Opposition — Abrahams v. United States

In the Supreme Court of the United States

OCTOBER TERM, [977

No. 77-1538

ALAN HERBERT ABRAHAMS, 4/K/A

James A. CARR, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 8a-17a)

and the order of the district court denying bail (Pet. App.

la-7a) are not reported. On May 4, 1978, Mr. Justice

Brennan denied petitioner's application for bail.

JURISDICTION

The judgment of the court of appeals was entered on

April 19, 1978. The petition for a writ of certiorari was

filed on April 25, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. 12541).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitu-

tion provides:

(1)

eee

Excessive bail shall not De required, nor excessive

fines imposed, nor cruel and unusual pun’shments

inflicted.

18 U.S.C. 3146 provides in part:

(a) Any person charged with an offense, other than

an offense punishable by death, shall, at his

appearance before a judicial officer, be ordered

released pending trial on his personal recognizance or

upon the execution of an unsecured appearance bond

in an amount specified by the judicial officer, unless

the officer determines, in the exercise of his

discretion, that such a release will not reasonably

assure the appearance of the person as required.

When such a determination is made, the judicial

officer shall, either in lieu of or in addition to the

above methods of release, impose the first of the

following conditions of release which will reasonably

assure the appearance of the person for trial or, if no

single condition gives that assurance, any combina-

tion of the following conditions:

(1) place the person in the custody of a

designated person or organization agreeing to

supervise him;

(2) place restrictions on the travel, association,

or place of abode of the person during the period

of release;

(3) require the execution of an appearance bond

in a specified amount and the deposit in the

registry of the court, in cash or other security as

directed, of a sum not to exceed 10 per centum of

the amount of the bond, such deposit to be

returned upon the performance of the conditions

of release;

(4) require the execution of a bail bond with

sufficient solvent sureties, or the deposit of cash in

lieu thereof; or

(5S) impose any other condition deemed

reasonably necessary to assure appearance as

required, including a condition requiring that the

person return to custody after specified hours.

(b) In determining which conditions of release will

reasonably assure appearance, the judicial officer

shall, on the basis of available information, take into

account the nature and circumstances of the offense

charged, the weight of the evidence against the

accused, the accused's family ties, employment,

financial resources, character and mental condition,

the length of his residence in the community, his

record of convictions, and his record of appearance

at court proceedings or of flight to avoid prosecution

or failure to appear at court proceedings.

oe 6s 8 *s

QUESTIONS PRESENTED

|. Whether petitioner's challenge to the denial of bail in

this case has become moot as the result of his

imprisonment on an unrelated conviction.

2. Whether, in the circumstances of this case, the order

denying petitioner bail pending trial violated his rights

under either the Eighth Amendment or 18 U.S.C. 3146.

STATEMENT

1. On January 10, 1978, petitioner was arrested in

Massachusetts pursuant to a federal warrant issued in

Michigan and was brought before a United States

magistrate.' At this appearance, petitioner falsely claimed

‘Petitioner was represented by counsel at this proceeding (Pet.

App. 9a).

4

to have no criminal record and concealed his true identity

by using an alias. A hearing on removal of petitioner to

Michigan pursuant to Fed. R. Crim. P. 40(b) was

scheduled for January 18, 1978, and petitioner was

released on $100,000 surety bond (Pet. App. 9a). He failed

to appear, however, and on January 25, 1978, was

arrested in Florida, where he had changed his hair color

and registered in a motel under an assumed name (id. at

2a, 9a). On the following day, petitioner was indicted

in Massachusetts for violation of 18 U.S.C. 1001.2 On

February 16, 1978, petitioner was arraigned on that

charge. The magistrate ordered him held without bail,

finding that “{t}he risk of flight is immeasurable” (Pet.

App. 10a).

Petitioner subsequently requested the district court to

admit him to bail. At an evidentiary hearing on March 6,

1978, the following facts, in addition to the facts shown

above, were proven: petitioner had three prior convictions

and had escaped from a New Jersey state prison while

serving a sentence of imprisonment for four-to-six years;

petitioner was a fugitive from California proceedings;

petitioner was sought on charges of probation violation in

the Southern District of New York and criminal contempt

in the Western District of Michigan; petitioner faced

several civil suits related to his business; during the

preceding four years, petitioner had lived with his family

218 U.S.C. 1001 makes it a crime for anyone to make a false

statement in connection with “any matter within the jurisdiction of

any department or agency of the United States * * *.~

‘In October 1974, petitioner was sentenced to two consecutive two-

to-three terms of imprisonment and to a concurrent one-year term

pursuant to a three-count fraud conviction in Monmouth County,

New Jersey (No. 909-73). In December 1974, he escaped from prison

while serving that sentence. Petitioner has been indicted in Mercer

County, New Jersey, for that escape, and another fraud indictment

has been returned against him in Monmouth County. Detainers on

both of these charges have now been lodged.

in Canada, the Bahamas, California, and Massachusetts,

using at least five different surnames; and according to the

government’s uncontradicted assertion, petitioner had

transferred $1,500,000 to Bermuda (Pet. App. la-Sa,

9a-| la).

On the basis of these facts, the district court refused

bail, ruling that “none of the five conditions spelled out in

18 U.S.C. §3146(a), or any combination thereof, will

reasonably assure the appearance of [petitioner] for

trial if admitted to bail” (Pet. App. 7a). The court of

appeals affirmed, holding that “{t}his is the rare case of

extreme and unusual circumstances that justifies pretrial

detention without bail” (Pet. App. 17a). On May 4, 1978,

Mr. Justice Brennan denied a renewed application for

bail.

2. On April 21, 1978—the day following the decision of

the court of appeals in this case— petitioner was sentenced

to the custody of the Attorney General for a term of im-

prisonment of two and one-half years by the United States

District Court for the Southern District of New York.*

This sentence, which petitioner is presently serving, re-

sulted from the revocation of a prior probationary sen-

tence for a conviction under 26 U.S.C. 7201 for evasion

of federal income taxes. The validity of this sentence ts

not before the Court in this petition.

ARGUMENT

1. Since petitioner is now serving a sentence of

imprisonment in the custody of the Attorney General, he

is not eligible for bail on other pending charges. United

States v. Minker, 326 F. 2d 411 (C.A. 3) (per curiam), see

United States v. Seegers, 433 F. 2d 493, 495 and n. 21

‘The Attorney General has designated that petitioner be in-

carcerated in the federal penitentiary at Lewisburg. Pennsylvania.

6

(C.A.D.C.) (per curiam); cf. Morgan v. United States, 380

F. 2d 686, 699 (C.A. 9). Accordingly, petitioner's

challenge to the denial of bail on the charges pending in

this case is now moot.

This case does not fall within the narrow exception to

the mootness doctrine as a matter “capable of repetition,

yet evading review.” Southern Pacific Terminal Co. v.

Interstate Commerce Commission, 219 U.S. 498, 515. As

this Court explained in Weinstein v. Bradford, 423 U.S.

147, 149, “Sosna [v. lowa, 419 U.S. 393,] decided that in

the absence of a class action, the ‘capable of repetition,

yet evading review’ doctrine was limited to the situation

where two elements combined: (1) the challenged action

was in its duration too short to be fully litigated prior to

its cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be

subjected to the same action again.” See Securities and

Exchange Commission v. Sloan, No. 76-1607, decided

May 15, 1978, slip op. 5.

This case satisfies neither branch of this test. In the first

place, an application for bail to this Court would

ordinarily be heard prior to the commencement of the

applicant’s trial and thus prior to any conviction that

would make the bail proceeding moot.5 Moreover, the

intervening circumstance that has made petitioner's

application for bail moot in this case—his imprisonment

on an unrelated conviction—is far from the ordinary

course of events. Since a bail application would normally

be reviewed in this Court prior to the “cessation or

expiration” of the bail controversy, the first branch of the

test in Sosna is no’ wu' filled.

‘Petitioner's trial in federal district court is scheduled for June

1978. Petitioner's application for bail was denied by Mr. Justice

Brennan on May 4, 1978.

Moreover, there is no “reasonable expectation” that

petitioner will be affected by the same order in the future.

Trial has been set on the charges involved in this case for

the last week of June 1978. In view of the prison sentence

petitioner is currently serving, it is highly improbable that

he will be eligible for bail prior to trial, or before final

disposition of the charges. The “mere possibility” that

petitioner may commit another crime after his release

from all current terms of imprisonment, and the further

speculative supposition that he may again be refused bail,

does not “servfe] to keep the case alive.” United States v.

W.T. Grant Co., 345 U.S. 629, 633. See Weinstein v.

Bradford, supra, 423 U.S. at 148-149.°

2. In any event, in the circumstances of this case, the

district court correctly determined that no conditions of

bail would assure petitioner's presence at trial, and thus it

properly denied bail.

The Eighth Amendment mandates that bail may never

be “excessive,” but it does not establish an absolute right

to bail pending trial. Carlson v. Landon, 342 U.S. 524,

545-546; Mastrian v. Hedman, 326 F. 2d 708, 710-711

(C.A. 8), certiorari denied, 376 U.S. 965.’ Similarly, while

18 U.S.C. 3146 creates a statutory bail procedure, the

right to bail under that statute is not absolute. See United

States v. Kirk, 534 F. 2d 1262, 1281 (C.A. 8); United

States v. Smith, 444 F. 2d 61, 62 (C.A. 8), certiorari

*In Weinstein, a prisoner's suit challenging the legality of parole

eligibility procedures was held to be moot upon his release on

parole. 423 U.S. 147-149. The Court held that there was “no demon-

strated probability” that the released prisoner would commit another

offense and again be subject to imprisonment. and that the contro-

versy was therefore moot. /d. at 149.

’Petitioner’s contention (Pet. 11-12) that the refusal of the district

court to admit him to bail constitutes cruel and unusual punishment

is frivolous.

denied sub nom. Haley ». United States, 405 U.S.

977. Courts retain inherent authority to deny bail in

advance of trial in extreme and unusual circumstances—

including when it is apparent that no release conditions

would reasonably assure the defendant's appearance at

trial. See United States v. Melville, 306 F. Supp. 124,

127-128 (S.D.N_Y.); cf. Carbo vy. United States, 82 S.

Ct. 662, 665-669 (Douglas, J.); Fernandez v. United

States, 81 S. Ct. 642, 644-645 (Harlan, J.); United States

v. Wind, 527 F. 2d 672, 674-675 (C.A. 6); United States

v. Bentvena, 288 F. 2d 442, 444 (C.A. 2). As this Court

stated in Siack v. Boyle, 342 U.S. |, 4: “The right to

release before trial is conditioned upon the accused's

giving adequate assurance that he will stand trial.”

Consequently, if there are, as here, no release con-

ditions that would provide such assurance, denial of

bail is justified. See United States v. Melville, supra,

306 F. Supp. at 127-128; cf. Ward v. United States, 76

S. Ct. 1063, 1066 (Frankfurter, J.).*

The instant case falls into that narrow category. After

consideration of the factors relevant to a bail determina-

tion under 18 U.S.C. 3146(b), the district court specifi-

cally found that none of the conditions of release set out

in Section 3146(a) would “reasonably assure the appear-

ance of [applicant] for trial if admitted to bail” (Pet. App.

7a). This conclusion was amply supported by the evidence

of

defendant's jail escape in New Jersey, his defaulting

on a $100,000 cash bond in [the district court,] and

his proclivity for living in different parts of this

‘Furthermore, without running afoui of the Eighth Amendment's

proscription of excessive bail, the district court no doubt could have

fixed bail at an amount petitioner would have been unable to make.

See Stack v. Boyle, supra, 342 U.S. at 10 (Jackson, J.); United States

v. Herman, 544 F. 2d 791, 794, n. 5(C.A. 5): Allen v. United States.

386 F. 2d 634, 635 (C.A.D.C.); White v. United States, 330 F. 2d

S11, 814 (C.A. 8). certiorari denied, 379 U.S. 855.

9

country, Canada and the Bahamas under multiple

fictitious mames, as well as the pendency of

revocation of probation proceedings and contempt

proceedings against him in Federal District Courts in

New York and Michigan, his serious legal problems

with the State of New Jersey because of the jail

escape, and his exposure to a maximum sentence in

the instant case of a fine of not more than $10,000

and imprisonment for not mcre than five years, or

both * * *. [Pet. App. 6a-7a.]

Accordingly, on the extraordinary factual record before

the district court in this case, the order denying bail was

necessary to assure petitioner's presence at trial and was

therefore justified.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wape H. McCree, JR.,

Solicitor General.

Joun C. KEENEY,

Acting Assistant Attorney General.

JEROME M. Feit,

VINCENT L. GAMBALE,

Attorneys.

JuNE 1978.

DOJ-1978-06