United States v. Sine, Crim. No. 78-39.

• Decision Date: 30 November 1978
• Docket Number: Crim. No. 78-39.
• Citation: 461 F. Supp. 565
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America v. Henry Allen SINE.

461 F. Supp. 565

UNITED STATES of America v. Henry Allen SINE.

Crim. No. 78-39.

United States District Court, D. South Carolina, Columbia Division.

November 30, 1978.

Eric Wm. Ruschky, Asst. U. S. Atty., Columbia, S. C., for plaintiff.

Parks N. Small, Federal Public Defender, Columbia, S. C., for defendant.

ORDER ON MOTION TO SET BAIL PENDING APPEAL

HEMPHILL, District Judge.

Defendant's motion to set bail pending his appeal from conviction by a jury, on April 18, 1978, on all three counts of an Indictment, previously lodged with the court on February 14, 1978, charging him with three violations of the gun laws. A basis for his prosecution appears to be the fact that in April of 1971 he had been convicted of Interstate Transportation of a Stolen Motor Vehicle and Unlawful Transportation of a Firearm in the United States District Court for the Eastern District of Virginia, Richmond Division; he was charged in Count One of the Indictment in this case with knowingly and illegally receiving a firearm which had been transported from Gastonia, N. C., to Columbia, S. C., and in Count Two with the possession of a 22-caliber semi-automatic pistol which had been shipped from Greensboro, N. C., to Florence, S. C., and in Count Three with knowingly possessing a 38-caliber semi-automatic pistol moved in interstate commerce from Dayton, Ohio, to Fort Walton Beach, Florida. He had entered a plea of Not Guilty, and a Public Defender was appointed to represent him. He was given the plethora of rights that an accused has been granted in this country, and a fair trial. Upon his conviction the court deferred sentence until a presentence report could be prepared.

At the sentence hearing, the United States asked to call Agent Billy J. Abercrombie to the stand prior to the sentence, but upon defendant's counsel objection, the court denied the motion to swear Abercrombie. After explaining the appeal rights to the defendant as set forth in Rules 3 and 4 of the Rules of Appellate Procedure, and giving the defendant the right of allocution, which he refused, the court heard the statement of the Public Defender, who stated that he had no contest with the presentence report (which had previously been made available to him), and who made a statement in the defendant's behalf. The Assistant United States Attorney, using his right of allocution, made a recommendation of commitment to federal custody.¹

After the defendant had moved, on November 6, 1978, to set bail, the government filed an objection. On November 9, 1978, this court, taking notice of the opposition to the motion to set bail, directed that the parties file within ten (10) days such material, etc., as they would have the court consider. This has been done, and the court will receive the defendant's late materials as having been filed within the time presented, as the court's calendar denied consideration until this date.

Upon original arraignment the defendant was released on $5,000 bond, which was accomplished by a ten (10%) percent cash deposit. At that time he was presumed to be innocent, and given grace of bail despite his previous conviction of a felony. When this court had its sentence hearing on May 25, 1978, the defendant had been found guilty on all counts of the Indictment. The jury did not believe what he said, and this court did not believe what he said, in his trial, although the court made no comment to the jury before, during, or after the trial.

This court has reviewed its authority and responsibility under the provisions of 18 U.S.C. § 3148². This court initially recognized that it has no inherent power to admit the bail, except as derived from the Constitution and the statutes. See Corpus Juris Secundum (Bail Sections 4-5, citing United States v. Curran, 297 F. 946 (2nd Cir. 1924)). The court is therefore constrained to review its authority and responsibility in the light of that common law that is incorporated in the statute. Thus it is recognized that this court, not being a common law court, except where bound by a state's common law under the philosophy of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), does not have an inherent power to grant bail to prisoners but is limited.³ However, in those cases where the prisoner is a state prisoner, if a United States court decides it is qualified to deal with the subject matter of the complaint, or has jurisdiction over the person or the defendant, it may act. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1946)⁴. See also Johnston v. Marsh, 227 F.2d 528 (3rd Cir. 1955) where, in a state prisoner petition case, it was held that the federal district court had the power, in the absence of specific statutory authority, to admit a state convict to bail pending hearing and disposition of his habeas corpus petition. The language of the court on page 529 is revealing:

In this case, however, as already indicated, the district court has jurisdiction of the subject matter of the complaint and the prisoner within the court's authority because he invokes its power to give him his claimed constitutional rights.

This court recognizes that the Constitution of the United States protects the accused, in this free land, from being imprisoned unjustly, in its pronouncement in Article VIII:

Excessive Bail Shall Not Be Required, Or Excessive Fines Imposed, Nor Cruel Or Unusual Punishments Inflicted.

Thus, the United States Constitution protects against both the denial of bail and the setting of excessive bail. As it is said in United States ex rel. Siegal v. Follette, 290 F.Supp. 632 (S.D.N.Y.1968), ". . . man's physical freedom is precious and should not be taken away prior to conviction unless confinement is necessary to insure his appearance at trial."⁵ The right to bail, no less than, for example, the right to a speedy trial and the right not to suffer an excessive sentence, are the fundamental rights which the states must protect in respect to the extent provided by the Eighth Amendment.

Of course the Eighth Amendment gives no absolute right to bail and prior to conviction bail may be denied if there is reason to believe that the defendant will not appear. Such is not the case here, as this is a post-trial application. The court reflects that the constitutional right to bail is lost after conviction, that there is no constitutional right to appeal, but there is a statutory right to appeal; since there is no constitutional right to appeal, there is no constitutional right to be free pending an appeal. Congress, however, has taken care of this in the statute under consideration today and furthermore in the authority given the Supreme Court of the United States in 18 U.S.C. § 3772.⁶ Despite the fact that there is no constitutional right to bail after conviction, Congress has provided that such bail may be granted, setting the limitations thereupon. If bail is denied, however, defendant, after conviction, is entitled to an adequate statement of the statutory conditions relied upon and the reason underlying the court's determination that the conditions exist. See United States v. Bynum, 344 F.Supp. 647 (S.D.N.Y.1972), Weaver v. United States, 131 U.S.App.D.C. 388, 405 F.2d 353 (1968).⁷

In appropriate circumstances, courts are generally rather lenient in granting bail pending appeal, but it should be observed that a defendant who has been found guilty by a jury and sentenced is not necessarily entitled to bail pending appeal as a matter of law. United States v. Bright, 541 F.2d 471 (5th Cir. 1976), citing 18 U.S.C. § 3148.

The question of whether a convicted person should be released on bail pending appeal is said to rest in the sound discretion of the trial court. United States v. Baca, 444 F.2d 1292 (10th Cir. 1971) cert. denied, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294; Bloss v. People of State of Michigan, 421 F.2d 903 (6th Cir. 1970). This court finds discretion to mean concrete and specific reasons which the district judge is required to supply, in support of whatever his decision may be, especially if his decision is to deny bail. United States v. Quicksey, 371 F.Supp. 561 (D.C.W.Va.1974).⁸ But before crucifying a defendant on the cross of discretion on his application for bail, the district court must review all of the facts before it in the hope that his opinion is entitled to the great respect ordinarily accorded the district court's judgment in such matters. Carbo v. United States, 302 F.2d 456 (9th Cir. 1962).⁹

Defendant did not ask for a bail hearing, as such, before the court, and the court was informed that defendant did not wish to be present for a bail hearing. As already noted, the court refused to hear a government witness in the sentencing process, as the court thought that would be prejudicial. The court has carefully reviewed the matters set forth in the motion of November 6th, and since the same are over the signature of the Public Defender, deserve the recognition of the integrity of this officer of this court. The court has since reviewed certain attachments to the bail motion, filed November 27, 1978, which consists of letters, on the filing of which the Public Defender makes the statement, "This will conclude the showing the defendant desires to make". The letters reviewed are a letter of November 17, 1977 from the defendant to the court; a copy of a letter from lawyer W. Ralph Garris, Esquire, from the firm of Garris & Garris, Attorneys at Columbia, to U. S. Parole Commission, South Central Regional Office at Dallas, Texas, dated August 28, 1978; a letter of August 28, 1978 from Claude B. Dreher, Jr., President of the Dreher Sanitary Draining and Septic Service, Inc., to the Parole Board at Dallas; a letter dated August 29, 1978 from Hagerstown, Md., directed "To Whom It May Concern", (original was sent to U. S. Bureau of Parole, Dallas) apparently in the handwriting of Mrs. Betty N. Holland, mother of the defendant; a...