Frank Smith v. United States
1970 U.S. App. LEXIS 6915 · 434 F.2d 612
October 15, 1970 · Docket 612
Headnotes
Generated summaries- Headnote 1
The court affirmed that post‑conviction bail is governed by the trial court’s discretion under the Federal Rules of Criminal Procedure, citing prior appellate authority and noting that the appellant’s only remaining avenue of relief is a discretionary petition for certiorari.
- Headnote 2
The record shows the district judge denied the appellant’s bail motion without a hearing. The opinion held that such a refusal is permissible within the court’s sound discretion over post‑conviction bail matters.
- Headnote 3
The court affirmed that, under Fed. R. Crim. P. 46 and established precedent, bail after conviction is discretionary. A convicted defendant cannot demand bail, and the court may lawfully refuse it even when the only remaining remedy is a possible certiorari petition.
Opinion
Appellant here contests a denial by the district judge, without a hearing, of a motion for release on bail pending final determination on appeal of a motion for new trial. (See Smith v. United States, 5 Cir. 1970, 433 F.2d 149 [No. 28,438]). We affirm the district court.
It is well established that bail after conviction in the trial court is a matter for the sound discretion of that court, and that a convicted appellant cannot demand bail as a matter of right. See, e. g., F.R.Crim.P. 46, Welsh v. Unit ed States, 5 Cir., 1968, 404 F.2d 333; Christoffel v. United States, 1951, 89 U.S.App.D.C. 341, 196 F.2d 560; Williamson v. United States, 2 Cir. 1950, 184 F.2d 280. We think this principle is even more appropriate where, as here, at the time of the proceedings below, the appellant had already sought relief from his conviction without success all the way to the Supreme Court of the United States 1 (Mr. Justice Marshall of that Court also denied appellant’s application for bail pending application for certiorari on August 15, 1969), and now begins a new series of attacks upon his conviction. Moreover, appellant’s request for bail pending appeal is diminished almost to the extent of extinction by our determination in case No. 28,438, Smith v. United States, supra, that the district court was not in error in denying the appellant’s motion for new trial. 2
Affirmed.
. . Smith v. United States, 5 Cir. 1969, 405 F.2d 253, cert. denied 395 U.S. 977, 89 S.Ct. 2127, 23 L.Ed.2d 765.
. . The sole vitality still inhering in the instant appeals is the possibility of certiorari being granted by the Supreme Court in No. 28,438.