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UNITED STATES v. FIALA

December 19, 1951

UNITED STATES
v.
FIALA. UNITED STATES v. BUSCHMANN



The opinion of the court was delivered by: MCCOLLOCH

In my judgment, there is no substantial question for consideration by the appellate court in these cases. That is why I have denied bail on appeal. There is no other ground for granting bail on appeal. *fn1"

For some time, I have been interested in bail practices in the Federal Courts, and lately the Communist cases in New York and Los Angeles have prompted a great deal of discussion.

 The subject divides into two heads: bail before trial, sometimes referred to as appearance bail, and bail after conviction, often referred to as bail on appeal. There is a constitutional right (qualified) to bail before trial *fn2" , whereas the right to bail after conviction, and pending appeal, is by Rule only, regardless of contrary intimations in recent decisions.

 Following the re-making of the Court of Appeals in the Ninth Circuit 1932-. . . , the practice of the appellate judges was loose and, I may say, not in accord with the pertinent Supreme Court rule.

 In my own District of Oregon, where we have little serious crime, compared with other districts, the Circuit Court of Appeals rejected the District Court's judgment as to bail, as early as 1939. Mazurosky v. United States, 9 Cir., 100 F.2d 958.

 In this case the jury had found the defendant guilty of abetting the despicable crime of performing fake cataract operations on ignorant people, mostly old people and country folk. One of the Circuit Judges reduced bail on appeal to $ 1,000, although bail had previously been set, on recommendation of the United States Attorney and the Grand Jury, at $ 7,500. The case was reversed on the merits- a decision which the Court of Appeals must have had in view at the time it made the radical reduction in bail. The defendant, however, did not have the same confidence in his ability to establish his ultimate innocence, as did the Court of Appeals, for later he pleaded guilty and served a term in the penitentiary.

 By 1947, the practice of the Ninth Circuit Court of Appeals judges in overruling District Judges re bail on appeal had become so general, the subject was sharply discussed at the Circuit Judicial Conference in that year.

 Judge, now Chief Judge, Leon R. Yankwich of Los Angeles read a comprehensive paper, in which he called names and dates; and I think it only fair to say that thereafter the activity of the appeals judges in this field abated to a considerable extent, for several years. Chief Judge Yankwich's notable paper, 'Release on Bond by Trial and Appellate Courts,' is to be found in 7 F.R.D. 271.

 The Bridges Case

 The most recent instance of appellate repudiation of trial court action re bail on appeal is the Bridges case.

 Judge Harris had imposed a sentence of five years' imprisonment, and had granted bail on appeal. That was April 10, 1950. Three months later we became involved in Korea and, because the convicted defendant was throwing his labor union strength toward obstruction of desperately needed shipments for the war zone, Judge Harris, on motion of the Government and after hearing, revoked Bridges' bail, and remanded the defendant to custody. This decision was immediately appealed and a sharp reversal followed. *fn3" The Government quit at this stage and did not carry the matter, as it seemed it might have done, to the Supreme Court.

 Since that time, Bridges has been most active in provoking disorder. He has traveled widely and divided his words about evenly between vilification of the Judge, the jury and the witnesses at his trial, and brazen declamation, favorable to our deadly Communist enemy. *fn4"

 Many have asked: How can this be? The usual condition of bail is that the defendant, both before and after conviction, shall not leave the District, without permission. *fn5" This restriction is enforced generally against persons convicted of other types of crime, and the question has been ...


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