U.S. v. HOCHEVAR

Citation Codes

Equivalent Citations

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Docket Number

No. 00-1289.

Attorney(S)

DAVID C. ESSEKS, Assistant United States Attorney , New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, New York, New York, on the brief), for Appellee. JOHN W. COYLE, III, Oklahoma City, Oklahoma (Coyle, McCoy Burton, Oklahoma City, Oklahoma, on the brief), for Defendant-Appellant.

Judges

Amalya Lyle Kearse
Robert David Sack

Acts

Crimes And Criminal Procedure — Release And Detention Pending Judicial Proceedings — Criminal Procedure — Release Or Detention Of A Defendant Pending Sentence Or Appeal
Crimes And Criminal Procedure — Mail Fraud And Other Fraud Offenses — Crimes — Fraud By Wire, Radio, Or Television
Crimes And Criminal Procedure — General Provisions — Crimes — Obligation Or Other Security Of Foreign Government Defined
Crimes And Criminal Procedure — Conspiracy — Crimes — Conspiracy To Commit Offense Or To Defraud United States

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Smart Summary

Factual and Procedural Background

Defendant Gene Anthony Hochevar was convicted by the United States District Court for the Southern District of New York of wire fraud, securities fraud, and conspiracy to commit those offenses. The conviction was entered on or about April 25, 2000, with sentencing principally to concurrent terms of 21 months' imprisonment. Hochevar was not in custody at trial nor detained after the jury verdict and was ordered to surrender for imprisonment on June 19, 2000. Following the judgment, Hochevar did not seek release pending appeal in the district court but instead moved in the Court of Appeals on June 2, 2000, for an order allowing him to remain on release pending appeal.

Legal Issues Presented

Whether a defendant convicted and sentenced in a district court may make an initial motion for release pending appeal directly in the court of appeals under Fed.R.App.P. 9(b).
Whether the court of appeals should grant release pending appeal absent prior motion and findings in the district court under 18 U.S.C. § 3143(b).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fed.R.App.P. 9(b)	Governs release after judgment of conviction and the procedure for seeking review of district court release orders.	The court interpreted Rule 9(b) as requiring that a motion for release pending appeal be made first in the district court, with the court of appeals only reviewing such district court orders.
Fed.R.App.P. 9(a)	Governs release prior to judgment of conviction, requiring district court to state reasons for release or detention.	Referenced to emphasize procedural requirements and that Rule 9(b) incorporates Rule 9(a) standards for review.
Fed.R.App.P. 2	Allows a court of appeals to suspend procedural rules for good cause.	The court noted it could exercise discretion to suspend Rule 9(b) if the appeal were fully briefed and argued, but declined to do so here.
18 U.S.C. § 3143(b)(1)	Sets criteria for release pending appeal, including findings that the defendant is not likely to flee or pose danger and that the appeal raises substantial questions likely to result in reversal or reduced sentence.	The court emphasized that the district court is better positioned to make these findings initially and that no such findings were made here for review.

Court's Reasoning and Analysis

The court analyzed the language and history of Fed.R.App.P. 9(b), concluding that it does not authorize a defendant to make an initial motion for release pending appeal in the court of appeals. Instead, the rule contemplates review of a district court order, not an original motion. The court referenced the 1994 amendments and Advisory Committee notes, which confirm that subdivision (b) governs review of district court decisions post-judgment, not initial motions in the appellate court. The court further reasoned that the district court is better suited to make the necessary findings under 18 U.S.C. § 3143(b), such as the likelihood of flight or danger and the merits of the appeal. Although the requirement to move first in the district court is not jurisdictional and could be waived under Fed.R.App.P. 2, the court declined to do so here because the appeal was not yet fully briefed or argued, and the district court had not made the requisite findings. Consequently, the court found the motion improperly brought and denied it without prejudice to renewal in the district court.

Holding and Implications

The court denied the defendant's motion for release pending appeal filed initially in the court of appeals. The denial was without prejudice, allowing the defendant to seek such relief by motion in the district court as required by Rule 9(b) and 18 U.S.C. § 3143(b).

The decision directly affects the parties by reinforcing procedural requirements for motions regarding release pending appeal, emphasizing the district court's primary role in making initial determinations. The opinion does not establish new precedent but clarifies the proper procedural path under existing rules.

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UNITED STATES OF AMERICA, Appellee, v. GENE ANTHONY HOCHEVAR, Defendant-Appellant.

PER CURIAM

Defendant Gene Anthony Hochevar has moved in this Court pursuant to Fed.R.App.P. 9(b) for an order continuing his release pending appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, Richard Owen, Judge. The judgment convicting Hochevar of wire fraud, securities fraud, and conspiracy to commit those offenses, in violation of, inter alia, 18 U.S.C. § 1343, 15 U.S.C. § 78j(b), 78ff, and 18 U.S.C. § 371, and sentencing him principally to concurrent terms of 21 months' imprisonment, was entered on or about April 25, 2000. Hochevar, who was neither in custody at the time of trial nor detained after the jury returned its verdict, was ordered to surrender for imprisonment on June 19, 2000.

Following entry of the judgment, Hochevar did not move in the district court for an order continuing his release pending appeal. On June 2, 2000, he moved in this Court for such an order. For the reasons that follow, we conclude that, no motion having been made in the district court, the present motion is improperly brought in this Court, and we therefore deny the motion, without prejudice to Hochevar's seeking such relief in the district court.

Rule 9 of the Federal Rules of Appellate Procedure ("FRAP Rules"), which governs release in a criminal case, provides as follows with respect to a request for release after a judgment of conviction has been entered:

(b) Release After Judgment of Conviction. A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a). The papers filed by the party seeking review must include a copy of the judgment of conviction.

Fed.R.App.P. 9(b). FRAP Rule 9(a), which governs release prior to a judgment of conviction, provides, in pertinent part, that "[t]he district court must state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case." Fed.R.App.P. 9(a)(1).

We do not view the language of Rule 9(b) as authorizing a defendant to make his bail motion initially in the court of appeals. Prior to 1994, the first sentence of Rule 9(b) stated specifically that "[a]pplication for release after a judgment of conviction shall be made in the first instance in the district court." Fed.R.App.P. 9(b) (1984) (amended 1994). Although that first sentence was changed in 1994, its substance was not altered, as the current first sentence focuses squarely on "review of a district-court order," Fed.R.App.P. 9(b). And while the current version of Rule 9(b) also refers to "a motion in the court of appeals," the language of the Rule makes it clear that such a motion is simply the method "by" which "[a] party entitled to do so may obtain review of a district-court order regarding release after a judgment . . . if the party has already filed a notice of appeal from the judgment of conviction." Fed.R.App.P. 9(b).

The Advisory Committee notes accompanying Rule 9 reinforce our view that subdivision (b) was not intended to authorize a defendant to seek release in the court of appeals in the first instance. To the extent pertinent here, that commentary states as follows:

Subdivision (a) governs appeals from bail decisions made before the judgment of conviction is entered at the time of sentencing. Subdivision (b) governs review of bail decisions made after sentencing and pending appeal.

. . . .

Subdivision (b). This subdivision applies to review of a district court's decision regarding release made after judgment of conviction. As in subdivision (a), the language has been changed to accommodate the government's ability to seek review.

The word "review" is used in this subdivision, rather than "appeal" because review may be obtained, in some instances, upon motion. Review may be obtained by motion if the party has already filed a notice of appeal from the judgment of conviction. If the party desiring review of the release decision has not filed such a notice of appeal, review may be obtained only by filing a notice of appeal from the order regarding release.

The requirements of subdivision (a) apply to both the order and the review. That is, the district court must state its reasons for the order. The party seeking review must supply the court of appeals with the same information required by subdivision (a). In addition, the party seeking review must also supply the court with information about the conviction and the sentence.

Fed.R.App.P. 9 Advisory Committee Note (1994) (emphases added).

In sum, we see nothing in the terms of Rule 9(b) or in its history to suggest that a defendant is authorized to move for release pending appeal in the court of appeals in the first instance.

Further, given the findings that must be made in order to warrant release, it is generally more appropriate that the motion be made initially in the district court. FRAP Rule 9(c) provides that, in considering release following a conviction, the court must apply the criteria set out in 18 U.S.C. § 3143. To the extent pertinent here, that section provides as follows:

[T]he 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 —

(A) 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

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in —

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b)(1). When release is sought before the appeal has been briefed and argued, the district court, having greater familiarity with the record, is normally in a far better position than the court of appeals to make such determinations in the first instance.

We note that the requirement that a defendant move first in the district court is not a jurisdictional requirement. See Fed.R.App.P. 2 (other than expanding the time for appeal, "a court of appeals may . . . for . . . good cause[,] suspend any provision of these rules in a particular case"). And if a defendant moved for bail after his appeal had been fully briefed and argued, placing this Court in a better position than the district court to assess the merits and likely outcome of the appeal, we could exercise our discretion under Rule 2 to suspend the Rule 9(b) requirement that the defendant's motion for release be first made in the district court.

In the present case, however, Hochevar's notice of appeal to this Court was filed in April; but briefs on the merits have not been filed, and the appeal has not been argued. The district court, after imposing sentence, made statements indicating that it viewed Hochevar as unlikely to flee; but it made no evaluation or prognosis with respect to any questions for appeal. We are thus ill-equipped to make the judgments called for by § 3143(b)(1), and no such findings are available for review.

Accordingly, we deny Hochevar's motion for continued release pending this appeal, without prejudice to his making such a motion in the district court.