United Benefit Fire Ins. Co. of Omaha, Neb. v. United States

• Decision Date: 25 July 1962
• Docket Number: No. 17689.,17689.
• Citation: 306 F.2d 325
• Parties: UNITED BENEFIT FIRE INSURANCE COMPANY OF OMAHA, NEBRASKA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

306 F.2d 325 (1962)

UNITED BENEFIT FIRE INSURANCE COMPANY OF OMAHA, NEBRASKA, Appellant, v. UNITED STATES of America, Appellee.

No. 17689.

United States Court of Appeals Ninth Circuit.

July 25, 1962.

R. D. Merrill and W. F. Merrill, Pocatello, Idaho, for appellant.

Sylvan A. Jeppesen, U. S. Atty., and Jim Christensen, Asst. U. S. Atty., Boise, Idaho, for appellee.

Before HAMLIN and DUNIWAY, Circuit Judges, and ROSS, District Judge.

HAMLIN, Circuit Judge.

James L. Whalen was charged in an indictment filed in the United States District Court for the District of Idaho, Eastern Division, with violations of the White Slave Traffic Act, 18 U.S.C.A. § 2421 et seq. His bail was fixed in the sum of $10,000. United Benefit Fire Insurance Company executed a surety bond in the sum of $10,000 in the usual form which provided for the appearance of Whalen during the prosecution of the action against him. On the filing of such bond Whalen was released on bail. On May 17, 1961, when his case was called, Whalen did not appear in court. His counsel was there, and stated that he was unable to locate Whalen. The case was continued to May 18, 1961, and upon the failure of the defendant to appear at that time it was continued to May 19, 1961, at which time the government's motion to forfeit the bail bond was granted. Counsel for appellant was present in court on May 19, when the order forfeiting the bond was made, and he moved for an order continuing the cause which motion was denied.

Whalen was located in Mexico City about May 23 through the agencies of the United States Government. Shortly thereafter he surrendered himself to the custody of the United States officials at San Antonio, Texas, and was then transported to the county jail at Pocatello, Idaho, where the Eastern Division of the United States District Court for the District of Idaho convenes.

On May 29, 1961, the government moved for the entry of judgment in favor of United States against appellant in the sum of $10,000. Hearing of said motion was set before the district court for June 27, 1961. Counsel for the bonding company did not appear and the matter was continued to June 28 at which time counsel for appellant was present. On June 28 judgment was entered against appellant in the sum of $10,000.

On September 5, 1961, Whalen pleaded guilty to two counts of the indictment filed against him and he was sentenced to imprisonment for a total of five years.

Appellant filed a petition for the remission of the forfeited bail bond, accompanying said petition with certain affidavits. On September 11, 1961, when this petition came before the district court, it was ordered denied in its entirety. Appellant timely filed an appeal to this court from the order of the district court denying the remission of the forfeited bail bond. This court has jurisdiction under 28 U.S.C.A. § 1291.

Rule 46 of the Federal Rules of Criminal Procedure 18 U.S.C.A., provides in reference to the forfeiture of bail bonds in part as follows:

"(f) Forfeiture.

"(1) Declaration. If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail.

"(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

"(3) Enforcement. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. * * *

"(4) Remission. After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision."

On this appeal appellant contends that the district court abused its discretion in refusing to remit the forfeited bail bond and in refusing to hold that justice did not require enforcement of the entire forfeiture.

Appellant contends it had no notice of the date when Whalen was to appear in court and when it was informed on May 17, 1961, that he did not appear it made "every diligent effort to ascertain the facts surrounding said failure and to determine the whereabouts of the said defendant; numerous telephone calls were made, personal trips were made to interview the wife of the defendant and his associates, request was made for fingerprints and a reward posted and wanted circulars printed." No contention was made, however, that it actually paid any reward, that through its efforts Whalen was located in Mexico City or that it provided any funds for his return from Mexico City to San Antonio, Texas, and then to Idaho.

It was shown that on April 20, 1961, notice that the cause had been set for further hearing on May 17, 1961, was given to Whalen's attorney and that he had so informed Whalen. There was no showing by appellant that in Idaho there was any custom or practice whereby sureties were notified of the date when defendants are to appear. In fact, the comments of the district judge indicated that no such custom or practice existed.

The language in Rule 46 provides that the court "may" direct a forfeiture and that after entry of judgment the court "may" remit it in whole or in part. The rule gives discretion to the district court. As stated in Larson v. United States, 296 F.2d 167, 170 (8th Cir. 1961), "It is only where there has been an abuse of discretion that an appellate court may set aside the action of the District Court denying the remission of a forfeiture." In Larson the court quoted from United States v. Davis, 202 F.2d 621, 624 (7th Cir. 1953), where the court said, "We must keep in mind that the discretion is to be exercised by the district court and not by a court of review. This court should not substitute its discretion for...