United States of America, Plaintiff-appellee, v. Charles Lynch Patterson, Defendant-appellant, 767 F.2d 711 (10th Cir. 1985)

ORDER AND JUDGMENT

In accordance with 10th Cir.R. 9(e) and Fed. R. App. P. 34(a), this appeal came on for consideration on the briefs and record on appeal.

This matter is before the court on defendant-appellant's renewed application for bail pending appeal pursuant to Fed. R. App. P. 9(b). In the interest of justice, we partially remand the matter to the district court for reconsideration of defendant's application for release pending appeal under the standards announced by our decision in United States v. Affleck, 765 F.2d 944 (10th Cir. 1985). Accordingly, the matter is partially remanded for such further proceedings as are appropriate. See 10th Cir.R. 17(b).

Upon the conclusion of the proceedings contemplated by this order, the district court shall promptly certify the record of the proceedings as a supplemental record. Further, the parties shall, within ten days of the transmittal of the supplemental record on appeal, furnish statements of their respective positions regarding the proceedings on remand.

The partial mandate shall issue forthwith.

McKAY, Circuit Judge, dissenting:

The trial court refused to grant bail pending appeal on the so-called "substantial likelihood" ground. On the matter of the substantiality issue, I think the government puts the problem as nicely as anyone has to date:

Obviously this court, without the benefit of full briefing and a complete transcript, cannot evaluate the impact of the evidence and the arguments assailed. This court is constrained to rule on this matter solely on the basis of Patterson's motions and this response. It has no way of evaluating how Patterson's substantial rights were affected. Rule 52(b), Fed. R. Crim. P.

I would order that the defendant be admitted to bail on the substantiality issue but remand to the trial court for consideration of the issue of the risk of flight.