U.S. v. Catino

• Decision Date: 22 August 1977
• Docket Number: 1292,1295,D,1294,Nos. 1291,1293,s. 1291
• Citation: 562 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Alfred CATINO, Defendant, Public Service Mutual Insurance Co., Anthony Catino, Theresa Peduto, Mary Mariccio and Jerry DeFeo, Appellants. ockets 77-1162 to 77-1166.
• Court: U.S. Court of Appeals — Second Circuit

Page 1

562 F.2d 1

UNITED STATES of America, Appellee, v. Alfred CATINO, Defendant Public Service Mutual Insurance Co., Anthony Catino, Theresa Peduto, Mary Mariccio and Jerry DeFeo, Appellants.

Nos. 1291, 1292, 1293, 1294, 1295, Dockets 77-1162 to 77-1166.

United States Court of Appeals Second Circuit.

Argued June 16, 1977.

Decided Aug. 22, 1977.

H. Elliot Wales, New York City, for appellant Public Service Mut. Ins. co.

J. Jeffrey Weisenfeld, New York City (Nancy Rosner, New York City, of counsel), for appellants Catino, Peduto, Mariccio and DeFeo.

Jane W. Parver, Asst. U. S. Atty. (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, James P. Lavin, Audrey Strauss, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before WATERMAN, SMITH and OAKES, Circuit Judges.

OAKES, Circuit Judge:

The surety and indemnitors of a $50,000 bail bond posted to obtain the release from confinement of Alfred Catino appeal from a judgment of forfeiture entered in the United States District Court for the Southern District of New York, Milton Pollack, Judge. The bail bond in question was furnished on September 28, 1973, after Catino was arraigned on narcotics charges in the district court. Following Catino's conviction, his bail was continued until the time of sentencing, which occurred on February 26, 1974. At that time bail was continued over Government objection pending appeal; the bail bond was not rewritten, despite questioning by Judge Pollack addressed to the sufficiency of the $50,000 bail. Neither the surety nor the indemnitors at that time or thereafter appeared to object or complain about the continuance of bail.

Catino's conviction was affirmed in United States v. Mallah, 503 F.2d 971 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). He was instructed to surrender on March 17, 1975. He failed to appear, and a bench warrant was issued for his arrest. On February 14, 1977, it appearing that Catino had jumped bail and was a fugitive from justice, the Government moved to have Catino's bail forfeited and judgment entered against the surety, pursuant to Fed.R.Crim.P. 46(e)(1), (3). The surety company and indemnitors (hereafter "appellants") asserted in opposition to the motion that the bail bond was exonerated by Judge Pollack's pronouncement of sentence following conviction or by his continuance of bail status pending appeal without the consent of the surety. Judge Pollack granted forfeiture on March 9, 1977, United States v. Catino, 427 F.Supp. 1009 (S.D.N.Y.1977), and this appeal followed. We affirm.

At the outset we must determine whether state or federal law governs questions of interpretation in connection with federal bail bonds. While three circuits have held that state law governs, United States v. D'Anna, 487 F.2d 899, 900, 901 (6th Cir. 1973); United States v. Gonware,415 F.2d 82, 83 (9th Cir. 1969); Palermo v. United States, 61 F.2d 138, 140 (8th Cir. 1932), cert. denied, 288 U.S. 600, 53 S.Ct. 318, 77 L.Ed. 976 (1933), we believe, along with the Fifth Circuit, United States v. Miller,539 F.2d 445, 448, 449 (5th Cir. 1976) (per curiam), that federal law should govern. Federal regulation of bail procedures in the federal courts is pervasive, as the court below noted, 427 F.Supp. at 1010 n. 3 (citing the Bail Reform Act of 1966, 18 U.S.C. § 3141 et seq., and Fed.R.Crim.P. 46), and federal bail bonds may have distinctive features not found in state bonds. More importantly, federal fiscal interests are affected, since it is the United States government that is seeking recovery of the forfeiture. The involvement of these interests makes application of federal law appropriate, see Bank of America National Trust & Savings Association v. Parnell, 352 U.S. 29, 33, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956). It may be that the need for national uniformity and certainty may be less compelling here than in a case like Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 87 L.Ed. 838 (1943) (federal commercial paper), since bail bond practice apparently varies from one federal district to another. But there is nothing "peculiarly local" about bail bond law, nor would any important state policies be affected by a decision to apply federal law to bail bonds in federal court, compare United States v. Yazell, 382 U.S. 341, 352-53, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966) (declining to apply federal law, despite a Federal Government fiscal interest, in an area involving state policies regarding the family and family property). Accordingly, we hold that the interpretation of federal bail bonds is a matter of federal law. The development of federal common law in this area may, of course, be informed by relevant state law holdings. See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's the Federal Courts and the Federal System 762-76 (2d ed. 1973).

The bond here in issue includes two provisions that are not found in the illustrative form for an appearance bond (Form 17) appended to the Federal Rules of Criminal Procedure. The provisions are as follows:

(T)he defendant is to abide any judgment entered in (the above entitled) matter by surrendering himself to serve any sentence imposed and obeying any order or direction in connection with such judgment as the court imposing it may prescribe.

It is agreed and understood that this is a continuing bond which shall continue in full force and effect until such time as the undersigned are duly exonerated.

427 F.Supp. at 1012. By the terms of this bond, therefore, it continued in effect until such time as the surety and indemnitors were exonerated. Fed.R.Crim.P. 46(f), moreover, provides that "when the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail." Under that rule the surety may also be exonerated "by a deposit of cash in the amount of the bond or by timely surrender of the defendant into custody." Under the provisions of 18 U.S.C. § 3142, retained by the Bail Reform Act, a surety at any time may arrest the party charged and bring him before the appropriate authority, who shall recommit the party so arrested and endorse on the recognizance "the discharge and exoneratur (sic) of such surety . . .," thus enabling the surety to protect himself from potential liability when he feels that his risk is too great. No exoneration under any of these provisions took place here.

Appellants argue that they were exonerated when Catino surrendered on the date of sentencing or, alternatively, that continuation of the district court bond through the appellate process without their consent constituted a material modification of the surety contract and accordingly exonerated their obligations. These arguments are in essence the same, since both require a finding that appellants agreed to do no more than surrender Catino for sentencing. In support of this contention, appellants point to the practice in the United States District Court for the Southern District of New York. That practice was evidenced by the statement of a deputy clerk offered as proof herein, to the effect that an appeal bond is separate and distinct from a trial bond and must be executed with the clerk following...