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180 F.2d 271 United States Court of
Appeals, Ninth Circuit. D’AQUINO v. UNITED STATES. No. 12383. Feb. 6, 1950. [*271] COUNSEL: Wayne M. Collins, George Olshausen and
Theodore Tamba, San Francisco, Cal., for appellant. Frank J. Hennessy, U.S. Atty., San Francisco, Cal., Tom DeWolfe
and James W. Knapp, Sp. Assts. to Atty. Gen., for appellee. JUDGE: DOUGLAS, Circuit Justice. Appellant was convicted of treason and sentenced to imprisonment
for a term of 10 years and fined $10,000. Her motion to the District Court to
be released on bail pending appeal was denied. On filing her notice of appeal
she applied to the Court of Appeals for bail pending appeal. After a hearing
before Circuit Judges Healy, Bone, and Pope, bail was denied by the court
without opinion. Application is now made to me as Circuit Justice for the same
relief. The Circuit Justice has the power to allow bail pending appeal
under Rule 46(a)(2), Federal Rules of Criminal Procedure, 18 U.S.C.A., which
provides: “Bail may be allowed pending appeal or certiorari only if it
appears that the case involves a substantial question which should be
determined by the appellate court. Bail may be allowed by the trial judge or by
the appellate court or by any judge thereof or by the circuit justice.” The fact that the Court of Appeals has previously denied an
application for bail is a circumstance which makes a Circuit Justice hesitate
to act, as Mr. Justice Black suggested in the unreported opinion of Simon v.
United [*272] States. [FN1] In that case he sat as Circuit Justice
for the Fourth Circuit. Even though that Court of Appeals had denied bail, he granted
it after considering the merits of the appeal. That decision was made in 1941
under the earlier rules. The new rules of Criminal Procedure likewise preserve
the power of the Circuit Justice to act even where the Court of Appeals has
denied the relief. But under the new rules, as under the old, great deference
is owing the adverse action of the Court of Appeals. Accordingly I have examined the record in the case during the last
few weeks. On the basis of my study of it and of the briefs submitted by appellant
and by appellee, I have concluded that appellant is entitled to bail. The question of the guilt or innocence of an appellant is not an
issue on application for bail. It has long been a principle of federal law that
bail after conviction and pending appeal is a remedy normally available to a
prisoner. See Hudson v. Parker, 156
U.S. 277, 285, 15 S.Ct. 450, 39 L.Ed. 424. The existence of power to grant
bail is, indeed, essential for the protection of the right to appeal. Otherwise
a short sentence might be served before the appellate court could set aside the
judgment of conviction for infirmities in the trial. An effective right to
appeal would then be lost. The matter has best been summarized by Mr. Justice Butler sitting
as Circuit Justice for the Seventh Circuit in United States v. Motlow, 10 F.2d 657, 662. He
wrote, “Abhorrence, however great, of persistent and menacing crime
will not excuse transgression in the courts of the legal rights of the worst
offenders. The granting or withholding of bail is not a matter of mere grace or
favor. If these writs of error were taken merely for delay, bail should be
refused; but, if taken in good faith, on grounds not frivolous but fairly
debatable, in view of the decisions of the Supreme Court, then petitioners
should be admitted to bail.” That test has been incorporated in Rule
46(a)(2) of the Federal Rules of Criminal Procedure, set out above. The
question is whether “the case involves a substantial question which
should be determined by the appellate court.” The question may be
“substantial” even though the judge or justice hearing the
application for bail would affirm on the merits of the appeal. The question may
be new and novel. It may present unique facts not plainly covered by the
controlling precedents. It may involve important questions concerning the scope
and meaning of decisions of the Supreme Court. The application of well-settled
principles to the facts of the instant case may raise issues that are fairly
debatable. An appellant, though guilty beyond question, may have been denied
the kind of a trial that even a traitor to our country is entitled to under the
Constitution and laws. Those are situations where bail pending appeal should be
granted. This appeal is plainly not frivolous. Responsible and
conscientious counsel pose some problems that on this record are not free of
doubt. Thus there is the question of the applicability of the principles of McNabb
v. United States, 318 U.S. 332, 63 S.Ct. 608, 87
L.Ed. 819, and Upshaw v. United States, 335 U.S. 410, 69 S.Ct.
170, to confessions obtained during or immediately following a prolonged
confinement of the accused by the military authorities. I do not suggest that
there has been an infraction of those principles in this case. I merely
conclude that the question whether or not there has been is fairly debatable
(i.e. substantial) and should be resolved after full hearing on the record. The
same is also true of a few other questions. Application for bail will be granted subject to provisions
safeguarding the interests of the United States against dilatory tactics. FN1. No opinion for publication. |