152 F. Supp. 292 | S.D.N.Y. | 1957
The defendant moves for an order enlarging him on bail
The defendant has completed service of the three years’ imprisonment under the Smith Act conviction and has now served approximately nineteen months of the four year criminal contempt sentence, with approximately sixteen months remaining, granting maximum good time allowances for good behavior.
The four year sentence imposed on the defendant was held by the Court of Appeals to have been within a reasonable exercise of discretion by the trial judge.
It follows, therefore, that the defendant, who has already served substantially more than one year for criminal contempt, may now be incarcerated under an invalid sentence. Indeed, since the writs may not be disposed of for six months or longer, the defendant faces the possibility of further incarceration for a substantial period without legal justification.
The Government opposes the defendant’s enlargement on bail on the ground that his past conduct indicates that he is
Assuming arguendo the validity of the “poor bail risk” argument, I believe that it is not sufficient to justify the defendant’s continued incarceration. The defendant has paid a substantial penalty for his abscondence, perhaps more than the law allows. To continue his confinement in spite of the possible illegality indicated by the writs in the Green and Winston cases, would not, in my opinion, be consonant with the liberalized bail rules recently promulgated by the Supreme Court,
. Fed.Rules Cr.Proc. rule 46, 18 U.S.C.
. 28 U.S.C. § 2255; Fed.Rules Cr.Proc. rule 35, 18 U.S.C.
. 18 U.S.C. § 401(3); United States v. Thompson, D.C.S.D.N.Y.1953, 117 F.Supp. 685, affirmed 2 Cir., 1954, 214 F.2d 545; certiorari denied 1954, 348 U.S. 841, 75 S.Ct. 48, 99 L.Ed. 663.
. Fed.Rules Cr.Proe. rule 42(b), 18 U.S.C.
. Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, affirming 2 Cir., 1950, 183 F.2d 201. A fine of $10,000 which was also imposed as part of the sentence was paid. Defendant forfeited his bail of $20,000.
. 18 U.S.C. § 4161.
. United States v. Thompson, 2 Cir., 1954, 214 F.2d 545.
. Ibid.
. United States v. Thompson, 1954, 348 U.S. 841, 75 S.Ct. 48, 99 L.Ed. 663. A similar ruling bad been made in United States v. Hall, 2 Cir., 1952, 198 F.2d 726, certiorari denied, 1953, 345 U.S. 905, 73 S.Ct. 641, 97 L.Ed. 1341 in which a sentence of three years for criminal contempt was imposed. Cf. Nilva v. United States, 8 Cir., 1955, 227 F.2d 74, affirmed 1957, 852 U.S. 385, 77 S.Ct. 431, 1 L.Ed. 2d 415 but remanded for reconsideration of sentence; Lopiparo v. United States, 8 Cir., 1954, 216 F.2d 87, certiorari denied, 348 U.S. 916, 75 S.Ct. 297, 99 L.Ed. 718, rehearing denied 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290.
. United States v. Green (United States v. Winston), 2 Cir., 241 F.2d 631, certiorari granted, 77 S.Ct. 1057.
. The identical question as well as another affecting the legality of defendant’s sentence is raised by the motion before me. See footnote 2, supra.
. Fed.Rules Cr.Proc. rule 46(a) (2), 18 U.S.C.; Ward v. United States, 1956, 76 S.Ct. 1063, 1 L.Ed.2d 25.
. See Bail Pending Appeal in the Federal Courts, 32 N.Y.U.L.Rev. 557-578 (1957).
. 18 U.S.C. § 3146. The balance of defendant’s term is approximately 16 months, while the new penalty is 5 years.
. Memo endorsed on order to show cause filed April 22, 1957, Docket No. C142-99 (April 25, 1957). See, also, United States v. Allied Stevedoring Corp., 2 Cir., 1957, 241 F.2d 925, 930-931, certiorari denied 77 S.Ct. 1282.
. United States v. Allied Stevedoring Corp., D.C.S.D.N.Y., 138 F.Supp. 555. Motion for bail denied and case remanded, 1956, 76 S.Ct. 1068, 1 L.Ed.2d 23, motion for bail denied, D.C.S.D.N.Y., 143 F.Supp. 947, denial of bail affirmed, 2 Cir., 1956, 235 F.2d 909, denial of bail affirmed sub nom. Ward v. United States, opinion by Mr. Justice Frankfurter sitting as Circuit Justice, 1956, 76 S.Ct. 1063, 1 L. Ed.2d 25.
. Davis v. United States, 6 Cir., 1957, 243 F.2d 69.
. Fed.Rules Cr.Proc. rule 46(a) (2), 18 U.S.C.