United States v. William Colon Berrios, 791 F.2d 211, 1st Cir. (1986)
United States v. William Colon Berrios, 791 F.2d 211, 1st Cir. (1986)
2d 211
David W. Roman, First Asst., Federal Defender, Chief, Appellate Div., Old San
Juan, P.R., for defendant, appellant.
Daniel F. Lopez Romo, Asst. U.S. Atty., Hato Rey, P.R., for appellee.
ORDER OF COURT
4
Appellant was found guilty after a jury trial of (1) conspiracy to obstruct justice
by committing perjury in a federal civil deposition in violation of 18 U.S.C.
Sec. 371; and (2) committing perjury in a federal civil deposition in violation of
18 U.S.C. Sec. 1621. Upon sentencing, the district court committed appellant to
the custody of the Attorney General thereby revoking a conditional release it
(b) Release or Detention Pending Appeal by the Defendant. The judicial officer
shall order that a person who has been found guilty of an offense and sentenced
to a term of imprisonment, and who has filed an appeal or a petition for a writ
of certiorari, be detained, unless the judicial officer finds ...
(1) by clear and convincing evidence that the person is not likely to flee or pose
a danger to the safety of any other person or the community if released; and
10
(2) that the appeal is not for purpose of delay and raises a substantial question
of law or fact likely to result in reversal or an order for a new trial.
11
The record shows that appellant (1) has complied with Sec. 3143(b); and (2) is,
therefore, entitled to bail pending the prosecution of this appeal.
12
First, the record shows that appellant does not pose a danger to the safety of any
other person or the community. The presentence report indicates that appellant
has no significant prior antisocial or criminal history. He grew up in a stable,
problem free environment. Positive accounts of appellant were received from
his present wife, former wife, and neighbors. No incidents of disruption or
violence by appellant occurred while on bail during trial or after conviction
prior to sentencing. Moreover, the record is devoid of any evidence of threats or
witness intimidation by appellant. This is particularly significant as the
legislative history of the 1984 Bail Act repeatedly emphasizes that defendants
who have threatened witnesses pose a significant danger to the community. See
S.Rep. No. 225, 98th Cong., 1st Sess. at 7, 12, 15, 21, reprinted in 1984
U.S.Code Cong. & Adm.News at 10, 15, 18, 24, 25 (Supp. 9A). Accord, United
States v. Delker, 757 F.2d 1390, 1400 (3d Cir.1985) (bail denied in part
because of evidence of intimidation of witnesses by defendant). Thus, both the
probation report and trial history show appellant's compliance with Sec.
3143(b)(1).
13
14
* The record shows that Colon-Berrios has family ties to Puerto Rico and no
apparent ties elsewhere. Before incarceration he was living with his third wife
and three year old son. Appellant has lived in Puerto Rico all his life. (ColonBerrios is 41 years old). Since both family ties and a defendant's length of
residence in the community support the inference that a defendant will appear
as required, United States v. Birges, 523 F.Supp. 472, 475-76 (D.Nev.1981),
those factors allow the conclusion here that appellant will stay in Puerto Rico if
released.
B
15
16
As noted above, the presentence report shows that appellant grew up in a stable
environment. Good accounts were received from his present wife, former wife
and neighbors. The report notes the absence of history of mental and/or
emotional disorders regarding appellant. It also describes Colon-Berrios as
emotionally stable. Accordingly, the record reflects mental stability supporting
the inference that appellant will not flee. Cf. DeVeau v. United States, 454
A.2d 1308, 1317-18 (D.C.App.1982) (bail denied in part because defendant had
been diagnosed as a paranoid schizophrenic, and unstable mental condition
created risk of flight).
17
D
18
The nature and circumstances of the offense shed light on, inter alia, the
possible term of imprisonment faced by a defendant. United States v. Birges,
supra at 475. Substantial terms of imprisonment faced by defendants support an
inference of flight justifying denial of bail. Id. As Colon-Berrios faces a 12 year
term of imprisonment, it may be argued that he poses a risk of flight worth
denying bail.
19
E
20
It has been stated that the possibility of conviction in state prosecutions coupled
with conviction in federal court gives appellants an incentive to flee. United
States v. Oliver, supra at 235. It is reasoned that a defendant should not be
granted bail in these circumstances because he may flee to avoid state
prosecution. Id. As appellant faces a 12 year federal term of imprisonment and
two murder charges in state court, it might be arguable that Oliver serves to
justify denying bail.
21
The problem with this reasoning, however, is that the Commonwealth of Puerto
Rico, where murder charges are pending, granted appellant bail pending trial.
When murder charges were filed, appellant had already been indicted for
conspiracy and perjury at the U.S. District Court for the District of Puerto Rico.
23
Third, with the record now before us, vis-a-vis what was before us when the
original petition was made, appellant has identified substantial questions of law
"likely to result in reversal or an order for a new trial." As noted in United
States v. Bayko, 774 F.2d 516 (1st Cir.1985), we need not conclude that a
defendant's conviction is in fact to be reversed before concluding compliance
with Sec. 3143(b)(2). Moreover, Bayko does not even require a finding that the
district court "is likely to be reversed." Id. "[T]he language in the statute which
reads 'likely to result in reversal or an order for a new trial' is a requirement that
the claimed error not be harmless or unprejudicial." Id. As a substantial
question of law is a "close" question or "one that very well could be decided the
other way," it is clear to me that Colon-Berrios has met his burden under Sec.
3143(b)(2).
24
Without prejudging at this time the final outcome of his appeal, I believe that
Colon-Berrios has raised and briefed several issues on appeal which meet the
requirements of Sec. 3143(b)(2).
25
Finally, although the record supports appellant's release, I note that it is lacking
in specific findings by the district court on whether appellant has met criteria
set forth by Sec. 3143(b). This is significant because, as noted in Bayko, in
reviewing post-conviction release matters, this Court should not divorce itself
from what has taken place below. 774 F.2d at 520. Yet "the values of initial
consideration by a district judge are lost to the extent that the significance he
assigned to the various and often conflicting factors--legal and factual--is left
unknown." United States v. Stanley, supra at 583. Accordingly, Fed.R.App.P.
9(b) directs courts to "state in writing the reasons for the actions taken" in
denying or granting bail. Ibid; see Advisory Committee Notes on Fed.R.App.P.
9(b). This certainly requires more than a recitation of conclusory statements
that a defendant has failed to comply with the bail statute. See, e.g., 469 F.2d at
584 and cases cited therein; see also United States v. Delker, supra at 1393 ("A
detention order must include findings of fact and a statement providing the
reasons for detention...."). Unfortunately, however, the court below denied bail
in a perfunctory order which essentially repeated the wording of 18 U.S.C. Sec.
3143.
27
Courts of appeals facing the issue of noncompliance with Rule 9(b) have
remanded for compliance therewith where bail had been denied and the record
failed to show the criteria for denial used by the district court. See United States
v. Stanley, supra at 587. Cf. Government of Virgin Islands v. Leycock, 678
F.2d 467, 469-70 (3d Cir.1982) (remand proper in part because district court
had not considered evidence initially submitted to court of appeals in support of
motion for bail pending appeal). Thus, before refusing to grant bail this Court
should at the very least remand for specific findings on the district court's view
regarding appellant's compliance with Sec. 3143(b) and Sec. 3142(g).
28
This is specially compelling here, when one considers that appellant was given
bail during trial and after conviction prior to sentencing. Although it may be
that the fact of sentencing was paramount in the district judge's decision to
revoke bail, she did not weigh for the record this factor against others set forth
by Sec. 3142(g). Of interest here is the record's failure to show what weight, if
any, the district judge gave to the Superior Court's decision to only require a
$2,500.00 bond to guarantee appellant's appearance in state court. It may be
that appellant's demeanor led the district judge to conclude that the correct
decision under the circumstances was to revoke bail. Yet the record simply
fails to cast any light on the district court's weighing process. Thus, I do not see
how we can, on this scant record, deny bail. Bayko, 774 F.2d at 520. Under the
circumstances this Court should at the very least remand for compliance with
Fed.R.App.P. 9(b).
29
As the Court refuses to either grant bail pending appeal or remand for
compliance with Fed.R.App.P. 9(b), I respectfully dissent.
Judge Torruella does not concur in this order, and his dissent follows
**
It is worth noting that the defendant in Truong Dinh Hung was a Vietnamese
citizen convicted for espionage and related offenses, and facing a term of
imprisonment of 15 years. Upon conviction, the district court revoked bail on
the basis of, inter alia, the risk of flight given the severity of the potential
sentences (at the time defendant had not been sentenced and faced the
possibility of two life sentences as well as additional terms of imprisonment
totalling 35 years), and the fact that appellant was not an American citizen. The
Court of Appeals sustained the revocation. Justice Brennan disagreed and
granted bail noting that even though there was evidence that appellant had not
established permanent residence in the United States, and should he flee to
Vietnam the United States would have had no means to procure his return,
other evidence supported the inference that he was not so inclined
Among factors supporting bail were (1) appellant's compliance with terms of
pretrial bail; (2) continuous residence in the United States; (3) extensive ties in
the community; and (4) affidavits attesting to his character and to his reliability
as a bail risk. Like the defendant in Truong Dinh Hung, appellant here (1) fully
complied with terms of pretrial bail; (2) has continuously lived in Puerto Rico;
and (3) has extensive ties to the community. Thus, the Truong Dinh Hung
reasoning supports bail here despite the fact that Colon-Berrios faces a 12 year
term of imprisonment.
These are: (1) nature and circumstances of the offense charged; (2) links of the
accused with the community, among them his time of residence, his
employment record and his family relations; (3) character and mental condition
of the accused; (4) economic means of the accused; and (5) record of the
accused on previous appearances and compliance with judicial orders
4