United States v. Wray

• Decision Date: 24 February 1975
• Docket Number: Crim. A. No. 23892-3.
• Parties: UNITED STATES of America, Plaintiff, v. Lawrence Eugene WRAY, Defendant.
• Court: U.S. District Court — Western District of Missouri

389 F. Supp. 1186

UNITED STATES of America, Plaintiff, v. Lawrence Eugene WRAY, Defendant.

Crim. A. No. 23892-3.

United States District Court, W. D. Missouri, W. D.

February 24, 1975.

J. Whitfield Moody, First Asst. U.S. Atty., Kansas City, Mo., for plaintiff.

Charles A. Gallipeau, Kansas City, Mo., for defendant Wray.

J. Arnot Hill, Kansas City, Mo., for surety Midland.

FINAL JUDGMENT OF DEFAULT FOR PLAINTIFF

WILLIAM H. BECKER, Chief Judge.

This is a collateral proceeding in the above-entitled criminal action on a motion by the Government for judgment of default against the joint obligors on a secured appearance bail bond. The motion for default judgment was filed herein pursuant to Rule 46(e)(3) of the Federal Rules of Criminal Procedure, which provides, in part, that the liability of the obligors on a bail bond ". . . may be enforced on motion for judgment of default without the necessity of an independent action." The material facts are as follows.

Defendant was charged in an information¹ in one count of knowingly making a false written statement in connection with the acquisition of a firearm, all in violation of Sections 922(a)(6) and 924(a), Title 18, United States Code. Defendant was released on a $1,000 secured appearance bail bond. At his arraignment, the defendant entered a plea of guilty to the charge, upon which he was convicted on October 25, 1972. At that time, the defendant was initially sentenced and committed under Section 4208(b), Title 18, United States Code, for a maximum term of imprisonment to the custody of the United States Attorney General for a study and recommendation and return to this court for final sentencing. For the convenience of the defendant, on the same day execution of the initial sentence was originally stayed until November 8, 1972, and thereafter was further stayed until November 13, 1972, by order dated November 8, 1972. The circumstances surrounding the oral grant of the original stay are as follows:

"THE COURT: Now, I am willing to grant a stay of execution for a short period, if I get the defendant's assurance he isn't going to run again like he did when the Springfield Court gave him a stay for 30 days, and give him time to get his, try to get his business affairs in shape.

"THE COURT: What do you have to request in this way?

"MR. GALLIPEAU: He told me prior to coming into court, Your Honor, that he needed ten days to two weeks in order to wrap up his used car operation; that he simply had not been able to do so up to this time. He has a problem with, he tells me, a problem with automobile titles with the State that must be taken care of.

"THE COURT: I am not worried about the time. I am just worried about his assuring me that he is going to come back, because he is going to have a lot of trouble if he doesn't. I am required to make this study to impose the maximum of five years, and if he runs, in all likelihood it will never be reduced, and he will commit another offense by absconding from bail.

"THE DEFENDANT: All I can say is that I will return.

"THE COURT: All right. Execution of this sentence is stayed until 10:00 a. m., November 8, 1972, at which time the defendant shall surrender to the United States Marshal at Room 509, U.S. Courthouse, 811 Grand, Kansas City, Missouri. Defendant is ordered released until then on the currently filed bail bond which shall continue in force. Now, you understand, if you do abscond you will have committed another serious offense. Do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT: If you don't show up here this time a warrant for your arrest will be issued and you will be severely prejudiced in the sentence finally to be imposed in this case."

The written order dated November 8, 1972, further staying execution, also directed that the defendant surrender to the United States Marshal for transportation to Springfield, Missouri, for a ninety-day study. At the completion of that study, the defendant was to be returned to this court with the report and recommendation for final sentencing.

The defendant did not surrender himself to the custody of the United States Marshal on November 13, 1972, as ordered by this Court. On December 6, 1972, forfeiture of the defendant's bail bond was ordered,² and an order was entered directing that a warrant for the arrest of the defendant issue forthwith. Thereafter, the earlier order of October 25, 1972, was vacated and the United States Marshal was directed to produce the defendant for sentencing again on March 13, 1973.

On March 13, 1973, the defendant was again committed for the maximum term of imprisonment to the custody of the Attorney General for the purpose of a study and recommendation under the provisions of Section 4208(b), Title 18, United States Code.

On July 5, 1973, a final sentence of five years imprisonment was imposed upon the defendant under Section 4208 (a)(2), Title 18, United States Code.³

On April 20, 1973, counsel for the Government filed herein a "Motion for Judgment of Default," seeking an ". . . order of judgment of default against Lawrence Eugene Wray and Midland Insurance Company . . . for the $1,000 surety bond filed in the case of United States of America v. Lawrence Eugene Wray, No. 23892-3, which bond is secured by the Midland Insurance Company as surety. . . ." In response thereto, an order was entered by this Court on May 18, 1973, therein directing the defendant Lawrence Eugene Wray, Midland Insurance Company, and John T. Wheeler, local attorney for Midland Insurance Company, separately to show cause in writing why the motion for default judgment on the $1,000 surety bond should not be granted.

Thereafter, on June 4, 1973, counsel for Midland Insurance Company ("Midland" hereinafter) filed herein a response to the order to show cause, therein contending that Midland ". . . was not under obligation on the bond in question after judgment and sentence." In support thereof, counsel for Midland alleges that the "surety in this case guaranteed that the defendant would appear for trial or plea or sentencing"; that "there were no conditions in the bond to provide for any liability after sentencing"; that the "defendant Lawrence Eugene Wray in the absence of a notice of appeal was not eligible to be released on bond or to have a bond set"; and that ". . . a defendant after being sentenced is normally a greater risk from the standpoint of surety than someone who has not as yet been sentenced, and that before a surety can be held liable under these circumstances, the surety should be notified and a new bond set just as is done in the event of appeal."

On June 12, 1973, counsel for the Government filed herein his "Response of United States of America to Midland Insurance Company's Statement," therein stating, among other things, that "the bonding company, in the fulfilment (sic) of its obligations created by acting as surety for the bond executed by Lawrence Eugene Wray in this case, is presumed to know and keep itself advised of the status of the case as well as the location of the defendant at all times. The failure of the bonding company to notify the court or otherwise object to the release of the defendant at his request during the stays of execution of the sentence can only be regarded as acquiescence in the request of the defendant and action of the court."

Following the entering of an order on June 3, 1974, directing that a photocopy of the plaintiff's motion for judgment of default be served on the principal and surety, counsel for Midland filed herein on June 12, 1974, further suggestions in opposition to the motion for judgment of default. In the additional suggestions in opposition, counsel for Midland states, in part, as follows:

"It is the surety's contention that when defendant appeared for sentencing and had been sentenced, that surety's obligations on the bond were at an end. The very purpose of the bond on which the Midland Insurance Company was surety, was to guarantee the appearance of defendant at the proceedings against him up until sentence. At the time defendant was sentenced and a stay of execution of that sentence was granted to him, his surety had no opportunity to refuse to proceed as defendant's surety, although he would have had ample grounds to do so. A defendant under a sentence is a much greater risk than a defendant who has not as yet been sentenced, for a defendant not under sentence has the hope of parole. We suggest that at the time defendant failed to appear the Midland Insurance Company was no longer the surety on his bond and in fact, he was not released on a bond."

The specific conditions of the bail bond in the case at bar are as follows:

"The conditions of this bond are that the defendant Lawrence Eugene Wray is to appear before Calvin K. Hamilton, United States Magistrate for the Western District of Missouri, at Kansas City, Missouri, and in the United States District Court for the Western District of Missouri, at Kansas City, Missouri, and at such other places as the defendant may be required to appear, in accordance with any and all orders and directions relating to the defendant's appearance in the above entitled matter as may be given or issued by the magistrate or by the United States District Court for the Western District of Missouri, or any other United States District Court to which the defendant may be removed or the cause transferred; that the defendant is not to depart the Western District of Missouri, or the jurisdiction of any other United States District Court to which the defendant may be removed or the cause transferred after he has appeared in such other district pursuant to the terms of this bond, except in accordance with such orders or warrants as may be issued by the magistrate or the United States District Court for the Western District of Missouri, or the United States District Court for such other district; that the defendant is to abide any judgment entered in such

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