Bail
7203: Willful
Failure to File Return, Supply Information, or Pay Tax: Bail
[61-2
USTC ¶9739]
United States of America
, Appellee, v. Grant Foster, Appellant Grant Foster, Petitioner v. The
Honorable Roszel C. Thomsen, United States District Judge, and the
United States District Court for the District of Maryland, Respondents
(CA-4),
U. S. Court of Appeals, 4th Circuit, Nos. 8378, 8460, 296 F2d 249,
10/25/61, Affirming unreported District Court decision, dismissing
appeal from interlocutory order, and denying petition for mandamus
[1954 Code Sec. 7201]
Tax evasion: Reduction of bail: Mandamus for change of venue: Right
of appeal.--Where taxes of $300,000 were involved in an indictment
for tax evasion, bail of $200,000 was not excessive and a motion to
reduce it was properly refused as the defendant did not show any
hardship. Petition for mandamus to require a change of venue from one
district court to another was denied because it was merely an attempt to
substitute another remedy for an appeal from the district court's
interlocutory order (not appealable) denying the venue change.
Harold
L. Ward, Walter Humkey (Sherwin P. Simmons, Fowler, White, Gillen,
Humkey & Trenam, on brief), for appellant, petitioner. Joseph D.
Tydings, 301 Davison Chemical Bldg., Charles and Fayette Sts., Baltimore
1, Md. (Arnold M. Weiner, Assistant United States Attorney, on brief),
for appellee, respondents.
Before
SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.
PER
CURIAM:
Immediately
after his arrest in
Miami
,
Florida
, on February 4, 1961, Grant Foster, an American citizen residing in
Panama
, posted a cash bail bond in the amount of $200,000.00. The bond was
conditioned upon his appearance to answer an indictment filed in the
United States District Court for the District of Maryland, for violation
of the Internal Revenue laws. 1 No objection
to the amount of bail was made until April 21, 1961, when a petition was
filed in the United States District Court for
Maryland
for a reduction. Seven days later, when the defendant was arraigned, the
court held a hearing on the petition. Extensive arguments were made by
counsel for the defendant as well as for the Government. The defendant
was present in the courtroom, but no tender of any evidence was made on
behalf of the defendant to show hardship or any facts bearing on the
financial condition of the defendant. It was the Government's contention
that the defendant, a resident of
Panama
, was the principal owner--it claimed he was in fact the sole owner--of
a corporation which was engaged in road building in
Central America
. The corporation had in a bid for work represented itself to be worth
$4,500,000.00 The Government further showed, and there was no
substantial issue as to this, that the defendant had no close ties in
the
United States
, and that the amount of taxes involved in the indictment exceeded
$300,000.00. Apparently, while the defendant made occasional visits to
the
United States
, he had no regular schedule for his visits and no place of business in
this country.
The
appeal here is from the District Court's refusal to reduce the amount of
the bail. We find in these circumstances no basis for holding that the
bond as originally fixed, was excessive, or that the District Judge
abused his discretion in later refusing to reduce it.
Before
us, even though requested by the court, the defendant still failed to
show any factual basis for his charge of hardship in the amount of bail.
Asked to explain why he failed for a period of nine months to apply to
this court or to any judge thereof for lower bail, counsel for the
defendant replied that since the bail question is concededly appealable,
he preferred to reserve it as a vehicle to bring before this court for
review at the same time other issues, such as were raised in his motions
attacking the indictment as insufficient and barred by limitations and
seeking transfer of the case to the Southern District of Florida. These
issues are interlocutory in character and normally are not the subject
of appeal before final judgment.
In
addition to the appeal on the bail question, which is properly before
us, the defendant filed a Petition for Writ of Prohibition or Mandamus
to require the District Judge to order the transfer of the trial of the
criminal case to the Southern District of Florida. The defendant's
contention is that the motion for such transfer should have been granted
under Rule 21(b) of the Federal Rules of Criminal Procedure, or, in the
alternative, under 18 U. S. C. A. §3228.
By
this strategy the defendant seeks to substitute another remedy for
appeal, and to achieve an immediate review of inter-locutory orders
without awaiting final judgments as is required for an appel. We are of
the opinion, however, that the defendant may not maintain such a
petition but must first stand trial, and may later renew his contentions
in the course of an appeal to this court in the event of his conviction.
At
this term of court we had occasion to say:
"Mandamus
may not ordinarily be resorted to as a mode of review when a statutory
method has been prescribed. The writ may not be used as a substitute for
an appeal, and it may not be used as a means for obtaining review of an
order of the trial court which is not appealable because it does not
constitute a final determination of the case." Bartsch v.
Clarke, No. 8456, decided by this court October 12, 1961, . . . F.
2d . . ..
The
order as to bail is affirmed; the appeal from the interlocutory order is
dismissed, and the petition for prohibition or mandamus is denied.
1
Court one of the indictment charged that the adjusted gross income of
Foster and his wife for 1952 was $304,291.42, on which a tax of
$230,959.47 was due, whereas their tax return showed an income of only
$3,175.46 with $102.00 due in taxes. Count two charged that their
adjusted joint income for 1953 was $104,337.29 with a tax of $58,459.48
due, whereas their return showed an adjusted gross income of only
$3,331.91 with a tax of $132.00. Count three charged that Foster a gross
income during 1955 of $22,579.28, and count four charged that his gross
income for 1956 was $9,570.80, for which two years Foster failed to file
any tax return. Thus, for the years in question, Foster is charged with
an adjusted gross income of $440,778.79 on which there was due a tax
well in excess of $289,418.95. He has shown for the entire period only
$6,507.37 income, and $234.00 as taxes due.
[57-1
USTC ¶9483]Frank Costello v.
United States of America
Supreme
Court of the
United States
, No. 666, 352
US
1028, 77 SCt 642, 3/11/57
On writ of certiorari to the United States Court of Appeals for the
Second Circuit.
[1939 Code Secs. 145(b) and 3616(a)--similar to 1954 Code Secs. 7201 and
7207]
Criminal tax evasion: Applicable Code Section: Bail pending decision
in a similar case.--Petitioner was found guilty of tax evasion under
1939 Code Sec. 145(b) and was sentenced under that section. He contends
that he should have been sentenced under 1939 Code Sec. 3616(a), which
would make his offense a misdemeanor punishable by a lighter maximum
sentence. Because the Supreme Court has granted certiorari in Achilli
v. U. S., 56-2 USTC ¶9638, involving the same issue it holds that
petitioner is entitled to bail, the Government having presented no
adequate reason why bail should not be granted. Bond is required in the
sum of $25,000.
Edward
B. Williams, 1000 Hill Bldg., Washington, D. C., and Morris Shilensky
and Osmond K. Fraenkel, 120 Broadway, New York, N. Y., for petitioner,
J. Lee Rankin, Solicitor General, and Charles K. Rice, Assistant
Attorney General, Washington, D. C., for respondent.
PER
CURIAM:
Petitioners
in both the above cases have applied to individual Justices for bail
under Rule 46 of the Federal Rules of Criminal Procedure. The relevant
circumstances concerning bail are identical in both cases. Both were
convicted of income tax evasion involving §145(b) of the Internal
Revenue Code of 1939. Both were sentenced to imprisonment for five years
on each of three counts, the sentences to run concurrently. Both contend
that they should have been sentenced under §3616(a) of the Internal
Revenue Code of 1939, which makes it a misdemeanor (punishable by a
maximum of one year's imprisonment) to file a false return with intent
to evade tax, the offense for which each was convicted. The question
petitioners raise was discussed but not decided in Berra v. United
States, 351 U. S. 131 [56-1 USTC ¶9480]. This question is presented
in Achilli v. United States, No. 430, which the Court has set for
hearing during the week of April 29. Pending final determination of this
question, we think petitioners are entitled to bail, the Government
having presented no adequate reason why bail should not be granted.
Accordingly, petitioners are admitted to bail, pending the disposition
of the Achilli case, by executing a good and sufficient bail bond
in the sum of $25,000, the same to be approved by a district judge of
the court in which petitioners were convicted. Following approval, the
bond will be posted with the clerk of the district court.
[55-1
USTC ¶9230]J. A. Herzog, Appellant v.
United States
, Appellee
In
the Supreme Court of the
United States
, No. --, October Term, 1954, 75 SCt 349, February 11, 1955
Application for admission to bail pending determination of appeal in the
United States Circuit Court of Appeals for the Ninth Circuit.
[1939 Code Sec. 145(a)--similar to 1954 Code Sec. 7201]
Criminal prosecution: Bail pending appeal: "A substantial
question."--Application for bail following judgment of
conviction for income tax evasion was denied by the District Court and
also by the Court of Appeals. It was granted by the Supreme Court on the
ground that the case involved "a substantial question which should
be determined by the appellate court." Whether the grand jury
minutes could be inspected for the purpose of impeaching a witness who
had testified before it presents such "a substantial
question."
Sol
A. Herzog (now deceased), 70 Pine St., New York 5, N. Y., James M.
McInerney, 1317 F. St., N. W., Washington, D. C., and Spurgeon Avakian,
Financial Center Bldg., Oakland 12, Calif., for appellant. Philip Elman,
Special Assistant to the Attorney General, Department of Justice,
Washington 25, D. C., for appellee.
DOUGLAS,
Circuit Justice:
This
is an application for bail after judgment of conviction for federal
income tax evasion that led to a sentence of one year in prison and a
fine of $5,000. The District Court denied bail. After oral argument, a
panel of three members of the Court of Appeals also denied bail. This
application was then made to me as Circuit Justice, a procedure
authorized by Rule 46(a)(2) of the Rules of Criminal Procedure, which
provides:
"Bail
may be allowed pending appeal or certiorari only if it appears that the
case involves a substantial question which should be determined by the
appellate court. Bail may be allowed by the trial judge or by the
appellate court or by any judge thereof or by the circuit justice. The
court or the judge or justice allowing bail may at any time revoke the
order admitting the defendant to bail."
The
problem presented by this application is a difficult and recurring one.
After the District Judge, who has tried the case, and the Court of
Appeals, which will hear the case on the merits, both deny bail, the
Circuit Justice should be most reluctant to grant such relief. The
reason is not only the great deference owed their judgment but also the
knowledge that those judges, being closer to the actual arena of the
trial and its environment, are more apt than he to have a sense of what
the scales of justice indicate in the particular case. Yet a
responsibility rests on the Circuit Justice which cannot in good
conscience be delegated to others. And if, after giving that deference
to his Brethren below which is deserved, there are still doubts, he
alone must resolve them.
["A
Substantial Question"]
I
heard oral argument in this case. There was no suggestion whatever that
this applicant should be confined lest he escape or not respond to the
judgment entered on appeal. The Court of Appeals has, indeed, granted a
stay of execution to continue for seven days after I have ruled on this
application. Hence, the only question presented to me is whether
Herzog's case "involves a substantial question which should be
determined by the appellate court" within the meaning of Rule
46(a)(2).
The
construction of the words "substantial question" is itself a
substantial question. It obviously does not mean a decision on the
merits, for Rule 46(a)(2) defines the question as one "which should
be determined" on appeal.
A
question might seem "substantial" to one person and not to
another. My years of experience on the Supreme Court with petitions for
certiorari is enlightening in this regard. The practice is to grant
those petitions on a vote of four Justices. Those who vote to deny the
petition, either because they think the decision below was right or that
the petition presents nothing substantial, often vote to reverse after
oral argument. Further study of a problem often changes a vote. Further
study may do more; it may indeed change the views of the majority of a
court. It has happened over and again in the Supreme Court; and I am
confident it also happens in other courts.
Only
the other day, bail was denied in Patterson v. United States, 75
S. Ct. 256, by the District Court, by the Court of Appeals, and by the
Circuit Justice. The appeal, however, was expedited lest the right of
appeal be lost while the appellant was serving his short sentence. When
the Court of Appeals reached the merits, it reversed.
United States
v. Patterson, 23 L. W. 2381.
[Criteria]
When,
therefore, the issue is whether a "substantial question" is
presented within the meaning of Rule 46(a)(2), the first consideration
is the soundness of the errors alleged. Are they, or any of then, likely
to command the respect of the appellate judges? It is not enough that I
am unimpressed. I must decide whether there is a school of thought, a
philosophical view, a technical argument, an analogy, an appeal to
precedent or to reason commanding respect that might possibly prevail.
If the question were one presented by a petition for certiorari to this
Court and I were asked to grant a stay, I would grant it despite my own
convictions on the merits, once I felt that any of my Brethren would be
impressed with the argument. Though there were only one likely
protagonist of that view on the Court, I would feel that the question
should be saved for decision by the entire bench. The fact that one
judge would be likely to see merit in the contention is likewise enough
to indicate its substantiality for the purpose of Rule 46(a)(2). There
is room for argument on many rules of law and on most of their
applications. The shadow of a doubt across one's own conclusions is
itself sufficient, at least where bail is involved. Bail is basic to our
system of law. See the Eighth Amendment; Stack v. Boyle, 342 U.
S. 1. Doubts whether it should be granted or denied should always be
resolved in favor of the defendant. See the opinion of Mr. Justice
Butler, as Circuit Justice, in United States v. Motlow, 10 Fed.
(2d) 657, 663.
I
do not believe, however, that there is necessarily an end to the problem
under Rule 46(a)(2), even though I reach the conclusion that on the
merits there is no appellate judge who would likely reverse the judgment
of conviction. That does not necessarily mean that there is no
substantial issue which "should be determined by the appellate
court." A question may nevertheless be "substantial"
within the meaning of the Rule, if it is novel, or if there is a
contrariety of views concerning it in the several circuits, or if the
appellate court should give directors to its district judges on the
question, or if in the interests of the
admin
istration of justice some clarification of an existing rule should be
made.
In
the present case, appellant's brief on the merits, recently filed in the
Court of Appeals, is a printed document of 63 pages. I have read it with
care and have examined portions of the record to which it refers. There
is nothing apparent in the brief indicating any flagrant miscarriage of
justice, though interesting points of law are presented. There is,
however, one question of law that seems to me to present a
"substantial question" within the meaning of Rule 46(a)(2).
[Grand
Jury Minutes]
The
question relates to the use of the grand jury minutes for impeachment
purposes. A critical witness was on the stand for cross-examination.
Counsel for defendant wanted to inspect the witness' testimony before
the grand jury in order to impeach him. He request was denied. *
Rule
6(e) of the Rules of Criminal Procedure provides in part:
"Disclosure
of matters occurring before the grand jury other than its deliberations
and the vote of any juror may be made to the attorneys for the
government for use in the performance of their duties. Otherwise a
juror, attorney, interpreter or stenographer may disclose matters
occurring before the grand jury only when so directed by the court
preliminary to or in connection with a judicial proceeding . . ..
No obligation of secrecy may be imposed upon any person except in
accordance with this rule." (Italics added.)
There
has been a conflict between the policy requiring secrecy of grand jury
minutes and the policy which seeks to leave no stone unturned in seeking
justice in a particular case. See In re Bullock, 103 Fed. Supp.
639. Rule 6(e) has partially resolved that conflict by allowing
disclosure of the grand jury minutes "in connection with a judicial
proceeding."
The
Court of Appeals for the Ninth Circuit does not seem to have ruled on
the question presented here beyond the statements in Metzler v.
United States, 64 Fed. (2d) 203, 206, that the veil of secrecy can
be lifted from the grand jury minutes when "the ends of justice can
be furthered thereby." But that case was decided prior to Rule 6(e)
and I have found no subsequent Ninth Circuit case squarely in point
here. Cf. United States v. Smyth, 104 Fed. Supp. 279, 281.
[Alper
in Point]
United
States v. Alper, 156 Fed. (2d)
222, 226, decided by the Court of Appeals for the Second Circuit, is,
however, in point. While a witness was being cross-examined, his
testimony before the grand jury was requested by the defendant to see
whether there were inconsistencies between it and the trial testimony.
The trial judge refused the request. The Court of Appeals reversed on
another ground. Yet in referring to the right of counsel on
cross-examination to inspect the grand jury minutes to ascertain whether
the witness testified differently at that time, the court said:
".
. . as the same question may arise on the new trial it seems desirable
to refer to some of the matters which the judge should take into account
in exercising his discretion. These will include the timeliness of the
request for the minutes, the delay in the trial which may result, and
the extent of the burden which will be imposed upon the judge by a
comparison of the witness's grand jury testimony with his trial
testimony. If the witness's grand jury testimony is very lengthy, it
would be an intolerable burden and would unduly delay the trial to
require the judge to go through it on the mere chance that some
inconsistency favorable to the accused might be found. The trial of an
indictment is of course an inquiry into the truth of the charge; but in
such trial the judge must be as little an advocate of the accused as of
the prosecution. When the testimony before the grand jury is in small
enough compass to make any contradictions between it and the witness's
trial testimony readily discoverable it is a tolerable duty to impose
upon the judge an examination of the minutes. But to demand that he
peruse many pages of an examination of a witness to discover possible
contradictions is altogether to falsify his position; for then he
becomes in effect an active assistant of the defense. He would have to
bear in mind all that the witness had sworn to, and pick out from a mass
of what may be, and usually is, verbiage any parts that may be
contradictory. That involves an active participation favorable to one
side, which should not be required. A great part of the law of evidence
is based upon the practical difficulties that would incidentally arise
from the admission of what, strictly speaking, is logically relevant; it
is founded upon the recognition that here, as elsewhere in the law, we
are seeking not logical perfection but the just settlement of a
controversy. The duty we are discussing is preeminently in this class
and it is particularly one about which it would be unsafe to
generalize."
It
is obvious that, whatever the ultimate outcome, under that ruling
Herzog's request for inspection of the grand jury minutes would have
been treated differently in New York than it was in California. Which is
the better way of handling the matter, or whether there is still another
which is to be preferred, is a considerable question in the
admin
istration of justice.
I
express no opinion on the merits. I only conclude that the question is a
"substantial" one "which should be determined" by
the Court of Appeals, within the meaning of Rule 46(a)(2).
I
will accordingly admit Herzog to bail in the amount of $5,000, to be
posted with and approved by the District Court.
*
The record shows the following transpired:
"Mr.
Avakian: I believe that . . . any testimony of a witness previously
given relating to the subject matter at hand should be made available to
the defense.
"And
I think that is particularly appropriate here. It appears to be that in
one other instance previously given testimony appears to be somewhat
different from the testimony given here, and that is the reason--
"The
Court: You are arguing now about a fact. If that is your reason, I can't
agree. I can't agree, as a judge, that there is a basis for that
statement.
"Mr.
Avakian: The purpose of my request is for impeachment, your Honor.
"The
Court: Yes, but the Grand Jury proceedings are not open in the federal
court, not unless there is some ground for them that would vary the
rule. I never heard of such a thing, not in the federal court.
"I
know that in the state court, of course, the Grand Jury testimony can be
used, but that is not true in federal court. No more than a fishing
expedition. And I don't say that with any degree of criticism applicable
to this case, but generally that is all it would amount to in any case
unless there was some ground of fraud or misconduct on the part of the
Grand Jury, or something like that.
"Mr.
Avakian: It isn't attacking the validity of the Grand Jury proceedings,
your Honor, but is for impeachment purposes.
"The
Court: You have to make some showing that it would be impeaching,
otherwise it is a fishing expedition and would delay every criminal
proceeding in federal court. Never would have an end to these
proceedings.
"Mr.
Avakian: I don't believe it would take more than ten or fifteen minutes
for us to read the testimony.
"The
Court: Well, I will deny the application."
[79-2
USTC ¶9433]United States of America, Plaintiff v. Terrence J. Karmann,
Defendant
U.
S. District Court Cen. Dist. Calif., No. CR 79-43-AAH, 471 FSupp 1021,
6/8/79
[Code Secs. 7203 and 7205]
Bail pending appeal: Order denying release: Menace to society.--The
taxpayer was denied bail pending appeal. He was convicted of failure to
file returns for several years and for filing false W4-E certificates.
The taxpayer was denied bail because the court determined that he was a
menace and a danger to himself and to society, and would set a bad
example for other taxpayers.
Andrea
Sheridan Ordin, United States Attorney,
Rob
ert L. Brosio, Eric L. Dobberteen, Assistant United States Attorneys,
Los Angeles, Calif. 90012, for plaintiff.
Findings
of Fact, Conclusions of Law and Order Re Denial of Release Pending
Appeal
HAUK,
District Judge:
The
defendant, in propria persona, having made an appropriate application
for release after a judgment of conviction, and the Court having refused
to release the defendant pending appeal, the Court now states in writing
the reasons for this action in accordance with Rule 9(c) Federal Rules
of Appellate Procedure. These findings of fact and conclusions of law
are based on the records and files of this case, and the pleadings
herein, including the facts of this case, and oral argument at the time
of sentencing. The Court makes the following Findings of Fact and
Conclusions of Law:
Findings
of Fact
I.
The defendant has engaged in a consistent and continuing course of
conduct, deliberately, intelligently, and without equivocation, in
defiance of the laws constitutionally enacted by the Congress of the
United States, to wit, the Internal Revenue Code, as amended to date, 26
U. S. C. §1, et seq. In this regard, the defendant has been
convicted by a jury of two violations of 26 U. S. C. §7203 and one
violation of 26 U. S. C. §7205.
II.
The defendant has deliberately, intelligently, and knowingly engaged in
the filing of false W4(E) certificates, not only those with which he was
charged and convicted in Count Two of the Indictment, but also, in the
opinion of this Court, for the calendar years 1978 and 1979 in that he
submitted false information to his employer, the Times Mirror Company in
Los Angeles, wherein he certified and has certified each time that he
incurred no federal tax liability for the preceding calendar year and
that he anticipated incurring no federal income tax liability for the
following year covering the taxable year 1976 and the following year
1977; the taxable year 1977 and the following year 1978; the taxable
year 1978, and the following year 1979; whereas he then and there well
knew that he had incurred federal income tax liability for the year
1976, and he anticipated a federal tax liability for 1977; further, that
he then and there well knew that he had incurred a federal income tax
liability in 1977 and he anticipated a federal income tax liability for
1978; and finally that he then and there well knew that he had incurred
a federal income tax liability in 1978 and he anticipated a federal
income tax liability for 1979.
III.
During the calendar year 1976 he earned a gross income of $14,915.01 and
was required by law to report such income and any deductions or credits
to which he was entitled, following the close of the calendar year 1976
and before April 15, 1977. Nevertheless he willfully and knowingly
failed to do so.
IV.
During the calendar year 1977, he received a gross income of $14,754.29
and by reason thereof, he was required by law following the close of the
calendar year 1977 and before April 15, 1978, to make an income tax
return setting forth these items of gross income and any deductions or
credits to which he was entitled. Well knowing these facts he did
willfully and knowingly fail to make such return.
V.
For the calendar year 1978, based upon the defendant's own statement to
the Court at a pretrial hearing on March 5, 1979, the Court finds that
he had a gross income of at least $14,000 for the calendar year 1978 and
was required on or before April 15, 1979, to make an income tax return
to the appropriate officials; well knowing all these facts, he did
willfully and knowingly fail to make such income tax return as required
by the law.
VI.
Any conclusion of law deemed to be a finding of fact is hereby
incorporated into these findings of fact.
Conclusions
of Law
I.
The subject matter of this action is controlled by Title 18, Rule 9(c),
Federal Rules of Appellate Procedure.
II.
By reason of the foregoing findings of fact, the Court concludes that
the defendant by reason of his conduct has made a mockery of the income
tax laws and the regulations issued thereunder and has indicated he will
continue to do so in defiance of the law; that he thereby constitutes a
menace and a danger not only to himself, but also to society; and that
if this activity is permitted to continue in defiance of the law, it
would set an extremely bad example for other taxpayers and money earners
and cannot be tolerated. Therefore, on the facts of this case, the Court
concludes that the defendant has failed to carry the burden that he will
not flee or pose a danger to the community. Rule 46(c), Federal Rules of
Criminal Procedure and Rule 9(c), Federal Rules of Appellate Procedure.
III.
The Court further concludes that any appeal taken by the defendant will
be frivolous and taken for purposes of delay. Rule 9(c), Federal Rules
of Appellate Rpocedure and Title 18 U. S. C. §3148.
Order
Accordingly
defendant's motion for granting of bail pending appeal should be and is
denied.
[53-1
USTC ¶9352]United States of America, Plaintiff v. Ely Glazer, Defendant
In
the United States District Court, Eastern District of Missouri, Eastern
Division, No. 27125(2), 14 FRD 86, December 24, 1952
Evasion of taxes: Bail pending appeal.--Motion for bail after
conviction for income tax evasion is denied where there was nothing new
or novel in the complaint, the facts of the case are not unique,
defendant had a fair trial, and no showing was made that the case
involves a substantial question which should be determined by the
appellate court, or that in the Court's discretion he should be admitted
to bail pending appeal. The factor of hardship on the defendant is
immaterial.
George
L.
Rob
ertson, United States Attorney, and Ted A. Bollinger and Marvin C.
Hopper, Assistant United States Attorneys, all of St. Louis, Mo., for
plaintiff. Morris A. Shenker, 408 Olive Street, and Sidney Glazer and
Martin A. Rosenberg, Arcade Building, St. Louis, Mo., for defendant.
Memorandum
HULEN,
District Judge:
Defendant
made an unsuccessful oral application for bail at time motion for new
trial was overruled, following a conviction for income tax evasion on
two counts. The sentence was a year and a day and a fine of $10,000.00
on Count One and a fine of $10,000.00 on Count Two. The following motion
is now for ruling:
"The
defendant renews his application for bail and calls the Court's
attention to Rossi v. United States, 8th Cir., 11 Fed. (2d)
264."
The
motion for new trial contained seventy-one assignments of error. By oral
argument and brief only five of the complaints were submitted to this
Court.
The
motion for new trial was overruled December 12, 1952 (see memorandum
opinion). On the same day defendant filed with the Clerk his election
"to commence service of the sentence imposed."
A
motion was filed asking for suspension of sentence. In substance it
relates: "Tax liens were filed against the defendant in the amount
of $679,293.72"; 1 that
"The fair value of all of the defendant's assets in cash, bonds,
real estate, evidence of indebtedness, stocks, etc." levied upon,
turned over by defendant, or on which tax liens have been filed,
"to satisfy the claims is of the approximate amount of
$500,000.00." The motion concludes:
"b.
Defendant has been advised that even though the claims of the United
States Government may be excessive, that he may not expect to receive
any of the funds that were turned over by him to the United States
Government as the final claim will still be in excess of all of his
assets.
"c.
It would be to the best interests of the United States Government for
defendant to remain at large and to continue his business, the earnings
of which will be used to meet the claims of the United States
Government."
Rossi
v. United States, supra, was
decided in 1926. The holding of that decision--
"Cases
of this character, however, are rare, and accused and convicted persons
under ordinary circumstances and in the vast majority of cases should be
admitted to bail, both before their conviction and during the pendency
of their writs of error until the appellate court has affirmed the
judgments against them."
has
been affected in our opinion by Rule 46(a)(2), Federal Rules of Criminal
Procedure:
"Bail
may be allowed pending appeal or certiorari only if it appears that the
case involves a substantial question which should be determined by the
appellate court. * * *"
Prior
to the adoption of the new criminal rules, the Eighth Circuit Court of
Appeals, in Bernacco, et al. v. United States, 299 Fed. 787,
declared:
"The
court is clear that the allowance to bail after conviction is not an
absolute right, but entirely within the exercise of sound judicial
discretion. This was true at common law."
Rule
42(a)(2) became the law in May, 1934. In United States v. Delaney,
8 Fed. Supp. 224, the impact of the new rule is stated:
"The
shift from the use of 'frivolous' to 'substantial' would seem to be
another indication of the still shifting emphasis. It apparently
transfers the burden from the government to the defendant. That has
always been the law in England."
In
United States v. Burgman, 89 Fed. Supp. 288, the law is stated:
".
. . two requisites must be met in order to justify the enlargement of a
defendant on bail pending appeal. First, it must appear that the case
involves a substantial question of law. Second, it must appear that the
case is one in which in the discretion of the Court, it is proper to
grant bail."
*
* *
"When
a defendant is convicted, the presumption of innocence vanishes and a
heavy presumption of guilt supplants it."
This
Circuit held, in Baker v. United States, 139 Fed. (2d) 721
(1944):
"A
man who has been found guilty in District Court and sentenced has no
absolute right to bail pending appeal; he has a right to apply for
bail."
