
    UNITED STATES of America v. David K. BUCKLEY.
    Crim. No. 84-00008-04-B.
    United States District Court, D. Maine.
    Sept. 24, 1985.
    William H. Browder, Jr., Asst. U.S. Atty., Portland, Me., for plaintiff.
    David K. Buckley, pro se.
   MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR BAIL PENDING APPEAL DATED AUGUST 1, 1985

GENE CARTER, District Judge.

The Court has fully reviewed the Defendant’s Motion for Admission to Bail Pending Appeal, filed on August 28, 1985, and all of the numerous submissions thereon made by the Defendant, together with the Government’s response. The Defendant appears to contend that the Bail Reform Act of 1984 is not applicable to the pending motion for bail pending appeal because he had previously been admitted to bail pri- or to trial and prior to imposition of sentence, under the 1966 Act.

The record here discloses that this Defendant appeared on February 1, 1985, after the effective date of the Bail Reform Act of 1984 (October 12, 1984) for imposition of sentence. Sentence was imposed at that time pursuant to 18 U.S.C. § 4205(d) for accomplishment of a study thereunder. At that time, he was remanded to the custody of the United States Marshal in execution of the sentence imposed. He became at that point a person detained. The Defendant’s application for admission to bail, filed on April 22, 1985, was denied on May 2, 1985. The Court was then of the view that this Defendant had not made the requisite showing under the Bail Reform Act of 1984, 18 U.S.C. § 3141, et seq., required by Section 3143, by clear and convincing evidence that he is a person “not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to Section 3142(b) or (c).” Such finding was not necessary at that time, however, as Defendant’s admission to bail would have defeated the purpose of the Section 4205(d) study sentence, e.g., to obtain a psychiatric study and advice to the Court in respect to the study questions posed by the Court to be answered by the study. For that reason bail was denied. Thereafter, on June 7, 1985, following the completion of the study required by the Court, the Defendant appeared and a final judgment was imposed on that date, sentencing Defendant to serve a five-year term of imprisonment. On June 17, 1985, the Defendant filed a notice of appeal. On August 28,1985, a motion to be admitted to bail pending appeal was filed. It is that motion that is now pending before the Court.

On this record, it is clear that at the time final sentence was imposed on this Defendant on June 7, 1985, he was a person in custody pursuant to the prior interim study sentence imposed on February 1, 1985. Accordingly, his reliance upon United States v. Angiulo, 755 F.2d 969 (1st Cir.1985), is misplaced. There the Court clearly authorized the application of the provisions of the Bail Reform Act of 1984 to defendants detained on the effective date of the Act, October 12, 1984.

We do not believe it “unjust” to apply the new Act to those, like appellant, who were in custody on October 12, 1984, because those then in custody are unlikely to have relied to their detriment upon the continued application of prior law.

Id., at 970. The rationale of that conclusion is that one in custody on the date the 1984 Act became effective could not claim to have relied upon the provisions of the 1966 Act to his detriment in seeking a new admission to bail on the effective date of the new Act. The logical extension of that rationale is that any Defendant who is lawfully in or is returned to custody after the effective date of the 1984 Act is subject to application of the 1984 Act for purposes of a new admission to bail, even though prior to being returned to custody he had been admitted to bail under the 1966 Act. Because such a Defendant seeks a new admission to bail after the effective date of the 1984 Act he cannot claim to have relied to his detriment upon the terms of the 1966 Act governing his new admission to bail. Defendant here is a person in custody since June 7, 1985, pursuant to the final judgment imposed on that date. The application of the provisions of the Act to him in determining whether or not he should be admitted to bail is clearly appropriate.

Defendant’s submissions do not indicate any sufficient evidentiary predicate to constitute a present showing by clear and convincing evidence that his situation in respect to likelihood of flight and danger to the community has changed since the Court committed him to custody on the interim study sentence imposed on February 1, 1985. The Court finds that he has not made a showing by clear and convincing evidence that he will not flee or that he does not pose a danger to the community if admitted to bail. 18 U.S.C. § 3143(b).

Defendant relies heavily in some of his written submissions upon his need to be admitted to bail in order to pursue pro se his pending appeal to the Court of Appeals for the First Circuit. The answer to these contentions is that those considerations are not properly considered by the Court to be sufficient under the provisions of the 1984 Act in and of themselves, and in the face of well-considered findings of likelihood of flight and danger to the community, to permit admission to bail pending appeal.

Accordingly, the Defendant’s Motion, filed on August 1, 1985, for Admission to Bail Pending Appeal is hereby DENIED.

So ORDERED.

APPENDIX A 
      
      . It would seem that the holding of Angiulo requires application of the provisions of the 1966 Act only to that category of defendants who are admitted to bail under the 1966 Act and are brought before the Court after the effective date of the 1984 Act on an application to revoke the bail originally granted under the 1966 Act, and then, presumably, only upon a showing of prejudicial reliance upon the continuance of bail under the terms of the prior Act. Only defendants in that circumstance can ever claim reliance upon the terms of the 1966 Act for the continuance of the bail they are on when before the Court. Once such bail is lawfully ended, however, by, for example, imposition of sentence or decision on appeal occurring on or after the effective date of the 1984 Act, any claim to reliance upon application of the terms of the 1966 Act vanishes. The 1984 Act is in effect on any subsequent application to bail and it controls any new admission to bail.
     
      
      . The Court’s file is now in the Court of Appeals for the First Circuit pursuant to the Defendant's notice of appeal. A copy of the docket entries in this Court, which are the basis of the Court's fact-findings as to the procedural path of this case, is appended hereto as "Appendix A."
     