U.S. v. Ener

• Decision Date: 30 June 2003
• Docket Number: No. 99-469.,99-469.
• Citation: 278 F.Supp.2d 441
• Parties: UNITED STATES of America, v. William Dale ENER and Clyde Lavon Smith.
• Court: U.S. District Court — Eastern District of Pennsylvania

278 F.Supp.2d 441

UNITED STATES of America, v. William Dale ENER and Clyde Lavon Smith.

No. 99-469.

United States District Court, E.D. Pennsylvania.

June 30, 2003.

Robert E. Goldman, Esq., AUSA, Philadelphia, PA for the Government.

George A. Heitczman, Esq., Bethlehem, PA, Steven J. Rozan, Houston, TX, for Defendant William Dale Ener.

Robert E. Sletvold, Esq., Mark S. Refowich, Easton, PA, Richard B. Kuniansky, Houston, TX, for Defendant Clyde Lavon Smith.

James M. Becker, Esq., Philadelphia, PA for Petitioner Pauline Smith.

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

William Dale Ener and Clyde Lavon Smith pled guilty on April 17, 2001 to one count each of conspiracy to distribute cocaine and possession of cocaine with intent to distribute. Defendant Smith was sentenced to a term of imprisonment of 151 months and defendant Ener was sentenced to a term of imprisonment of 97 months. Both men are currently incarcerated at FCI Bastrop in Bastrop, Texas. Prior to their incarceration, bail for each defendant was set at $100,000 bond with a ten percent cash payment. The Clerk's office received each defendant's cash payment on April 23, 1999. Clyde Lavon Smith, through his counsel Mark Refowich, filed a Motion for Return of Bail on April 4, 2003. By Order of April 10, 2002, we directed the Clerk of the United States District Court to return the cash bail posted for Mr. Smith. Mr. Ener now moves for the return of the cash bail posted on his behalf, a sum of $10,000. Ms. Ellen Pauline Smith, Mr. Smith's wife, opposes Ener's motion on the basis that the $10,000 he used to fund his cash bail payment was in fact her money and that she is therefore the party to whom the Clerk should disburse the funds. Ms. Smith filed a motion for an evidentiary hearing on February 21, 2003 which we granted by our Order of May 19, 2003. We held the evidentiary hearing on June 25, 2003. We heard testimony from Ellen Pauline Smith and William Ener during the June 25, 2003 evidentiary hearing. Ener's counsel Steven Jay Rozan failed to appear at the hearing despite being Ener's only witness to key events surrounding his cash bail and our request for his presence.

Presently before us is the evidence and testimony presented at the hearing of June 25, 2003; Defendant Ener's Motion for Return of Bond Money, filed by counsel Stephen Rozan and George Heitzman on August 26, 2002 and August 28, 2002; Third Party Ellen Pauline Smith's Response in Opposition to Defendant William Dale Ener's Motion for Return of Bond Money, filed in the form of a motion by James Becker, Esq. on August 29, 2002; and the Motion by Third Party Ellen Pauline Smith For a Hearing on Her Motion for Return of Cash Bail, filed February 21, 2003. For the following reasons, we agree with Ms. Smith and order the Clerk to release the cash bail monies to her. We determine that we have no jurisdiction to decide the dispute between Mr. Smith and Mr. Ener as to the debt allegedly owed by the former to the latter.

I. FACTS

In March of 1999, Ener and Mr. Smith obtained a tractor-trailer load of cocaine for transportation to New York City. On or about March 19, 1999, a confidential informant provided Ener, Mr. Smith and the FBI with directions to the meeting site. Upon arrival, however, Ener, Mr. Smith and the informant were unable to find a place to unload their cocaine because they required, but could not locate, a loading dock and a forklift. Ener and Mr. Smith then decided to return to the Allentown area and make the delivery the following day. Fearing that the shipment of cocaine might be lost, the FBI tipped off the Pennsylvania State Police about the tractor-trailer and its contents.

While driving along Interstate 78 in the Allentown area on or about March 20, 1999, Ener and Smith were pulled over by the Pennsylvania State Police for twice failing to signal while changing lanes, in violation of Pennsylvania state law. The two men subsequently were separated and questioned by the police. Ener and Mr. Smith gave conflicting stories, and the police sought to search the tractor-trailer. Ener gave his consent to the search, and the police discovered what appeared to be several hundred kilograms of cocaine. The police obtained a search warrant and seized approximately 831 kilograms, or 1,828 pounds, of cocaine from the truck. Ener and Mr. Smith were originally charged by the Commonwealth of Pennsylvania. Mr. Smith's bail was set at $40,000 by the state. The state charges were later dropped in favor of federal charges.

Ener and Smith were each indicted with one count of conspiracy to distribute cocaine and one count of possession of cocaine with intent to distribute, in violation of Title 21 U.S.C. §§ 846 and 841(a)(1), respectively. The defendants faced a mandatory minimum of ten years imprisonment and a maximum sentence of life imprisonment, five years to lifetime supervised release, a $8,000,000 fine and a $200 special assessment. The defendants pled guilty to both counts on April 17, 2001.

As part of his plea agreement, Ener agreed to cooperate with the Government and provide information concerning the offenses alleged in the indictment and any other crimes about which he had knowledge. He also agreed to testify as a witness when called upon to do so by the Government. Upon the Government's motion for a downward departure under Sentencing Guidelines § 5K1.1 and pursuant to 18 U.S.C. § 3553(e), this Court sentenced Ener to a term of imprisonment of 97 months, five years supervised release and a $200 special assessment. At the time of sentencing, we noted that the defendants had been in possession of the largest amount of cocaine we had ever seen in our more than twenty years on the bench.

Prior to his incarceration at FCI Bastrop in Bastrop, Texas, Ener had been released on $100,000 bond, of which ten percent (i.e., $10,000) had been posted in cash. It is this cash posting that Ener now moves to have returned to him. Third Party Ellen Smith, wife of co-defendant Clyde Lavon Smith, claims that she is the rightful owner of the bail funds and seeks to have the $10,000 returned to her.

On or about March 22, 1999, Ms. Smith arranged for $40,000 in funds to be wire transferred from her personal bank account at Wood Forest National Bank in Houston, Texas, to an account in the name of ABC Bail Bonds, Inc. at First Union National Bank in Trenton, New Jersey. These funds were meant to pay for her husband's $40,000 bail in the initial state criminal case. The state charges were then dropped and the funds were to be returned to Ms. Smith.

At some point after Mr. Smith and Ener were charged by the federal Government, but prior to their posting bail, Ener maintains that the two men reached an agreement regarding Mr. Smith's outstanding debts to Ener. Ener claims that Mr. Smith borrowed money totaling $13,000 from him on three occasions. Mr. Smith used the funds in connection with his trucking company. Ener provides no documentation showing such loans ever existed. He presented no written agreement or memorialization of the agreement. Nor did he provide bank, check or wire transfer receipts documenting the loan. While in prison, Ener claims the two men agreed that if Mr. Smith's wife posted bail on Ener's behalf and allowed Ener to keep the money upon the bail's exoneration, then Ener would release Mr. Smith's debt. Ener claims that he relayed the terms of the agreement to his attorney Steven Jay Rozan in Houston, but did not ask his attorney to relay the information to Ms. Smith. Neither Ener nor Mr. Smith attempted to gain Ms. Smith's consent to the agreement regarding her money prior to posting bail. Ener does not dispute the ownership of the money prior to the posting of bail. He testified at the hearing that the money belonged to Ms. Smith. In regards to his own bail money, Mr. Smith submitted an affidavit on June 5, 2003 stating that it "was posted on my behalf," and "[t]he money posted belonged to Pauline Smith." (Aff. of Clyde Lavon Smith filed on 6/5/03 at ¶¶ 2-3.) When asked why he thought Ms. Smith, and not solely Mr. Smith, should be responsible for a debt her husband never told her about, Ener replied "because they're married." Mr. Smith, although present at the evidentiary hearing, did not testify to confirm Ener's tale. Rozan was not present at the hearing to confirm or deny whether Ener told him of the agreement despite our request of his presence.¹

Prior to obtaining her refund from ABC Bail Bond, Ms. Smith met with Ener's attorney Stephen Jay Rozan and Mr. Smith's attorney Richard B. Kuniansky at their offices in Houston, Texas. Rozan and Kuniansky are law partners. Rozan and Kuniansky informed Ms. Smith that bail for each defendant required a $10,000 cash posting. Ms. Smith testified that Rozan asked her to post the cash bail for both men. Initially, Ms. Smith agreed to pay $10,000 for her husband's bail and $20,000 for his legal bills, but refused to post Ener's cash bail or pay his legal expenses. Rozan pressed her to pay his client's bail. She continued to refuse until Rozan assured her that the money would be returned to her after the conditions of bail were satisfied. Ms. Smith, who had no independent advisor to consult,² relented. At no point did Rozan inform Ms. Smith that Ener and Mr. Smith reached an agreement regarding her funds. Ms. Smith did not assent to the agreement. She agreed to allow $10,000 of her $40,000 to be used for Ener's cash bail only on the condition that the funds would be returned to her. None of Ms. Smith's money went to pay for Ener's attorney's fees. Ms. Smith signed a release memorializing her permission to pay Ener's cash bail. No party was able to locate a copy of the release for our review.

At the direction of Kuniansky, who was counsel for Ms. Smith and her husband, ABC Bail Bonds released the $40,000 to Martin P. Mullaney, Kuniansky's local counsel. Ener's counsel, Steven Jay Rozan, then instructed Mullaney to use...