United States v. Shaughnessy, 166

Decision Date13 February 1952
Docket NumberDocket 22259.,No. 166,166
Citation194 F.2d 474
PartiesUNITED STATES ex rel. YOUNG v. SHAUGHNESSY, District Director of Immigration and Naturalization Service.
CourtU.S. Court of Appeals — Second Circuit

Isidore Englander, New York City, for relator-appellant.

Myles J. Lane, U. S. Atty., New York City, William J. Sexton, Asst. U. S. Atty., Louis Steinberg, District Counsel, United States Department of Justice, Immigration and Naturalization Service, and Lester Friedman, Attorney, United States Department of Justice, Immigration and Naturalization Service, all of New York City, for respondent-appellee.

Before AUGUSTUS N. HAND and CLARK, Circuit Judges, and BRENNAN, District Judge.

AUGUSTUS N. HAND, Circuit Judge.

Martin Young was taken into custody on October 26, 1951, pursuant to a warrant for his arrest dated October 18, 1951, which charged that he was deportable in that he had illegally entered the United States without a valid immigration visa and was a member of the Communist party of the United States at the time of his entry. The warrant of arrest made no provision for his release on bail pending deportation proceedings, wherefore he filed a petition in the district court for a writ of habeas corpus, alleging that his detention was illegal. The writ was granted on October 31, 1951. The respondent filed a return, and the relator a traverse to the return, both of which were dated November 7, 1951. On November 21, 1951, the district court ordered the writ dismissed after having heard oral argument. Thereafter, the relator moved for a reargument on the petition and asked leave to amend the traverse. This motion was denied.

For the purpose of this appeal we may assume without deciding that the action of the Attorney General in refusing to release Young on bail pending the outcome of the deportation proceedings would be reviewable and subject to reversal in case of an abuse of discretion even after the passage of the Internal Security Act of 1950, 50 U.S.C. § 781 et seq. United States ex rel. De Geronimi v. Shaughnessy, 2 Cir., 187 F.2d 896. In his petition for the writ, Young alleged facts indicating that if released he would be available for any further proceedings at which his presence would be required. The return to the writ, however, contained allegations which, if accepted, established a reasonable foundation for the denial of bail by the Attorney General. Thus the return, in addition to containing allegations of membership in the Communist party, alleged that Young had once before escaped from custody during earlier proceedings; that he had previously attempted to enter the United States by furnishing a false identity and with a fraudulent passport; and that during his present detention he refused to answer questions relating to prior identification, places of residence, employment and home life. Section 2248 of the Judicial Code, 28 U.S.C. § 2248, requires that the facts alleged in the return be taken as true unless impeached, and Young in his traverse to the return did not refute those statements, nor did he in his motion for reargument, make any offer to prove the contrary, nor did he assert new facts, which under 28 U.S.C. § 2246 could have been accomplished by affidavit. As the Supreme Court has recently said in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3: "The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty." While we held in United State ex rel. Potash v. District Director of Immigration and Naturalization, 2d Cir., 169 F.2d 747, that the action of the Attorney General was under the then existing law judicially reviewable, we nevertheless carefully said: "However, in any consideration of his denial of bail it should always be borne in mind that the court's opinion as to whether the alien should be admitted to bail can only override that of the Attorney General where the alien makes a clear and convincing showing that the decision against him was without reasonable foundation." 169 F.2d at page 751.

In the light of the allegations of the return, which we must accept as true, we cannot say that the relator made such a showing here. Accordingly the orders are affirmed.

CLARK, Circuit Judge (dissenting).

Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, as quoted in the opinion, establishes that the function of bail to an accused is to furnish adequate assurance of his presence at trial and for service of sentence if found guilty. "Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is `excessive' under the Eighth Amendment." Id., 342 U.S. at page 5, 72 S.Ct. at page 3. This is the import of F.R.Cr.P., Rule 46(c), 18 U.S.C., providing that the amount shall be such as "will insure the presence of the defendant." Other purposes, such as punishment or security to society, are not to be subserved through the medium of refusing bail. So Justice Jackson has stated that, notwithstanding the evil character of convicted defendants, "it is still difficult to reconcile with traditional American law the jailing of persons by the the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted." Williamson v. United States, 2 Cir., 184 F.2d 280, 282, 283. If such is the law binding upon courts even after conviction had, I think no harsher rule may be applied by administrative officials in proceedings not criminal in nature.

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6 cases
  • Carlson v. Landon Butterfield v. Zydok
    • United States
    • United States Supreme Court
    • March 10, 1952
    ...upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty." United States ex rel. Young v. Shaughnessy, 2 Cir., 194 F.2d 474. 1. See my dissents in Dennis v. United States, 341 U.S. 494, 584—589, 71 S.Ct. 857, 904—907, 95 L.Ed. 1137; Harisi......
  • United States v. Shaughnessy, 189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 20, 1952
    ...v. Shaughnessy, supra, and supports the approach of this court in our prevailing and dissenting opinions in United States ex rel. Young v. Shaughnessy, 2 Cir., 194 F.2d 474. Certainly, of itself, it does not broaden the right of restraint beyond all need of what it is designed to effectuate......
  • Ocon v. Landon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 18, 1954
    ...2 Cir., 1953, 202 F.2d 109; United States ex rel. Nukk v. Dist. Director, 2 Cir., 1953, 205 F.2d 242; United States ex rel. Young v. Shaughnessy, 2 Cir., 1954, 194 F.2d 474; United States ex rel. De Geronimi v. Shaughnessy, 2 Cir., 1951, 187 F.2d 896; United States ex rel. Potash v. Distric......
  • United States v. Esperdy, 165
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 11, 1953
    ...Potash v. District Director, 2 Cir., 169 F.2d 747; U. S. ex rel. De Geronimi v. Shaughnessy, 2 Cir., 187 F.2d 896; U. S. ex rel. Young v. Shaughnessy, 2 Cir., 194 F.2d 474. We find nothing which justifies the appellee's argument that § 242(a) of the Immigration and Nationality Act, which gr......
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