Ethel Rosalee White v. United States

412 F.2d 145, 134 U.S. App. D.C. 14, 1968 U.S. App. LEXIS 4788

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 22, 1968
• Docket: 22303_1
• Status: Published

Opinions

ORDER

PER CURIAM.

This cause came on for consideration on the record on appeal from an order of the District Court denying appellant’s pretrial release on bail, and the Court having considered the record on appeal, appellant’s memorandum, appellee’s responsive memorandum, and the District Judge’s statement of reasons for denying release, it is

Ordered by the Court that the order appealed from is reversed and the case is remanded to the District Court with direction that appellant be admitted to pretrial bail upon her execution and filing with the clerk of the District Court of a personal recognizance in the amount of $100, without security or deposit, conditioned upon her appearance pursuant to Rule 46(d) of the Federal Rules of Criminal Procedure and upon the following:

(1) Appellant shall report to the Probation Officer of the District Court on such terms as the latter may impose.

(2) Appellant shall not leave the Washington metropolitan area without leave of the District Court.

(3) Upon release, appellant shall obtain suitable employment.

(4) Appellant shall surrender forthwith to the custody of the United States Marshal for the District of Columbia when properly called upon to do so, to be dealt with and proceeded against in her case according to law.

(5) Such release shall be subject to the provisions of 18 U.S.C. § 3146.

The Probation Officer is requested to promptly inform this Court of any matters which may come to his attention during his supervision of appellant which may adversely affect appellant’s continued enlargement on bail.

Circuit Judge DANAHER dissents from the foregoing order for the reasons set forth in his attached statement.

PER CURIAM:

The District Court denied appellant’s application for pretrial release following her indictment for first-degree murder and assault with intent to kill. When her appeal first reached us, we remanded the case to the District Court for a statement of the reasons for denying release.¹ Now, with the benefit of the District Judge’s statement of reasons, we identify the conditions of release which would assure that appellant will not flee or pose a danger to the community.² We accordingly reverse with the direction that appellant be released on those conditions, which are specified in the foregoing order.

In his statement of reasons, the District Judge concluded that appellant’s release would present a risk of flight from this jurisdiction and would threaten harm to the community. In pointing to these potentialities, he relied heavily upon the “nature and circumstances of the offense charged” and “the weight of the evidence against the accused.” ³ Noting that the Government has twelve eyewitnesses in this case, the District Judge stated:

“The government expects to prove that the police officers had one handcuff on the co-defendant [appellant’s husband] when this defendant [appellant] * * ran from the porch and jumped on the officer’s back. She is alleged to have held the officer while he was shot six times with his own gun.”

The transcript of appellant’s preliminary hearing presents a different account of the events portrayed in this crucial last sentence. The Government’s major eyewitness at that hearing related uncontradictedly that appellant did join in the melee, but in a limited manner. According to this witness, appellant was only attempting to pull the officer away from her husband by tugging at the back of the officer’s shirt. The witness further reported that “while [appellant’s husband and the officer] were tussling * * * she got thrown out [of] the way; she was pushed back . * * * ” it was only after appellant had allegedly been thrown from the immediate scuffle that the witness heard the shot being fired. And the Government’s narration of the events does not vary significantly as to appellant’s alleged involvement in the affair.⁴

This court, of course, cannot speculate as to which version of the incident is true. It nevertheless must consider the nature of appellant’s role in the fray in order to determine her potential for future danger. Balancing the probabilities, we are unable to defend the conclusion that appellant’s attempted defense of her husband portends a risk of danger in this case. This result is fortified by appellant’s record apart from this case. She has no prior criminal record and the Government has been unable to suggest any other factor which would indicate that she is dangerous.

The District Judge apparently rested his finding of a risk of flight upon the severity of the sentence that could be imposed on appellant if she were convicted on the murder charge. If this factor were alone determinative, however, release would never be possible in a capital case, and the statutory scheme that Congress so carefully established for such cases ⁵ would be nullified completely. In evaluating the likelihood of flight, the potential penalty has relevance, but here we are much more persuaded by the stability of appellant’s relationship to the community. She has lived in the District for about ten years, and has displayed a record of steady employment, the continuation of which upon release is assured. These community roots strongly dispute any threat of flight. To this we may add that she surrendered voluntarily to the police several hours after the incident giving rise to the indictment.

The District Judge’s final comment indicates that appellant was “living in a common-law relationship with the co-defendant while her family by a previous marriage still resides in South Carolina.” We perceive no connection between an individual’s propensity for flight or his danger to the community, on the one hand, and the formal or even the legalistic aspects of his marital relationship on the other.

We give bail determinations by District Judges the deference they are due.⁶ We affirm their rulings when, but only when, they are “supported by the proceedings below.” ⁷ We have not found that support here. Though charged with a capital offense, appellant is presumptively releasable,⁸ and that presumption has not been dispelled. Appellant expresses willingness to abide reasonable conditions of release, a matter we have comprehensively explored. We conclude that the conditions specified in our order sufficiently obviate any risk of flight or potential danger to the community which appellant’s pretrial release from custody would in any event entail.⁹

Reversed.

1 . This action was taken pursuant to Weaver v. United States, 131 U.S.App.D.C. 388, 405 F.2d 353 (1968) (Oct. 4, 1968).

2 . 18 U.S.C. § 3148 (Supp. III, 1965-67).

3 . 18 U.S.C. § 3146(b) (Supp. III, 1965-67); F.R.Crim.P. 46(a) (1).

4 . The Government’s opposition memorandum in this court relates, not that appellant “held the officer while he was shot,” but that she “stood by and watched” the shooting. Thus this account also differs importantly from that presented by the District Judge.

5 . 18 U.S.C. § 3148 (Supp. III, 1965-67). See also note 8, infra, and accompanying text.

6 . Weaver v. United States, supra note 1, 131 U.S.App.D.C. at 389, 405 F.2d at 354.

7 . 18 U.S.C. § 3147(b) (Supp. III, 1965-67).

8 . Defendants accused of capital crimes “are presumptively to be released under section 3146. * * * ” S.Rep. No. 750, 89th Cong., 1st Sess. 19 (1965); H.R. Rep. No. 1541, 89th Cong., 2d Sess. 15 (1965). “The Bail Reform Act,” by the latter section, “creates a strong policy in favor of release on personal recognizance, and it is only if ‘such a release would not reasonably assure the appearance of the person as required’ that other conditions of release may be imposed.” Wood v. United States, 129 U.S.App.D.C. 143, 145, 391 F.2d 981, 983 (1968). In like fashion, Section 3148 provides, as to those charged with capital offenses no less than as to those seeking release pending appeal, “that appellant should be released unless no terms or conditions of release will reasonably assure that he will not flee or pose a danger to any person or to the community, or unless the appeal is frivolous or taken for delay.” United States v. Harrison, 131 U.S.App.D.C. 390, 405 F.2d 355 (1968) (Oct. 23, 1968) at 3.

9 . Compare United States v. Harrison, 131 U.S.App.D.C. 390, 405 F.2d 355 (1968). (Oct. 23, 1968).