United States v. Noto

• Decision Date: 31 October 1955
• Docket Number: No. 145,Docket 23835.,145
• Citation: 226 F.2d 953
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Francis NOTO, Defendant, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

226 F.2d 953 (1955)

UNITED STATES of America, Plaintiff-Appellee, v. John Francis NOTO, Defendant, Appellant.

No. 145, Docket 23835.

United States Court of Appeals Second Circuit.

Argued October 3, 1955.

Decided October 31, 1955.

John O. Henderson, U. S. Atty., Western District of New York (Alexander C. Cordes, Asst. U. S. Atty., of counsel), for plaintiff-appellee.

Charles J. McDonough, Buffalo, N. Y., for defendant-appellant.

Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit Judges.

MEDINA, Circuit Judge.

The sole question before us on this appeal is whether the fixing of defendant's bail, before trial, at $30,000, constituted a clear abuse of discretion or involved other mistake of law, Stack v. Boyle, 1951, 342 U.S. 1, 13, 72 S.Ct. 1, 96 L.Ed. 3, as the fixing of bail is essentially a matter of judgment, involving the imponderable factors set forth in Fed.Rules Crim.Proc., 46(c).

The indictment, filed on November 8, 1954, charges a violation of the Smith Act, 18 U.S.C. § 2385, in that from in or about January, 1946, and continuously thereafter defendant was a member of the Communist Party of the United States of America, alleged to be a group of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence. It is further charged that he was such member knowing the said purposes of the Party, "and said defendant intending to bring about such overthrow by force and violence as speedily as circumstances would permit."

In his affidavit on the motion to reduce bail he stated that "in about October 1946 he accepted employment as Organizational Secretary of the Erie County Communist Party, which position he held until sometime in 1947 when he became Chairman of the Erie County Communist Party. In 1948 he became Western New York Organizer for the Communist Party and held that position until about September 1951." While he also states that his position as Western New York Organizer was terminated by the Party, and that he was relieved of his duties and moved away from Buffalo, he makes no claim that he ceased to be a member of the Party or that he ceased to participate in its activities elsewhere.

When the matter of fixing bail came on for hearing Judge Burke made the customary inquiries concerning defendant's background, where he lived and the nature of his employment. Counsel for defendant proffered explanation of the period from September, 1951 to August 31, 1955, the date of his apprehension in Buffalo, by stating, "that the defendant within the last four years has lived with his wife and daughter and has been engaged in legitimate employment." But no information whatever was forthcoming as to his whereabouts or the nature of his employment during this four year period.

Two hearings were had, and the record discloses a careful and conscientious effort on the part of Judge Burke to weigh the various relevant factors, having in mind the defendant's right to bail in a reasonable and proper sum, but one which "will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant." Rule 46(c). That he says he is without funds and can only provide bail in the amount of $10,000, is merely one of the factors to be considered by the Court.

There is nothing before us even remotely to suggest that irrelevant matters were cast in the balance against defendant. Indeed, a scrutiny of this record makes it abundantly plain that Judge Burke pursued the proper method of evaluating the evidence before him.

The claim of some infringement of defendant's constitutional rights under the Fifth Amendment is wholly without merit. It was defendant's choice to withhold information as to his background, which is always of significance in fixing bail.

Affirmed.

CLARK, Chief Judge (dissenting).

Courts cannot control their intake of criminal causes, since prosecution is an executive function; but they can and must take the responsibility for even-handed justice as soon as they acquire jurisdiction over an accused. This means such fair treatment in all preliminary steps as well as on final judgment. For confinement as a result of a demand for excessive bail is as direct a restriction of personal liberties as is an ultimate judgment of imprisonment. Accordingly the Supreme Court has explicitly established the right of an accused to review of an order for high bail and has made it clear that we cannot avoid our independent judgment thereon by resting upon the action of a district judge, no matter how learned or experienced. Stack v. Boyle, 342 U.S. 1, 6, 7, 72 S.Ct. 1, 96 L.Ed. 3. Accordingly our duty to review is clear.

Now decision of an issue such as this requires a nice balance between the constitutional provision of the Eighth Amendment against excessive bail and the directions of F.R.Cr.P. rule 46(c), for bail such as "will insure the presence of the defendant" at trial. Of course this is a matter of adjustment to the facts of an individual case; obviously bail to insure the presence of a wealthy defendant will necessarily be larger than that of one without funds. On the other hand, stating an amount...