United States v. Spector

• Decision Date: 14 December 1951
• Docket Number: No. 21940 and 21883.,21940 and 21883.
• Citation: 102 F. Supp. 75
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. SPECTOR et al. UNITED STATES v. SCHNEIDERMAN et al.

102 F. Supp. 75

UNITED STATES v. SPECTOR et al.

UNITED STATES v. SCHNEIDERMAN et al.

Nos. 21940 and 21883.

United States District Court S. D. California, Central Division.

December 14, 1951.

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Walter S. Binns, Asst. U. S. Atty., Norman Neukom, Asst. U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., all of Los Angeles, Cal., for the United States.

A. L. Wirin, Los Angeles, Cal., for defendant Frank Spector.

Norman Leonard, San Francisco, Cal., for defendant Frank Carlson.

Leo A. Branton, Jr., Los Angeles, Cal., for defendant Ben Dobbs.

Margolis & McTernan by Ben Margolis, Los Angeles, Cal., for all defendants.

MATHES, District Judge.

Following reversal of this court's order denying motions to reduce the $50,000 bail heretofore fixed as to each of the twelve defendants in Stack v. United States, 9 Cir., 1951, 193 F.2d 875, reversing United States v. Schneiderman, D.C.S.D.Cal.1951, 102 F.Supp. 52, the three defendants in No. 21940 — Spector, Carlson and Dobbs — have now presented motions to reduce the $50,000 bail heretofore fixed as to each of them.

It is a disappointment that the Court of Appeals did not accompany its order of reversal with an opinion for the guidance of this court. More especially so, since the order of reversal contains specific directions — not as to maximum limits beyond which the Court of Appeals would view an amount unreasonable and hence "excessive" within the Eighth Amendment U.S.Const. Amend. VIII — but fixing the precise amount of bail to be required as to each defendant pending trial in this court.

Moreover the reviewing court, in fixing bail pending trial in this court, divided the twelve defendants into two groups, ordering that security of $5,000 be required to assure the presence of five and that twice that amount be required to assure the presence of the remaining seven. This circumstance heightens disappointment at the absence of an opinion or other guidance from the Court of Appeals, since this court is unable without such assistance to perceive any basis, rational or visceral, for the classification thus made. (A copy of the order of the Court of Appeals is included as an appendix hereto.) Cf. Stack v. Boyle, 72 S.Ct. 1, Id., 9 Cir., 192 F.2d 56.

The defendants in these cases are under indictment charged with conspiracy "to commit offenses against the United States prohibited by Section 2 of the Smith Act, 54 Stat. 671 (1940), 18 U.S.C. (1946 ed.) § 10, and 18 U.S.C. (1948 ed.) § 2385, by so conspiring * * * to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and * * * to organize and help organize as the Communist Party of the United States of America a * * * group * * * of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence * * *."

Rule 46(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., directs that: "If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the * * * judge * * * will insure the presence of the defendant, having regard to 1 the nature and circumstances of the offense charged, 2 the weight of the evidence against him, 3 the financial ability of the defendant to give bail and 4 the character of the defendant."

So it is the duty of the court, in considering the pending motions, to determine whether and, if so, to what extent the bail of $50,000 heretofore fixed as to each of the defendants exceeds the amount which will give adequate assurance of the presence of the accused, having regard to the criteria expressed in the above quoted provisions of Rule 46(c).

The "nature and circumstances of the offense charged" are discussed at length in United States v. Schneiderman, D.C.S.D. Cal.1951, 102 F.Supp. at page 58, supra, and it would serve no useful purpose to repeat.

As to "the weight of the evidence against the accused," the courts in some jurisdictions, in fixing bail, have presumed the accused to be guilty of the charge laid in the indictment. See Hight v. United States, 1845, Iowa, Morris 407, 43 Am.Dec. 111; State v. Mills, 1830, 13 N.C. 420, 2 Dev. 420, 422; Ex parte Haynie, 1925, 32 Okl.Cr. 409, 241 P. 209; Ex parte Malley, 1927, 50 Nev. 248, 256 P. 512, 53 A.L.R. 395; Ex parte Horiuchi, 1930, 105 Cal. App. 714, 288 P. 708; State v. Richardson, Ohio Com.Pl.1939, 2 Ohio Supp. 1.

Mr. Justice Butler, sitting as Circuit Justice in United States v. Motlow, 7 Cir., 1926, 10 F.2d 657, 659, quoted from the opinion of Chief Justice Mason of the Supreme Court of Iowa in Hight v. United States, supra. To quote further:

"An indictment furnishes no presumption of guilt against a person when on trial, but so far as it regards all intermediate proceedings between indictment and trial, it furnishes the very strongest possible presumption of guilt, if a grand jury is the appropriate organ of the law to decide in the first instance upon the guilt or innocence of the accused, and their finding of a true bill is conclusive so far as to put him on trial * * *.

"The humanity of our law requires that before a person shall be punished, he shall be found guilty by two independent juries. The verdict of the first raises a full presumption of guilt up to the time of his trial before the second." 43 Am.Dec. at page 113.

The least that may be said then, in the light of reported precedents, is that for the purposes of fixing bail prior to trial "probable cause to believe that an offense has been committed and that the defendant has committed it" Fed.R.Crim.P. 5(c), 40(b) (3, 4) is furnished by the fact of indictment alone. See Beavers v. Henkel, 1904, 194 U.S. 73, 84-85, 24 S.Ct. 605, 48 L.Ed. 882; Hale v. Henkel, 1906, 201 U.S. 43, 60-63, 26 S.Ct. 370, 50 L.Ed. 652; United States ex rel. Kassin v. Mulligan, 1935, 295 U.S. 396, 400, 55 S.Ct. 781, 79 L.Ed. 1501; see also 4 Bl.Comm. *296-*298; United States v. Jones, C.C.Pa.1813, 26 Fed. Cas. p. 658, No. 15,495, 3 Wash.C.C. 224; People v. Goodwin, N.Y.Ct. of Gen.Sess. 1820, 1 Wheeler Cr.Cas. 434, 437; United States v. Averett, D.C.W.D.Va.1928, 26 F. 2d 676; People ex rel. Sammons v. Snow, 1930, 340 Ill. 464, 173 N.E. 8, 72 A.L.R. 798; contra: United States ex rel. Rubinstein v. Mulcahy, 2 Cir., 1946, 155 F.2d 1002.

The third criterion specified in Rule 46(c) to be considered by the court in fixing the amount of bail is "the financial ability of the defendant to give bail". Each of the defendants produced evidence in support of his pending motion. See Fed.R.Crim.P. 47, 12(b)(4), 26.

Defendant Frank Efroim Spector is an alien, born in Russia "about 55 years ago." He testified in part that at the time of his arrest in this case he was at liberty on $15,000 bail, see United States v. Spector, D.C.S.D.Cal.1951, 99 F.Supp. 778, and was working as a house painter earning "approximately $65 per week"; that prior to his arrest in June of this year for alleged violation of the Internal Security Act of 1950, 8 U.S.C.A. § 156(c), 99 F.Supp. at page 779, he was engaged in "other employment" at a wage of "take home pay $46.30 a week."

Defendant Spector refused to testify as to the nature of this prior employment, or the character of the work, or the identity of his employer, or how long he was so engaged. He testified that answers to questions concerning any of those matters might tend to incriminate him under some federal law. U.S.Const.Amend. V; United States v. Murdock, 1931, 284 U.S. 141, 148-149, 52 S.Ct. 63, 76 L.Ed. 210, Id., 1933, 290 U.S. 389, 396, 54 S.Ct. 223, 78 L.Ed. 381.

Defendant Spector also testified that questions as to recent travels in the Dominion of Canada or the Republic of Mexico, as to his friends or acquaintances in our border neighbors to the north and south, and as to any recent communications by correspondence or otherwise with persons in those two countries, all called for answers which might tend to incriminate him under some federal law.

Defendant Carlson testified that he is an alien born in Poland "about 39 years ago," and has lived in the United States for some thirty years; that at the time of his arrest in this case he was at liberty on $5,000 bail in deportation proceedings, see Carlson v. Landon, 9 Cir., 1950, 186 F.2d 183; Id., 9 Cir., 1951, 187 F.2d 991; Id., 1951, 341 U.S. 918, 71 S.Ct. 744, 95 L.Ed. 1353, and was receiving a wage of "approximately $60" per week. But like defendant Spector, defendant Carlson refused to testify as to the nature of his employment, or the character of the work, or the identity of his employer, or how long he had been so engaged, upon the ground that questions as to those matters called for answers which might tend to incriminate him under some federal law.

A newspaper reporter testified in effect that only a few months ago defendant Carlson represented himself as authorized to delineate some of the probable future policies and tactics of the Communist Party.

Defendant Ben Dobbs testified that he was born in New York "approximately 39 years ago"; that at the time of his arrest he was earning a wage of approximately $40 per week. But like defendants Spector and Carlson, defendant Dobbs refused to testify as to the nature or character of his work, or the identity of his employer, upon the ground that answers to questions concerning such matters might tend to incriminate him under some federal law.

There was received in evidence a form of registration made in 1948 by defendant Dobbs as a voter in Los Angeles County, in which he declared his intention "to affiliate at the ensuing primary election with the Communist Party."

Defendant Dobbs testified that he "served honorably in the armed forces of the United States from approximately 1941 to 1945," and received an honorable discharge.

As is true with respect to defendants Spector and Carlson, defendant Dobbs has previously been at liberty on bail in another case, and ...