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UNITED STATES v. BIRRELL

May 28, 1968

UNITED STATES of America, Plaintiff,
v.
Lowell M. BIRRELL, Defendant


Herlands, District Judge.


The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

These proceedings relating to defendant's renewed attempts to be released on bail after conviction and before sentence represent another chapter in the lengthening story of this seven-year old criminal case.

 I

 Defendant was indicted on July 20, 1961. The securities transactions involved in the indictment took place during the years 1955 to 1958. For a period of about six and one-half years, from October 5, 1957 to April 23, 1964, defendant remained outside this country, - so far as any American Government officials then knew.

 In a vigorously contested jury trial that began on December 4, 1967 and was completed on December 28, 1967, defendant was found guilty on eleven counts (Trial Record, p. 3392). Ten of those counts charged illegal sales of unregistered control stock; and one count charged violation of the general conspiracy statute. The total maximum punishment receivable by defendant, should consecutive sentences be imposed, is fifty-five years and a $60,000.00 fine.

 On the evening of December 28, 1967, after the verdict had been returned by the jury, the Court heard extensive argument on the question whether defendant should be released on bail pending sentence (Tr. 3395 et seq.). Sentence could not be imposed immediately nor even after the customary period required for a pre-sentence investigation and report because it was necessary first to conduct several post-conviction proceedings. These post-conviction proceedings include a hearing to determine whether the Government's case was untainted by "the fruit of the poisonous tree". See United States v. Birrell, 276 F. Supp. 798, 815-817 (S.D.N.Y.1967).

 In addition to the details that the Court had learned about defendant and his activities through the extensive trial testimony and numerous exhibits, the Court had before it a particularized nine-page affidavit of Assistant United States Attorney Stephen L. Hammerman (sworn to December 28, 1967) requesting that defendant be remanded pending sentence.

 The Court found and concluded that the evidence demonstrated that there was a substantial risk of defendant's flight from this jurisdiction were he to be released on bail and, consequently, that defendant should be remanded. (Tr. 3445)

 On February 14, 1968, defendant appealed to the Court of Appeals, seeking to reverse this Court's remand order of December 28, 1967. The proceedings before the Court of Appeals also sought a writ of mandamus directed to this Court. On the same day that the Court of Appeals heard argument, it denied defendant's application on procedural and substantive grounds. The Court of Appeals held that defendant was deemed "convicted" within the meaning of the Bail Reform Act, 18 U.S.C.A. § 3148 and that the Court of Appeals was "in no way persuaded that" this Court had "abused his discretion". The Court of Appeals further stated: "The only practicable course thus would be for applicant to seek reargument before Judge Herlands on the basis of materials presented to us which were not before him."

 On February 15, 1968, defendant brought on a motion for leave to reargue this Court's remand order of December 28, 1967 and for an order, pursuant to 18 U.S.C.A. § 3148 "or the inherent jurisdiction of the trial court", releasing defendant on his personal recognizance or, in the alternative, restoring him to bail not exceeding $15,000.

 This notice of motion was made pursuant to a stipulation, also dated February 15, 1968, pursuant to which the entire record that had been submitted to the Court of Appeals by both sides (including all exhibits and memoranda submitted in connection therewith to the Court of Appeals) should be considered by this Court as if they were new motion papers in support of and in opposition to the motion just referred to. The Government also stipulated to accept short notice of motion. The Court approved all of the foregoing stipulations in the interest of expediting the bail proceedings.

 The motion for reargument and to release defendant on bail was argued on February 19, 1968. Voluminous motion papers submitted for and against this application have been studied closely by the Court.

 Title 18 U.S.C.A. § 3146(b) lists the various matters that the Court should "on the basis of available information, take into account" in determining which conditions of release will reasonably assure appearance. Among these items are: "the length of his residence in the community" and "his record of * * * flight to avoid prosecution or failure to appear at court proceedings".

 Title 18 U.S.C.A. § 3146(f) provides that the "information" offered in connection with any order under Section 3146 "need not conform to the rules pertaining to the admissibility of evidence in a court of law." Hence, hearsay may be considered. The fact that the information is hearsay has some bearing upon the probative value of the information.

 Title 18 U.S.C.A. § 3148 relevantly provides that that section is applicable to a person "who has been convicted of an offense and is * * * awaiting sentence". This language has raised the question whether, in the circumstances of the present case, i.e., the pendency of post-verdict proceedings and the postponement of sentencing, defendant has been "convicted". Defendant still claims that he has not been "convicted" as that term is used in Section 3148. The Court of Appeals, on February 14, 1968, has ruled otherwise.

 Section 3148 further provides that a defendant who has been convicted and is awaiting sentence "shall be treated in accordance with the provisions of Section 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 or pose a danger to any other person or to the community". Section 3148 further provides that "if such a risk of flight or danger is believed to exist, * * * the person may be ordered detained". Defendant argues that, for the reasons set forth in his motion papers, there is no risk of flight.

 As noted, defendant was convicted on eleven counts. Defendant's memorandum (dated February 6, 1968 submitted to the Court of Appeals on February 14, 1968 and, by stipulation, re-submitted to this Court) recognizes explicitly (p. 2):

 
"The jury's verdict is subject to the condition subsequent the Government successfully litigating hearings already scheduled before Judge Herlands * * *."

 Defendant then lists four pending post-verdict proceedings. It was defense counsel who originated the characterization that the verdict herein was "a jury verdict of guilty subject to a condition subsequent" (Tr. p. 3400). The Court adopted that terminology (Tr. pp. 3412-13). The point is that the disposition of the pending post-verdict proceedings constitutes a condition subsequent, not a condition precedent, to the verdict of "guilty".

 The Court believes that defendant herein has been "convicted" notwithstanding that various post-verdict motions must be heard. Moreover, the fact that the sentencing has been postponed pending the hearing and determination of said motions simply explains why sentence has not been imposed already and defendant is awaiting sentence.

 There may be variant interpretations of the word "conviction" depending upon the statutory contexts. However, the plain meaning of Title 18 U.S.C.A. § 3148, is that a defendant whose guilt has been determined by a jury and who has not yet been sentenced, is a person "who has been convicted * * * and is * * * awaiting sentence". Section 3148 covers two alternative situations: the one just discussed and the other where defendant has been sentenced and he has filed an appeal or a petition for a writ of certiorari.

 The fact that the verdict might be set aside should it appear, for example, that tainted evidence had been introduced at the trial does not mean that defendant's present status is not that of a convicted defendant. The possibility that the verdict may hereafter be set aside does not transmute the verdict into a non-verdict.

 Contrary to defendant's contentions (Defendant's Memorandum, Page 6) that the verdict is a " partial verdict", the verdict is a full and complete verdict. The characterization of the verdict as being "partial" is simply defense counsel's self-willed epithet, more correctly meaning subject to a condition subsequent.

 Cases under other statutes holding that "conviction" requires the imposition of sentence and the entry of judgment are manifestly inapplicable to Section 3148. The word "conviction" as used in Section 3148 is not "equivocal", as defense counsel contends (Defendant's Memorandum, Page 7).

 The Court has considered all of the cases cited in defendant's memorandum (pages 6 to 7) with reference to the interpretation of the word "conviction". None of these cases involved a statute whose provisions remotely resembled the verbiage of Section 3148.

 Thomas v. United States, 74 App. D.C. 167, 121 F.2d 905 (D.C.Cir. 1941), presented the entirely different question of the meaning of the word "conviction" in the context of a local statute relating to the competency of witnesses who have been convicted of crime. In Thomas, the Court explicitly stated that it was interpreting "conviction within the meaning of this [statutory] provision", and held that, for purposes of that particular statute, there must either be a plea or verdict of guilty followed by a sentence and judgment. Moreover, in Thomas the alleged prior conviction had occurred in a juvenile court and, under local statute, that disposition did not constitute conviction of a crime.

 In Matter of O'Neill v. Department of State, 47 Misc.2d 16, 261 N.Y.S.2d 937 (1965), the question involved the revocation of a real estate broker's license. The petitioner had been found guilty of perjury but received a suspended sentence and was placed on probation. The Court held that these facts did not spell out a conviction within the meaning of the particular section of the New York Real Property Law.

 In Martin v. State, 30 Okl.Cr. 49, 234 P. 795 (1925), the Court dealt with the question whether a prior conviction could serve to support the increased punishment under a second offender statute and the Court concluded that, for such purpose, a sentence must be imposed to create a conviction.

 In De Veau v. Braisted, 5 A.D.2d 603, 605, 174 N.Y.S.2d 596 (2d Dept. 1958), the Court actually held that a person was convicted within the meaning of a New York statute, the Waterfront Act, which prohibited convicted felons from conducting certain labor union activities. The Court reiterated that the general purport of the meaning of "conviction" depends on its statutory context.

 In State v. Superior Court, 51 Del. (1 Storey) 178, 141 A.2d 468, 471-472 (1958), the question presented was whether the date of conviction or the date of the imposition of sentencing is the "time of conviction" within the meaning of a statute providing that a criminal appeal shall be taken "within five days from the time of conviction". The court held that the date of sentencing is the "time of conviction".

 In State v. DeBery, 150 Me. 28, 103 A.2d 523, 524 (1954), the question presented was whether a person whose appeal is pending from a drunken driving conviction has been "convicted" within the meaning of a statute revoking the driver's license of any person "convicted" of certain offenses. The Court held that there was no conviction until the appeal had been completed.

 In Solomon v. Shepard Co., 61 R.I. 332, 200 A. 993 (1938), the question presented was whether a person who had been convicted of a crime but has not yet been sentenced has a "conviction" within the meaning of a statute providing that "the conviction of a witness of a crime may be shown to affect his credibility". The court held that there is no conviction under the facts stated.

 In Martin v. State, 49 Del. (10 Terry) 344, 116 A.2d 685 (1955), the question presented was whether a defendant who pleads guilty has been "convicted" within the meaning of a statute giving a right to appeal to any person "convicted" under the state's motor vehicle law. The court held that the defendant had not been "convicted".

 In Blaufus v. People of State of New York, 69 N.Y. 107 (1877), the question presented was whether a person who had been convicted of perjury but was awaiting sentencing was a "convicted perjurer" within the meaning of a statute barring convicted perjurers from being witnesses. The court held that there could be no conviction where sentencing has not yet occurred.

 In State ex rel. Heartsill v. County Election Bd. of Carty County, 326 P.2d 782 (1958), the question presented was whether a person whose appeal is pending from a felony conviction has been "adjudged guilty" of a felony within the meaning of a statute disqualifying convicted felons from voting. The court held that there was no conviction.

 In Bubar v. Dizdar, 240 Minn. 26, 60 N.W.2d 77 (1953), the question presented was whether a person who had pleaded guilty but has not yet been sentenced has been "convicted" within the meaning of a statute barring service of civil process on a person brought into the state after waiving extradition on a criminal charge "until he has been convicted". The court held that there was a conviction.

 In Jones v. Kelly, 9 A.D.2d 395, 194 N.Y.S.2d 585 (4th Dept. 1959), the question presented was whether a suspended sentence following a guilty plea to a motor vehicle offense amounts to a "conviction" within the meaning of a statute providing that a driver's license shall be revoked where the driver has been convicted of motor vehicle offenses three times within the previous 18 months. The court held that failure to impose a sentence upon a plea of guilty did not prevent the petitioner from being convicted.

 Defendant's memorandum (p. 11) insinuates that this Court remanded defendant in order that he be punished immediately by imprisonment and that the Court's statement concerning the risk of his non-appearance was an afterthought.

 Defense counsel have taken out of context and distorted the Court's remarks (Tr. 3415 ff) about the possibility of defendant's remaining at large indefinitely. The Court merely adverted to the circumstance that it would give thought to the possibility that post-verdict proceedings might be exploited as a dilatory tactic, when it said (Tr. 3416): "all the permutations and combinations of motions and special proceedings * * * [including] he has to get another lawyer. * * * Mr. Birrell will be at large despite his conviction so long as he has the ingenuity to dream up, rightly or wrongly, all sorts of post-conviction proceedings. * * * I'm not saying that there is no merit to it. I want to give it serious thought."

 At the very outset of the argument, the Government raised the issue of the risk of defendant's flight in these terms (Tr. 3396-3397):

 
"* * * this is a man who not only absented himself from the jurisdiction but fled the jurisdiction, and knowing that a bench warrant was outstanding from this very court from Judge Sugarman made surreptitious trips into the jurisdiction on various occasions and then fled again. He had all the opportunity even prior to his entrance into Brazil to return to this country and never availed himself of that opportunity. He absented himself for almost six years, your Honor, and I do not think that the Court should take the risk of this defendant's absenting himself for any further length of time."

 In the course of the argument the Court squarely defined "the only question" before it as "whether there's a substantial risk of non-appearance" (3407-3408) and "We're dealing here with questions of risk - risk of appearance, risk of flight. Motive for flight" (3410). And at 3412, the Court (after detailing its reasons) observed: "So you can't use my extending his bail limits as a testimonial to his being a good risk, under present circumstances."

 In the course of the argument and discussion had on the night of December 28, 1967 in connection with the Government's motion to remand defendant, the Court explicitly referred to the fact that defendant "should be available to counsel" (Trial Record p. 3414) and that "arrangements can be very easily made for him to examine the files" (Tr. p. 3414). The Court stated that it would "deal with" the situation when defendant "may want to get to those files" and that that constituted "another aspect of the matter that has to be considered realistically" (Tr. p. 3415).

 In accordance with the views expressed by the Court on the night of December 28, 1967, there has been a full and complete implementation of the Court's objective that defendant and his counsel should be able to confer and to examine the files conveniently and with a minimum of restriction. Subsequent to December 28, 1967 and up to April 22, 1968 (at which latter date proceedings were initiated to determine defendant's physical and psychiatric condition) defendant was brought to the courthouse daily, whenever he or his attorneys desired. He and his counsel have been afforded a private conference room in the witness room adjacent to Courtroom 1105 and later in the jury room adjacent to Courtroom 519. Special arrangements have been made to have him brought to the Courthouse in the United States Marshal's first van and to remain in the Courthouse evenings; special arrangements for his meals were similarly made to serve his convenience and that of his counsel. The files which are presently located in Rooms 607K and 607L have been made fully available to defendant and his counsel, and appropriate facilities of desks, furniture, filing cabinets, etc. have been furnished to defendant and his counsel. Two large offices (Rooms 9 and 10) on the ground floor of the courthouse have been made available for the exclusive use of defendant and his attorneys since February 29, 1968. In a ...


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