Louis Fiano v. United States

Fiano has appealed a judgment of conviction in United States District Court for the Southern District of California upon an indictment for a narcotics offense. He received a 20 year sentence of imprisonment and a $20,000 fine.

He was at large on bond pending trial. He was jailed after trial. He has sought bond pending appeal. Bond has been denied by the district court. The application is renewed here.

While an objective test must be applied to whether an appeal is frivolous (the seriousness of defendant or his counsel is not the criterion), still we do not doubt that when the Supreme Court amended Fed.Rules Crim.Proc. Rule 46 in 1956, 18 U.S.C.A., the intention was to establish a much lighter standard than the old one of “substantial question.” Prima facie, and in the vernacular, appellant’s appeal does look “thin,” but we are not prepared to say it is frivolous.

But if we hold the appeal is not frivolous, we still have the question of whether defendant is a good risk to respond to further orders of the court in this case. That is something this court is not equipped to do in the ordinary case on a cold record. The trial court is in a position to do so and in the ordinary case…