United States v. John Francis Noto

226 F.2d 953, 1955 U.S. App. LEXIS 3143

• Court: Court of Appeals for the Second Circuit
• Decided: October 31, 1955
• Docket: 145, 23835
• Status: Published

Opinions

MEDINA, Circuit Judge.

The sole question before us on this appeal is whether the fixing of defendant’s bail, before trial, at $30,000, constituted a clear abuse of discretion or involved other mistake of law, Stack v. Boyle, 1951, 342 U.S. 1, 13, 72 S.Ct. 1, 96 L.Ed. 3, as the fixing of bail is essentially a matter of judgment, involving the imponderable factors set forth in Fed.Rules Crim.Proc., 46(c).

The indictment, filed on November 8, 1954, charges a violation of the Smith Act, 18 U.S.C. § 2385, in that from in or about January, 1946, and continuously thereafter defendant was a member of the Communist Party of the United States of America, alleged to be a group of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence. It is further charged that he was such member knowing the said purposes of the Party, “and said defendant intending to bring about such overthrow by force and violence as speedily as circumstances would permit.”

In his affidavit on the motion to reduce bail he stated that “in about October 1946 he accepted employment as Organizational Secretary of the Erie County Communist Party, which position he held until sometime in 1947 when he became Chairman of the Erie County Communist Party. In 1948 he became Western New York Organizer for the Communist Party and held that position until about September 1951.” While he also states that his position as Western New York Organizer was terminated by the Party, and that he was relieved of his duties and moved away from Buffalo, he makes no claim that he ceased to be a member of the Party or that he ceased to participate in its activities elsewhere.

When the matter of fixing bail came on for hearing Judge Burke made the customary inquiries concerning defendant’s background, where he lived and the nature of his employment. Counsel for defendant proffered explanation of the period from September, 1951 to August 31, 1955, the date of his apprehension in Buffalo, by stating, "that the defendant within the last four years has lived with his wife and daughter and has been engaged in legitimate employment.” But no information whatever was forthcoming as to his whereabouts or the nature of his employment during this four year period.

Two hearings were had, and the record discloses a careful and conscientious effort on the part of Judge Burke to weigh the various relevant factors, having in mind the defendant’s right to bail in a reasonable and proper sum, but one which “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.” Rule 46(c). That he says he is without funds and can only provide bail in the amount of $10,000, is merely one of the factors to be considered by the Court.

There is nothing before us even remotely to suggest that irrelevant matters were cast in the balance against defendant. Indeed, a scrutiny of this record makes it abundantly plain that Judge Burke pursued the proper method of evaluating the evidence before him.

The claim of some infringement of defendant’s constitutional rights under the Fifth Amendment is wholly without merit. It was defendant’s choice to withhold information as to his background, which is always of significance in fixing bail.

Affirmed.