Sams v. United States, Misc. No. 444.

• Decision Date: 08 June 1954
• Docket Number: Misc. No. 444.
• Citation: 213 F.2d 620
• Parties: SAMS v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

213 F.2d 620 (1954)

SAMS v. UNITED STATES.

Misc. No. 444.

United States Court of Appeals District of Columbia Circuit.

June 8, 1954.

Mr. Abraham Dobkin, Washington, D. C., for petitioner. Mr. Lewis A. Carroll, Asst. U. S. Atty., for respondent. Messrs. Leo A. Rover, U. S. Atty., and Harold H. Greene, Edward P. Troxell, Samuel J. L'Hommedieu, Jr., Asst. U. S. Attys., also entered appearances for respondent.

Before STEPHENS, Chief Judge, and EDGERTON and PRETTYMAN, Circuit Judges.

PER CURIAM.

This case came on for consideration on appellant's motion for a reduction of bond and for a continuance of the trial date and on the original record of the District Court. There was argument by counsel.

Upon consideration whereof, it is ordered by the Court that the aforesaid appellant's motion be, and it is hereby, denied.

STEPHENS, Chief Judge, dissents from the foregoing order for the reasons stated in the memorandum filed herein this day.

STEPHENS, Chief Judge (dissenting from the denial of the motion in the above entitled case so far as it is a motion for continuance of trial date). Following are the facts and sequence of events relevant to the motion:

On March 9, 1954 the defendant was arraigned and his bond set for $5,000 by the United States Commissioner. On May 3 an indictment was filed charging the defendant with attempted extortion. On May 11 the defendant filed in the District Court a motion for reduction of bail. On May 21 that motion was denied by the District Court (Judge Pine). On May 28 the defendant filed in the District Court an application for leave to proceed on appeal in forma pauperis from the order denying reduction of bail. On June 7 the defendant filed in the District Court a motion for continuance of trial and on that same date that motion was denied by the District Court (Judge Laws). Thereafter, but on the same date, June 7, the District Court (Judge Pine) entered an order, over the objection of the Government, allowing the defendant to proceed on appeal in forma pauperis. On that same date notice of appeal (which had been lodged with the District Court at the time of the filing of the application for leave to proceed on appeal in forma pauperis) was filed in the District Court. On June 7 the instant motion for reduction of bail and continuance of trial date was filed in this Court of Appeals. The case has been set for trial in the District Court today, June 8.

In view of the accepted modern practice of construing pleadings liberally in the interest of substantial justice (see Rule 2 of the Federal Rules of Criminal Procedure) the appellant's motion, so far as it is a motion for continuance of trial date, should, in my view, be dealt with as in effect a motion for a stay order, i. e., a stay against immediate trial in the District Court pending review in this court of the denial of the motion to reduce bail.

By allowing the defendant to appeal in forma pauperis the District Court itself recognized that there is a substantial question involved in the appeal from the denial of the motion to reduce bail. It is exceptional for the District Court to allow appeals in forma pauperis and therefore the allowance is especially significant of the existence of a substantial question. The appeal is properly before this court and the appellant is entitled to have the appeal heard. He filed notice of appeal on the very day on which he was allowed by the District Court to take his appeal in forma pauperis and he applied to this court immediately thereafter, to wit, on the same day, for continuance of the trial date. If this court does not issue a stay order the defendant's right of appeal from the denial of the motion to reduce bail will be defeated because the case will go to trial today, June 8, and the appeal will become ineffective. It is to be noted further that the action of the District Court by Judge Laws in denying the motion for continuance of trial is in conflict with the action of the court by Judge Pine on the same day allowing the defendant to appeal in forma pauperis.

This court has authority, under the All Writs Statute, 28 U.S.C. 1651(a), to issue orders to protect its appellate jurisdiction. I think, therefore, that a stay order should be issued against the trial of the case in the District Court pending review in this court of the denial of the motion to reduce bail. Stack v. Boyle (1951) 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3, recognizes that by the Federal Rules of Criminal Procedure (Rule 46 (a) (1)) ". . . federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker (1895) 156 U.S. 277, 285, 15 S.Ct. 450, 39 L.Ed. 424. Unless...