## Facts

- Stanton Miller and Robert Miller managed and partly owned a Philadelphia hotel.
- They operated a large nightly bingo game that was presented as church-sponsored but was not.
- A federal jury convicted both defendants of conspiracy to defraud the United States, filing false income tax returns, and conducting an illegal gambling business.
- Stanton Miller was also convicted of making a false oath in a bankruptcy proceeding.
- The charged conduct occurred from September 1971 to February 1981.
- The jury returned guilty verdicts on October 19, 1984, and the district court sentenced defendants on November 30, 1984.
- The Bail Reform Act of 1984 took effect on October 12, 1984, replacing the prior bail-pending-appeal statute.
- The district court denied bail pending appeal under the 1984 Act and ordered surrender; defendants took an interlocutory appeal limited to the bail ruling.

## Issues

1. Whether applying 18 U.S.C. § 3143(b) (Bail Reform Act of 1984) to defendants whose offenses predated the Act violates the Ex Post Facto Clause.
2. What “substantial question of law or fact likely to result in reversal or an order for a new trial” means under 18 U.S.C. § 3143(b).

## Decision

- The court held that applying § 3143(b) to defendants convicted after the Act’s effective date, even for earlier conduct, does not violate the Ex Post Facto Clause.
- The court defined a “substantial question” under § 3143(b) as a close question or one that could be decided the other way, not merely a non-frivolous issue.
- The court required a two-step showing: (1) a substantial question is raised, and (2) if resolved in the defendant’s favor, it is likely to result in reversal or a new trial.
- The court denied release pending appeal, leaving the district court’s no-bail order in effect.

## Legal Principles

- Post-conviction release standards for bail pending appeal are procedural rules governing custody after conviction and generally do not implicate the Ex Post Facto Clause when applied to defendants whose underlying conduct predates the statute.
- Under 18 U.S.C. § 3143(b), the defendant bears the burden to show (a) no likely flight and no danger to the community, and (b) an appeal raising a substantial, close question.
- A “substantial question” is one that is fairly debatable among jurists or subject to differing conclusions; it is more demanding than “not frivolous.”
- Even if a substantial question exists, bail pending appeal requires a further showing that a favorable ruling on that question would likely be outcome-determinative (reversal or new trial).

## Conclusion

The Third Circuit applied the Bail Reform Act of 1984 to defendants convicted after its effective date, rejected an ex post facto challenge, and adopted a stringent two-part test for bail pending appeal requiring a close appellate issue that would likely lead to reversal or a new trial.


United States v. Miller, 753 F.2d 19 (3d Cir. 1985)