United States v. Russo

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: BYERS
• Citation: United States v. Russo, 7 F.Supp. 391 (E.D. N.Y. 1934)
• Decision Date: 05 June 1934
• Docket Number: No. 33757.,33757.
• Parties: UNITED STATES v. RUSSO.

7 F. Supp. 391

UNITED STATES v. RUSSO.

No. 33757.

District Court, E. D. New York.

June 5, 1934.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Frederick J. Peper, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Arthur A. Kestler, of Brooklyn, N. Y., for surety.

BYERS, District Judge.

Motion for an order cancelling a bond on which the above defendant was admitted to bail upon his arraignment before a United States Commissioner on a charge of transporting and possessing alcohol on August 16, 1932, in violation of the National Prohibition Act.

Defendant was held by the Commissioner, and subsequently an information was filed in this court, and he was notified to appear on January 3, 1933. His surety received a copy of that notice.

The defendant defaulted and on January 10, 1933, a bench warrant was issued for his arrest, which apparently was never served.

This bond was forfeited on January 3, 1933, and on January 24, 1933, an order of forfeiture was signed, providing for the issuance of a scire facias. Such writ was issued on that day, returnable on February 8, 1933. It was not served upon the surety, because on January 25, 1933, an order was signed in the Supreme Court of this state, vesting the properties and assets of the surety in the Superintendent of Insurance as liquidator, because of the company's insolvency.

On September 16, 1933, a proof of claim was filed by the United States in the amount of the bond, $1,000.00, based upon the said forfeiture.

The Twenty-First Amendment to the Federal Constitution became effective nearly three months later, and that is urged as the reason why this motion should be granted, i. e., that the surety should be relieved of its contract.

The bond was not given under the prohibition law, and U. S. v. Mack (D. C.) 6 F. Supp. 839, therefore does not control.

It is true that, if the defendant were to surrender, he could not be made the subject of a valid judgment of conviction (U. S. v. Chambers et al., 291 U. S. 217, 54 S. Ct. 434, 78 L. Ed. 763), but that does not prove that he did not wilfully default on January 3, 1933, or that his bond was not forfeited as stated.

If a trial of the defendant could be had and the surety were now to seek relief from the forfeiture, the inquiry would turn upon the wilfulness of the default. R. S. § 1020 (title 18, U. S. C. § 601 18 USCA § 601); U. S. v. Kelleher (C. C. A.) 57 F.(2d) 684, 84 A. L. R. 14.

If the defendant had died after January 3, 1933, the above statute would not avail the surety Detroit Fidelity & Surety Co. v. U. S. (C. C. A.) 59 F.(2d) 565; U. S. v. Costello (C. C. A.) 47 F.(2d) 684 but death prior thereto would have...