UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 9, 1940
Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
The defendant was convicted for using the mails in a scheme to defraud. He applied to the trial judge for bail, who, as the moving affidavit alleges, denied the application on the ground that "he had no further jurisdiction on the question of bail and stated that application therefor must be made" to the circuit court of appeals. The defendant thereupon made this application. The situation is covered by Rule VI of the Supreme Court Rules of Practice and Procedure after Plea of Guilty, 28 U.S.C.A. following section 723a, which so far as relevant reads as follows: "Bail may be granted by the trial judge or by the appellate court, or, where the appellate court is not in session, by any judge thereof or by the circuit justice". While we cannot find that any court has construed these words, we think that their meaning is clear. Verbally, it is true, the defendant may apply in the first instance either to the trial judge or to the circuit court of appeals if it is in session; and it might even be held that having applied to one, he must be content. We do not so understand the rule; rather we think it means that he may apply to both. That being so, it is obviously desirable that he shall first apply to the trial judge, who necessarily knows more of the case than the circuit court of appeals can learn, certainly while the record remains in the district court, as it almost always does. His ruling will help us greatly; particularly if he states why he does not think the appeal raises any "substantial question which should be reviewed". In that event, the defendant will have to satisfy us that the judge's reasoned conclusion should not prevail, and we shall not be left in a welter of assertion and counter-assertion in affidavits from which we have no adequate means of emerging.
We therefore hold that as a preliminary to application for bail in this court, the defendant must apply to the trial judge, unless some good cause is shown for not doing so. Without therefore considering the application on the merits, we dismiss it with leave to apply to the trial judge. Bail will be continued until that application shall have been decided.
Application denied without prejudice.
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