527 F.2d 1090 (9th Cir. 1975), 74--1897, Kelly v. Springett

Docket Nº:74--1897.
Citation:527 F.2d 1090
Party Name:Eichler O. KELLY, Appellant, v. H. E. SPRINGETT, Bureau of Narcotics Enforcement, et al., Appellees.
Case Date:September 05, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1090

527 F.2d 1090 (9th Cir. 1975)

Eichler O. KELLY, Appellant,

v.

H. E. SPRINGETT, Bureau of Narcotics Enforcement, et al., Appellees.

No. 74--1897.

United States Court of Appeals, Ninth Circuit

September 5, 1975

Rehearing Denied Oct. 20, 1975.

Page 1091

Eichler O. Kelly, in pro. per.

Page 1092

Eddie T. Keller, Deputy Atty. Gen., Sacramento, Cal., for appellees.

OPINION

Before CHAMBERS, KILKENNY and TRASK, Circuit Judges.

KILKENNY, Circuit Judge:

This appeal is taken from a summary judgment entered in favor of appellees in an action prosecuted by appellant under 42 U.S.C. § 1983.

PREVIOUS HISTORY

In March, 1971, appellant's amended complaint was dismissed by the district court. On appeal, we vacated the judgment and remanded for consideration in the light of Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). Thereafter, certain documents developing the facts in connection with appellant's claims were filed with the district court. Subsequently, that court granted the summary judgment from which this appeal is prosecuted.

PRESENT LITIGATION

The record now before us and before the district court at the time of allowance of the motion granting the summary judgment discloses the following facts. On January 30, 1968, appellee Springett, an agent of the California Bureau of Narcotics Enforcement, entered appellant's business premises armed with warrants to search and arrest. Springett arrested Kelly and took from his person $1,113.00, not including some marked $20.00 bills which had been given to Kelly in a sale of narcotics to a government informer. Although the search warrant authorized a search for narcotics and narcotics' paraphernalia only, Springett took from the premises various other items, including a Bank of America passbook for Kelly's commercial account.

In a state court hearing, the state maintained that this sum of money was taken pursuant to the arrest and not under the authority of the search warrant.

After ascertaining the facts, the California Franchise Tax Board entered an order to withhold income taxes from this fund and the commercial account. The funds were then delivered to the Board. This order was issued by appellee Heryet, Branch Manager of the Board's San Diego Office. He had earlier informed appellee Williams, the Board's Chief of Claims and Review, that Kelly's income for the tax years 1966 and 1967 was substantial. Williams reviewed appellant's files and found no personal income tax returns had been filed for the tax years in question. Jeopardy assessments were immediately made against appellant and at this time an order was issued to Springett to withhold on the $1,113.00. The inquiry indicated a total taxable income in a substantial amount on the basis of which a jeopardy assessment of $28,599.00 was levied. Appellant alleged, and it is not denied, that Heryet issued an order to Bank of America to withhold the tax from the funds in its hands.

Appellant did not file with the district court a showing tending to refute the facts as above outlined. Although he does not dispute that he had income for the years in question, he says he paid his taxes.

ISSUES ON APPEAL

We summarize appellant's contentions as follows:

(1) Deprivation of his right to bail by reason of alleged confiscation of the $1,113.00 and his bank account.

(2) Deprivation of his right to retained counsel by reason of the seizure of such funds.

(3) Illegal confiscation of the funds and demand for judgment for the total of such funds.

On the question of whether a summary judgment was properly granted, we are governed by Rule 56(e), F.R.Civ.P., as interpreted in United States v. Williams, 416 F.2d 565, 567 (CA9 1969), cert. denied sub nom. Gossett v. United

Page 1093

States, 397 U.S. 961, 90 S.Ct. 992, 25 L.Ed.2d 253 (1970). It is there held that the obvious purpose of the 1966 amendment to the rule is to require a party opposing a summary judgment to set forth specific facts showing a genuine issue for trial.

RIGHT TO BAIL

Appellant charges that the seizure of his funds effectively precluded him from being able to post bail. Although an accused has a Fourteenth Amendment due process right to have a state's bail system administered without caprice or discrimination, he has no absolute right to bail. Bloss v. Michigan, 421 F.2d 903, 905 (CA6 1970), cf. Roberson v. Connecticut, 501 F.2d 305, 308 (CA2 1974); Wagner v. United States, 250 F.2d 804, 805 (CA9 1957). The Bail Reform Act of 1966, 18 U.S.C. §§ 3146--3152, applies only to federal prisoners. united states ex rel. brown v. Fogel, 395 F.2d 291 (CA4 1968); Ballou v. Massachusetts, 382 F.2d 292 (CA1 1967). Appellant does not claim that the California state bail system was administered with caprice or discrimination. This contention is meritless.

RIGHT TO RETAINED COUNSEL

Here, appellant contends that the seizure...

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