The opinion of the court was delivered by: HUYETT
Petitioner, Johnny B. Sample, was arrested on February 27, 1974, pursuant to a warrant of arrest issued by this court. Petitioner is charged with violation of the probation to which he was sentenced by this court on March 19, 1973. It is alleged by the Government that petitioner has continued in the criminal activity for which he had been found guilty and that he has made threats on the lives of prospective government witnesses. A preliminary hearing to determine whether probable cause exists to revoke petitioner's probation is scheduled for March 1, 1974. See Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). On February 27th, we held a hearing to determine whether bail should be granted pending final determination of revocation of probation.
We begin with the proposition that admittance to bail pending revocation of probation is a matter within the discretion of the court. There exists no constitutional right to bail pending revocation of probation. In re Whitney, 421 F.2d 337 (4 Cir. 1970); U.S. ex rel. Mason v. Amico, 360 F. Supp. 1344 (W.D.N.Y.): In re Law, 10 Cal. 3d 21, 109 Cal.Rptr. 573, 513 P.2d 621 (1973); Martin v. State, 517 P.2d 1389 (Alaska S. Ct.1974). As stated in Whitney:
In re Whitney, 421 F.2d supra, at 338.
Nor does any statute of the United States entitle an individual to bail pending probation revocation. The Bail Reform Act of 1966, 18 U.S.C. § 3141 et seq. speaks only to the issue of bail after arrest until final appeal.
Fed.R.Crim.P. 32(f) states that the "defendant may be admitted to bail pending such [probation revocation] hearing."
In exercising our discretion to admit petitioner to bail pending revocation of probation, we consider the following factors: (1) the nature of the charges constituting the basis for revocation; (2) the threat to society posed by the petitioner's freedom pending revocation and, (3) efforts made by the petitioner to rehabilitate himself.
Having considered these factors at a hearing held to determine whether bail should be allowed, we denied petitioner bail. The government's charges involve continued violations by petitioner similar in nature to the charges for which he was found guilty. Furthermore, the government maintains that petitioner has threatened prospective government witnesses. Although petitioner's probation officer testified that he thought petitioner was doing well in conforming to the probation conditions, the government asserts that electronic surveillance demonstrates that petitioner has made threats on persons. The existence of surveillance and the partial content of a recording made as a result of the surveillance lend credence to the government's assertions.
For the reasons offered by the government, we declined to grant petitioner bail pending revocation.
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