United States v. Stanley, CR-76-106-CBR.

• Citation: 449 F. Supp. 467
• Decision Date: 20 April 1978
• Docket Number: No. CR-76-106-CBR.,CR-76-106-CBR.
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Frank D. STANLEY, Defendant.

449 F. Supp. 467

UNITED STATES of America, Plaintiff, v. Frank D. STANLEY, Defendant.

No. CR-76-106-CBR.

United States District Court, N. D. California.

April 20, 1978.

G. William Hunter, U. S. Atty., D. Michael Nerney, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

William Pinkus, Santa Rosa, Cal., Michael E. Tigar, Tigar & Buffone, Washington, D. C., for defendant.

MEMORANDUM OF OPINION

RENFREW, District Judge.

On April 1, 1977, after being found guilty by the Court of importation of marihuana, 21 U.S.C. § 952(a), possession of marihuana with intent to distribute, 21 U.S.C. § 841(a)(1), conspiracy to import marihuana, 21 U.S.C. § 963, and conspiracy to possess marihuana with intent to distribute, 21 U.S.C. § 846, defendant Frank D. Stanley was sentenced to the custody of the Attorney General for four years with a special parole term of three years on each count, to run concurrently. At the same time, defendant was granted bail pending appeal on the same terms and conditions in effect prior to trial. Prior to trial, defendant was released on an appearance bond in the amount of $25,000. A $2,500 deposit was paid, and defendant's wife, Shirley Stanley, was named as a surety. Among the conditions of the bond was a travel restriction to the effect that defendant was not to depart this District without court permission. Defendant's conviction was affirmed on appeal, and he is currently awaiting the disposition of a petition for certiorari in the Supreme Court of the United States. He remained on bail until April 1, 1978, when he was arrested on order of this Court. After a hearing conducted April 17, 1978, the Court ordered defendant's bail forfeited and defendant remanded to the custody of the Attorney General to begin serving his sentence. Pursuant to Rule 9(b) of the Federal Rules of Appellate Procedure, the Court hereby states in writing the reasons for the actions taken.

On March 31, 1978, the Court granted an ex parte motion to revoke bail brought by the United States on the basis of the affidavit of Special Agent Thomas F. Siegel. The affidavit stated that defendant had recently been identified as "Harold W. Carmichael", one of the individuals detained for suspicion of smuggling on July 20, 1977, aboard the Jeannie S II at Booth Bay, Maine. According to the affidavit, the boat had been purchased for cash by Alan Henry Culbert, Mr. Stanley's co-defendant in this matter, who had fled the jurisdiction and avoided apprehension until that time. Moreover the boat was being operated at night with no running lights, returning to the same point in the open sea as if practicing for a rendezvous. Two other individuals detained were identified as associated with the incident at Bodega Bay, California, which forms the basis for defendant's conviction. Ground arrangements for rental trucks and CB radios were also similar to the Bodega Bay incident. When detained, defendant had in his possession a fraudulent Social Security card in the name of Harold W. Carmichael. He had neither sought nor obtained permission from the Court or the Probation Department to travel to Maine.

Upon revocation of defendant's bail, an arrest warrant was issued. Defendant was arrested April 1, 1978. On April 5, the Court conducted a hearing on the bail revocation, at which defendant's principal contention was that the revocation was improper because it was not authorized by any specific provision of the Bail Reform Act of 1966, 18 U.S.C. §§ 3141-3152. The matter was taken under submission. Review of defendant's authorities showed, however, that the Bail Reform Act was never intended to supplant remedies available pursuant to Rule 46 of the Federal Rules of Criminal Procedure or the inherent power of the Court to enforce its own orders. E. g., United States v. Clark, 412 F.2d 885, 890 (5th Cir. 1969); Brown v. United States, 410 F.2d 212, 216-218 (5 Cir. 1969); United States v. Fogel, 395 F.2d 291, 293-294 (4 Cir. 1968); see United States v. Erwing, 268 F.Supp. 877 (N.D.Cal.1967) (revocation of bail pending appeal); United States v. Baca, 444 F.2d 1292, 1296-1297 (10 Cir.), cert. denied, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971) (same). Accordingly, a brief further hearing was conducted April 6, 1978, at which time the matter was set down for a fact-finding hearing on the issues of breach of condition, setting aside or remitting any forfeiture, and the conditions of any new bail to be set. Based on the facts set forth in Agent Siegel's affidavit and the history of this case, the Court ordered that defendant remain in custody pending final resolution of these issues.

The factual hearing was conducted April 17, 1978. Defendant's initial contention was again that his incarceration was unauthorized, this time on the ground that the 1972 amendments to Rule 46 of the Federal Rules of Criminal Procedure abolished all inherent power of the Court relating to bail. This contention must be rejected. Defendant relies principally on the elimination from former Rule 46(a)(2) of language which provided that a court authorized to grant bail pending appeal "may at any time revoke the order admitting the defendant to bail." However, former Rule 46(a)(2) dealt only with release pending appeal. There was no similar language in former Rule 46(a)(1), dealing with pretrial release. Yet the law is clear that a court had power to revoke pretrial bail notwithstanding the absence of any specific authorizing provision in the rule, and that neither the letter nor the spirit of the Bail Reform Act eliminated that inherent power. United States v. Clark, supra, 412 F.2d at 890; United States v. Fogel, supra, 395 F.2d at 293-294. Defendant has not suggested any reason to distinguish the Court's power over pretrial and postconviction bail on this point, and the conclusion is inescapable that Rule 46(a)(2) merely embodied the Court's preexisting inherent power to enforce its own orders by revoking bail upon the violation of a condition of release. At least one court of this District has exercised its power to revoke bail pending appeal after the Bail Reform Act. United States v. Erwing, supra, 268 F.Supp. 877. And the Court of Appeals for the Ninth Circuit has recognized the continuing existence of this inherent power even after the 1972 amendments. United States v. Brizuela, 508 F.2d 386, 387-388 (9 Cir. 1974); see also United States v. Brown, 399 F.Supp. 631, 632 (W.D. Okl.1975). Defendant's contrary contention is supported neither by the language nor by the policy of the 1972 amendments.

With the exception of certain specific additions to cover matters not previously addressed, those amendments were intended primarily to bring the rule into conformity with the Bail Reform Act. Advisory Committee Note to 1972 Amendments, Fed.R. Crim.P. 46. Yet the language of the Bail Reform Act itself suggests that Congress recognized the continuing existence of inherent power to revoke bail and arrest a defendant. 18 U.S.C. § 3146(c) requires a judicial officer authorizing release on pretrial bail to inform the defendant that an arrest warrant will be issued immediately upon violation of any condition of release. This section does not itself authorize bail revocation or arrest. But it clearly contemplates that such action may be taken upon violation of a condition of release. Congress can only have had in mind the Court's inherent power, which is thus implicitly endorsed by § 3146(c).

More specifically, the principal change wrought by the 1972 amendments in Rule 46(a)(1) and (2) was to substitute a reference to 18 U.S.C. §§ 3146, 3148, and 3149 for the conditions formerly specified in the rule. Rules 46(a) and (c). Since courts had already expressly held that the Bail Reform Act did not eliminate a court's inherent power to revoke pretrial bail on a proper showing, the mere reference to the Bail Reform Act could not have eliminated the Court's power to revoke pretrial bail. And there is absolutely no reason to believe that these essentially formal changes were intended to create a sharp new distinction between pretrial bail and bail pending appeal—a distinction plainly not required by the Bail Reform Act. Accordingly, the elimination of the specific language authorizing revocation of bail pending appeal from Rule 46 provides no support for defendant's contention.

Defendant's reliance on the 1972 amendments' addition of language to Rule 46(c) authorizing bail pending notice of appeal or expiration of the time allowed for filing such notice is equally unpersuasive. The mere fact that language was added which specifically addressed one situation previously thought to have been governed by the inherent power of the Court is no evidence of a general intent to abolish the Court's broadly applicable inherent power over bail. There is simply no evidence that the amendments were intended to work any such result.

For the reasons given, the Court concluded at the hearing that the order of March 31, 1978, was within its power. The arrest and incarceration of Mr. Stanley pending a full factual hearing was authorized by the inherent power of the Court and properly ordered upon the showing made by the Government that he had violated a condition of his bond in circumstances suggesting a resumption of illegal activity. At the conclusion of the legal arguments, the parties were provided the opportunity to present further evidence addressed to three separate questions. The first was whether defendant had violated a condition of the bond, triggering the mandatory declaration of bail forfeiture required by Rule 46(e)(1) of the Federal Rules of Criminal Procedure. Although defendant did not expressly admit that he had travelled to Maine, that conclusion is supported both by the affidavit of Agent Siegel and the affidavit of Robert J. Cabanass, submitted by defendant on his own behalf. There is no evidence that permission was granted. Accordingly, the Court found that defendant...