United States v. Max Morris Weiss, Petition of Max Morris Weiss , 233 F.2d 463 ( 1956 )

DUFFY, Chief Judge.

Petitioner Weiss appeals from the order of the District Court denying his motion for a reduction in bail in the case of United States of America v. Max Morris Weiss, No. 54 CR 263, 141 F.Supp. 88, and continuing his bail at $35,000.

Petitioner was indicted on May 14, 1954 in the Northern District of Illinois, the indictment charging a violation of the membership clause of the Smith Act, Title 18 U.S.C. § 2385. Petitioner whsapprehended in New York on September 19, 1955. A hearing was held in New York before Judge Sugarman on the Government’s petition for a warrant of removal, and the Judge fixed bail in the amount of $35,000. This order was made without prejudice to petitioner making further application for reduction of bail. Petitioner did not make bail in New York, and was brought to Chicago in custody. Cause 54 CR 263 was assigned to Judge Campbell for trial, and a motion for reduction in bail was made before him. A hearing was held on October 12, 1955, evidence was received, and on October 14, 1955, Judge Campbell denied the motion to reduce bail. An appropriate order was entered and an appeal to this Court was promptly filed.

The Government explains the delay between the return of the indictment on> May 14, 1954, and the date of arrest on a bench warrant on September 19, 1955, by claiming petitioner was “underground.” However, the indictment was. not released until September 20, 1955, so it may be assumed that prior to his arrest defendant was not informed that he had been indicted, although he may well have suspected that such was the case.

Petitioner introduced in evidence can-celled checks and money order receipts evidencing payments by plaintiff’s wife of monthly rental on an apartment where she lived in New York City. Also received in evidence were receipted bills for insurance premiums addressed to petitioner at the same address. From this petitioner argues that as others, such as insurance companies, knew how to reach him, he could not have been “underground.”

The Government introduced evidence to show petitioner had been a member of the Communist Party since 1931, holding various important offices therein. There was also introduced affidavits of FBI agents showing efforts made by the Government to locate petitioner. It was also shown that at the time of his arrest, petitioner had nothing on him which would indicate his identity.

Petitioner had no previous record of arrest or conviction of a felony. However, he did have a record of long and devoted service to the Communist Party. In 1931 he was Labor Coordinator of the Communist Party in the middle west. Among other positions which he held were District Organizer of the Young Communist League; a Delegate to the Sixth World Congress of the Young Communist League at Moscow; National Secretary of the Young Communist League; Member of the National Committee of the Communist Party; District Organizer for the Communist Party in Pennsylvania and Ohio.

Petitioner also introduced a tabulation of bails set in recent criminal cases in the Northern District of Illinois. This tabulation showed that in thirty-five cases on the then current calendar docket which carried the same maximum punishment as the case at bar, the highest bail set had been $5,000, and such maximum amount was required in only three of the thirty-five cases.

By affidavit petitioner showed that Eugene Dennis and seven other top leaders of the Communist Party who had been indicted under the membership clause of the Smith Act are presently enlarged on bail in the sum of $5,000 each.

The United States Constitution, Amendment VIII, provides: “Excessive bail shall not be required * Since petitioner has not yet been brought to trial, and is charged with a non-capital offense, he has an absolute right to be admitted to bail, Rule 46(a) Federal Rules of Criminal Procedure, 18 U.S. C.A., based as to the amount fixed, on the standards set forth in Rule 46(c) Federal Rules of Criminal Procedure. Bail is excessive when it is set at an amount higher than that reasonably calculated to insure an accused will appear and stand trial and submit to sentence if convicted. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3; Heikkinen v. United States, 7 Cir., 208 F.2d 738.

Rule 46(c) of the Federal Rules of Criminal Procedure provides that the amount of bail “ * * * shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant.”

In Stack v. Boyle, supra, the twelve defendants had been indicted charging conspiracy to violate the Smith Act, 18 U.S.C. § 2385. In referring to the right of a person arrested for a non-capital offense to be admitted to bail the court said, 342 U.S. at page 4, 72 S.Ct. at page 3: “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction * * * Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” The court also said, 342 U.S. at page 6, 72 S.Ct. at page 4: “To infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act. Such conduct would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the statute under which petitioners have been indicted.”

The same opinion also pointed out that there is no discretion to refuse to reduce excessive bail, and that an order denying a motion to reduce bail is appealable as a “final decision.”

The Court of Appeals for the Ninth Circuit interprets Stack v. Boyle, 342 U. S. 1, 72 S.Ct. 1, 96 L.Ed. 3, as holding that bail should not be higher than normally fixed for offenses carrying like penalties in the absence of showing of special circumstances requiring larger bail. Spector v. United States, 193 F.2d 1002, 1004. It was established in the case at bar that in thirty-five cases on the then current criminal calendar which carried the same maximum punishment as the charge herein, the highest bail set was $5,000. The Government answers by pointing out that in four Smith Act membership cases throughout the country, the bail in two was fixed at $35,000 in the third at $30,000 and in the fourth at $20,000.

The latest word we have from the Supreme Court is the action of Justice Harlan in Noto v. United States, 1955, 76 S.Ct. 255, 100 L.Ed. -. Noto was indicted under the membership clause of the Smith Act, 18 U.S.C. § 2385. He refused to give any information as to his whereabouts for the four years preceding his arrest. The District Judge set his bail at $30,000. The Court of Appeals, one judge dissenting, affirmed. Justice Harlan however, after conferring with his colleagues, ordered that Noto be enlarged upon bail in the amount of $10,000. The Justice points out that in the “first-string” communist cases in the Southern District of New York, pre-conviction bail was fixed at $5,000 for each defendant. In sixteen other Smith Act “conspiracy” cases throughout the country, the average bail required was about $9,000, that over two thirds of the more than one hundred defendants released before trial in cases throughout the country, bail ranged between $5,000 and $10,-000.

In determining how much bail an accused should be required to give, there is a latitude between a figure which is clearly inadequate, and one which is clearly excessive. Forest v. United States, 8 Cir., 203 F.2d 83, 84. In our view, at least until such time as the Supreme Court has declared the membership clause of the Smith Act to be constitutional, a reasonable amount of bail would range from $5,000 to $10,000 depending upon the individual case. Of course, these maximum and minimum limits cannot be considered to be unyielding, but may be considered to be the norm for this type of case.

We hold that the bail required in the case at bar in the sum of $35,000 is clearly excessive. Deferring to the view of the District Judge that there are reasons in this case which logically and reasonably require a higher bail bond than normal, we hold that the petitioner should be enlarged on a bond in the sum of $15,000 with such surety or security as may be approved by the District Court for the Northern District of Illinois.

The Government points to the fact that petitioner eventually did raise the $35,000 and is presently enlarged. Of course, this fact was not and could not have been before Judge Campbell. In any event, it is apparent that the amount was raised with great difficulty and representations have been made to this Court that, in a number of instances, those who advanced sums are desirous and insisting upon repayment at the present time.

Inasmuch as petitioner had made bail we determined at one point during the course of this appeal that the question before us was moot and ruled accordingly. Upon reconsideration, we decided the constitutional question of whether the bail of $35,000 was excessive was properly before us whether petitioner had made bail or not. It was our view that this important question should be decided upon the merits.

Reversed and remanded with instructions to enlarge petitioner upon bail in the sum of $15,000.