United States v. Stacey C. Koon, United States of America v. Laurence M. Powell

concurring:

In their request for bail pending appeal, Stacey Koon and Laurence Powell have shown only ordinary reasons relating to flight risk, danger to the community and issues on appeal; they have not in addition shown, as the Mandatory Detention Act requires, “exceptional reasons” which make detention in their case inappropriate. Congress has declared that all persons who are found guilty of crimes of violence must be detained — even though they individually pose no risk of flight or danger to the community and despite the fact that they may raise substantial issues on appeal — unless they clearly show “exceptional reasons” why detention is not appropriate. 18 U.S.C. §§ 3143 (b)(2) and 3145(c). These two officers were convicted of a violent act, and neither has shown “exceptional reasons” why he should be treated differently from everyone else who has committed a crime of violence.

Whether “exceptional reasons” exist must be determined case-by-case. Because “exceptional” means more than ordinary, and there is nothing out of the ordinary about the reasons offered by Koon and Powell, this matter does not require us to decide what will comprise “exceptional reasons” in some…

dissenting:

I dissent from our refusal to take this matter en banc. We are faced with a significant, unresolved issue of exceptional importance to the administration of criminal justice. Because the court refuses to take this ease en banc, we are forcing Stacey Koon and Laurence Powell to go to prison pending their appeal, even though nobody suggests that there is any risk that they will flee or that they will present any danger to the community. Because the defendants raise substantial issues on appeal, there is no rational purpose to this action. If Koon and Powell lose, there will be plenty of time for them to serve their sentences after we dispose of the merits of their appeal. However, if they prevail we will have subjected them to unjustified incarceration without any reason at all.

The relevant facts are simply stated and well known. Koon and Powell, two former Los Angeles Police officers, were convicted of criminal civil rights charges for assaulting Rodney King. See 18 U.S.C. § 242 . Each of them was sentenced to a term of 80 months in prison, followed by two years of supervised release. The district court ordered Koon and Powell detained pending appeal, even though it…

dissenting.

I agree with Judge Reinhardt that the question presented by the bail application deserves consideration by the court en banc. Therefore, I join the first five paragraphs of his dissent.

Unlike Judge Reinhardt, I am not ceitain about the proper interpretation of the Mandatory Detention Act, 18 U.S.C. § 3143 (b)(2), or its “exceptional reasons” proviso, id. § 3145(c). The abbreviated briefing schedule, the absence of oral argument, the lack of time for research and reflection all make me hesitate to express a public view on this difficult issue.

ORDER

The Order and Dissents filed September 24, 1993, as amended October 1, 1993, are designated for publication.

The panel has voted to deny appellants’ petitions for rehearing and to reject the suggestions for rehearing en banc.

The full court was advised of the suggestions for rehearing en banc. An active judge *562 requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petitions for rehearing are denied and the suggestions for rehearing en banc are rejected.

Judges Reinhardt, Kozinski and Noonan dissent from the failure of the court to rehear the ease en banc. Judge Rymer separately concurs in the decision of the court not to rehear the case en banc.

6 F.3d 561 UNITED STATES of America, Plaintiff-Appellee, v. Stacey C. KOON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Laurence M. POWELL, Defendant-Appellant. Nos. 93-50561, 93-50562. United States Court of Appeals, Ninth Circuit. Order Filed Sept. 24, 1993. As Amended Oct. 1, 1993. Joel Levine, Encino, CA, for defendant-appellant-cross-appellee Stacey C. Koon. William J. Kopeny, Santa Ana, CA, for defendant-appellant-cross-appellee Laurence M. Powell. Steven D. Clymer, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee-cross-appellant. Before: PREGERSON, BRUNETTI and RYMER, Circuit Judges ORDER The Order and Dissents filed September 24, 1993, as amended October 1, 1993, are designated for publication. Before: PREGERSON and RYMER, Circuit Judges. 1 The panel has voted to deny appellants' petitions for rehearing and to reject the suggestions for rehearing en banc. 2 The full court was advised of the suggestions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35. 3 The…