Heine v. United States, 9394

• Decision Date: 01 June 1943
• Docket Number: No. 9394,9395.,9394
• Citation: 135 F.2d 914
• Parties: HEINE v. UNITED STATES. UNITED STATES v. HEINE.
• Court: U.S. Court of Appeals — Sixth Circuit

135 F.2d 914 (1943)

HEINE v. UNITED STATES.

UNITED STATES v. HEINE.

Nos. 9394, 9395.

Circuit Court of Appeals, Sixth Circuit.

June 1, 1943.

Norman J. Miller, of Detroit, Mich., for Heine, appellant and cross-appellee.

Morris K. Siegel, of Brooklyn, N. Y. (John C. Lehr and Arnold W. Lungerhausen, both of Detroit, Mich., and Morris K. Siegel, of Brooklyn, N. Y., on the brief), for the United States, appellee and cross-appellant.

Before HICKS, SIMONS, and McALLISTER, Circuit Judges.

HICKS, Circuit Judge.

The Government's cross-appeal relating to a jurisdictional question was not prosecuted. We are concerned only with the appeal of Elizabeth Heine from an order of the District Court, directing among other things, that a fine of $5,000.00 against Edmund Carl Heine in a criminal case be paid from the sum of $25,000 deposited by appellant and one Keydel, in lieu of a bail bond for Heine. The undisputed facts as found by the court are as follows:

On July 1, 1941, Heine was indicted in a District Court of the Eastern District of New York under the Espionage Act. He was arrested upon a warrant issued by a United States Commissioner for the Eastern District of Michigan and proceedings were taken before a District Judge at Detroit to remove him to the Eastern District of New York. On July 18, 1941, Keydel and appellant deposited with the Clerk of the District Court at Detroit the sum of $25,000 in cash in lieu of a surety bond for the appearance of Heine in the New York court, and in connection with the cash deposit the defendant, Edmund C. Heine, as principal, and Keydel and appellant Elizabeth Heine, as sureties, executed an instrument, the pertinent portions of which are as follows:

"* * * personally appeared Edmund Carl Heine of Oakland County, in said District and produce (sic) as surety Elizabeth Heine and O. F. Keydel, Sr., both of Detroit, Michigan, who have deposited with the clerk of said court the sum of * * * ($25,000.00) * * * in lieu of a surety bond, severally acknowledged themselves bound unto the United States of America in the sum of * * * ($25,000.00) * * *, good and lawful money of the United States of America, to be levied of their goods and chattels, lands and tenements if default be made in conditions following to-wit:

"The condition of this recognizance is such that if the bonded defendant shall personally be and appear in the United States District Court for the Eastern District of New York, at the Federal Courthouse in Brooklyn * * * the 25th day of July, A. D. 1941 * * * to answer to any indictment * * * against Edmund Carl Heine and to abide such order and determination as said court may make concerning him in said indictment * * * and shall not depart from said court without leave thereof, then the above obligation to be void, otherwise to remain in full force and effect.

"Edmund C. Heine (Seal) "Oscar F. Keydel (Seal) "Elizabeth Heine (Seal)."

This instrument was acknowledged before the Clerk, was accepted by the Judge and was filed; and Heine was liberated. The Clerk on the same day issued the following receipt:

"Receipt No. A 6726 Docket No. (Misc.) "$25,000.00

"United States District Court, Eastern District of Michigan.

"Detroit, Michigan, July 19, 1941.

"Received from O. F. Keydel, Sr., and Elizabeth Heine twenty-five thousand and no/100 dollars for deposit in lieu of a surety bond, for the appearance of Edmund Carl Heine in the U. S. District Court for the Eastern District of New York, United States of America v. Edmund Carl Heine.

"George M. Read "Clerk "By Albert L. Allred "Deputy Clerk."

On July 25, 1941, he appeared before the District Court in New York and was released until his trial or until further orders of the court.

On December 10, 1941, he was convicted and surrendered himself to the Marshal and on January 2, 1942, he was fined $5,000 and was sentenced to a prison term which he was serving at the time of the hearing of this controversy.

On February 18, 1942, Keydel and appellant Elizabeth Heine filed a petition, which, stripped of immaterialities, requested cancellation of the penal bond signed by them and the return to them of the $25,000 deposit. In its answer to this petition the Government insisted that $5,000 of the $25,000 should be applied upon the fine assessed against Edmund C. Heine. Thereupon petitioners filed an amended petition in which they sought to have $20,000 of the cash deposit returned to them without waiving their rights to the remaining $5,000. On June 22, 1942, an order of disbursement was entered directing the return of $20,000 to petitioners.

On July 27, 1942, following petition by appellee for amendment of the disbursement order, the court held that the fine was a lien upon the entire $25,000 and directed the Clerk to satisfy the lien by the payment of the fine out of the deposit to the Clerk of the District Court at New York. The appeal was taken from this amended order.

The court found as a fact, and it is undisputed, that Keydel and appellant advanced the $25,000 in cash, "from their own funds and from loans made from various acquaintances, relatives and friends." The question here is, whether this money, or any portion thereof, can be applied to the payment of the fine. We think that it cannot.

In support of its contention appellee relies upon Section 15 of Title 6 U.S.C.A. This section is not applicable. It provides that "any person" who is required to execute a "penal bond" with surety or sureties may in lieu of such surety or sureties deposit, as security, United States Liberty bonds or other bonds or notes of the United States and that as soon as security for the performance of the penal bond is no longer necessary, such bonds or notes so deposited shall be returned to the depositor. We have no such case. Keydel and Elizabeth Heine were not required to execute any bond. Simply stated, they became surety for Edmund C. Heine and the deposit of $25,000 which was intended to strengthen the security, was not in Government bonds, but in actual money of which Edmund C. Heine was not the depositor and in which he had no interest....