United States v. Rosenfeld, 11523.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: WOODROUGH and THOMAS, Circuit , and NORDBYE
• Citation: United States v. Rosenfeld, 109 F.2d 908 (8th Cir. 1940)
• Decision Date: 19 March 1940
• Docket Number: No. 11523.,11523.
• Parties: UNITED STATES v. ROSENFELD et al.

109 F.2d 908 (1940)

UNITED STATES v. ROSENFELD et al.

No. 11523.

Circuit Court of Appeals, Eighth Circuit.

February 26, 1940.

Rehearing Denied March 19, 1940.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellant.

George C. Dyer, of St. Louis, Mo., for appellees Charles S. Ladinsky and Moe Kanner.

Before WOODROUGH and THOMAS, Circuit Judges, and NORDBYE, District Judge.

NORDBYE, District Judge.

This is an appeal by the United States from a judgment vacating the forfeiture of the appearance recognizance of one John A. Rosenfeld, who had been indicted in the District Court for a violation of the mail fraud statutes. Recognizance was executed in the sum of $1,500. A plea of nolo contendere was entered on January 23, 1939, and the court indicated that a sentence of eighteen months in the penitentiary would be imposed. Upon Rosenfeld's request however, sentence was deferred until January 30, 1939, in order to permit further investigation of certain facts contained in the report of the Probation Officer. On January 30, 1939, Rosenfeld requested a further extension until February 6, 1939, which was granted upon the condition that a new bond in the sum of $3,000 be furnished. This was done with appellees Charles S. Ladinsky and Moe Kanner as sureties. On February 6, 1939, Rosenfeld failed to appear and his bond was declared forfeited by the court as to the principal and sureties. Prompt notice was given to the sureties of such forfeiture. It is stipulated between the parties that Rosenfeld's failure to appear on February 6, 1939, was wilful and deliberate.

It appears that, within a few days after January 30, 1939, Rosenfeld stored his furniture in St. Louis under an assumed name and went to Florida. On the same day that the forfeiture was entered, the United States filed its motion for judgment upon said forfeiture which motion was duly served upon the sureties. Upon receipt of notice, the sureties undertook to locate the defendant. They expended time and money in their efforts to do so, and finally located him in Chicago. They went to Chicago and took with them a Postal Inspector. Rosenfeld was arrested, brought into court and sentenced on March 6, 1939, and was thereafter incarcerated. The motion for judgment against the sureties was presented on the same day, and on March 8, 1939, the court vacated the forfeiture, conditioned upon the sureties' paying costs incurred in the sum of $100. This appeal followed.

The right of the court to release the sureties from the penalty of a bond forfeiture is found in Section 601, 18 U.S.C.A., which reads: "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."

It is the position of the appellant that, in view of the admitted wilful default, no discretion rested in the court, upon judgment of forfeiture being entered, to remit the whole or a part of the penalty of the bond. Appellees take the position that Section 601 is not applicable because no judgment of penalty had been entered. That is, before any judgment had been entered against the sureties, Rosenfeld was apprehended largely through the aid and assistance of the sureties, and thereafter the court duly sentenced him and set aside the forfeiture that had been entered. It is urged that the court retained full and complete jurisdiction during the term to modify or set aside "an interlocutory judgment"; that there was no final judgment of forfeiture. Apparently, it is appellees' position that there is no final judgment of forfeiture until a money judgment has been entered against the sureties.

That appellees' position is unsound seems clear. The forfeiture of the bond took place on February 6, 1939, when the court ordered that Rosenfeld's bond should be forfeited. The condition of the bond had been breached by his failure to appear. Any subsequent proceedings that may have taken place to enforce the penalty of the bond was a mere continuation of the proceedings in which the judgment of forfeiture was entered. Appellees confuse a judgment entered against sureties by way of a money judgment with an adjudication of forfeiture. Section 601 does not refer to the judgment against the sureties on the bond; it refers to the judgment of the court in forfeiting the recognizance. That the order of forfeiture is a final judgment upon the entry thereof is evident from the following cases. Detroit Fidelity & Surety Company v. United States, 8 Cir., 59 F.2d 565, certiorari denied, 287 U.S. 633, 53 S.Ct. 84, 77 L.Ed. 549; United States v. Capua et al., 7 Cir., 94 F.2d 292; United States v. Mack, 295 U.S. 480, 55 S.Ct. 813, 79 L.Ed. 1559, which cites with approval Detroit Fidelity & Surety Company v. United States, supra.

In Detroit Fidelity and Surety Company v. United States, supra, this court found that the default and adjudication of forfeiture occurred on September 26, 1930, and that a writ of scire facias was issued on the same day; that thereafter, on November 19, 1930, the principal died. In March, 1931, the indictment was nolled because of the principal's death. Judgment in the scire facias proceedings was thereafter rendered against the surety. The surety appealed. The court stated (page 568 of 59 F.2d): "* * * The question as to whether or not any liability accrued against the appellant must be determined by the conditions obtaining at the time of the default, and the adjudication of...