United States v. D'ANNA

• Decision Date: 21 November 1973
• Docket Number: No. 73-1410.,73-1410.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calogero D'ANNA, Principal Defendant, International Fidelity Insurance Co., Surety Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

487 F.2d 899 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Calogero D'ANNA, Principal Defendant, International Fidelity Insurance Co., Surety Defendant-Appellant.

No. 73-1410.

United States Court of Appeals, Sixth Circuit.

Argued October 4, 1973.

Decided November 21, 1973.

Norman L. Zemke, Zemke & Lustig, Southfield, Mich., on brief, for appellant.

Gordon S. Gold, Detroit, Mich., for appellee; Ralph B. Guy, Jr., U. S. Atty., Michael D. Gladstone, Asst. U. S. Atty., Detroit, Mich., on brief.

Before PECK, MILLER and LIVELY, Circuit Judges.

PER CURIAM.

This case involves the interpretation of a bail bond contract. Appellant surety posted a $10,000 appearance bond with the District Court on behalf of a criminal suspect. The suspect pleaded guilty to a felony charge and was sentenced to one year in prison. Immediately after pronouncing sentence, the District Judge stated that "Bond may be cancelled." The principal defendant requested time to put his affairs in order. The Court granted a one week delay in the commencement of sentence, but noted that "there is a $10,000 bond which is not being cancelled by the Court this morning . . . ." The Judgment and Commitment Order, however, stated as follows: "It is adjudged that defendant's bond of $10,000 cash or surety be continued to Wednesday, October 25, 1972, at 9:00 A.M."

Defendant did not return for service of sentence and the government obtained a judgment against the appellant on the bond. Appellant moved to have the bond forfeiture set aside on the basis that the bond had been cancelled, and on the basis that surety's liability ended following the sentencing procedure. The District Court, in ruling on this motion, held that the bond had been continued and that the Court had correctly exercised its discretion in continuing the bond beyond sentencing. It was from this adverse ruling that appellant perfected the appeal herein.

Appellant raises the same points here it raised in the District Court. The question of whether the bond was cancelled or continued need not be considered, however, because this Court concludes that the District Court could not continue the bond without the consent of the surety.

A bail bond is a contract between the government and the principal and surety. United States v. Jackson, 465 F.2d 964 (10th Cir. 1972). A number of federal courts have held that a bond contract must be interpreted in light of the applicable law of the state in which it was made. United States v. Gonware, 415 F.2d 82 (9th Cir. 1969); Swanson v. United States, 224 F.2d 795, 15 Alaska 608 (9th Cir. 1955); Heine v. United States, 135 F.2d 914 (6th Cir. 1943); Palermo v. United States, 61 F.2d 138 (8th Cir. 1932). Bond in the present case was made in Michigan and, therefore, its terms must be interpreted in light of that state's law.

The bond in issue specified that defendant appear in District Court to "answer to any indictment . . . and abide such order and determination as said Court may make . . . and . . . not depart said Court without leave thereof . . . ." The Supreme Court of Michigan dealt with a similar bond in People v. Brow, 253 Mich. 140, 234 N.W. 117 (1931). In that case the surety appealed from a forfeiture ordered when the defendant failed to appear for commencement of a sentence delayed for more than a month. The trial court had imposed sentence and then ordered bond continued until commencement of sentence. The bond in that case required the defendant to come to the courthouse to "answer to an information . . . and to do and receive what shall by the court be then and there enjoined upon him and . . . not depart the court without leave." Brow, supra, 234 N.W. at 118. The Michigan Supreme Court, reasoning that the judgment of sentence constituted the final determination of a criminal case, held that the surety's liability terminated when sentence was imposed and that the trial court lacked the authority to continue bond without consent of the surety.

The proposition set forth in Brow, that sentencing is the final disposition of an insured's case which terminates the surety's legal obligations, was repeated with approval in Brandimore v. Eaton Rapids Justice of Peace, 15 Mich.App. 676, 167 N.W.2d 360 (1969).

The government cites no authority which would indicate that the Brow decision has been modified or...