Norman Pannell v. United States

Washington,. Yorty, Mr. B. Robert PANNELL, Appellant, Norman (appointed by court) D. C. on was v. appellant. the motion for America, UNITED STATES Atty., Messrs. Acheson, David C. U. S. Appellee. Q. Frank and A. Messer- Nebeker Gerald 17557. No. man, op- Attys., Asst. were on the U. S. position appellee. Appeals United Court of States District of Columbia Circuit. Judge, Before Chief Bazelon, Burger May Judges, Circuit Wright,

chambers.

BURGER, Judge. Appellant’s application on for release pending granted appeal bond and bail is fixed at $5000.

Appellant indict ed with his wife and five on multi others ple counts for violation of narcotics stat utes was convicted three counts. Pending trial he was released on $5000- bail. After conviction the District Court appeal public expense practical purposes- denied bail. all For appeal govern direct from conviction at also 319 F.2d 740. See expense longer ment can no be denied except the District Court or this court paid Cop appeals. same inas basis pedge U.S. S.Ct. 917, 8 L.Ed.2d Hence appeal evaluation of the merits of an can be read the action into of a District Judge pauperis. Until conviction he presumed pre innocent but verdict, sumption guilty is altered with judgment. previously As one who has been charge on a convicted and now time, stands pos convicted a second purposes changed ture what it was before trial and His verdict. job opportunities after two narcotics con hardly victions best and we must- gainful he can view claim that secure employment hopeful objective any supported by evidence. A firm employment commitment for would be a relevant consideration to considera appeal. tion of bail Fixing of bail once grant decided to at best a liberty. Actually, are few the there defendant’s "difficult task for professional genuine system the guide no basis the see bondsman lines. We can only non-appear- reducing money one who on the loses for this record for professional con- ance is bondsman, the the of bail has now that money paid being narcotics to obtain lost victed charges; serious the bond a second time on anticipate to the the defendant in event. nor can we improve- pact changes hope we —and waiting hoped- While we are the for current ments—which will result reforms, applications for must decide we subject studies on the of bail. present under the rules. (2), provides F.R.Cr.P., that Judge WRIGHT, J. SKELLY pending appeal “[b]ail be allowed (concurring). * * And it is clear that it should Judge in join I Bazelon with Chief be allowed on which “will insure terms proceedings. hope of bail reform presence defendant, the the sys- Certainly professional the regard to the nature and circumstances is odious District tem as used in this weight charged, the offense the of the system that is best. effect of such a The against him, evidence ity the financial abil- keys professional the hold the bondsmen give defendant bail and They jail pockets. deter- to the in their 46(c), character of the defendant.” Rule surety— act as mine for whom will Special course, emphasis, F.R.Cr.P. good risk. is a inwho their placed ability should be on “the financial judg- risks, The in the bondsmen’s bad give bail,” of the defendant to because pay ment, and are unable to the ones who if the defendant make the bail cannot jail. The fees, in remain bondsmen’s set, effectively he bail. is denied See n court and are rele- the commissioner Bandy United v. S.Ct. gated relatively unimportant chore to the Nevertheless, L.Ed.2d 218 fixing amount of bail. ability financial of the defendant under system Dis- in the of this The result rule is four one of that most defend- of Columbia trict determining criteria to be considered in languish jail end, ants, in months on pres- amount of bail will insure the what awaiting disposition make bond unable to Obviously ence the defendant. n being allowed cases. Instead their may not three com- other overlooked obtaining opportunity worthwhile considering along pletely, them, if even families, support their employment to ability financial defend- with the part in perhaps at least inability ant, an results make per defense, almost cent their bail. proceed pauperis, defendants any event, question of amount In casting on the an unfair burden thus always before the of bail is court. The bar of members of the required accept unsup- not court ported represent required these de- assertions, here, such as made pay. without fendants job waiting that long-delayed reforms When jail, wife remains in him, while his reality, hoped finally it is become $2,500 make he more than cannot allowing defendants will be accent $5,000 record shows made bail. recognizance, their own with District Court in the before his penalties adequate for non- and certain way The best to test viction. fugitives go Today not appearance. do $5,000 pending make he can or not very maintain their status such far $5,000. the bail at If he is to set does money guarantee long, very so it, then court can make entertain appearance insure their required application reduction of bail. Encouragement ordered. when Judge BAZELON, (concurring Chief form of loss not be in the dissenting part). part money, rather in loss bondsman’s Moreover, appellant’s wife her own. This is together appeal. Appellant, appealing her is also Valeria who case, persons, was indict- is ex- wife and five other conviction pecting the instant conspir- violating It is the ed on 22 counts of her fourth child. ing Federal Nor- violate various desire to wife $5,000 bail [appellant] He released man obtain statutes. was alone required. appeared opportunity before trial and to on bond be released Upon acquitted get job appellant on the con- he was and trial so that can a spiracy arrangements on three counts convicted make for the decent statutes, violating present counts of care of and of the chidren imprisonment. years upon and to five sentenced new child its arrival. Counsel Although employment Court the District is ranged can ar- informed be pauperis, appeal it to in forma leave his re- appellant’s pre-trial bail and terminated lease. application pending his denied Appellant grant- requests that, if bail application appeal. He renews the this ed, higher $2,500 it be than since set through appoint- court counsel we whom “he would be unable obtain funds appeal. ed to premium finance the in excess on a bond application The enumerates the three $2,500.” urged which, questions appeal, each of “opposition ap- The Government’s face, appears on its raise substantial plication appeal” pending bail law, important questions and and none only following conclusory tains al- of which can be characterized as frivo- legations : lous.1 offense, In view of the nature of the also states: support ample evidence to Appellant counsel that informs conviction, appel- indication in the was born District Columbia seriously lant involved nar- and has a life-time resident .been activities, cotics and the insubstan- years prior here. For 10 to Feb- allegations tial nature raised ruary, 1961, appellant states he appeal, opposes on appellant’s application the United States parking worked attendant at pend- According ap- the Cosmos Club. ing appeal. pending If bail is set only pellant, prior conviction was appeal, government this recom- Municipal Court the Dis- mends that set below pos- of Columbia for unlawful trict $10,000. narcotics, session of the sentence (2), Fed.R.Crim.P., Rule sets days received general out in terms the criteria for prisonment. present confine- His pending appeal. “Bail particular hardship ap- ment appeal be allowed or certiorari pellant since he is unable to make appears appeal unless it that the is frivo- arrangements suitable for the care delay.” 33(f) lous or taken Rule custody children, three the General Rules of court elaborates ages 5, years. They pres- 4 and 2 on this criterion as follows: ently living, extremely crowd- conditions, question with “In ed addition to sis- appeal ter-in-law has four children whether the frivolous, Briefly they (a) alleged summarized are: narcotics violations should have appel timely the trial whether court’s denial of into been admitted evidence over objection. prejudi motion for lant’s severance was appeal pauperis error because cial leged three the al Since leave appellant; granted by court, overt acts related to has been the trial there (b) entrapment judicial whether the defense has been a determination that the law; delay. was established as a matter is not frivolous or taken for (c) testimony concerning whether other safety following dize delay, fac- taken for I conclude others, may that he would not flee. must among be consider- tors, determining appellant is entitled to re- therefore that the court ed (1) lease on bail. be allowed: safety com- [w]hether agree My apparently brethren munity jeopardized; and would be this conclusion. But set bail at (2) likelihood of there is [w]hether $5,000, despite appellant’s uncontradict- fleeing going hid- into allegation ed unable to that he is * *” * ing. $2,500. premium on bail more than appel- 46(c), Fed.R.Crim.P., Thus release is because of barred out the sets setting lant’s financial condition. Douglas Justice Mr. criteria of bail reminded us “It would has that follows: fix be unconstitutional to excessive bail “If the admitted to defendant is gain to assure that a defendant will not bail, shall be the thereof * * his freedom *. in the case Yet such as in the of the com- indigent fixing of defendant, an the of judge jus- missioner or court or or may in even a bail modest amount have presence tice will insure of the the practical denying the of him effect re- having regard defendant, to the na- Bandy States, lease.” v. United 81 S.Ct. ture and circumstances of the offense charged, 197, 5 L.Ed.2d 218 weight of the evidence the against him, ability it, the financial As I see the critical threshold de- give considering the defendant bail and the termination pending appeal of the appel- character defendant.” is whether eligible lant is for release. If it af- is If the is not frivolous taken or firmatively ap- shown that delay, ordinarily “bail should be pellant likely (a) would * * be either to harm *. It tois be denied community (b) the fail to which, from cases substantial evi- ineligible required, may he is not be right dence, it seems clear that the to bail any under released conditions or amount may community may be abused or the be showing, bail. But absent such he is by applicant’s threatened the release. eligible permitted and indeed must be [Citing Leigh States, cases.]” upon meeting secure his release reason- (1962), 82A S.Ct. 8 L.Ed.2d 269 impose able conditions. To requirement a financial opinion sitting of Chief Justice Warren beyond which is his means Justice District of and, course, unreasonable is maleesthe (2) places Columbia Circuit. Rule eligibility purposeless. determination of a substantial burden on the Government persuade the court that bail should urged frequently eligibility It that not be allowed. See Ward v. United for release and the amount of the bond 76 S.Ct. 1 L.Ed.2d 25 intimately high- related, are because the (1956), opinion of Mr. Justice Frank- er less “likelihood [there is] furter, as Circuit Justice. going appellant fleeing or into hid- argument ing.” presupposes This that Clearly conclusory the Government’s higher bail has a more allegations any here—none of which bear greater substantial stake therefore a relation to the criteria for may incentive not to flee. This be true 33(f) discharge set out in Rule —do professional if no bondsman is involved. disproving appellant’s its burden is, if one jeopar- But is he and not the court claims that his release would not may safely assume, essentially as does Rule 46 the same 3. We These criteria Fed.R.Crim.P., (c), part the amount out in the second those set relationship (f) no to “whether bail bears of this court. safety would be by appellant’s jeopardized” release. ignore these all of appellant’s stake. We continue . real determines applying present practice blindly artificial realties Under

ordinarily bail, the decision purposes makes distort the rules exaggerate bond. require collateral not to professional the influence of stake does, he then If bondsmen,5 purposeless and effect If bond.4 to the amount related against unconstitutional discrimination real not, then he does hope poor. however, is, some There complying with financial stake pre- reform in the near future. The regardless bond, conditions liminary proposed draft of amendments paid the bond amount, fee since Federal Proce- of Criminal Rules circumstanc- not refundable important changes, dure includes some does not decide—- the court Hence es. which shift from focus higher bond or even know—whether monetary orientation of bail more applicant to a particular means not, greater supervisory approach.6 stake. functional has a therefore, We that it does. assume keynote Of course the to successful Moreover, even if we knew that any system administration require collateral would adequacy of the information recog- appellant, particular we should a which the are based. in- decisions person impecunious who that an nize patently formation in this case was in- pledges a amount of collateral small adequate. hoped It that, is to be stituting property almost all of all or his rules, the new if and when are great likely have a stake least adopted, the information offered will wealthy person pledges that of a intelligent a more insure exercise of our constituting large a modest amount judicial responsibility. property. part of his acquittal. required, Stevens v. United the bondsman 4. If collateral U.S.App.D.C. (Mackey States), appellant’s States -, or no stake in will have little by F.2d 733. compliance. ob- I do not mean imply approval of the bonds- servation to change 46(d) g., proposed See, in Rule e. private jailer, role of man’s anachronistic provides: compliance to assure judge or court or commissioner “The See, g., e. of his the conditions bond. regard justice, to the consid- or Note, Ancient An Practice Re- Bail: may (c), in subdivision set forth erations examined, Yale L.J. 966 sureties, may require more au- one or acceptance recently of cash or example, bonds in a case thorize decided 5. For in an by United States notes had $500 been set at this court equal appel or less than the face 1962 for amount one since December may bond, February authorize the 1963 for a lant and since February 21, defendant without se- counsel On second. curity upon such conditions informed court that “nei in the case appearance. yet prescribed insure [appellant] able ther person bond, to bail shall premium admitted have $500 for a al Each $40 the though penalties attention from the called local area and both posed failure April 11, 1963, willful law for here.” On have relatives the terms of accordance with of one conviction af firmed; bond.” the conviction the other was enter reversed with instructions

Case Details

Case Name: Norman Pannell v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 16, 1963

Citation: 320 F.2d 698

Docket Number: 17557_1

Court Abbreviation: D.C. Cir.