United States v. Fogel

• Decision Date: 11 April 1968
• Docket Number: No. 12295,12316.,12295
• Citation: 395 F.2d 291
• Parties: UNITED STATES of America ex rel. H. Rap BROWN, Relator, Appellant, v. Honorable Raymond FOGEL, City Sergeant, Alexandria, Virginia, Respondent, Appellee (two cases).
• Court: U.S. Court of Appeals — Fourth Circuit

395 F.2d 291 (1968)

UNITED STATES of America ex rel. H. Rap BROWN, Relator, Appellant, v. Honorable Raymond FOGEL, City Sergeant, Alexandria, Virginia, Respondent, Appellee (two cases).

Nos. 12295, 12316.

United States Court of Appeals Fourth Circuit.

Argued April 11, 1968.

Decided April 11, 1968.

Opinion Filed April 19, 1968.

William M. Kunstler, New York City (Murphy Bell, Baton Rouge, La., Arthur Kinoy, New York City, Morton Stavis, Newark, N. J., Howard Moore, Jr., Atlanta, Ga., Philip J. Hirschkop, Dennis Roberts, Harriet Van Tassel and George Logan, III, Newark, N. J., on memorandum), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen. of Virginia, and Earl F. Wagner, Commonwealth's Atty. for City of Alexandria, on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Immediately following the argument and conference, we announced our judgment in these consolidated appeals. We now proceed to state the reasons for our conclusions.

The background of the present appeals was considered by us in Brown v. Fogel, 387 F.2d 692 (4 Cir. 1967), and it is unnecessary for us to repeat the facts recited there. In No. 12,295 we are asked to review orders of the district judge, entered February 26, 1968, (a) forfeiting and revoking the personal appearance bond which, by order entered September 18, 1967, the relator was permitted to post to secure his release, subject to the conditions recited in the September 18, 1967, order, namely, that relator be released in the general custody of his attorney and remain within the geographical limits of the Southern District of New York, except for court appearances or for travel in the preparation of his defense to criminal charges pending against him, and (b) directing the relator's return to the Eastern District of Virginia, as soon as he was released on bail or otherwise by the United States District Court for the Eastern District of Louisiana, for transfer to the Commonwealth of Virginia, to be held without bail pending the disposition of his various appeals and other applications in opposition to his extradition to the State of Maryland for trial on the criminal charges pending against him there.¹ In No. 12,316 we are asked to review the district judge's refusal, on April 8, 1968, to admit relator to bail, after revocation of the previous bail order, and his denial of relator's application for a writ of habeas corpus without plenary hearing on April 9, 1968.

No. 12,295

The bail order of September 18, 1967, was revoked and the personal appearance bond forfeited for relator's violation of the conditions of his release. After full hearing, conducted following due notice to relator and his counsel, at which relator and his counsel were present and given every opportunity to adduce evidence and to participate therein, the district judge found that, on February 17, 1968, relator was in Oakland, California, and, on February 18, 1968, relator was in Los Angeles, California, that neither place was in the Southern District of New York, that relator's counsel in whose custody relator was placed did not reside in either place, that it was not necessary for relator to go to either place for the purposes of trial or legal hearings or in preparation for defense of any charge asserted against him, and that relator did not so travel from the Southern District of New York for any such purposes or purported purposes.

Our examination of the record of the evidence adduced at the hearing satisfies us that the findings of the district judge were amply supported and, hence, were not clearly erroneous.

Relator, nevertheless, argues that revocation of bail and forfeiture of the bond were legally impermissible because not authorized by the Bail Reform Act of 1966, 18 U.S.C.A. §§ 3146 et seq. The short answer is that the Bail Reform Act, by its terms, is inapplicable to relator. By 18 U.S.C.A. § 3152(2), the Act applies to persons charged with an offense, which is defined to mean "any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress." (emphasis supplied). Relator is charged with an offense under the laws of the State of Maryland, and is in custody under a warrant of extradition; he is not within the terms of the Act. That the Act does not extend beyond federal prisoners charged with federal non-military crimes has been recognized in Ballou v. Commonwealth of Massachusetts, 382 F.2d 292 (1 Cir. 1967).

Similar to the argument advanced in the Ballou case, relator argues that even if inapplicable, the "spirit" of the Act should be used as a guide in determining whether the district judge abused his discretion in revoking bail, which he granted under his inherent power to admit to bail, for violation of the conditions of release. In our view, this argument provides no basis for reversal of the district judge's order. It is true that the Act provides specific penalties only for a wilful failure to appear, 18 U.S.C.A. § 3150; and these are forfeiture of security and criminal penalties. But, 18 U.S.C.A. § 3151 expressly preserves, unaffected by the Act, the power of any court of the United States to punish for contempt. Violation of a condition of release constitutes contempt, and for contempt the Eighth and Fourteenth Amendments are the only limitation on the punishment which may be imposed, short of the Court's sound discretion. Surely, the Act's silence of a specific remedy to assure appearance after demonstrated breach of a condition of admission to bail under the Act indicates the extent of the Court's power under § 3151. The "spirit" of the Act is thus not to limit or to prescribe exclusive remedies for breach of a condition of release, other than appearance in appropriate cases. For breach of condition other than appearance, the Court when proceeding under the Act or under the inherent power may do all that is appropriate to the orderly progress of the trial and the fair administration of justice. Cf. Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961) (per Harlan, J., as Circuit Justice).

Under the circumstances of the instant case and having due regard for the delicate matter of comity which is presented when a federal court undertakes to admit to bail one charged under state process, we think there was no abuse of discretion on the part of the district judge in revocation of bail. For the same reasons the district judge did not improperly deny bail pending the outcome of this appeal, and we declined bail pending our decision and decline bail pending the outcome of any attempt at further review.²

In revocation of bail by the district judge and in our refusal to grant bail, we perceive no violation of relator's First and Fourteenth Amendment rights. The contention is premised on the fact that relator's February 17 and 18 appearances in California were at public gatherings where he spoke publicly to large groups. The circumstances of the violation of the conditions of his release may have been such as to make their existence open, notorious and incontrovertible, but relator's bail was not revoked because he spoke, but because he left the Southern District of New York for other than an authorized purpose. In relator's first appeal we found no denial of his First Amendment rights; in this appeal, similarly, we conclude, his rights have not been impaired.

In ordering forfeiture of relator's personal recognizance, the district judge ordered forfeiture of its principal sum — $10,000. In so doing, the district judge made reference to the fact that relator "is indebted unto the United States of America in the sum of $10,000." It is argued to us that the district judge believed that relator's bond constituted a contract between him and the United States providing liquidated damages for its breach in the penal amount of $10,000 and that the district judge considered himself without authority to forfeit any lesser sum.

If there was such a belief on the part of the district judge, he was in error. At the time of declaration of forfeiture, perhaps, the district judge had no evidentiary basis on which to declare a forfeiture of any lesser sum. But, as the district judge had authority to declare a forfeiture, so also he has authority, on a proper showing and within his informed discretion, to remit a forfeiture in whole or in part. We do not decide, or even indicate to the district judge, in the instant case, that any remission of forfeiture is proper or should be granted. In affirming his order, we provided only that affirmance should be without prejudice to any motion for remission which relator may hereafter be advised to file. Specifically, however, such a motion, if filed, may be litigated separately from the other questions presented to us in these consolidated appeals; and, in our view, may not serve as the basis for a stay of any other portion of the district judge's orders.³

No. 12,316

What we have said in No. 12,295 with reference to the district judge's and our denial of bail, after revocation of the previous order admitting to bail, is dispositive of the same questions in this appeal. We turn, therefore, to the summary denial of a writ of habeas corpus.

Relator sought habeas corpus from Courts of the Commonwealth of Virginia. He was granted a plenary hearing at which he presented evidence on some...