Application for bail pending appeal from conviction held in
abeyance and matter remanded to Circuit Court Judge. The District
Court denied bail without making the written explanation mandated
by Fed.Rule App.Proc. 9(b), and it does not appear why the Court of
Appeal did not remand the matter to the District Court for
compliance with the Rule as it had done in case of a codefendant's
similar bail application.
Memorandum of MR. JUSTICE HARLAN, Circuit Justice.
This is an application for bail pending applicant's appeal to
the Court of Appeals from a narcotics conviction.
The Government, while not contending that the appeal is
frivolous or taken for purposes of delay, seeks to support the
lower court's denial of bail on the score that it was found that
applicant, if released on bail, would present a danger to the
community, and further that he was a poor bail risk. See
18 U.S.C. § 3148; Fed.Rule Crim.Proc. 46(a)(2).
My difficulty with this position is twofold: first, so far as
the papers reveal, the District Court in denying bail did not
"state in writing the reasons" for its action, as required by
Fed.Rule App.Proc. 9(b). Second, it does not appear why the matter
was not remanded to the District Court for compliance with Rule
9(b), as the Court of Appeals had done in the case of an earlier
similar bail application by a codefendant, and neither Judge Smith
nor Judge Anderson, on reapplication, otherwise explained his
refusal to disturb the District Court's determination. With no
record of the proceedings
Page 396 U. S. 1226
below before me, I cannot assume, as the Government would have
me do, that either Judge Smith or Judge Anderson regarded the
District Court' findings on remand respecting the codefendant as
equally applicable to this applicant.
While I have always been particularly reluctant to interfere
with a denial of bail below pending appeal to the Court of Appeal,
I do not think that I should act in this instance without more
light from the lower courts. I shall therefore remand the matter to
Judge Smith or Judge Anderson, as the case may be, for appropriate
explication, meanwhile holding this application in abeyance.