The opinion of the court was delivered by: POLLACK
The defendant, Melville, has been charged in a 23 Count superseding indictment with conspiracy, violations of the law against destruction of federal property, obstruction and interference with the national defense of the United States and violations of the Gun Control Act of 1968 and the National Firearms Act. In brief, the government claims that the defendant bombed and was about to engage in bombing various federal properties. Without giving up any aspect of defendant's presumption of innocence, it has been expressly assumed in these hearings by defendant's counsel that defendant committed the acts of bombing and so confessed to the FBI and that the government has a strong case.
Bail was set by this Court on the original indictment in the amount of $100,000 together with certain nonfinancial terms and on appeal, this Court's order was unanimously affirmed. United States v. Melville, 417 F.2d 1002 (2nd Cir. 1970). This Court's requirement was that "the defendant post cash bail or a bond with sufficient and proper and responsible sureties in the proper sense of that term in the sum of $100,000" (Opin. January 3, 1970).
On January 15, 1970 the defendant pleaded to the superseding indictment and bail was set in respect of that indictment as follows:
"It is the judgment of the Court that this defendant post cash bail or a bond with sufficient and proper responsible sureties in the proper sense of that term in the sum of $100,000;
That as further conditions of the bail that he should be required on each day to return to the custody of the United States Marshal, or other place of detention fixed by the Attorney General or his representatives, at 6 P.M. to remain in custody until 9 A.M. of each succeeding morning.
His travel shall be restricted to the Borough of Manhattan and he is to be prohibited from entering any facilities of a general nature leading out of the area such as general railway stations, airports, etc. He may to the extent that he requires, and in comporting himself properly, make use of the bus and subway facilities, bearing in mind that they do have a terminus outside of Manhattan.
If there is any issue with respect to the justification of the sureties in the proper and responsible sense, that matter is to be determined in advance of any release to be executed by the United States Attorney."
The defendant has proffered a corporate surety appearance bond to be issued by Stuyvesant Insurance Company of New York in the face amount of $100,000. This company is on the list of accredited companies on file with the Clerk of this Court. The surety company has required collateral for its undertaking valued at approximately $60,000. The collateral consists of certain shares of stock, savings bank books, cash and possibly other items. The bondsman appeared on the witness stand but did not have with him the list of collateral nor could he recall, he said, the identity of any of the several persons who supplied the same. At an evidentiary hearing held on January 3, 1970, six persons did appear and gave testimony as to the contributions to the collateral which they had made. These sources accounted for about one-third of the total. Two (or possibly more) persons are said to have provided the balance of the collateral, but defendant refuses to identify them by name or produce them for examination under oath by the government in respect of matters relevant on the consideration of bail.
A surety company is useful for purposes of bail where, as here, the caliber of the security available is not in suitable form to be used as bail. It is not however, a device to assure the anonymity of those who make up the sources of the bail; and where those sources are questioned, the Court is entitled to have a moral as well as a financial assurance therefrom of the defendant's appearance in Court when required.
This defendant has absolutely no credible community roots. One alleged co-conspirator has disappeared and cannot be found. The incentive of the defendant not to appear if released is very strong in this case. The countervailing incentives have not been credibly demonstrated. The defendant produced a witness who offered to assume supervision of the defendant to aid in assurance of defendant's appearance. His testimony, I treat with reserve.
As the Court has previously observed, the function of bail is not to purchase freedom for the defendant but to provide assurance of his reappearance after release on bail; a guarantee of the obligation of the defendant to appear. The bail is not for the purpose of providing funds to the government to seek the defendant should he go underground or flee the jurisdiction. Bail is intended as a catalyst to aid the appearance of the defendant when wanted.
For this purpose it becomes appropriate to identify the sources of bail and ascertain their purpose and satisfy the Court that there is a moral assurance for reappearance to be gained by acceptance of funds emanating from such sources.
The considerations which will satisfy the moral as well as the financial assurances will necessarily vary from case to case and depend on the particular facts and circumstances developed in an evidentiary hearing where that is demanded by the government. Parenthetically, in this case it was the defendant who initiated the evidentiary hearing but he has stopped short of full disclosure by refusing to disclose the identity and to furnish the appearance of the ...