# United States v. William Brown > Court of Appeals for the D.C. Circuit · August 3, 1973 · 483 F.2d 1314 URL: https://www.frixlaw.com/law-library/cases/9459802 ## Case - **Full name:** UNITED STATES of America, v. William BROWN, Appellant - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** August 3, 1973 - **Citations:** 483 F.2d 1314; 157 U.S. App. D.C. 311; 1973 U.S. App. LEXIS 8492 - **Precedential status:** Published - **Opinion:** Dissent by MacKINNON - **Judges:** Bazelon, Wright, MacKinnon - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459802 ## How later opinions describe it (automated extraction) - holding that federal courts must apply the federal bail provisions rather than those of the D.C. Code, even when the defendant was convicted of only local offenses - applying federal bail rules to defendant charged with D.C.Code offenses tried in federal court ## Opinion text MacKINNON, Circuit Judge, dissenting: The majority opinion reaches the conclusion that the D.C.Code provisions on bail pending appeal do not apply to one convicted of a D.C.Code offense in the United States District Court (which at that time had original jurisdiction to try D.C.Code offenses) because “On April 24, 1972, some six months after U. S. v. Thompson was issued, the Supreme Court adopted amendments to Fed.R. App.P. 9, and F.R.Crim.P. 46, 1 providing, that motions for release pending appeal in all federal courts should be deter *1320 mined in accordance with the Federal Bail Reform Act of 1966.” Supra at 2. This was adopted as a general rule applicable to all United States courts and it did not contain any express repeal of the release provisions of the District of Columbia Court Reform Act of 1970. Thus, it is an intent to accomplish an implied repeal that the majority finds. However, the scope of the Rules was not in any way changed at that time, 2 and it is the “scope” of the Rules that we are concerned with in the decision. In this respect the Rules specifically define their scope when they state they apply to “United States District Courts” and “United States Courts of Appeals” 3 and since there was no change of a legislative nature in the Rules providing for the scope of their application or in the Federal Bail Reform Act of 1966 the scope of the Rules would not be affected by the amendments to Rules 9 and 46, supra. This brings us to the question as to what Congress intended to accomplish when it passed the D.C. Court Reform Act of 1970 containing the release and bail provisions now set forth in D.C. Code § 23-1325 (c) . 4 The effect of the majority opinion is to have us read the release and bail provisions of that D.C. statute to not apply to any felony conviction for D.C. Code offenses (which include murder, armed robbery, rape, etc.) since all felonies in the District of Columbia at that time were tried in the United States District Courts. Under such claimed construction, offenders convicted of District of Columbia felonies in the U.S. courts would be released under what the majority asserts is a more lenient bail statute, while those convicted of misdemeanors (and tried in the D.C. courts) would be under an allegedly harsher bail statute. Such construction is absurd as a plain reading of the statute and our judicial knowledge of criminal offenses in the District of Columbia indicates that it was intended principally to apply to major D.C. felonies. I thus have no hesitancy in concluding that neither the Congress nor the Supreme Court intended at any time to accomplish the result reached by the majority. It is clear to me from a reading of the controlling provisions of the Rules and statutes that the bail provisions of the D.C. Court Reform Act of 1970 were at all times intended, both by the Congress and the Supreme Court, to apply to those convicted of both felonies and misdemeanors in the District. In reaching this conclusion, I interpret the terms “United States District Courts” and “United States Courts of Appeals” in the quoted Rules to refer to the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit when they were exercising the regular federal jurisdiction of the United States Courts of Appeals and District Courts, and not when they are exercising the special jurisdiction (equivalent to that of state felony courts) encompassing the trial and appeal of local D.C. crimes that are not regularly tried or heard by any other U. S. courts in the nation. *1321 At the time this case was tried, and for many years prior thereto (to some extent the jurisdiction still exists), the U.S. courts in the District of Columbia had a twofold jurisdiction, which differed greatly from other U.S. District Courts and Courts of Appeals, in that it included jurisdiction, in both criminal and civil matters, that is generally exercised by state trial courts and Supreme Courts in the various states. This local type jurisdiction was in addition to the federal jurisdiction conferred on U.S. District Courts and U.S. Courts of Appeals. It is only to the local type offenses within that state type criminal jurisdiction of the U.S. courts in the District of Columbia that I would hold the release and bail provisions of the D.C. Court Reform Act of 1970 applicable. It just does not make sense to attribute to Congress and the Supreme Court an intent to fragment that D.C. Act, so as to have it only apply to felonies and not to misdemeanors, and thus attribute to Congress and the Supreme Court an intent to accomplish an absurdity. To hold that the release and bail provisions of the D.C. Court Reform Act of 1970 apply to D.C.Code offenses is also required by the well recognized rule of statutory interpretation that a “specific statute controls the general [statute] absent a contrary legislative intent and without regard to priority of enactment.” The Supreme Court has stated the rule: But even if petitioner were correct in concluding that § 2411(a) is to be regarded as the later enactment, it would not necessarily take precedence over § 3711(e), for it is familiar law that a specific statute controls over a general one “without regard to priority of enactment.” Townsend v. Little, 109 U.S. 504, 512 , 3 S.Ct. 357, 362 , 27 L.Ed. 1012 . See, e. g., Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 , 52 S.Ct. 322, 323 , 76 L.Ed. 704 ; Mac-Evoy Co. v. United States, 322 U.S. 102, 107 , 64 S.Ct. 890, 893 , 88 L.Ed. 1163 ; Foureo Glass Co. v. Transmirra Corp., 353 U.S. 222, 228-229 , 77 S.Ct. 787, 791-792 , 1 L.Ed.2d 786 . Bulova Watch Co. v. United States, 365 U.S. 753, 758 , 81 S.Ct. 864 , 6 L.Ed.2d 72 (1961). We have recognized the existence of substantially the same rule: Moreover, the Railway Labor Act is a specific statute directed and limited to proceedings of a special type. The Administrative Procedure Act is general legislation. It is well settled that a specific statute will not ordinarily be deemed superseded, amended or repealed by a later enactment of a general character. Bulova Watch Company v. United States, 365 U.S. 753, 758, 81 . S.Ct. 864, 6 L.Ed.2d 72 . (Emphasis added). Brotherhood of Loc. Fire & Eng. v. Chicago, B. & Q. R. Co., 225 F.Supp. 11, 18 (D.D.C.), aff’d, 118 U.S.App.D.C. 100 , 331 F.2d 1020 , cert. denied, 377 U.S. 918 , 84 S.Ct. 1181 , 12 L.Ed.2d 187 (1964). To the same effect, we held earlier: It is a canon of statutory construction that, where there is an earlier special statute and a later general statute, the terms of the later being broad enough to include the matter provided for in the former, the special statute must be considered as an exception to the general statute. Ex parte Crow. Dog, 109 U.S. 556, 570 , 3 S.Ct. 396 , 27 L.Ed. 1030 ; Rodgers v. United States, 185 U.S. 83, 87, 99, 89 , 22 S.Ct. 582 , 46 L.Ed. 816 . Simon v. Simon, 58 U.S.App.D.C. 158 , 160, 26 F.2d 530, 532 (1928). These decisions refer to instances where the general statute was the later enactment, but here the special statute was the later enactment. In such instance it is even clearer that the intent is to have the special prevail (see n. 9, infra). See *1322 generally 50 Am.Jur. Statutes § 561 and 82, C.J.S. Statutes § 369: For purposes of interpretation, legislative enactments have long been classed as either general or special, and given different effect on other enactments dependent as they are found to fall into one class or the other. Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute, according to the authorities on the question, unless it appears that the legislature intended to make the general act controlling; and this is true a fortiori when the special act is later in point of time, although the rule is applicable without regard to the respective dates of passage \_A]nd where the general act is later, the special statute will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication. (Emphasis added; footnotes omitted). The application of the foregoing principles is illustrated by Arizona Corp. Com’n v. Catalina Foothills Estates, 78 Ariz. 245 , 278 P.2d 427 (1954), wherein the court was faced with the question of whether a special statute enacted in 1939 requiring appeals from the Corporation Commission to be taken within thirty (30) days should be applied or whether the time limit of thirty days was repealed by implication by the subsequent adoption in 1940 of a court rule permitting appeals to be taken within sixty (60) days. The facts are thus closely in point to the factual situation here present. In holding that the adoption of the rule by the Supreme Court did not repeal the special statute by implication, the court pointed out: The rule is that a later act, general in its terms will not be construed as repealing a prior act treating in a special way something within the purview of the general act. In other words, a special or particular statute is not repealed by a general statute, unless the intent to repeal is manifest. It should also be borne in mind that ‘repeals by implication are not favored, and will not be indulged if there is any other reasonable construction. . . . Another rule is ‘that different statutes bearing upon the same subject matter should be so construed, if possible, as to give effect to all.’ . . . For later applications of these tenets, see: Favour v. Frohmiller, 44 Ariz. 286 , 36 P.2d 576 ; State v. Miser., 50 Ariz. 244 , 72 P.2d 408 ; Shapley v. Frohmiller, 64 Ariz. 35 , 165 P.2d 306 ; Arizona Tax Comm, v. Dairy & Consumers Cooperative Ass’n, 70 Ariz. 7 , 215 P.2d 235 . 278 P.2d at 428 . It should be noted that other courts have determined that similar provisions of a code of civil procedure did not work an implied repeal of earlier enactments concerning special proceedings. See Hannon v. Grand Lodge, A.O.U.W. of Kansas, 99 Kan. 734 , 163 P. 169 , supra; Lee v. Lincoln Cleaning & Dye Works, 144 Neb. 659 , 14 N.W.2d 227 ; Duncan v. Ashwan-der, D.C.W.D.La., 16 F.Supp. 829 . 278 P.2d at 429-430 . Applying these principles the court held that the rule promulgated by the state supreme court did not indicate an intention to repeal or in any manner affect the eai’lier statutory provision. The de- *1323 cisión is practically on all fours with the issue here except that the instant case presents a stronger indication that there was never any intent to have Rules 9 5 and 46 6 apply to local offenders in the District of Columbia. This is evident from the language of both rules 7 wherein they provide that release pending appeal shall be “in accordance with Title 18, U.S.C. § 3148 .” The rule thus makes the statute applicable and it is unquestioned that such statute, enacted on June 22, 1966 ( 80 Stat. 215 ), 8 had no application to offenders in the District of Columbia after the enactment on July 29, 1970 ( 84 Stat. 647 ) of the release provisions of the D.C. Court Reform Act of 1970. 9 It is also clear that the D.C. release provisions apply because they are a special statute and because they constitute the later enactment. 10 I would thus hold the D.C.Code provisions to apply to all releases in the U.S. courts of the District of Columbia in connection with all D.C.Code offenses because the adoption of the Rules contained no express repeal, because the presumption is against repeals by implication, 11 because special statutes generally do not repeal special or local statutes and because the language of the Rules only makes the 1966 statute applicable and they do not reenact the 1966 statute so as to constitute it a later enactment over the 1970 statute. Thus, section 3148 only applies to the extent that it applied as a statute and after 1970 this had no application to releases in the District of ColumBia. I accordingly respectfully dissent from the contrary conclusion reached by the majority. . The applicable subsections of Fed.R.App. P. 9 and Fed.R.Crim.P. 46 provide: (c) Criteria for Release. The decision as to release pending appeal shall be made in accordance with Title 18, U.S.C. § 3148 . The burden of establishing that the defendant will not flee or pose a danger to any person or to the community rests with the defendant. As amended April 24, 1972, eff. Oct. 1, 1972. Fed.U.App.P. 9(c). (c) Pending Sentence and Notice of Appeal. Eligibility for release pending sentence or pending notice of appeal or expiration of the time allowed for filing notice of appeal, shall be in accordance with 18 U.S.C. § 3148 . The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant. Fed.R.Crim.P. 46(c). . Fed.it.App.P. 1; Fed.R.Crim.P. 1, 54 (a), (e). . Supra n. 2. . D.C.Code § 23-1325 (c) (Supp. V, 1972) provides: (c) A person wlio lias been convicted of an offense and sentenced to a term of confinement or imprisonment and has filed an appeal or a petition for a writ of certiorari shall be detained unless the judicial officer finds by clear and convincing evidence that (1) the person is not likely to flee or pose a danger to any other person or to the property of others, and (2) the appeal or petition for a writ of certiorari raises a substantial question of law or fact likely to result in a reversal or an order for new trial. Upon such findings, the judicial officer shall treat the person in accordance with the provisions of section 23-1321. . Supra note 1. . Id. . Id. . The addition of the short phrase to this single section on October 15,1970, Pub.L. 91-452 ( 84 Stat. 952 ) would not alter the basic character of the statute as being a 1966 enactment. See Pub.L. 89 — 465, June 22, 1966 ( 80 Stat. 214 -217). . D.C.Code § 23-1325 ( 84 Stat. 647 ). . Supra note 8. . .1A Sutherland, Statutory Construction § 23.10 (Sands 4th ed. 1972). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459802. Public record. Not legal advice.