Alternatively, the government could have filed a detention

1

motion under F.R.A.P. 9(b) in Marshall's pending appeal. In either

case, our review of the release/detention question is governed

procedurally by 18 U.S.C. § 3145(c) and F.R.A.P. 9(a). The parties

have provided us with statements of position, a copy of the

district court's order, and a transcript of the sentencing

proceedings, so this question is ready for decision. 

___________

No. 96-1312

___________

United States of America, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Milton Gary Marshall, *

* [PUBLISHED]

Defendant - Appellee. *

___________

 Submitted: February 23, 1996

 Filed: March 8, 1996

___________

Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

Milton Gary Marshall was convicted of causing others to file

fraudulent federal income tax returns in violation of 26 U.S.C. § 7206(2).

The district court sentenced him to fifty-one months in prison, one year

of supervised release, and a $15,000 fine. Marshall appealed, and the

district court ordered his release pending appeal. The government appeals

this release order under 18 U.S.C. §§ 3145(c) and 3731. We reverse. 1

The Bail Reform Act of 1984 made it much more difficult for a

convicted criminal defendant to obtain his release pending appeal. 
-2-

The Act's intent "was, bluntly, that fewer convicted persons remain at

large while pursuing their appeals." United States v. Powell, 761 F.2d

1227, 1231 (8th Cir. 1985) (en banc). For crimes of the type committed by

Marshall, release pending appeal now requires that the district court or

this court find (A) by clear and convincing evidence that the defendant is

unlikely to flee or pose a danger to others, and (B) that his appeal

"raises a substantial question of law or fact" that is likely to result in

reversal, new trial, or reduction to a sentence that would be served before

disposition of the appeal. 18 U.S.C. § 3143(b)(1)(A) & (B).

The district court ignored requirement (B), giving as reasons for

Marshall's release only that he is "not a risk to flee," that detention

"would be very, very harsh and restrictive on you," and "that the appeal

can be handled relatively quickly." This was error. Moreover, Marshall

did not satisfy requirement (B) in his statement of position to this court;

indeed, he did not even identify what issues he will raise on appeal. We

require a showing that the appeal presents "a close question" -- not

"simply that reasonable judges could differ" -- on a question "so integral

to the merits of the conviction that it is more probable than not that

reversal or a new trial will occur if the question is decided in the

defendant's favor." Powell, 761 F.2d at 1234. Thus, Marshall must be

detained pending appeal.

The district court order releasing Milton Gary Marshall pending

appeal is reversed. The case is remanded for the limited purpose of

imposing an appropriate detention order. This partial remand does not

affect Marshall's pending appeal.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.