U.S. v. Jones, 77-1518
| Decision Date | 29 December 1977 |
| Docket Number | No. 77-1518,77-1518 |
| Citation | 567 F.2d 965 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Peter Calvin JONES, Defendant, and W. R. Kenney, Professional Bondsman, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
T. L. O'Hara, Wichita, Kan., filed a brief in opposition to summary affirmance on behalf of defendant-appellant.
James P. Buchele, U. S. Atty., Topeka, Kan., Stephen K. Lester, Asst. U. S. Atty., Wichita, Kan., filed a memorandum brief in support of summary affirmance.
Before SETH, PICKETT, and BARRETT, Circuit Judges.
This is an appeal from the order of the United States District Court for the District of Kansas which denied surety-appellant Kenney's motion for an extension of time in which to file his notice of appeal. We affirm.
Defendant Jones was convicted of violations of the Controlled Substances Act, 21 U.S.C. § 841(a)(1), and of failing to appear before a United States Magistrate. On the basis of defendant's failure to appear at the bail hearing before the magistrate, the government moved for forfeiture of defendant's $5,000 bond. The bond was forfeited and the government moved for judgment against the principal and his sureties. On December 9, 1976, after considering bondsman Kenney's objections, the district court ordered that judgment on the bond be entered against Kenney. Sixty-one days later the surety filed his notice of appeal from that order.
Appellant then filed a motion in the district court seeking an extension of time in which to file a notice of appeal based upon excusable neglect. His contention was that the 60 day civil appeal period applied and that the district court could extend the time by an additional 30 days upon a showing of excusable neglect. The government's argument was that the criminal appeal period applies under the circumstances of this case and that the surety's notice of appeal was filed beyond the time in which an extension, if granted, could cover.
We hold, based upon the scope, application, and exceptions to the Federal Rules of Criminal Procedure, that an appeal by a surety from a judgment on the forfeiture of a bail bond is controlled by the criminal rules. The notice of appeal must be filed within the time prescribed for all criminal cases.
The Federal Rules of Criminal Procedure govern the procedure in all criminal proceedings in the courts of the United States. Rule 1, Fed.R.Crim.P. Further, all provisions for release from custody on bail, including those providing for forfeiture and judgment of default against the obligors on the bond, are set forth in the Rules of Criminal Procedure and in the Criminal Code. Rule 46, Fed.R.Crim.P; Title 18 U.S.C. § 3146.
Rule 54, Fed.R.Crim.P., sets forth the proceedings which are excepted from application of the rules of criminal procedure. Nothing in Rule 54(b)(5) expresses an intent to exclude criminal bail bond forfeitures from the coverage of the criminal rules, although notably it does specify that the criminal rules are inapplicable to the civil forfeiture of property for violation of a statute as well as being inapplicable to the collection of fines and penalties. See, Rule 54, Fed.R.Crim.P., note to subdivision (b)(5) of the Advisory Committee on Rules. As a general principle of statutory construction, if a statute specifies one exception to the general application, other exceptions are excluded; expressio unius est exclusio alterius.
An action to enforce a bond forfeiture, even if considered civil in nature, is a case arising under the criminal laws and is governed by the rules of criminal...
To continue reading
Request your trial
-
In re Public Service Co. of New Hampshire
...434 (1987) quoting Russello v. United States, 464 U.S. 16, 23 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983). See also, United States v. Jones, 567 F.2d 965, 967 (10th Cir.1977) ("if a statute specifies one exception to the general application, other exceptions are excluded. . . . The defendants'......
-
In re Special Grand Jury 89-2
...a criminal bail bond was "essentially ... civil" and governed by Rule 4(a)(1)(A), overruling our earlier decision in United States v. Jones, 567 F.2d 965 (10th Cir.1977). Jones had held that such a forfeiture proceeding is a case "arising under the criminal laws and is governed by the rules......
- Von Lusch v. C & P TEL. CO.
-
Cardtoons v. Major League Baseball Players Ass'n
...specifies exceptions to its general application, other exceptions not explicitly mentioned are excluded"), citing United States v. Jones, 567 F.2d 965, 967 (10th Cir.1977). Case law suggests, however, that other First Amendment defenses do exist beyond those in the statute.24 Accordingly, t......