Williams v. United States, 472-70.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: PICKETT, Senior Circuit , HOLLOWAY, Circuit , and BRATTON
• Citation: Williams v. United States, 444 F.2d 742 (10th Cir. 1971)
• Decision Date: 30 June 1971
• Docket Number: No. 472-70.,472-70.
• Parties: Rudolph WILLIAMS, and United Bonding Insurance Company, Surety-Appellant, v. UNITED STATES of America, Appellee.

444 F.2d 742 (1971)

Rudolph WILLIAMS, and United Bonding Insurance Company, Surety-Appellant, v. UNITED STATES of America, Appellee.

No. 472-70.

United States Court of Appeals, Tenth Circuit.

June 30, 1971.

Lewis E. Pierce, of Pierce, Duncan, Bill & Russell, Kansas City, Mo. (Robert G. Duncan, Kansas City, Mo., and James E. Woodson, Topeka, Kan., with him on the brief), for appellant.

Edward H. Funston, Asst. U. S. Atty., Wichita, Kan. (Robert J. Roth, U. S. Atty., and Stephen K. Lester, Asst. U. S. Atty., on the brief), for appellee.

Before PICKETT, Senior Circuit Judge, HOLLOWAY, Circuit Judge, and BRATTON, District Judge.

BRATTON, District Judge.

This is an appeal from an order of the court below denying appellant's motion to set aside the judgment and forfeiture previously entered against it as surety on a bond for Rudolph Williams.

Williams was convicted of bank robbery in August of 1968. He was sentenced to a prison term of ten years and remanded to the custody of the Attorney General. He subsequently filed a notice of appeal and, when appellant posted its bond in the sum of $15,000.00 on November 1, 1968, was released from the federal penitentiary at Leavenworth, Kansas, pending the cutcome of his appeal.

On December 18, 1968, Williams was arrested and confined to jail by state authorities upon a charge stemming from events subsequent to his release from Leavenworth.

Two days later the United States Attorney filed in the court below a motion pursuant to 18 U.S.C. § 3148 to recommit Williams and to have his bail forfeited. A copy of this motion, together with the court's order setting a hearing on the motion on December 24, 1968, was served upon Williams in jail and upon his court-appointed trial counsel.

Neither Williams nor his counsel appeared at the hearing, and no one representing the bonding company was present. Testimony at the hearing revealed that Williams was being held in connection with the investigation of an armed robbery and a homicide.

At the conclusion of the hearing, the court found that Williams was a danger to other persons and to the community and revoked his liberty under the bond. The bond was also ordered forfeited on the ground that the defendant had violated the terms and conditions of the bond.

In January, Williams was discharged after a preliminary hearing on the state charges against him, and he was taken into federal custody and returned to Leavenworth.

On March 7, 1969, the government filed a motion for judgment of default on the bond against Williams and his surety on the ground that the failure of Williams to appear had violated that condition of his bond requiring his appearance when ordered by the court.

Notice of this motion and the court's order setting a hearing on it on March 24, 1969, were mailed to Williams, the surety, and the surety's attorney.

Again, no one appeared for Williams, and no one appeared for the bonding company. The court then granted the government's motion to forfeit Williams' bond and granted judgment against Williams and the bonding company in the sum of $15,000.00.

The surety, under Fed.R.Crim.P. 46(f) (4), moved on April 21, 1969, to set aside the judgment and forfeiture of bail upon the grounds that Williams' default was not willful, that his performance of the bond's conditions was rendered impossible by act of law and that the government had suffered no injury or cost by his failure to appear.

Oral arguments were had on this motion in June of 1969, and counsel thereafter submitted briefs on the issues.

In April of 1970, the court denied the motion, and, after an unsuccessful attempt to get a rehearing below, the surety filed this appeal.

It is contended here that the trial court abused its discretion in denying the motion to set aside the judgment and forfeiture, and we are asked to reverse and remand this cause with directions to enter an order sustaining the motion and ordering a remission of the entire bond. For the reasons discussed below, we decline to do so.

Williams breached a condition of his bond when he failed to appear on December 24, 1968. The bond contained language requiring him to appear in...