United States v. Agapito

• Court: U.S. District Court — Eastern District of New York
• Citation: United States v. Agapito, 36 F.Supp. 520 (E.D. N.Y. 1941)
• Decision Date: 07 January 1941
• Docket Number: No. 35935.,35935.
• Parties: UNITED STATES v. AGAPITO et al.

36 F. Supp. 520

UNITED STATES v. AGAPITO et al.

No. 35935.

District Court, E. D. New York.

January 7, 1941.

Irving C. Maltz, of Brooklyn, N. Y., for the motion.

Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Morris K. Siegel, Asst. U. S. Atty., of New York City, of counsel), opposed.

CAMPBELL, District Judge.

This is a motion for an order under Title 18, Section 601, United States Code, 18 U.S.C.A. § 601, vacating the forfeiture of the bail bonds heretofore entered and for an order vacating the judgment entered upon the said forfeiture on June 28th, 1940, in favor of the United States of America and against Raffaele Brancaccio, also known as Alberto Brancaccio.

On February 6th, 1934, an indictment was filed against the above named defendants, they having been previously arrested and held to bail, Patsy Agapito in $2,500, Bernard Grossman in $3,500, and Murray Welsh in $3,500.

Prior to that time the defendants Grossman and Welsh gave false addresses to the U. S. Attorney's office.

The person who had been the record owner of the property, which was offered as security and in whose name as surety the bonds purported to be made and signed, had been dead for some years, and no one had power to bind him.

Notice was sent by the United States Attorney's office by mail addressed to the addresses they had given, and to the address which had been given as that of the surety requiring the said three defendants to appear in the United States District Court, Eastern District of New York, and plead to the indictment on the 19th day of February, 1934.

The defendants failed to appear on that day, the notice to the defendant Agapito was not returned, their defaults were noted, and on the motion of the Assistant United States Attorney in charge of that case, the bonds were forfeited.

The defendant Agapito is dead and no affidavit of his forms part of the moving papers.

On April 27th, 1934, the defendants were arraigned and upon their plea of guilty they were each sentenced to be imprisoned for sixty days in the Detention Headquarters.

On January 22nd, 1940, the defendants moved to vacate and set aside the forfeiture in the above matter, which on January 22nd, 1940, was denied by judge Moscowitz, who rendered an opinion, D. C., 31 F.Supp. 878, 879, in which he stated "Defendants have not met the requirements of the statute and satisfied the court that the default was not willful", and on February 19th, 1940, Judge Moscowitz made an order denying the motion.

An investigation was thereafter conducted by the office of the United States Attorney, Eastern District of New York, in an effort to enforce the liability on the forfeited bonds, and it was then ascertained that Raffaele Brancaccio, whose name appeared in the bonds as surety had died on December 3rd, 1927, approximately six years prior to the execution of the bonds in question.

Morris K. Siegel, the Assistant United States Attorney, in his affidavit in opposition to this motion says, "An examination of the Surrogate's Court records in the County of Kings, discloses that Alberto Brancaccio was appointed as a Coexecutor of the estate of Raffaele Brancaccio. In comparing the signature on the bail bonds with the signature on file with the Surrogate's records, it is apparent that Alberto Brancaccio's writing is similar with the one appearing on the bail bonds."

A motion was made on June 10th, 1940, to which date it had been adjourned, for judgment against Raffaele Brancaccio, also known as Alberto Brancaccio, in the sum of $9,500, based on an affidavit by Morris K. Siegel, Assistant United States Attorney, in which he recited the death of Raffaele Brancaccio the owner of 1170 42nd Street, Brooklyn, New York, on December 3rd, 1927, approximately six years prior to the executions of the bonds in this case, the examination of the records of the Surrogate's Court in the County of Kings which disclosed that Alberto Brancaccio and Antonio Brancaccio the sons of the decedent were appointed executors and in which he said as follows: "In comparing the signature on the bail bonds with the signature on the Surrogate Court's papers it is apparent that Alberto Brancaccio's writing is similar with the name appearing on the bail bonds. It may be inferred that Alberto Brancaccio used the name of Raffaele Brancaccio in signing the bail bonds in this case. It is for that reason that judgment is sought to be obtained herein against Raffaele Brancaccio, also known as Alberto Brancaccio."

The notice of motion, said affidavit, and other moving papers were duly served on said Alberto Brancaccio.

On June 10th, 1940, the motion was duly called, but there was no answer on the part of Alberto Brancaccio and it was granted on default and on June 26th, 1940, judgment was entered.

On December 2nd, 1940, the motion now under consideration came on before Judge Inch, who referred the same to me.

Title 18, Section 601, U.S.Code, 18 U.S.C.A. § 601, under which this motion is made, reads as follows: "§ 601. Remission of penalty of recognizance. When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced."

On behalf of the Government is cited Rule 5 of the General Rules of this Court, so much thereof as is necessary for consideration in the case at bar, reads as follows: "Rule 5. Extension of Terms. For the purpose of taking any...