United States v. D'Argento

• Citation: 227 F. Supp. 596
• Decision Date: 09 March 1964
• Docket Number: No. 63 CR 550.,63 CR 550.
• Parties: UNITED STATES of America v. Joseph D'ARGENTO, Mike La Joy, Gerald Tomaszck, Patrick Schang and Jean Schang.
• Court: U.S. District Court — Northern District of Illinois

227 F. Supp. 596

UNITED STATES of America v. Joseph D'ARGENTO, Mike La Joy, Gerald Tomaszck, Patrick Schang and Jean Schang.

No. 63 CR 550.

United States District Court N. D. Illinois, E. D.

March 9, 1964.

Frank E. McDonald, U. S. Atty., Chicago, Ill., for the United States.

George F. Callaghan, Chicago, Ill., for Joseph D'Argento.

Maurice J. Walsh, Chicago, Ill., for Mike La Joy.

Frank G. Whalen, Chicago, Ill., for Gerald Tomaszck.

Richard E. Gorman, Chicago, Ill., for Patrick Schang and Jean Schang.

Edward J. Calihan, Jr., Chicago, Ill., for Maryland Nat. Ins. Co.

PARSONS, District Judge.

This is an application by Maryland National Insurance Company, surety on the appearance bond of the defendant, Joseph D'Argento, for an order vacating or setting aside a declaration of forfeiture made in the subject case, and/or for remission of a judgment of forfeiture which might be entered by this Court against the surety. There is also before the Court, a motion by the United States for entry of a judgment of default on the declaration of forfeiture.

A Federal Grand Jury sitting here in the Northern District of Illinois returned on September 26, 1963, an indictment charging Joseph D'Argento and four other persons with bank robbery. The charge was that D'Argento and the others, on September 23, 1963, with use of a firearm, robbed the Franklin Park Bank, Franklin Park, Illinois, of approximately $43,097.00. The return of the Grand Jury was made before the Chief Judge of the District who set bail as to each defendant in the amount of $50,000.00, and ordered the indictment suppressed. Four days later, D'Argento and three of the other defendants were apprehended in Chicago. The indictment was then released, and the instant case was docketed and, by lot, assigned to this Court.

On the same day of arrest, D'Argento appeared and moved this Court for a reduction of his bail. His attorney, however, was at the time insufficiently acquainted with the defendant, his background and his financial condition, to address himself reliably to the considerations spelled out in Rule 46 of the Federal Rules of Criminal Procedure, whereupon the motion for reduction was continued to a short date for further hearing.¹

Before this further hearing, however, the defendant made bail and abandoned his motions. The Maryland National Insurance Company executed as his surety an appearance bond in the full amount of $50,000.00.

For many years and until recently, the form of the bond used in this district was identical to Form 17 which appears in the Appendix to the Federal Rules of Criminal Procedure. Recently, however, a revised form has come into use, and was used in the instant matter. A new condition appearing on it is the following:

"That the defendant is not to depart the Northern District of Illinois * * * except in accordance with such orders * * * as may be issued by * * * the United States District Court for the Northern District of Illinois."

The new form further provides much the same as did the earlier form that:

"If the defendant fails to obey or perform any of these conditions, payment of the amount of this bond shall be due forthwith."

From the late hours of November 17, 1963, until the early hours of November 19, 1963, Joseph D'Argento was out of the Northern District of Illinois. He spent a day in Los Angeles, California. Neither he nor his surety sought or obtained permission of this Court to leave the district. In arranging flights to and from Los Angeles, he used an alias. There is evidence that on at least two additional occasions subsequent to making bail in the instant case, he went to Los Angeles for a day and then returned. On each of such occasions, including November 18, he had pre-set court appearances to make in proceedings against him in the Superior Court of California for the County of Los Angeles. Allegedly, he also used these trips for other purposes. Substantial FBI investigation of his activities on November 18, resulted in his being charged, upon his return, with theft of a Chicago-Los Angeles shipment of furs.

On December 4, 1963, while D'Argento was in Federal custody in Chicago, charged with one or more of these newer violations, the United States Attorney appeared ex parte before this Court and requested an immediate declaration of forfeiture of the $50,000.00 bond on the ground that D'Argento had breached the condition of the bond requiring Court permission to leave the district. Evidence was heard and the order declaring forfeiture was entered.

The entry of the declaration of forfeiture order was proper. Rule 46(f) (1) makes forfeiture mandatory upon a finding that there has been a breach of a condition of bail. United States v. Kehrt, 15 Alaska 406, 128 F.Supp. 38 (D.Alaska 1955). And a forfeiture may be requested ex parte. National Surety Co. v. United States, 29 F.2d 92 (9th Cir. 1928); Western Surety Co. v. United States, 51 F.2d 470 (9th Cir. 1931). It is sufficient for a forfeiture if, in an ex parte hearing, the Court, is satisfied from the evidence that the Government has reason to believe that there has been a breach of a condition of the bond. Accord, United States v. Eisner, 323 F.2d 38 (6th Cir. 1963); and a prima facie case of a breach is sufficient for a forfeiture under any circumstances.

Bail bonds are contracts between sureties and the Government which must be strictly construed in accordance with their terms. Dudley v. United States, 242 F.2d 656 (5th Cir. 1957); Heine v. United States, 135 F.2d 914 (6th Cir. 1943); and when the Government shows a breach of any condition of the bond, proof of actual damages to the Government is unnecessary, since the full amount of the bond constitutes liquidated damages in the nature of a penalty. Cf. United States v. Davis, 202 F.2d 621 (7th Cir. 1953).

The surety may, nevertheless, be entitled to some relief. Rule 46 of the Federal Rules of Criminal Procedure empowers the District Courts to exercise considerable latitude in the remission or setting aside of bail forfeiture. Paragraph (f) (2) provides: "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." (Emphasis added.) Paragraph (f) (4) provides: "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." (Emphasis added.)

Clearly, in the adoption of Rule 46, there is indicated the intention to broaden substantially the discretion of the District Courts from that which had theretofore existed. Larson v. United States, 296 F.2d 167 (8th Cir. 1961); Smaldone v. United States, 211 F.2d 161 (10th Cir. 1954). Cf. Continental Casualty Co. v. United States, 314 U.S. 527, 62 S.Ct. 393, 86 L.Ed. 426 (1942), decided before enactment of Rule 46.

In support of the surety's motion that the declaration of forfeiture be set aside or, if judgment be entered, that remission be made, it was alleged that the defendant and the surety, even though they had in fact signed the bond, were not aware that the defendant could not leave the district without the Court's permission, that the Government and this Court were aware, as early as September 23, 1963, that the defendant was on a bail bond requiring his appearance in Los Angeles, California, that the Government has incurred no expense directed toward the apprehension of the defendant and his return to this district, that the defendant has always appeared before this Court when required, and that the default of the principal has not in any way prejudiced the United States.

A motion to set aside or remit a forfeiture of a bail bond clearly is addressed to the discretion of the Court making the declaration. United States v. Carolina Casualty Insurance Co., 237 F. 2d 451 (7th Cir. 1956); United States v. DeStephano, 102 F.Supp. 38 (W.D.Pa. 1952). "Discretion" of course means "sound discretion", not discretion exercised arbitrarily, but with due regard for that which is right and equitable under the circumstances, and directed by reason and conscience to a just result. Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931); Smaldone v. United States, 211 F.2d 161 (10th Cir. 1954). The elements of consideration in ruling on a motion to set aside or remit a bond forfeiture thus can be many and varied depending largely upon the circumstances of each case.

Factors which merit some, though little, weight in the exercise of discretion here are that a new form was used, and that the defendant and surety were unaware that the defendant could not leave this district without the Court's permission.

Rule 58 of the Federal Rules of Criminal Procedure specifically provides that the forms contained in the Appendix to the Rules are illustrative only and not mandatory.² Indeed, the condition providing that the defendant is not to depart the jurisdiction without leave of the Court has been utilized for many years in the Federal Courts. See, Kirk v. United States, 131 F. 331 (2d Cir. 1904); LaGrotta v. United States, 77 F.2d 673, 103 A.L.R. 527 (8th Cir. 1935).

Furthermore, the new form that was used here appears both reasonable and proper. The propriety of imposing territorial limitations as a condition of granting release cannot be doubted. United States v. Foster, 278 F.2d 567 (2d Cir. 1960), cert. denied, 364 U.S. 834, 81 S.Ct. 48, 5 L.Ed.2d 60.³ The Government of the United States, which approved the bond, as well as this Court, has a legitimate interest in knowing the location of the defendant and in attempting to minimize its costs in keeping track of him. In addition, such a restriction enables the surety to locate the defendant in order to maintain his custody of the principal. Almost 100 years ago, it was said that "there is an implied covenant on the part of the principal with his sureties, when he is...