United States v. Brian G. Cook , 442 F.2d 723 ( 1970 )

BAZELON, Chief Judge

(concurring) :

I would also remand this case to the District Court but for somewhat different reasons. Under the Bail Reform Act, 18 U.S.C. § 3146(a) (Supp. V, 1965-69) there is “strong policy in favor of release on personal recognizance” or other non-financial conditions. Wood v. United States, 129 U.S.App.D.C. 143, 145, 391 F.2d 981, 983 (1968). But since it is unclear, to say the least, on the record presently before us whether any non-financial conditions would sufficiently assure the appearance of the appellant,¹

I would direct the District Court to determine what financial bond the appellant is able to obtain and to state fully the reasons why such bond will or will not “reasonably assure the appearance of the person for trial.” 18 U.S.C. § 3146(a) (Supp. V, 1965-69). See Weaver v. United States, 131 U.S.App.D.C. 388, 405 F.2d 353 (1968); United States v. Leathers, 134 U.S.App.D.C. 38, 42 n.16, 412 F.2d 169, 173 n.16 (1969). A financial bond under 18 U.S.C. § 3146 should not be set so that bail bondsmen “hold the keys to the jail in their pockets.” ²

If the financial conditions imposed by the District Court are beyond the reach of the defendant, then this court on the supplemental record on remand will have an adequate basis on which to face the difficult question whether the Bail Reform Act requires release even though available non-financial conditions are inadequate to assure the defendant’s presence.

1 . Financial conditions are “one of the least favored” of the hierarchy of conditions of release promulgated in 18 U.S.C. § 3146(a) (Supp. V, 1965-69). Wood v. United States, 129 U.S.App.D.C. 143, 145, 391 F.2d 981, 983 (1968). Consequently, it would also be appropriate for the District Court to reconsider on remand the imposition of non-financial conditions that would ensure against flight. United States v. Leathers, 134 U.S.App. D.C. 38, 40, 412 F.2d 169, 171 (1969); Weaver v. United States, 131 U.S.App.D.C. 388, 405 F.2d 353 (1968).

2 . Pannell v. United States, 115 U.S.App. D.C. 379, 380, 320 F.2d 698, 699 (1963) (Wright, concurring); McCoy v. United States, 123 U.S.App.D.C. 81, 82, 357 F.2d 272, 273 (1966).