U.S. v. Bursey

• Decision Date: 18 July 1975
• Docket Number: No. 74-3607,74-3607
• Citation: 515 F.2d 1228
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brett Allen BURSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1228

515 F.2d 1228

UNITED STATES of America, Plaintiff-Appellee, v. Brett Allen BURSEY, Defendant-Appellant.

No. 74-3607.

United States Court of Appeals, Fifth Circuit.

July 18, 1975.

Cameron M. Cunningham, Austin, Tex., Court-appointed, for defendant-appellant and also for intervenors Dr. and Mrs. Don C. Bursey.

Edward McDonough, Jr., U. S. Atty., Ellis C. McCullough, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, CLARK and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

This appeal arises from a unique procedural matrix. In the Spring of 1973, Appellant Brett Allen Bursey was convicted by a jury in the Southern District of Texas of possession of peyote in violation of 21 U.S.C. § 841(a), and was sentenced to four years imprisonment. Brett Bursey was granted leave to proceed in forma pauperis on appeal, and counsel was appointed to represent him. Bond pending appeal was set at $10,000. At the time of the initiation of his appeal, Brett Bursey was in the South Carolina State Penitentiary on an unrelated conviction. In order that he might be released immediately upon the expiration of his South Carolina sentence, Brett Bursey arranged while still incarcerated there for the posting of a cash deposit on his Southern District of Texas bond. By letter of August 27, 1973, to the clerk of the federal district court in South Carolina, Brett Bursey advised that a 10% deposit on his bond was to be deposited into the registry of the court, that his own financial status had not changed "since the court accepted my petition to proceed in forma pauperis," and that upon performance of bond conditions, the 10% deposit should be returned to his parents, Dr. or Mrs. Don C. Bursey.

On August 31, 1973, Brett Bursey was released on an appearance bond in connection with his peyote possession case, executed by him before Charles W. Gambrell, a federal magistrate in the District of South Carolina. ¹ The bond recited that a cashier's check for $1,000, representing the 10% deposit, had been lodged in the registry of the District Court for the District of South Carolina. On the same day, Magistrate Gambrell transmitted the bond, the check, and Brett Bursey's August 27 letter to the Deputy Clerk of the District Court for the Southern District of Texas in Corpus Christi. The Deputy Clerk in Corpus Christi transmitted the check to the Deputy Clerk in Houston on September 4, with directions that the deposit should revert to the Bursey parents upon disposition of the case.

Brett Bursey's peyote conviction was subsequently reversed on Fourth Amendment grounds. United States v. Bursey, 5 Cir. 1974, 491 F.2d 531. On remand the district court dismissed the indictment against Brett Bursey in an order entered May 14, 1974. Nothing further of consequence transpired until September 23, 1974. On that date, without notice to the parties or a prior hearing, the district court entered an order directing the clerk of the court to transmit $1,000, the amount of Brett Bursey's cash deposit on bond, to the Administrative Office of the United States Courts for deposit in the Treasury as reimbursement for the costs of his appointed counsel. ² Authority for the order was laid to 18 U.S.C. § 3006A(f). ³ The order of the district court has been executed, and the parties agree that the $1,000 has by this time reached the Treasury.

Brett Bursey filed a notice of appeal from the district court's September 23 order on October 3, 1974. On December 13, 1974, Brett Bursey's parents, who were not parties to the proceedings before the district court in their son's criminal case, filed a motion in this court for leave to intervene, together with a supplemental memorandum of law. Their petition recites that the $1,000 cash deposit was their property and that they, rather than Brett Bursey, are thus the real parties in interest. This motion, never opposed by the Government, was granted by a judge of this court in an order entered December 26, 1974. The three appellants Bursey have briefed and argued this cause together on the theory that the district judge erred in ordering the cash deposit to be deposited in the Treasury because the funds belonged to the senior Burseys alone. Specifically, they maintain that the trial court's summary action was not authorized under 18 U.S.C. § 3006A, and that it offends their due process rights to a prior hearing and Brett Bursey's statutory right to bail pending appeal. They pray for an order returning the cash deposit to Dr. and Mrs. Don C. Bursey. The United States has argued in response that the trial judge's actions were proper and that, in any event, this court lacks jurisdiction at this time to grant the relief sought to these parties. On its jurisdictional points the Government argues that the elder Burseys' claims must fail, first because they were not parties below, and second because sovereignty immunizes the government from any action to withdraw the property already covered into the Treasury. We conclude that jurisdiction exists to determine the merits of the case between these parties; on the merits, we hold that the district court erred in distributing the cash deposit funds without an "adequate inquiry"; we thus remand with directions that the court vacate the order appealed from, allow appellants an opportunity to plead, and conduct such further proceedings as are necessary to comply with our holding here.

We turn first to the question of sovereign immunity.

I.

The parties agree that the September 23 order of the district court has been carried out and that the $1,000 deposit has become safely lodged in the Treasury of the United States. With the passage of this money into the Treasury, the Government argues that the sovereign immunity of the United States dispossesses the district court of any jurisdiction to order its reimbursement to the Burseys and that this appeal is now moot. Instead, the Government asserts, the Burseys must be relegated to the initiation of a separate action against the Government under the Tucker Act, ⁴ for the recovery of their lost deposit. ⁵

We are not assured of the correctness of the Government's premise, for which it offers no authorities, that sovereign immunity protects it from an order to return money awarded it in a lawsuit if it appears on direct appeal that the award was erroneous. Certainly there can be no doubt that if the order of the district court had been stayed, and the deposit money had never reached the Treasury, then an order vacating the September 23 order and refunding the deposit to Brett Bursey or his assigns would be within our jurisdiction. But the Government asserts that the speed of execution of the district court's order cuts off our review and even the lower court's reconsideration. This reasoning seems contrary to the ordinary conceptions of appellate review. See 28 U.S.C. § 2106; cf. note 11 infra. We need not pursue this precise line of inquiry, however, because we think that in any event the Government's waiver of sovereign immunity in the Tucker Act is applicable here. The Government admits that the Tucker Act comprehends claims of the substantive nature asserted here; the only question is whether the Tucker Act's waiver may be invoked only upon the initiation of a separate suit.

In United States v. Lewis, 5 Cir. 1973, 478 F.2d 835, aff'g E.D.La.1972, 342 F.Supp. 833, two individuals sought in a coram nobis proceeding to exonerate themselves from certain decade-old convictions under the income tax code which were no longer viable under Marchetti v. United States ⁶ and Grosso v. United States, ⁷ and to recover fines paid under their sentence of conviction. A coram nobis motion, as the Supreme Court held in United States v. Morgan, 1954, 346 U.S. 502, 505 n.4, 74 S.Ct. 247, 249, 98 L.Ed. 248, 253, "is a step in the criminal case ⁸ and not . . . the beginning of a separate civil proceeding." Thus, while the Government conceded in Lewis that the order setting aside the petitioners convictions was correct, it asserted, as here, that any recovery of the fines must be sought in a separate action brought under the Tucker Act. We rejected this contention, holding that

This statute (the Tucker Act) is one which confers a jurisdiction upon the district courts. It is not procedural. We can see no reason why a person who has paid a fine pursuant to an unconstitutional statute should be required to resort to a multiplicity of actions in order to obtain reimbursement of money to which he is entitled.

This invocation of Tucker Act's waiver of jurisdiction in a criminal coram nobis proceeding has consistently been followed in other courts. See De Cecco v. United States, 1 Cir. 1973, 485 F.2d 372; ⁹ Pasha v. United States, 7 Cir. 1973, 484 F.2d 630; United States v. Summa, D.Conn.1972, 362 F.Supp. 1177; See also United States v. Rothstein, 7 Cir. 1911, 187 F. 268.

In a parallel vein on the civil side, we have eschewed the "traditional rule" ¹⁰ and held that a Tucker Act claim for affirmative relief against the government may proceed upon a counterclaim, and need not be brought as a separate suit. ¹¹ United States v. Springfield, 5 Cir. 1960, 276 F.2d 798, 803-04. In so concluding we reasoned that

the statute should be interpreted from a practical rather than a technical standpoint. Nothing in the statute itself precludes such an interpretation. And in a situation where no substantive rights are at stake, the only question being whether litigation is going to be disposed of in an expeditious or inexpeditious manner, we think that an interpretation which lends itself to sound judicial administration is justified. ¹²

We adhere to the recognition of Lewis and Springfield that invocation of the Tucker Act's waiver is not conditioned upon the procedural context in which it is sought. ¹³ The matter at bar is, of course, not a coram...