Summary
In United States v. Amend, 622 F.2d 782 (5th Cir. 1980), the court held that one of the bond's conditions was that defendant appear to surrender into custody after affirmance of her conviction on appeal. The bond provided that "if [defendant's] failure to appear is... while awaiting sentence or pending appeal or certiorari after conviction, the penalty is a fine... or imprisonment."
Summary of this case from United States v. BanksOpinion
No. 79-2238.
July 30, 1980.
Ray Sandstrom, Fort Lauderdale, Fla., for defendants-appellants.
Robert E. Hauberg, U.S. Atty., James B. Tucker, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before BROWN, GEWIN and POLITZ, Circuit Judges.
After her failure to secure a reversal of her conviction, Carol Amend was ordered to surrender to begin service of her sentence. The surrender date arrived; Amend did not. Allegheny Mutual Casualty Company (Allegheny) appeals an order of forfeiture of a bond for $50,000 which it had issued assuring Amend's appearance. We affirm the judgment of forfeiture.
Carol Amend was indicted on two counts of violating the federal Controlled Substance Act. Bond was set at $50,000. Allegheny issued its surety bond in that amount and Amend was released pending trial. After transfer to the Southern District of Mississippi, the case was tried to a jury. Amend was convicted, and on November 10, 1977, she was sentenced to two concurrent three year prison terms and to two concurrent two year special parole terms. She appealed and sought continuation of bail. She was allowed bail pending appeal and permitted to continue on the same bond. Allegheny was not notified of her release on the same bond pending appeal.
This court affirmed the convictions, United States v. Amend, 577 F.2d 145 (5th Cir. 1978), cert. denied, Amend v. United States, 439 U.S. 985, 99 S.Ct. 578, 58 L.Ed.2d 657 (1978). Pursuant to our mandate, the district court ordered Amend to surrender on January 8, 1979, to begin serving the sentence. Copies of the surrender order were mailed to Amend, her Florida attorneys of record, her Mississippi attorneys of record and to Allegheny. She did not appear in response to the surrender order. Following appropriate procedures, the district court issued an alias warrant and entered an initial bond forfeiture which was subsequently confirmed and made final.
On appeal, Allegheny argues that it issued an appearance bond extending to the time of sentencing but not continuing through the post-sentence appeal period. Allegheny contends that our decision in United States v. Dinneen, 577 F.2d 919 (5th Cir. 1978) is dispositive of the issue. Although Dinneen is pertinent and very helpful, it is not controlling.
At issue is whether the surety bond was intended to assure Amend's presence during the appeal process. In answering this question, we are cognizant of the rule that "the terms of a bail contract are to be construed strictly in favor of the surety, who may not be held liable for any greater undertaking than he has agreed to . . . However, like any other contract a bail bond should be construed to give effect to the reasonable intentions of the parties." United States v. Miller, 539 F.2d 445, 447 (5th Cir. 1976); Dinneen, supra. Compliance with the rule requires that we carefully review the express language of the bond before us. It provides that:
We reproduce the bond in the Appendix.
The defendant is . . . to obey and perform the further conditions of bond attached hereto and made a part hereof.
The "conditions of bond" referred to in the body of the main text of the surety contract, provide in relevant part:
I, Carol Amend, understand that . .
* * * * * *
3. I am required to appear before the United States Magistrate and/or the United States District Court in accordance with all notices;
4. . . . if my failure to appear is . . . while awaiting sentence or pending appeal or certiorari after conviction, the penalty is a fine . . or imprisonment . . .
5. A violation of any condition of my bond may result in forfeiture of bail by the United States District Court . . .
Both Amend and Allegheny's representative signed the bond and conditions of bond attachment.
Do these provisions of the bond, when read in context with the entire contract, reflect an agreement of Allegheny to assure Amend's post conviction appearance both during and after conclusion of her appeal? We hold that they do.
Allegheny's reliance on Dinneen is misplaced. The language in the Dinneen bond, which is set forth in full in that opinion, and the language of the instant bond are markedly similar. However, there are crucial differences. The first distinction is the following language which appears in the Amend bond at the end of the paragraph beginning with the words, "The conditions of this bond are":
and to obey and perform the further conditions of bond attached hereto and made a part hereof.
The second significant distinguishing feature is the separate sheet entitled "Conditions of Bond" which is attached to the bond. It is this attachment which refers to appeals, appearances post appeal, and explicitly indicates that any violation of any condition may result in forfeiture of the bail.
It is entirely too facile to suggest that the language quoted above, taken from the Conditions of Bail attachment and relating to appeals, is simply a warning to Amend that if she fails to appear she may commit a criminal offense. The purpose of this contract is to secure the release of Amend and to assure her timely appearance when ordered; it sets out the obligations and responsibilities of the parties. The language concerning appeals and appearances post appeal must be understood in that light and not taken as an esoteric discussion on the criminal law of bond jumping.
We conclude from the language of this surety contract that it was the intention of Allegheny to issue a bond for $50,000 assuring the appearance of Carol Amend in response to any valid order of the District Court. When Amend failed to surrender as ordered by the court, the conditions of this bail bond were breached and forfeiture was in order.
The judgment of the district court is AFFIRMED.
I concur fully and unequivocally in the opinion of the Court. I write simply to alert the bench and bar that the problem posed by . . . United States v. Dinneen, 577 F.2d 919 (5th Cir. 1978), is now a matter solely of history. Subsequent to Dinneen, the Administrative Office of the United States Courts altered the form for a bond contract to provide explicitly for coverage of appeals. Form 17 has been amended to state:
It is agreed and understood that this is a continuing bond (including any proceeding on appeal or review) which shall continue in full force and effect until such time as the undersigned are duly exonerated.
The underscored language was added to clarify specifically the continuing nature of the bond throughout the process of review. Now and forever after we are released from the bonds of Dinneen and may proceed more surely in our review of the continuance of the surety bond through the bonded's appeal.