UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing En Banc Denied October 20, 1967.
Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge, and Danaher, Circuit Judge. Bazelon, Chief Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
This appellant was indicted on May 23, 1967 on charges of robbery, assault with a dangerous weapon, and carrying a dangerous weapon. At gunpoint, the record shows, Allen had held up a laundry. Two eyewitnesses identified him as the culprit. Commissioner Wertleb in compliance with the provisions of 18 U.S.C. § 3146(b) made the determination that the condition of release which "will reasonably assure" the presence of the accused at trial was a bond "set at $5,000 with 8% cash deposit." Judge Hart thereafter in the District Court denied Allen's motion for release on personal recognizance or on other non-financial conditions. Allen then appealed to this court. 18 U.S.C. 3147(b) provides as applicable here, "Any order so appealed shall be affirmed if it is supported by the proceedings below." A majority has concluded that Judge Hart's order is not lacking in such support and, accordingly, that order is affirmed.
The "Bail Reform Act of 1966," 80 STAT. 214, FED.R.CRIM.P. 46(c) and the "District of Columbia Bail Agency Act," 80 STAT. 327, must be read together. A bail determination is a judicial act, an order by a judicial officer, respecting the terms of release, including "any order setting the amount of bail bond or any other kind of security given to assure appearance in court." Each case presents its own circumstances to be considered by the judicial officer, and no accused is automatically entitled to release. Rather, under the applicable Rule and the statutes, the judicial officer now is not limited to the former bail bond procedure, but is free to impose the first of a series, or a combination of conditions which in his judgment will secure the appearance of the accused for trial.
The judicial officer in arriving at his determination of conditions of release shall, inter alia,
"take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family lies, employment, financial resources, character and mental condition, the length of his residence in the community, [and] his record of convictions . . .."
It is obvious from the record and from the reasons specified by the Commissioner that he had complied with the requirements of 18 U.S.C. 3146(b) in making his determination. He had weighed and rejected statements by Allen's parents as "not consistent with the evident lack of parental control" over the months preceding arrest. Although only twenty years old and unemployed at the time of his arrest, Allen had been living some months with his "girl friend." The Commissioner also had properly taken into account Allen's previous serious criminal record, including a housebreaking conviction, and an obvious lack of stability on the part of the accused. The first of the conditions to be imposed, he decided, which would "reasonably assure the appearance" of Allen for trial was that spelled out in 18 U.S.C. § 3146(a) (3). That was a decision the Commissioner was authorized to make, and it did not turn upon a position taken by the prosecutor.
It is not at all a question of whether we in the first instance would have required a deposit of 8% or 4% of the amount of the bond set, subject to return of the deposit if Allen appeared for trial. We might even have moved to condition (4) in section 3146(a) which permits the judicial officer to require the execution of a bail bond with solvent sureties or the deposit of substantial cash. This accused had not been detained "needlessly" but for an end which serves the public interest -- that there be reasonable assurance of Allen's appearance for trial. The law specifies that a responsible judicial officer must make the determination, and absent cognizable error, it is not open to this court to interfere.
We find nothing unlawfully arbitrary or capricious about the bail determination by the Commissioner. There was established no ground whatever for Judge Hart to grant the appellant's motion for release on personal recognizance or other non-financial conditions. His order finds support in "the proceedings below," 18 U.S.C. § 3147(b), and we are bound to affirm.
BAZELON, Chief Judge (dissenting):
Our indigent appellant, charged with non-capital offenses,1 was ordered released prior to trial in Criminal No. 623-67 upon the execution of a $5,000 appearance bond and the deposit of 8% thereof ($400) in the Registry of the District Court. His family could raise only $200. He moved for release on personal recognizance or, alternatively, on certain non-financial conditions. Although the Government consented to release upon execution of a $1,000 unsecured appearance bond and certain non-financial conditions, the District Court nevertheless denied the motion in toto. This appeal followed.
I believe there are three reasons why the order of the District Court2 may not be affirmed: (1) The District Court's determination that the appellant had insufficient community ties rested on a statement of the District of Columbia Bail Agency that it had been unable to verify appellant's residence. (2) The District Court offered no reason, and the record reflects none, why a deposit of $400, which appellant cannot furnish, would reasonably assure his appearance for trial, while a deposit of $200, which he can furnish, would not. (3) The District Court considered the nature of the offense charged to assess appellant's danger to the community, and not to assess the risk of flight. I.
From the Bail Agency's report that it had been unable to verify the appellant's address, the court concluded that appellant had insufficient community ties and would not "likely appear." Appellant's undisputed testimony, however, showed that he had been living with his parents and that they had changed their address just prior to his arrest. In addition, counsel for appellant represented that appellant had "for the most part" been living with his parents, staying at his girl friend's house "now and then," and that the Bail Agency's inability to verify appellant's address resulted from the fact that his parents had just moved and had no telephone at the time of his arrest.3 The determination that appellant is without "any great community ties" is not "supported by the proceedings below." 18 U.S.C. § 3147(b). Boxley v. United States, (order of June 9, 1967), 128 U.S. App. D.C. 193, 385 F.2d 975. II.
It plainly appears from the language and history of the Bail Reform Act that its central purpose was to prevent pretrial detention because of indigency. Section 24 of Senate Bill 1357, U.S. Congressional and Administrative News, p. 2293, which became the Bail Reform Act of 1966, provided that:
(a) The Congress finds that --
(2) Persons reasonably expected to appear at future proceedings should not be deprived of their liberty solely because of their financial inability to post bail;
(3) Respect for law and order is diminished when the attainment of pretrial liberty depends solely upon the ...