United States of America, Plaintiff-appellee, v. Phillip Killian, Defendant-appellant, 767 F.2d 698 (10th Cir. 1985)

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U.S. Court of Appeals for the Tenth Circuit - 767 F.2d 698 (10th Cir. 1985) July 10, 1985


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, concurring in the remand to the trial court for consideration of a motion for bail in light of United States v. Affleck, 765 F.2d 944 (10th Cir. 1985):

The record in this case simply does not present an adequate basis for an informed judgment about the eligibility of this applicant for bail pending appeal. Among other shortages, there is an absence of information about the basis for the trial court's denial of bail pending appeal. I would only add that the government's theory that the defendant would be "an economic" danger to the community is a novel interpretation of that provision which, if properly before this court, should be rejected out of hand.

I would remand to the trial court for consideration of defendant's motion for bail pending appeal in light of United States v. Affleck, 765 F.2d 944 (10th Cir. 1985).