Application of Vietnamese citizen for bail., pending his appeal
to the Court of Appeals from his conviction for espionage and
related offenses, is granted where there was insufficient basis for
the District Court to revoke bail on the ground of a risk that
applicant would flee from the country.
MR. JUSTICE BRENNAN.
This is an application [
Footnote
1] for bail pending appeal to the Court of Appeals for the
Fourth Circuit from the conviction of applicant on May 19, 1978,
following a jury trial in the United States District Court for the
Eastern District of Virginia, of conspiracy to commit espionage
(Count 1); conspiracy to violate laws prohibiting the unlawful
conversion of Government property and the communication of
classified information to a foreign agent (Count 2); espionage
(Count 3); theft of Government property (Count 5); acting as a
foreign agent without registration (Count 6); and unlawful
transmission of defense information (Count 7). [
Footnote 2] Applicant was sentenced to 15 years'
imprisonment on Counts 1 and 3, 2 years' imprisonment on Count 2,
and 5 years' imprisonment on Counts 5, 6, and 7, all sentences to
be served concurrently.
The District Court admitted applicant to bail prior to trial in
the amount of $250,000, but, immediately after applicant's
conviction, revoked the bail pursuant to 18 U.S.C. § 3148,
[
Footnote 3] stating three
reasons: (1) the substantial evidence
Page 439 U. S. 1327
of guilt; (2) the seriousness of the crimes and the length of
the potential sentences; [
Footnote
4] and (3) the risk of flight, given the severity of the
potential sentences and the fact that applicant was not an American
citizen. The Court of Appeals in an unreported opinion sustained
the revocation, stating:
"The defendant is a Vietnamese citizen. The charge upon which he
was convicted involved the receipt and transmission of classified
information to the Vietnamese Ambassador in Paris. The defendant
has not established a permanent residence in this country, and,
should he flee to Vietnam, the United States would have no means to
procure his return for the imposition of sentence or for sentence
service."
"Under the circumstances, we find no abuse of discretion of the
district judge in denying the defendant bail pending appeal."
See Application for Release Upon Reasonable Bail,
Exhibit A, p. 2.
Applicant's appeal presents,
inter alia, an important
question heretofore specifically reserved by this Court in
United States v. United States District Court,
407 U. S. 297
(1972), namely, "the scope of the President's surveillance power
with respect to the activities of foreign powers, within or without
this country."
Id. at
407 U. S. 308.
There is a difference of view
Page 439 U. S. 1328
among the Courts of Appeals on this question.
Compare
Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 58, 516 F.2d 594, 651
(1975) (en banc),
with United States v. Butenko, 494 F.2d
593, 605 (CA3 1974) (en banc).
See also Katz v. United
States, 389 U. S. 347,
389 U. S. 359
(1967) (Douglas, J., concurring);
id. at
389 U. S. 362
(WHITE, J., concurring). The question arises in this case because
of applicant's challenge to the admission of evidence obtained from
a wiretap placed in applicant's apartment over a period of
approximately three months without prior judicial warrant. As
phrased in the application:
"The court of appeals . . . will be asked to rule upon the
government's claim of power to conduct lengthy warrantless
surveillance of domestic premises, in light not only of the fourth
amendment but of the express authorization of 18 U.S.C. §
2516(1)(a) for the use of warrants in espionage cases."
The uncertainty of the ultimate answer to this important
constitutional question is not, of itself, however, sufficient
reason to continue applicant's bail. Section 3148 expressly
authorizes the detention of a convicted person pending appeal when
"risk of flight . . . is believed to exist." It was the risk
"[u]nder the circumstances" upon which the Court of Appeals rested
its conclusion that "we find no abuse of discretion of the district
judge in denying the defendant bail pending appeal." This judgment
is entitled to "great deference."
Harris v. United States,
404 U. S. 1232
(1971) (Douglas, J., in chambers). Nevertheless, "where the reasons
for the action below clearly appear, a Circuit Justice has a
nondelegable responsibility to make an independent determination of
the merits of t.he application."
Reynolds v. United
States, 80 S. Ct. 30, 32, 4 L. Ed. 2d 46, 48 (1959) (Douglas,
J., in chambers).
See Mecom v. United States, 434 U.
S. 1340,
434 U. S.
1341 (1977) (POWELL, J., in chambers). The question for
my "independent determination" is thus whether the evidence
justified the courts below in reasonably believing that there
Page 439 U. S. 1329
is a risk of applicant's flight. In making that determination, I
am mindful that
"[t]he command of the Eighth Amendment that '[e]xcessive bail
shall not be required . . .' at the very least obligates judges
passing upon the right to bail to deny such relief only for the
strongest of reasons."
Sellers v. United States, 89 S. Ct. 36, 38, 21 L. Ed.
2d 64, 66 (1968) (Black, J., in chambers).
Given this constitutional dimension, I have concluded that the
reasons relied upon by the courts below do not constitute
sufficient "reason to believe that no one or more conditions of
release will reasonably assure" that applicant will not flee. The
evidence referred to by the Court of Appeals is that applicant
maintained contact with the Vietnamese Ambassador in Paris; that he
has not established a permanent residence in this country; and
that, should applicant flee to Vietnam, the United States would
have no means to procure his return. [
Footnote 5] But if these considerations suggest
opportunities for flight, they hardly establish any inclination on
the part of applicant to flee. And other evidence supports the
inference that he is not so inclined. Applicant faithfully complied
with the terms of his pretrial bail and affirmed at sentencing his
faith in his eventual vindication and his intention not to flee if
released on bail. He has resided continuously in this country since
1965, and has extensive ties in the community. He has produced
numerous affidavits attesting to his character and to his
reliability as a bail risk. [
Footnote 6] He has maintained a close relationship with
his sister, a permanent resident of the United States since 1969.
The equity in his sister's Los Angeles home constitutes a
substantial measure of the security for applicant's bail. In
addition, applicant's reply to the memorandum for
Page 439 U. S. 1330
the United States in opposition informs us that the
"American Friends Service Committee and the National Council of
Churches have come forward with large sums which are now in the
registry of the court in Alexandria."
I conclude, therefore, that there was insufficient basis for
revocation of applicant's bail following his conviction, and that
his bail should be continued at $250,000 pending decision of his
appeal by the Court of Appeals. The application is therefore
remanded to the District Court for the determination of further
appropriate conditions of release, and for further proceedings
consistent with this opinion.
[
Footnote 1]
This application was originally presented to MR. CHIEF JUSTICE
BURGER as Circuit Justice. In his absence, it was referred to
me.
[
Footnote 2]
See 18 U.S.C. §§ 371, 641, 793(e), 794(a) and (c), 951;
50 U.S.C. §§ 783(b) and (c) (1970 ed.).
[
Footnote 3]
The statute states in the pertinent part:
"A person . . . who has been convicted of an offense and . . .
has filed an appeal . . . shall be treated in accordance with the
provisions of [18 U.S.C. § 3146] unless the court or judge has
reason to believe that no one or more conditions of release will
reasonably assure that the person will not flee. . . . If such a
risk of flight . . . is believed to exist, or if it appears that an
appeal is frivolous or taken for delay, the person may be ordered
detained."
[
Footnote 4]
At the time, applicant faced the possibility of two life
sentences, as well as additional terms of imprisonment totaling 35
years. After the Court of Appeals had affirmed the District Court's
revocation of bail, applicant was sentenced to a maximum of only 15
years. He has not, however, brought this fact to the attention of
either the District Court or the Court of Appeals by way of a
motion for reconsideration of bail revocation.
[
Footnote 5]
The Solicitor General, in his memorandum in opposition, notes in
addition that applicant's parents and other close relatives still
reside in Vietnam, and that applicant's lack of a passport or other
travel documents would present no great obstacle to his flight.
[
Footnote 6]
Applicant has filed 11 such affidavits; affiants include Ramsey
Clark, Noam Chomsky, Richard Falk, and George Wald.
Comments
Be the first to comment
Leave a Comment