Stack v. Boyle, United States Marshal , 192 F.2d 56 ( 1951 )

MATHEWS, Circuit Judge.

Appellants¹ were indicted for violating § 3 of the Smith Act,² were allowed bail by District Judge Mathes in the sum of $50,000 each and, in default of furnishing such bail, were detained in the custody of appellee, United States Marshal James J. Boyle. Alleging that the bail required of them was excessive, appellants petitioned the District Court for writs of habeas corpus. Orders to show cause were issued, returns were filed, a hearing was had before District Judge Harrison, an order was entered denying the petitions, and appellants have appealed from the order. We affirm the order for the following reasons;

First. Habeas corpus is not a proper remedy for one charged, as appellants were and are, with an offense against the United States and detained, as appellants were and are, in the custody of a United States marshal in default of furnishing hail alleged to be excessive.³ The proper remedy in such a case is a motion for reduction of bail.⁴ Therefore, regardless of whether the bail required of appellants was excessive, their petitions for writs of habeas corpus were properly denied.

Second. Judge Harrison did not find that the bail required of appellants was excessive. Instead, he found that the bail required was “necessary to assure the presence of [appellants] in the further proceedings in the criminal case.”⁵ We cannot say that the finding was clearly erroneous. Therefore we should affirm the order, even if we considered habeas corpus a proper remedy for one charged with an offense against the United States and detained in the custody of a United States marshal in default of furnishing bail alleged to be excessive, which we do not.

Order affirmed.

1 . Appellants are Loretta Starvus Stack, A1 Richmond, Philip Marshall Connelly, Dorothy Rosenblum Healey, Ernest Otto Eox, William Schneiderman, Carl Rude Lambert, Henry Steinberg; Oleta O’Con-nor Yates, Rose Chernin Kusnitz, Mary Bernadette Doyle and Albert Jason Lima. Connelly, Healey, Schneiderman and Steinberg have been here before. See Schneiderman v. United States, 9 Cir., 119 F.2d 500, reversed in 320 U.S. 118, 63 S.Ct. 1383, 87 L.Ed. 1796; Alexander v. United States, 9 Cir., 173 F.2d 865, 867; Id., 9 Cir., 181 F.2d 480; Doran v. United States, 9 Cir., 181 F.2d 489; Connelly v. United States District Court, 9 Cir., 191 F.2d 692.

2 . 18 U.S.C.1946 Edition, § 11 [1948 Revised Criminal Code, 18 U.S.C.A. § 2385].

3 . We regard as erroneous, and decline to follow, United States ex rel. Rubinstein v. Mulcahy, 2 Cir., 155 F.2d 1002, cited by appellants. The holding in the Rubinstein case was not supported by any of the cases cited therein (Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497; Colyer v. Skeffington, D.C.Mass., 265 F. 17, reversed in 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; People ex rel. Deliz v. Warden of City Prison, 260 App.Div. 155, 21 N.Y.S. 435). The question here presented — whether habeas corpus is a proper remedy for one charged with an offense against the United States and detained in the custody of a United States Marshal in default of furnishing bail alleged to be excessive — was raised in Johnson v. Hoy, but the Supreme Court found it unnecessary to decide the question and did not decide it. The question was not involved or decided in the Skeffington case, the Sammons case or the Deliz case.

4 . See, for example, United States v. Averett, D.C.W.D.Va., 26 F.2d 676. See, also, Smith v. Lee, D.C.N.D.N.Y., 13 F. 28.

5 . See Rule 46 (e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.