D'AQUINO v. United States

• Citation: 180 F.2d 271
• Decision Date: 06 February 1950
• Docket Number: No. 12383.,12383.
• Parties: D'AQUINO v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

180 F.2d 271 (1950)

D'AQUINO v. UNITED STATES.

No. 12383.

United States Court of Appeals, Ninth Circuit.

February 6, 1950.

Wayne M. Collins, George Olshausen and Theodore Tamba, San Francisco, Cal., for appellant.

Frank J. Hennessy, U.S. Atty., San Francisco, Cal., Tom DeWolfe and James W. Knapp, Sp. Assts. to Atty. Gen., for appellee.

DOUGLAS, Circuit Justice.

Appellant was convicted of treason and sentenced to imprisonment for a term of 10 years and fined $10,000. Her motion to the District Court to be released on bail pending appeal was denied. On filing her notice of appeal she applied to the Court of Appeals for bail pending appeal. After a hearing before Circuit Judges Healy, Bone, and Pope, bail was denied by the court without opinion. Application is now made to me as Circuit Justice for the same relief.

The Circuit Justice has the power to allow bail pending appeal under Rule 46(a) (2), Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides: "Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. Bail may be allowed by the trial judge or by the appellate court or by any judge thereof or by the circuit justice."

The fact that the Court of Appeals has previously denied an application for bail is a circumstance which makes a Circuit Justice hesitate to act, as Mr. Black suggested in the unreported opinion of Simon v. United States.¹ In that case he sat as Circuit Justice for the Fourth Circuit. Even though that Court of Appeals had denied bail, he granted it after considering the merits of the appeal. That decision was made in 1941 under the earlier rules. The new rules of Criminal Procedure likewise preserve the power of the Circuit Justice to act even where the Court of Appeals has denied the relief. But under the new rules, as under the old, great deference is owing the adverse action of the Court of Appeals.

Accordingly I have examined the record in the case during the last few weeks. On the basis of my study of it and of the briefs submitted by appellant and by appellee, I have concluded that appellant is entitled to bail.

The question of the guilt or innocence of an appellant is not an issue on application for bail. It has long been a principle of federal law that bail after conviction and pending appeal is a remedy normally available to a prisoner. See Hudson v. Parker, 156 U.S. 277, 285, 15 S.Ct. 450, 39 L.Ed. 424. The existence of power to grant bail is, indeed, essential for the protection of the right to appeal. Otherwise a short sentence might be served before the appellate court could set aside the judgment of conviction for infirmities in the trial. An effective right to appeal would then be lost.

The matter has best been summarized by Mr. Justice Butler sitting as Circuit Justice for the Seventh Circuit in United States v. Motlow, 10 F.2d 657, 662. He wrote, "Abhorrence, however great, of persistent and menacing crime will not excuse transgression in the courts of the legal rights of the worst offenders. The granting or withholding of bail is not a matter of...