Curtis Lee Allen, Jr. v. United States

DANAHER, Circuit Judge:

This appellant was indicted on May 23, 1967 on charges of robbery, assault with a dangerous weapon, and carrying a dangerous weapon. At gunpoint, the record shows, Allen had held up a laundry. Two eyewitnesses identified him as the culprit. Commissioner Wertleb in compliance with the provisions of 18 U.S.C. § 3146(b) made the determination that the condition of release which “will reasonably assure” the presence of the accused at trial was a bond “set at $5,000 with 8% cash deposit.” Judge Hart thereafter in the District Court denied Allen’s motion for release on personal recognizance or on other non-financial conditions. Allen then appealed to this court. 18 U.S.C. § 3147(b) provides as applicable here, “Any order so appealed shall be affirmed if it is supported by the proceedings below.” A majority has concluded that Judge Hart’s order is not lacking in such support and, accordingly, that order is affirmed.

The “Bail Reform Act of 1966,” 80 Stat. 214, Fed.R.Crim.P. 46(c) and the “District of Columbia Bail Agency Act,” 80 Stat. 327, must be read together. A bail determination is a judicial act, an order by a judicial officer, respecting the terms of release, including “any order setting the amount of bail bond or any other kind of security given to assure appearance in court.” Each case presents its own circumstances to be considered by the judicial officer, and no accused is automatically entitled to release. Rather, under the applicable Rule and the statutes, the judicial officer now is not limited to the former bail bond procedure, but is free to impose the first of a series, or a combination of conditions which in his judgment will secure the appearance of the accused for trial.

The judicial officer in arriving at his determination of conditions of release shall, inter alia,

“take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused’s family lies, employment, financial resources, character and mental condition, the length of his residence in the community, [and] his record of convictions * *

It is obvious from the record and from the reasons specified by the Commissioner that he had complied with the requirements of 18 U.S.C. § 3146(b) in making his determination. He had weighed and rejected statements by Allen’s parents as “not consistent with the evident lack of parental control” over the months preceding arrest. Although only twenty years old and unemployed at the time of his arrest, Allen had been living some months with his “girl friend.” The Commissioner also had properly taken into account Allen’s previous serious criminal record, including a housebreaking conviction, and an obvious lack of stability on the part of the accused. The first of the conditions to be imposed, he decided, which would “reasonably assure the appearance” of Allen for trial was that spelled out in 18 U.S.C. § 3146 (a) (3). That was a decision the Commissioner was authorized to make, and it did not turn upon a position taken by the prosecutor.

It is not at all a question of whether we in the first instance would have required a deposit of 8% or 4% of the amount of the bond set, subject to return of the deposit if Allen appeared for trial. We might even have moved to condition (4) in section 3146(a) which permits the judicial officer to require the execution of a bail bond with solvent sureties or the deposit of substantial cash. This accused had not been detained “needlessly” but for an end which serves the public interest — that there be reasonable assurance of Allen’s appearance for trial. The law specifies that a responsible judicial officer must make the determination, and absent cognizable error, it is not open to this court to interfere.

We find nothing unlawfully arbitrary or capricious about the bail determination by the Commissioner. There was established no ground whatever for Judge Hart to grant the appellant’s motion for release on personal recognizance or other non-financial conditions. His order finds support in “the proceedings below,” 18 U.S.C. § 3147(b), and we are bound to affirm.