United States v. Bentvena

• Decision Date: 07 February 1961
• Docket Number: No. 26869.,26869.
• Citation: 288 F.2d 442
• Parties: UNITED STATES of America, Respondent-Appellee, v. William BENTVENA, Carlie Di Pietro, Joseph Fernandez, Carmine Galante, Angelo Loicano, Frank Mari, Samuel Monastersky, John Ormento, William Struzzieri, Petitioners-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

288 F.2d 442 (1961)

UNITED STATES of America, Respondent-Appellee, v. William BENTVENA, Carlie Di Pietro, Joseph Fernandez, Carmine Galante, Angelo Loicano, Frank Mari, Samuel Monastersky, John Ormento, William Struzzieri, Petitioners-Appellants.

No. 26869.

United States Court of Appeals Second Circuit.

Argued February 7, 1961.

Decided February 7, 1961.

James K. Branigan, New York City, for petitioners-appellants William Bentvena and William Struzzieri.

William Kleinman, Brooklyn, for petitioners-appellants Carlie Di Pietro and Frank Mari.

Thomas A. Wadden, Jr., Washington, D. C., for petitioner-appellant Carmine Galante.

George J. Todaro, New York City, for petitioner-appellant Joseph Fernandez.

Sylvester Cosentino, New York City, for petitioner-appellant Angelo Loicano.

Robert Mitchell, New York City, for petitioner-appellant Samuel Monastersky.

Vincent J. Fuller, Washington, D. C., for petitioner-appellant John Ormento.

Paul J. Curran, Asst. U. S. Atty., Southern Dist. of New York, New York City (Morton S. Robson, U. S. Atty., William M. Tendy and Jonathan L. Rosner, Asst. U. S. Attys., New York City, on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, WATERMAN, Circuit Judge, and MADDEN, Judge, United States Court of Claims.^*

LUMBARD, Chief Judge.

William Bentvena and his eight co-appellants are among 19 defendants now on trial in the Southern District of New York on charges of violating the narcotics laws, 21 U.S.C.A. §§ 173 and 174, and conspiracy so to do, 18 U.S.C. § 371. The nine defendants whose petitions we here consider had been enlarged on bail until Judge Levet remanded them to custody on January 30, 1961.¹ They then moved before this court seeking reversal of the order of commitment and applied to us for bail. On February 8, in open court, we denied the motions and affirmed the order of the trial judge.

As the appeal and the motions raised important questions regarding the powers of the trial judge to conduct a criminal trial, we think it appropriate to set forth our reasons.

We understand the appellants to argue that the right to bail is absolute to the time of conviction and that the trial judge has no discretion to remand.

The right to bail has been recognized throughout the history of the republic. Justification for the right, felt to inhere in the presumption that all men are innocent until proven guilty, has traditionally been found in the desire to ensure against the infliction of punishment prior to conviction and to permit the unhampered preparation of a defense. See Stack v. Boyle, 1951, 342 U.S. 1, 4, 8, 72 S.Ct. 1, 96 L.Ed. 3; Hudson v. Parker, 1895, 156 U.S. 277, 285, 15 S.Ct. 450, 39 L.Ed. 424. Thus, until trial commences, enlargement on bail is the rule, upon adequate assurance that the accused will appear at trial.

But once the trial begins the right to bail is necessarily circumscribed by other pressing considerations. The public interest in efficient criminal prosecution becomes more pressing once a defendant goes to trial. The investment of public funds in a trial, the impanelling of a jury, and the gathering of witnesses demand that precautions be taken to ensure that the proceedings go forward and terminate with all possible dispatch consistent with due process. A defendant at large may more easily engage in subterfuges designed to delay the trial and ultimately force a mistrial, or may tamper with witnesses to undermine the proceedings against him. Thus, the dangers of releasing a defendant on bail during the course of a trial are substantially greater than those existing before trial. For these reasons, trial courts have often exercised the power to remand a defendant into custody during the trial in the exercise of sound discretion. See United States v. Rice, C.C.S.D.N.Y.1911, 192 F. 720; Adkins v. Commonwealth, 1896, 98 Ky. 539, 33 S.W. 948, 32 L.R.A. 108; People v. Merhige, 1922, 219 Mich. 95, 188 N.W. 454; State v. Hyde, 1911, 234 Mo. 200, 136 S.W. 316; State v. Wright, 1927, 140 S.C. 363, 138 S.E. 828. We think it plain beyond discussion that neither the Fifth nor Eighth Amendment forbids this power to a federal court.

Rule 46(a) (1), Federal Rules of Criminal Procedure, 28 U.S.C.A., reads (so far as is here pertinent):

"Before Conviction. A person arrested for an offense not punishable by death shall be admitted to bail. * * *"

This portion of the rule was intended as mere restatement without change in meaning from the corresponding provision in former § 596 of Title 18, Rev. Stat. § 1015:

"Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death."

See Notes of Advisory Committee on Rule 46(a) (1); 80th Congress, House Report No. 304; Stack v. Boyle, 1951, 342 U.S. 1, 16, 72 S.Ct. 1, 96 L.Ed. 3. That statute, among others, was characterized by the Supreme Court in Hudson v. Parker, 1895, 156 U.S. 277, at page 285, 15 S.Ct. 450, at page 453, 39 L. Ed. 424 as relating to "bail upon arrest and before trial."

The Supreme Court declared, in Stack v. Boyle, supra, 342 U.S. at page 4, 72 S. Ct. at page 3, with reference to Rule 46 (a) (1):

"Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Emphasis supplied.

We agree with the United States Attorney that the topical distinction made in Rule 46(a) between the right to bail before conviction and the right to bail upon review has not destroyed the distinction between bail prior to trial and bail during the trial. Even Blackstone, at a time when bail during trial was unknown, refers customarily to "bail before conviction," when meaning only bail before trial. 4 Bl.Comm. 295.

We therefore hold that the district court possessed an inherent authority to remand the defendants into custody during trial in the exercise of a sound discretion. Hood v. United States, 8 Cir., 1927, 23 F.2d 472, 475; United States v. Rice, C.C.S.D.N.Y.1911, 192 F. 720; see also 51 Mich.L.Rev. 389, 396 (1953).²

Usually, however, many considerations supporting the right to bail before the trial continue to exist during the trial as well. Particularly when, as here, the trial is lengthy and the defendants numerous, the power of the trial judge should be exercised with circumspection, for a defendant should not be unduly hindered in his defense. Moreover, the trial judge should not overlook his power, in proper circumstances, to require additional bail in lieu of remand. See 18 U.S.C. § 3143.

We also hold that under all the circumstances of the case, especially a succession of misadventures which have already caused numerous delays and adjournments in the presentation of the evidence, the order of the trial judge was a proper exercise of discretion for the purpose of ensuring the orderly completion of the trial.

From its inception the trial has been bedeviled by frequent delays. Commenced on November 21 rather than November 14 because of the disappearance of a defendant (Angelo Tuminaro) still a fugitive, it was thereafter impeded by apparent illness, accident and other misfortune.

John Ormento became ill Tuesday, December 6. The trial halted at 2:30 in the afternoon and did not resume until Friday, December 9. On Wednesday, December 14, David Petillo found himself unwell and was thereupon transferred to Bellevue where a preliminary diagnosis of cardiac insufficiency was made. After hearing conflicting medical testimony, the trial judge granted a further adjournment. Tests subsequently established that Petillo was not suffering from heart disease.

The trial was then scheduled to resume Thursday, December 22. On that day, after a motion for mistrial (grounded on prejudice to all the defendants by the prior delays) had been denied, it was found impossible to continue because one of the defendants (Sancinella) was not present. The defaulter appeared that evening and was remanded. On Tuesday, December 27, the court was informed that counsel for Sancinella was suffering from an incapacitating illness. Sancinella was thereupon directed to retain new counsel, or accept court-appointed counsel, and to familiarize said counsel with the facts of the case. Because of this and the death of a juror's brother, the trial was then adjourned to January 3, 1961. On January 3, Sancinella indicated an inability to procure other counsel; the court therefore assigned him Albert Krieger, Esq., counsel for the defendant Gellman. Sancinella refused, however, to accept or confer with any counsel other than the still incapacitated attorney who had represented him at the ouset. In consequence, the trial judge granted Sancinella a mistrial and severance.

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