U.S. v. Miller

• Decision Date: 24 September 1976
• Docket Number: Nos. 75-1233,75-1234,s. 75-1233
• Citation: 539 F.2d 445
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas MILLER, Defendant, Resolute Insurance Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 445

539 F.2d 445

UNITED STATES of America, Plaintiff-Appellee, v. Thomas MILLER, Defendant Resolute Insurance Company, Defendant-Appellant.

Nos. 75-1233, 75-1234.

United States Court of Appeals Fifth Circuit.

Sept. 24, 1976.

Ralph H. Hicks, William D. Barwick, Atlanta, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., Dorothy T. Beasley, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before GODBOLD, McCREE ^* and TJOFLAT, Circuit Judges.

PER CURIAM:

Resolute Insurance Company is surety for one Thomas Miller on two $10,000 appearance bonds. ¹ Miller was tried and convicted for assaulting an FBI agent (the assault case) and later pleaded guilty to five of seven counts of interstate transportation of stolen property (the transportation case). He was sentenced to three months of imprisonment on the assault conviction and to three years for the interstate transportation of stolen property. The sentences were to be served consecutively, with the three years commencing at the termination of the three months. The trial court, however, at the request of Miller and in the absence of any agent of Resolute, allowed a brief stay prior to incarceration. The bond in the assault case was specifically continued during the stay. The judgment and commitment in that case ordered Miller to surrender to the United States Magistrate at the expiration of the stay between certain hours on a certain day, to abide by the judgment of the court. This Miller never did. In time the government moved to forfeit the two bonds, and eventually final judgments of forfeiture were entered. Resolute has appealed from these judgments claiming basically and for various reasons that it was exonerated from all liability once sentence was passed.

An appearance bond is nothing more than a contract between the government on one hand and a principal and his surety on the other. United States v. Jackson, 465 F.2d 964 (10th Cir. 1972). The extent of the undertaking of the surety depends upon the wording of the agreement as interpreted within the framework of general federal principles of suretyship and contract law. ² As a general rule the terms of a bail contract are to be construed strictly in favor of the surety, who may not be held liable for any greater undertaking than he has agreed to. United States v. Eisner, 323 F.2d 38, 43 (6th Cir. 1963). However, "(l)ike any other contract a bail bond should be construed to give effect to the reasonable intentions of the parties." United States v. Gonware, 415 F.2d 82, 83 (9th Cir. 1969). Here the wording of the bonds ³ makes the intentions and commitment of Resolute as surety manifest.

No matter how strictly the wording of the commitment made by Resolute is construed in its favor, that commitment was broad: the surety explicitly agreed to insure that Miller would "abide any judgment entered in such 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." (emphasis added). Beyond peradventure, a fair reading of the undertaking would lead any reasonable person to the conclusion that the bond covers the situation at bar in the assault case. Clearly the court's direction to Miller in the assault case to "report to the United States Magistrate, Room 505, Old Post Office Building, Atlanta, Georgia on or before June 10, 1974, between the hours of 9:00 a. m. and 2:00 p. m., to abide the judgment of the court herein" was an order in connection with the judgment and was additionally a direction to surrender to serve sentence, as well as a postponement of the commitment to custody until June 10. Miller disobeyed. Thus, there was a clear and direct violation of the terms of the bond. Nevertheless, Resolute seeks to escape liability on its undertaking by invoking a rule of law that a surety is automatically exonerated when sentence is passed. Its logic runs that once a sentence of incarceration has been pronounced all hope of parole vanishes and the risk of flight is materially increased. It argues that this increased risk which it says is not within the contemplation of the parties may not be imposed upon the surety without his specific consent.

Resolute's argument is not without appeal; it has been accepted by some courts, e. g., United States v. D'Anna, 487 F.2d 899 (6th Cir. 1973). The decision in D'Anna, however, turned upon the Sixth Circuit's belief that it was required to apply Michigan law, which is unequivocal that once sentence has been pronounced a surety's liability terminates and a trial court is without authority to continue bond without the surety's consent. People v. Brow, 253 Mich. 140, 234 N.W. 117 (1931). We have rejected the proposition that the law of any particular state controls and instead look to the general rule. We find it to be, as it should be, that the effect of the pronouncement of sentence on the liability of the surety depends almost entirely upon the terms of the bond. When the surety has only undertaken to have his principal in court until the case is determined, sentencing exonerates. But when, as here, the bond states that the principal is to surrender himself for execution of the sentence and to abide by orders of the court in connection with judgment, the pronouncement of sentence does not exonerate the surety, who remains liable during any reasonable postponement of sentence. 8 Am.Jur.2d, Bail and Recognizance § 105 (1963); 8 C.J.S. Bail § 79g. (1962). See United States v. Gonware, supra, 415 F.2d at 84.

Moreover, in attempting to divine what the parties meant by the language they used, we agree with the observation of the Ninth Circuit that

. . . it is a common practice in the federal courts as well as the state courts, for defendants to request and for courts to grant short stays of execution of sentence to allow defendants to put their affairs in order before they start to serve their sentence. Even a bail bond broker would not expect the defendant to pay for an additional bond during . . . (a short, reasonable) stay of execution. Given this widespread practice, it is reasonable that the parties to this bail bond intended that the surety would remain liable during a reasonable stay of execution of the sentence.

United States v. Gonware, supra, 415 F.2d at 84.

In short, we conclude that there is no per se federal rule that the pronouncement of sentence exonerates a surety. Rather, we hold that an appearance bond may be extended to cover reasonably brief postponements of the execution of sentence. During such a postponement a surety remains liable on the bond if by it he has agreed to such liability. Here Resolute clearly bound itself by the language of its undertaking to insure that Miller would appear in accordance with the court's order to commence serving his sentence. Given the nature of its undertaking, whether or not Resolute was informed of the postponement of sentence is immaterial. Stuyvesant Insurance Co. v. United States, 410 F.2d 524, 526-27 (8th Cir.), cert. denied 396 U.S. 836, 90 S.Ct. 96, 24 L.Ed.2d 87 (1969); United States v. Caro, 56 F.R.D. 16 (S.D.Fla.1972).

Resolute has pointed out for the first time on appeal ⁴ that the court's order of judgment and commitment in the transportation case, unlike that in the assault case, makes no mention of a postponement of custody and does not, by its terms, continue the bond in that case. Rather, it simply recites that ". . . the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of three (3) years . . . but the execution of this sentence shall commence to run from the expiration of, or legal release from, the sentence imposed this day in Criminal Number 28,512 (the assault case)."

There was no need for the court to continue the bond specifically. As determined above, the bonds in these cases continued by their own terms until Miller surrendered for service of sentence. Nor was there need to...