United States v. Eisner, 15125.
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | MILLER and O'SULLIVAN, Circuit , and TAYLOR |
| Citation | 323 F.2d 38 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Samson EISNER (Principal) and United Bonding Insurance Co. (Surety), Defendants-Appellants. |
| Docket Number | No. 15125.,15125. |
| Decision Date | 30 September 1963 |
323 F.2d 38 (1963)
UNITED STATES of America, Plaintiff-Appellee,
v.
Samson EISNER (Principal) and United Bonding Insurance Co. (Surety), Defendants-Appellants.
No. 15125.
United States Court of Appeals Sixth Circuit.
September 30, 1963.
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
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...
To continue reading
Request your trial
-
PAN AMERICAN WORLD AIRWAYS, INCORPORATED v. O'KEEFFE, Civ. A. No. 66-620.
...109 F.2d 316, 321 (C.A. 8, 1940); Federal Home Loan Bank of San Francisco v. Hall, 225 F.2d 349 (C.A. 9, 1955); United States v. Eisner, 323 F. 2d 38 (C.A. 6, 1963); Harris v. Briscoe, 94 U.S.App.D.C. 92, 212 F.2d 619 (1954); Higgins, Inc. v. Donovan, 249 F.Supp. 941 (c) The deputy commissi......
-
Smith v. United States, 21886.
...refusing to remit the $5,000 bond. United States v. Public Service Mutual, 282 F.2d 771 (2d Cir. 1960); accord, United States v. Eisner, 323 F.2d 38 (6th Cir. 1963); Herman v. United States, 289 F.2d 362 (5th Cir. 1961); United States v. Schlenvogt, 294 F.2d 275 (2d Cir. 1961); Larson v. Un......
-
U.S. v. DiLapi, s. 636-8
...in part on other grounds sub nom. Roberts v. United States, 389 U.S. 18, 88 S.Ct. 1, 19 L.Ed.2d 18 (1967); United States v. Eisner, 323 F.2d 38, 42 (6th Cir. 1963). The filing of a petition for rehearing did not revest jurisdiction in this Court, as appellants apparently recognized by movin......
-
United States v. D'Argento, 63 CR 550.
...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 Bail bonds are contracts between sureties and the Gove......