United States v. Eisner, 15125.

Citation323 F.2d 38
Decision Date30 September 1963
Docket NumberNo. 15125.,15125.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Samson EISNER (Principal) and United Bonding Insurance Co. (Surety), Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Joseph C. Healy, Cincinnati, Ohio; Howell W. Vincent, Covington, Ky., on brief, for appellants.

George H. Logan, Asst. U. S. Atty., Louisville, Ky.; William E. Scent, U. S. Atty., Louisville Ky., on brief, for appellee.

Before MILLER and O'SULLIVAN, Circuit Judges, and TAYLOR, District Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

This appeal is from a judgment in the amount of $5,000.00 against the appellants, Samson Eisner as principal, and the United Bonding Insurance Co., hereinafter referred to as the Bonding Company, as surety, on an appeal bond executed in the United States District Court for the Western District of Kentucky.

Eisner was convicted in the District Court for receiving and concealing stolen goods having a value of more than $5,000.00 transported in interstate commerce, in violation of Section 2315, Title 18 United States Code. Judgment was entered on November 18, 1960. Notice of appeal was filed on the same day and Eisner was admitted to bail in the amount of $5,000.00 pending appeal. Bond in that amount was executed on the same day by Eisner as principal and the Bonding Company as surety. The judgment of conviction was affirmed by this Court on January 10, 1962. Eisner v. United States, 297 F.2d 595. The mandate of this Court was issued on February 2, 1962, and was filed in the District Court on February 5, 1962. No motion was made in this Court for a stay of the mandate pending application to the Supreme Court for writ of certiorari. Nor was any motion ever made for a recall of the mandate.

Application was made by Eisner to a Justice of the Supreme Court for an extension of time in which to file a petition for writ of certiorari, which was granted on February 9, 1962, extending the time to and including March 6, 1962. The United States Attorney was notified of this extension by letter from Eisner's Attorney. The petition for writ of certiorari and record on appeal was filed with the Supreme Court on March 5, 1962.

On April 18, 1962, while the application for certiorari was pending, the United States moved in the District Court for forfeiture of the bond and for a bench warrant for Eisner's arrest on the ground that he had breached a condition of the bond by his failure to surrender himself to the United States Marshal, as required by the bond, following the affirmance of the judgment of conviction in this Court and the issuance of its mandate on February 2, 1962.

On April 20, 1962, Eisner filed a response to the motion, which admitted the execution of the bond, the affirmance of the judgment of conviction, and the issuance of the mandate, but which stated, in opposition to the motion, that a Justice of the Supreme Court had on February 9, 1962, given Eisner until March 6, 1962, in which to file the petition for certiorari and that said petition was filed on March 5, 1962.

On April 21, 1962, an order dated April 20, 1962, was entered in the District Court directing a forfeiture of the bond and the issuance of a bench warrant. The bench warrant was issued on April 23, 1962, and Eisner was taken into custody by the United States Marshal on April 27, 1962. Eisner was thereafter taken to the Federal Penitentiary at Terre Haute, Indiana, where he is now incarcerated.

On April 23, 1962, the Supreme Court denied the petition for certiorari 369 U. S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17. A certified copy of the order of the Supreme Court was filed with the Clerk of the Court of Appeals for the Sixth Circuit on April 25, 1962.

On May 9, 1962, the Government moved in the District Court for judgment against Eisner and the Bonding Company in the sum of $5,000.00 under the appeal bond above referred to, setting out in the motion the affirmance of the judgment by the Court of Appeals on January 10, 1962, the issuance of the mandate on February 2, 1962, and the bond forfeiture on April 21, 1962. On May 17, 1962, the Bonding Company filed its response to this motion and moved that the bond forfeiture be set aside upon such conditions as the Court might impose and that judgment be entered for only such an amount as the Court deemed just and proper under the circumstances. The motion stated that at all the times referred to Eisner was within the jurisdiction of the Eastern District of Kentucky; resided at Newport, Campbell County, Kentucky, or Covington, Kenton County, Kentucky; that his presence and whereabouts were known by agents of the Federal Bureau of Investigation; that it was informed and believed that Eisner had applied for a writ of certiorari and that it in good faith believed that the bond was in full force until termination of the litigation by denial by the Supreme Court of the application for certiorari on April 23, 1962, and that by reason thereof the bond forfeiture on April 21, 1962, was illegal and should be set aside. On May 18, 1962, Eisner filed his response to the motion for judgment and his motion to set aside the bond forfeiture based on substantially the same grounds, and stating in addition that at all times following the execution of the bond he had been ready to surrender in execution of his sentence if required of him and if he had known of the denial of the petition for certiorari before he was taken into custody he would have voluntarily surrendered to the proper authorities.

On May 24, 1962, the District Judge entered an order adjudging the responses insufficient and entered judgment in the sum of $5,000.00 against Eisner as principal and the Bonding Company as surety on the bond.

On June 20, 1962, Eisner and the Bonding Company filed in the District Court their notice of appeal from the "Order of bond forfeiture entered on the 20th day of April 1962" and "from an Order entered on May 24, 1962 sustaining the motion for judgment in favor of the United States of America and overruling the response and motion of the United Bonding Insurance Company to set aside said forfeiture." Bond in the amount of $6,000.00 was filed at the same time.

On June 26, 1962, the appellants, jointly and severally, filed a motion in the District Court that the Court set aside and cancel the "Order of Forfeiture" entered on April 20, 1962.

On June 28, 1962, by stipulation of parties, a hearing was held before the District Judge on this motion, who on the same day entered an order overruling the motion. Evidently, the District Judge was not advised by counsel that an appeal to the Court of Appeals was then pending, having been filed on June 20, 1962, which divested the District Court of jurisdiction to hear and rule on the motion of June 26, 1962. Rules 37(a) (1) and 39(a), Rules of Criminal Procedure; United States v. Frank B. Killian Co., 269 F.2d 491, 494, C.A.6th; Edmond v. Moore-McCormack Lines, 253 F.2d 143, 144, C.A.2nd, cert. denied, 358 U.S. 848, 79 S.Ct. 73, 3 L.Ed.2d 82; Peterman v. Indian Motorcycle Co., 216 F.2d 289, 291, C.A.1st. Reference by counsel to what took place and what was said at this hearing is, accordingly, not before the Court on this review. It appears that this motion was in substance incorporated in the responses of the appellants filed on May 17 and 18, 1962, to the motion of the Government for judgment on the bond following the order of forfeiture on April 20, 1962, from which judgment, thereupon entered, the present appeal was taken. In reviewing the validity of the judgment we include a consideration of the April 20, 1962, Order of Forfeiture of the bond.

Rule 46, Rules of Criminal Procedure, dealing with bail, the execution of a bond, forfeiture of bail for breach of condition of the bond, and for enforcement of the forfeiture, is the applicable rule in this case. It will be seen that a proceeding for enforcement embodies two separate steps, — first, a declaration of forfeiture by the court of the bail for breach of condition of the bond, which the court may later set aside if it appears that justice does not require the enforcement of the forfeiture, and, second, when a forfeiture has not been set aside, the court shall on motion, without the necessity of an independent action, enter a judgment of default upon which execution may issue. These separate steps were taken in the present case.

The Bonding Company argues in its brief that it was not notified of the Government's motion for bond forfeiture, which was heard and sustained by the Court on April 20, 1962. We find no merit in this argument.

The Certificate of Service of the Government attorney, filed with the motion, states that a copy of the motion was mailed to the two attorneys for Eisner and also to the Bonding Company at Indianapolis, Indiana, and to the office of its agent in Covington, Kentucky, who executed the bond on its behalf. Rule 46(f) (3), Rules of Criminal Procedure, provides that by entering into the bond, the obligors submit to the jurisdiction of the District Court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served; that liability may be enforced on motion without the necessity of an independent action; and that the motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses. The record itself contains no allegation by the Bonding Company that it did not receive notice of the motion and hearing.

The attorney for Eisner filed a response to the motion which set out the filing by Eisner of his petition for certiorari on March 5, 1962, and the service of notice of filing upon the Solicitor General and the United States Attorney representing the Government in this action, and which challenged the validity of the Order of Forfeiture. In addition, the ...

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