Heikkinen v. United States, 11008.

Decision Date30 November 1953
Docket NumberNo. 11008.,11008.
Citation208 F.2d 738
PartiesHEIKKINEN v. UNITED STATES.
CourtU.S. Court of Appeals — Seventh Circuit

Kenneth J. Enkel, Minneapolis, Minn., Pearl M. Hart, Chicago, Ill., for appellant.

Frank L. Nikolay, U. S. Atty., Madison, Wis., for appellee.

Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

On October 14, 1953 an information was filed in the District Court for the Western District of Wisconsin charging appellant with violation of 8 U.S.C.A. § 156(c)1 in that he, a resident alien, against whom an order of deportation was outstanding, wilfully failed to depart from the United States within six months from the date of that order. He was taken into custody and bail was set in the amount of $10,000, in proceedings not disclosed by the incomplete record certified to this court. On October 20, appellant moved that the bail be reduced; his motion was denied summarily. His notice of appeal from this order was filed October 29, 1953, and a short record brought to this court. By the instant motion, filed November 5, appellant asks this court to reduce the amount of bail or to remand the cause to the court below with directions to reduce bail.

At some time subsequent to October 21, as appears from affidavits filed in support of, and against, this motion, all criminal proceedings herein were stayed for a period of 90 days to enable appellant to arrange for his entry into Finland for permanent residency.

Since appellant has not yet been brought to trial he has an absolute right to be admitted to bail, F.R.Crim.P. rule 46(a), 18 U.S.C.A., based, as to the amount fixed, on the standards prescribed by F.R.Crim.P. rule 46(c) for the purpose of securing his presence for trial. Bail set at an amount higher than that reasonably calculated to insure that an accused will appear to stand trial and submit to sentence if convicted is excessive, and falls within the proscription of the Eighth Amendment of the Constitution of the United States. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3; Forest v. United States, 8 Cir., 203 F.2d 83; United States ex rel. Rubinstein v. Mulcahy, 2 Cir., 155 F.2d 1002. Measured by these standards, a substantial question is presented whether the trial court required excessive bail. However, we must first determine whether we have jurisdiction to review the order denying appellant's motion before final judgment.

This question was of importance in two categories of recent cases, namely, those involving alien defendants and those involving defendants charged under the Smith Act, 18 U.S.C.A. § 2385, with conspiracy to overthrow the government by force. In United States ex rel. Rubinstein v. Mulcahy, 2 Cir., 155 F.2d 1002, bail of $500,000 was assessed for the release of an alien awaiting trial on an indictment charging violation of the Selective Service Act, 50 U.S.C.A.Appendix, § 311. In holding that excessive bail had been fixed, the court of appeals for the Second Circuit, one judge dissenting, held that the proper remedy to challenge the fixing of excessive bail was a petition for a writ of habeas corpus. On a similar fact situation, the Ninth Circuit, one judge dissenting repudiated the Mulcahy decision and held that an order fixing excessive bail could not be challenged in a habeas corpus proceeding, but could be questioned only by a motion to reduce bail. Stack v. Boyle, 9 Cir., 192 F.2d 56.

On certiorari, the Supreme Court affirmed the judgment denying petitioners' applications for writs of habeas corpus, without prejudice, however, to petitioners, on remand, to move the district court for a reduction of bail. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. The court said, 342 U.S. at pages 6-7, 72 S.Ct. at page 4: "The proper procedure for challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the Court of Appeals from an order denying such motion. Petitioners' motion to reduce bail did not merely invoke the discretion of the District Court setting bail within a zone of reasonableness, but challenged the bail as violating statutory and constitutional standards. And there is no discretion to refuse to reduce excessive bail, the order denying the motion to reduce bail is appealable as a `final decision' of the District Court under 28 U.S.C. (Supp. IV) § 1291, 28 U.S.C.A. § 1291. Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528. In this case, however, petitioners did not take an appeal from the order * * * denying their motion for reduction of bail. Instead, they presented their claims under the Eighth Amendment in applications for writs of habeas corpus. While habeas corpus is an appropriate remedy for one held in custody in violation of the Constitution, * * * the District Court should withhold relief in this collateral proceeding where an adequate remedy available in the criminal proceeding has not been exhausted." (Emphasis supplied.)

This language has been construed as the adoption, for application in criminal cases, of the principle announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206, that an order which does not terminate an action, but is made in the course of the action, has the finality that Section 1291 requires for appeal if it has a final and irreparable effect on the rights of the parties, is too important to be denied review, and the claimed right is not an ingredient of the cause of action and does not require consideration with it. United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13, 16. Under these authorities, the order denying appellant's motion for a reduction of bail is an appealable order, and is properly before this court.

As previously noted, this appeal presents a substantial question whether bail was not unlawfully fixed. The incomplete record before the court is unsatisfactory. Appellant's motion was summarily denied, and the transcript of this proceeding does not reveal the factors on which the court based its decision fixing bail at $10,000. This transcript, in pertinent part, reads as follows:

"The Court: And you have another motion here for reduction of bail?
"Mr. Enkel, defense counsel: Yes I have.
"Court: That is also denied."

Counsel then requested that his motion be construed as a petition for a writ of habeas corpus. This request was denied, the court stating:

"Court: You have moved for reduction of bail here. The Immigration and Naturalization Department has requested $10,000 bail. There may be some reason for it." (Emphasis supplied.)

From affidavits filed in support of the original motion it appears that appellant was placed under arrest in 1950 by the Immigration and Naturalization Service as a deportable alien and confined in jail until a United States court ordered him released on $2500 bail; that on April 25, 1952, proceedings before the Immigration Service terminated in an order of deportation; that, in the fall of that year, appellant was placed on supervisory parole by the Immigration Service, which required him to report at regular intervals to its Duluth office, and the bail bond posted by him was released; that he has, at all time subsequent to his arrest in 1950, complied fully with commands of the Immigration Service; that his departure from the United States, in compliance with the deportation order, has been delayed by questions arising as to appellant's right to reenter Canada, of which he is a naturalized citizen; and that his Canadian citizenship was ultimately revoked, making his entry into that country impossible. These facts are reaverred here in affidavits supporting the instant motion, and none is denied by the Government. Appellant states that his assets are limited solely to about $1000 cash, and a moderate weekly income when working. Furthermore, as previously noted, the District Court has stayed all further proceedings for a period of ninety days to enable appellant to attempt to...

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10 cases
  • DeChamplain v. Lovelace
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 2, 1975
    ...has held that civilians are constitutionally entitled to a hearing on pretrial release in bailable cases. 12 Heikkinen v. United States, 208 F.2d 738, 742 (7th Cir. 1953); see also United States v. Gilbert, 425 F.2d 490 (D.C.Cir.1969); cf. Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974) (th......
  • Short v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 23, 1965
    ...v. United States, 120 U.S. App.D.C. ___, 343 F.2d 322, per curiam order dated Feb. 16, 1965 (separate opinion); Heikkinen v. United States, 208 F.2d 738, 742 (7th Cir. 1953). 13 See Bandy v. United States, 82 S.Ct. 11, 7 L.Ed.2d 9 (1961) (Mr. Justice Douglas as Circuit Justice); Alston v. U......
  • State v. Beyer, 59816
    • United States
    • Iowa Supreme Court
    • October 19, 1977
    ...4, 72 S.Ct. 1, 3, 96 L.Ed. 3, 6 (1951); Pugh v. Rainwater, 557 F.2d 1189, 1200 (5th Cir., filed August 22, 1977); Heikkinen v. United States, 208 F.2d 738, 742 (7th Cir. 1953). Trial court based its ruling denying bail on § 763.1, The Code, "All defendants are bailable both before and after......
  • United States v. Heikkinen, 11709.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 4, 1957
    ...set in the amount of $10,000. Another dispute concerning defendant's bail arose which was disposed of by this court in Heikkinen v. United States, 7 Cir., 208 F.2d 738. Bail was subsequently reduced and posted and defendant was On November 10, 1953, defendant was indicted and found guilty o......
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1 books & journal articles
  • Review Proceedings
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...and effectively unreviewable on appeal from f‌inal judgment); Dotson v. Clark, 900 F.2d 77, 78 (6th Cir. 1990) (same); Heikkinen v. U.S., 208 F.2d 738, 742 (7th Cir. 1953) (order denying motion to reduce bail immediately appealable because motion “emergency” by nature); U.S. v. Spilotro, 78......

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