 19, would have had the necessary effect of enlarging the accused not only in the case in which it was requested — so that he could assist his counsel in preparing a defense therein- — -but also in another case in which he was serving a sentence. Compare text supra at note 19.