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March 24, 1969

Daniel PORTER, Jr.

Gesell, District Judge.

The opinion of the court was delivered by: GESELL


GESELL, District Judge.

 The Court denied defendant's motion for release pending appeal following his conviction of robbery by a jury. An order setting forth the Court's reasons for so exercising its discretion was filed in full conformity with the requirements of Rule 9(b) of the Federal Rules of Appellate Procedure, as expanded and interpreted in Weaver v. United States, 131 U.S. App. D.C. 388, 405 F.2d 353 (D.C. Cir. 1968). Defendant has now filed a motion for rehearing.* Two members of the Court of Appeals, after hearing argument of counsel, have directed that defendant's motion for release pending in that Court be held in abeyance awaiting action on the motion for rehearing and related relief.

  The crux of the motion for rehearing is a request that the Court make available to defendant all data on which the Court based its ruling. It is contended that the Court relied on information "dehors the record." Reliance is based on language taken from Weaver wherein it is stated that if the Court views defendant's release as posing a danger to the community "he should point to those factors in the record which foreshadow such a possibility."

 Defendant misconceives the nature of a Rule 9 proceeding and the meaning of Weaver.** A Rule 9(b) motion is addressed to the Court's discretion. As The Bail Reform Act, 18 U.S.C. ยง 3148, provides, the standard which governs the Court is simply "reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community." The Court's ruling is not rendered as a factual determination on an adversary record. If this were so, proceedings looking toward release pending appeal would be transformed into a full trial involving the taking of testimony and factual determinations by the Court from a record when eventually transcribed. This cumbersome procedure involving, as it would, much delay and numerous other problems is not contemplated by the Bail Reform Act or the Rule.

 A hearing in the adversary sense involving the making of a record does not occur. The convicted defendant makes unverified representations to the Court through his counsel appealing to the Court's discretion. Where the Court, in the exercise of that discretion, denies release he must do no more than state his reasons, as was done fully here. The matter of release then lodges in the Court of Appeals. The subsequent proceedings in the Court of Appeals do not involve a review of findings on a record but merely a determination by that Court as to whether the trial court has abused its discretion following a review of the reasons stated in the order denying release under Rule 9(b).

 When the Court indicates its reasonable grounds for a belief, the Court draws on experience with many cases and considers the demeanor of the defendant at the trial, the facts of the case, and the patterns of his behavior demonstrated by the presentence report in reaching what is at best an educated guess. This is done with proper attention to the rights of the individual but without ignoring the countervailing interests of the community.

 In refusing release in this case the Court relies on the record made at the trial at which the Court presided and upon the presentence report dated June 10, 1968, which was then available. This Court has recently filed a Memorandum Opinion in United States v. Conway, 296 F. Supp. 1284 (March 19, 1969), stating its reasons for not making presentence reports available to defense counsel and the U.S. Attorney at time of sentence. There is, of course, no requirement in the Federal Rules of Criminal Procedure that the presentence report be made available to the defendant at any stage. To the extent the present motion raises the closely related question whether presentence reports used by the Court in the exercise of its discretion when denying release pending appeal must be made available to defense counsel, the Court believes the same general considerations mentioned in Conway apply and reaches the same result.

  The motion for rehearing appears to this Court to be entirely frivolous. This defendant, a young adult, was convicted of a street robbery. His acts with nothing more would fully justify this Court in denying his release pending appeal as posing a danger to the community. The motion for rehearing and related relief is denied and the Clerk is directed promptly to transmit this Memorandum Opinion to the Court of Appeals.


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