Smaldone v. United States, 4738 and 4739.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: BRATTON, HUXMAN and MURRAH, Circuit
• Citation: Smaldone v. United States, 211 F.2d 161 (10th Cir. 1954)
• Decision Date: 16 March 1954
• Docket Number: No. 4738 and 4739.,4738 and 4739.
• Parties: SMALDONE v. UNITED STATES. VARONE et al. v. UNITED STATES.

211 F.2d 161 (1954)

SMALDONE v. UNITED STATES.

VARONE et al. v. UNITED STATES.

Nos. 4738 and 4739.

United States Court of Appeals, Tenth Circuit.

March 16, 1954.

Joseph N. Lilly, Denver, Colo., for appellants James J. Varone, Lena Varone, Mildred Smaldone and Mamie Smaldone.

Thomas J. Morrissey, Denver, Colo. (F. E. Dickerson, A. F. Zarlengo and W. F. Dwyer, Denver, Colo., on the brief), for appellant Eugene Smaldone.

James W. Heyer, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

These are appeals by which it is sought to have reviewed an order forfeiting a bail bond, a judgment against the principal and sureties on the bond, an order denying a motion to set aside the judgment, and an order denying remission of the forfeiture.

An indictment was returned in the United States Court for Colorado in which Eugene Smaldone was charged with the offense of attempting to evade and defeat income tax. Smaldone, as principal, and Mildred Smaldone, Mamie Smaldone, James J. Varone, and Lena Varone, as sureties, executed a bond payable to the United States. The bond was for $10,000; was conditioned that the defendant should appear in the court in accordance with all orders and directions of the court relating to his appearance; and provided that if it was forfeited and the forfeiture was not set aside or remitted, judgment might be entered upon motion of the United States Attorney against each debtor jointly and severally for the amount of the bond, together with interest and costs. The cause was set for trial. When it was reached and called for trial, the defendant did not appear. Later in the day, an order was entered forfeiting the bond and directing the United States Attorney to file a motion for the entry of judgment of default against the sureties. Two days thereafter, the defendant filed a motion to vacate the order forfeiting the bond. Later, the United States Attorney filed a motion for judgment against the sureties. Judgment was entered that the forfeiture of the bond be made absolute and that the United States recover from the principal and sureties the full amount of the bond, together with costs. The sureties subsequently filed motions to set aside the judgment; and the principal and sureties filed motions for the remission of the forfeiture. The several motions were denied, and these appeals were seasonably perfected from that action.

Prior to the date on which the Federal Rules of Criminal Procedure, 18 U.S.C.A., became effective, remission of a forfeiture of the kind here involved was governed by 18 U.S.C. § 601. The statute provided in substance that whenever such a bond was forfeited by a breach of the condition thereof, the court might, in its discretion, remit the penalty in whole or in part whenever it appeared to the court that there had been no willful default of the party, that notwithstanding the default a trial of the cause could be had, and that public justice did not otherwise require that the penalty be enforced. Under the statute, there were three essential requisites for remission. One was non-willfulness; another was that despite the default, a trial of the cause could be had; and a third was that public justice did not otherwise require the enforcement of the penalty. Continental Casualty Co. v. United States, 314 U.S. 527, 62 S.Ct. 393, 86 L.Ed. 426; United States v. Nordenholz, 4 Cir., 95 F. 2d 756. But after the Federal Rules of Criminal Procedure became effective, the statute no longer had any controlling force. United States v. Smith, D.C., 5 F.R.D. 274.

The Federal Rules of Criminal Procedure were in effect at all times material here. Rule 46 relates to bail. Paragraph (f) (2) of the rule provides that the court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture; and paragraph (f) (4) provides that after entry of judgment on the forfeiture, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of the subdivision. The rule is broader than was the statute in that it eliminates non-willfulness and the existence of circumstances permitting a trial of the cause as essential requisites to the remission in whole or in part of the judgment on the forfeiture. Under the rule, the court has discretion to grant relief upon default, even though the default be willful, and even though existing circumstances do not make possible a trial of the case. United States v. Davis, 7 Cir., 202 F.2d 621, certiorari denied Ferguson v. United States, 345 U.S. 998, 73 S.Ct. 1141, 97 L.Ed. 1404. And in this connection, the term discretion when used as a guide to judicial action means sound discretion, not discretion exercised arbitrarily but with due regard for that which is right and equitable under the circumstances. It means discretion directed by reason and conscience to a just result. Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L. Ed. 520; United States v. Davis, supra.

Flanked by this legal background, the parties present the crucial question whether denial of the motion to vacate the judgment and denial of the motions for remission of the forfeiture constituted an abuse of discretion. Some of the pertinent facts were brought into the record by evidence, some by statement of the court, some by letter to the court, some by hospital records, and some by affidavits. Brought into the record in one or more of such methods, these facts were before the trial court at the time the motions were denied. The criminal case was set for trial on Tuesday, June 2, 1953, at 9:30 o'clock. Sometime during the immediately preceding week, the attorneys for the defendant called on the court and stated in substance that a postponement of the trial was desired and gave the reasons therefor. But the court advised the attorneys that the postponement would not be granted; that the case would proceed to trial unless there was something very serious; and that they should prepare accordingly. For approximately six years previous to the time set for the trial of the cause, the defendant had been subject to a periodic or recurring functional deficiency of the gall bladder; and for some period preceding the date set for the trial, he had been a patient from time to time of Doctor Good and Doctor Hines. On Wednesday preceding the date set for the trial, Doctor Good examined the defendant in connection with an ailment concerning which he was complaining. Doctor Good referred the defendant to Doctor Hines, an internist, for diagnosis. On the same day, Doctor Hines examined the defendant and as the result of the examination felt that he was in need of...