Opinion · Court of Appeals for the Second Circuit

United States Ex Rel. Rubinstein v. Mulcahy

United States Ex Rel. Rubinstein v. Mulcahy, 155 F.2d 1002 (2d Cir. 1946)

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1946-06-14
Topic: general

PER CURIAM. The increased bail was, we are told, by far the highest ever set in any criminal case in the Southern District of New York. The offense charged, though a serious one, is not punishable by penalties unusually severe. The urge to flee cannot be unusually great. The ties that bind the petitioner to his home were not shown to be unusually slight.

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UNITED STATES v. MULCAHY,155 F.2d 1002(2nd Cir. 1946).

UNITED STATES ex rel. RUBINSTEIN v. MULCAHY, U.S. Marshal.

No. 312.

Circuit Court of Appeals, Second Circuit.

June 14, 1946.

Page 1003

Appeal from the District Court of the United States for the Southern District of New York.

Habeas corpus proceedings by the United States of America, on the relation of Serge M. Rubinstein, against James Mulcahy, United States Marshal. From an order discharging writ of habeas corpus, the petitioner appeals.

Reversed with directions.

The petitioner was indicted in the District Court for the Southern District of New York. The indictment in five counts charged the violation of the Selective Training and Service Act of 1940, Title 50 U.S.C.A.Appendix § 311, by knowingly making false statements to his Local Board regarding his non-liability for service under the Act and with conspiring with others so to do. He pleaded not guilty and was released on bail which he furnished in the amount of $20,000.

Thereafter the government moved to increase the bail to $1,000,000 on the basis of information it had received indicating a purpose to flee the jurisdiction, so it was argued. This information was to the effect that the petitioner had several times made journeys outside the Southern District without notifying the District Attorney's Office through his own attorney as required by an order of the court and that he had been converting large security holdings into cash or government bonds and transferring large sums to his credit, or to the credit of wholly owned corporations in foreign countries. The petitioner attempted to explain his actions but did not succeed in satisfying the judge before whom the motion was heard that the bail already fixed was adequate. It was raised to $500,000.

The petitioner did not furnish this bail within the time allowed but secured a short stay from another district judge and then moved before still another district judge to have the bail reduced to its original amount. This judge was of the opinion that he ought not to interfere with the recent decision on the same subject of another judge of coordinate power and suggested that the movant surrender to the marshal and then bring his petition for a writ of habeas corpus to test the validity of that restraint of his liberty. The petitioner did surrender to the marshal and his petition for the writ was granted.

At the hearing on the writ the records of the previous hearings were introduced and the counsel were heard. The judge then made no formal findings but, in accordance with what he had announced at the hearing to reduce the bail, discharged the writ and released the petitioner on bail fixed at $20,000 pending appeal from that order.

The facts are not so much in dispute as are the inferences to be drawn from them. The petitioner has converted or caused to be converted into cash and government bonds large amounts of corporate securities owned by himself or his relatives, or by corporations wholly owned by him, and $60,000 was at one time deposited in a bank in Mexico ostensibly to finance an oil drilling venture in that country. That has now been abandoned and $45,000 of that amount has been returned to the United States. He is a naturalized citizen of Portugal who was classified as 1A by his Selective Service Board and who delayed his induction by various expedients until he finally relieved himself of all liability for service by electing to claim exemption under Title 50 U.S.C.A.Appendix, § 303(a) as a citizen of a neutral foreign country. He, or a corporation he controls, had bargained to purchase four large airplanes said to have been intended for use in a transport service to be established in Portugal but that project has been abandoned. One of the planes has been delivered and is being reconverted at the Glenn Martin factory in Baltimore for use by an American company to which it has been leased. That cannot be flown until after several weeks of necessary work on it is completed and then not until a permit has been obtained. The conversion of securities was begun several months before the indictment was found and has since been carried out largely in liquidation of the interest owned or controlled by the petitioner in the Panhandle Producing and Refining Company. He is married and lives with his family in New York City where he owns real estate and since he was indicted he has purchased a summer home in New Jersey. He is preparing for his trial on the indictment andPage 1004in so doing has arranged to take evidence in foreign countries and has advanced a considerable sum of money to cover the expense of that. His attorney has assured the court that the petitioner notified him of his journeys outside the Southern District and that any failure to notify the District Attorney of them was due to the fact that the attorney supposed that such information had been passed on by his secretary and because of the press of business failed to make sure that it had been. The petitioner could not be extradited from Portugal should he flee to that country and it is not claimed that he cannot furnish bail in the amount of $500,000 but only that it will require financial arrangements unreasonably burdensome.

Leo C. Fennelly, of New York City (Leo C. Fennelly and George Wolf, both of New York City, of counsel), for petitioner-appellant.

John F.X. McGohey, U.S. Atty., of New York City (Irving H. Saypol, Keith Brown, and Samuel Rudykoff, Asst. U.S. Attys., all of New York City, of counsel), for respondent-appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

PER CURIAM.

The increased bail was, we are told, by far the highest ever set in any criminal case in the Southern District of New York. The offense charged, though a serious one, is not punishable by penalties unusually severe. The urge to flee cannot be unusually great. The ties that bind the petitioner to his home were not shown to be unusually slight. So far as appears, the inference that the relator was planning to flee must be drawn from the fact that he possessed the material means to make that as possible as could ample means which he has made readily available.

Yet such ability to flee as that affords does not necessarily indicate a purpose to flee and he is entitled to the opportunity to secure his release pending trial on bail which is not excessive regardless of whether or not he can furnish the half million dollars at which it has been fixed. The purpose of bail before trial is to insure the presence of the accused when required without the hardship of incarceration before guilt has been proved and while the presumption of innocence is to be given effect. The reasonableness of the amount is to be determined by properly striking a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused. Moore v. Aderhold, Warden, 10 Cir.,108 F.2d 729, 731; Connley v. United States, 9 Cir.,41 F.2d 49, 50; Bennett v. United States, 5 Cir.,36 F.2d 475. Consideration should be given to the seriousness of the crime charged, the past record and recent action of the accused as bearing upon his good faith in appearing for trial and his financial ability to procure bail. See United States v. Motlow, 7 Cir.,10 F.2d 657, 659; Barrett v. United States, 6 Cir.,4 F.2d 317. We believe the bail fixed in this case was excessive and that the restraint of the petitioner in default of furnishing it was unlawful.

His remedy by petition for a writ of habeas corpus after he was restrained was a proper one. See, Colyer v. Skeffington, D.C., 265 F. 17, 78, reversed on other grounds sub nom. Skeffington v. Katzeff, 1 Cir., 277 F. 129; People ex rel. Sammons v. Snow,340 Ill. 464,173 N.E. 8, 72 A.L.R. 798. Compare, Johnson v. Hoy,227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497. The court in habeas corpus proceedings may where excessive bail has been fixed in a criminal prosecution reduce it to a reasonable amount and enlarge the accused on bail so reduced. People ex rel. Deliz v. Warden of City Prison, 1st Dep't,260 App. Div. 155,21 N.Y.S.2d 435.

Order reversed and cause remanded with directions to grant the writ and fix reasonable bail to insure the relator's appearance in the criminal proceedings. If no additional facts are shown, such bail need not be in excess of $50,000.

CLARK, Circuit Judge (dissenting).

Although the bail set seems to me quite high, I hesitate in this purely collateral proceeding, Johnson v. Hoy,227 U.S. 245,Page 1005247, 33 S.Ct. 240, 57 L.Ed. 497, to rule that the judge had no basis at all for his action. The showing made by the prosecution of the large amount of funds immediately at the disposal of petitioner — many times the amount of the bail set — of the availability of aircraft for flight, of funds sent out of the country, of petitioner's citizenship by naturalization in a country from which extradition cannot be required, and of the lack of definite hardship to a person of the petitioner's means in procuring the bail affords some rational basis for the judge's action, and leaves only the amount set as the cause of reversal. I am not prepared to say that bail of $500,000 is necessarily a violation of the Eighth Amendment. The opinion tends to emphasize the various excuses and explanations which petitioner presented, but the evaluation of these would seem to me primarily a matter for the district judge. I am particularly doubtful of the direction in substance for bail not to exceed $50,000, because this, too, seems to apply an abstract generality as the norm of decision, without consideration of the particular facts and circumstances disclosed as to this petitioner.

I am, however, concerned that, upon the petitioner's application to another judge for reduction of bail, with an apparent showing of some additional facts or some change of circumstances, such as the leasing of the aircraft, it was ruled that the action of the first judge could not or should not be disturbed. I see no basis for thus denying rights to a petitioner which would be freely available had the original judge not been a visitor from another district. It would seem to me the duty of the district court to provide that relief in some fashion, either by calling the visiting judge back or by assignment to another district judge. While I am somewhat doubtful whether this issue is properly before us on a writ of habeas corpus, I should not have protested had our action been placed upon the ground that failure to consider the second petition was an abuse of the court's discretion.