or that he had been imposed upon by some fraudulent device.
Nevertheless, to the extent that the evidence, including the
defendant's and surety's alleged unawareness of all the terms
of the bond, demonstrates that the breach was not willful, it
is entitled to substantial weight. For it is evident that
under Rule 46(f)(2) a District Court has discretion to give
relief to bondsmen even though the breach be willful. United
States v. Davis, 202 F.2d 621 (7th Cir. 1953). A fortiori,
evidence indicating a lack of willfulness and showing good
faith and total compliance with the other terms of the bond,
such as the appearance requirements, should weigh heavily in
favor of a motion to set aside or remit at least part of that
which has been declared forfeited.
Of substantial concern to the Court, in and of itself and as
an element showing good faith, is the fact that the defendant
was required by law to appear at some place outside this
jurisdiction. In general, it is a complete defense to
forfeiture that the defendant's performance of a condition of
a bail bond was rendered impossible by an act of God, or of
the law, or of the obligee. Taylor v. Taintor, 16 Wall. 366,
83 U.S. 366, 21 L.Ed. 287 (1872). But the "act of law" which
excuses breach must be a law operative in the state where the
obligation was assumed, and obligatory in its effect upon her
authorities. Taylor v. Taintor, supra; Reese v. United States,
9 Wall. 13, 76 U.S. 13, 19 L.Ed. 541 (1869); United States v.
Craft, 162 F. Supp. 578 (S.D.W.Va. 1958); Restatement of
Security, § 207 (1941). The rationale of the rule is that it
would be manifestly unfair to allow the sovereign-obligee or
any of its co-ordinate branches to impair the bond obligation
by placing the defendant beyond the reach of the surety, thus
preventing his appearance, and then to forfeit the defendant's
bond for his failure to appear. (Cases cited above.)
Where, however, a principal in bail bond in Federal Court is
caused to default on such bond by reason of his detention by
state authorities on a criminal charge, the rationale does not
apply. In such a case of so-called diversity of
sovereignty,*fn4 the breach is not totally excused, but a
District Court may, in its discretion, grant partial relief to
the surety. United States v. Burl, 67 F. Supp. 583 (E.D.Ill.
Another area of legitimate concern pertinent here is the
extent to which, if at all, the Government was prejudiced or
put to expense and inconvenience by the breach. Cf. United
States v. Smoller, 275 F. 1011 (D.Del. 1921). While the Court
of Appeals for the Seventh Circuit stated in United States v.
Davis, 202 F.2d 621, at 625, that "the government was under
(no) obligation to produce evidence to show even approximately
the total amount of expenses caused by defendant's default,"
the Court went on to observe that "the (district) Court might
well have directed an inquiry on this subject * * *."
It seems clear, then, that prejudice and expense to the
Government is an element that may be considered on a motion to
set aside or remit a bond forfeiture. With this in mind, and
with due regard for the wise observation of its Circuit Court
of Appeals, this Court ordered a hearing and gave the
Government an opportunity to prove up any damages or expenses
it incurred by reason of defendant's breach.
The Government sought to prove between two and three
dollars worth of expenses, but as the testimony developed, it
became apparent that no time or money was spent in attempting
to locate D'Argento. All of the expenses related to the
investigation of the Los Angeles fur robbery. I find such
expenses only remotely connected with or caused by defendant's
breach of the travel restriction. The purpose of the bond as a
whole was not to insure against future criminal conduct, but
rather, to insure the defendant's appearance in this Court, and
the purpose of the travel restriction was to minimize any
expenses which might be incurred in locating him. If a purpose
of the clause limiting travel was to insure against future
criminal conduct, it could easily have read with more clarity
to that end. More important, however, is that such a purpose
would be utilizing bail for a function which, historically, it
was never intended.*fn5 Furthermore, to read such a purpose
into that clause would be unreasonable, for the Government's
interest in preventing crime would relate with equal vigor
within the Northern District of Illinois as without its
Nevertheless, regardless of the foregoing, and even though
the Government has not shown how it has been damaged or
prejudiced, I cannot in good conscience persuade myself that
all of the $50,000.00 bond declared forfeited should be set
aside or remitted. A surety owes the Court a duty to make some
effort to see that the principal complies with the orders of
the Court. United States v. Nordenholz, 95 F.2d 756 (4th Cir.
1938). "When bail is given, the principal is regarded as
delivered to the custody of his sureties." Taylor v. Taintor,
16 Wall. 366, 83 U.S. 366, 371, 21 L.Ed. 278 (1872). The
surety has his principal on a string since, under Title 18
U.S.C.A. § 3142, a surety may, at any time, arrest the
principal and deliver him into the custody of the United
States, and be fully discharged thereby.
The surety here apparently did nothing to explain to the
defendant the terms and meaning of the bond, nor did it
impress upon the defendant the possible consequences of a
breach of its conditions. Neither did the surety (or the
defendant) make timely application to this Court for relief
from that portion of the bond here in issue. Specifically, the
surety could have requested from this Court permission to
leave the jurisdiction. Detroit Fidelity & Surety Co. v.
United States, 36 F.2d 682 (6th Cir. 1930). This would not
have been an alteration of the conditions of the bond or an
extension inconsistent with its terms, Taylor v. Taintor, 16
Wall. 366, 83 U.S. 366, 21 L.Ed. 287 (1872), since the very
language of the condition permitted exceptions to its
operation. Alternatively, the surety could have invited the
United States Attorney to join with him in requesting the
Court to waive the condition of the bond forbidding the
defendant from leaving the jurisdiction.
I realize that sureties, in general, are often favored, but
where, as here, the surety is partially at fault and has done
nothing to prevent a breach, a forfeiture of some meaningful
amount would be proper. While exemplary damages are often
viewed as a vindictive measure, their function in this
instance is to educate the surety as to his obligations and
responsibilities. This is clearly within the discretion of the
Court to set aside or remit an amount which is wise and
The surety argues, however, that Illinois law controls the
question whether a penalty over and above expense to the
Government be allowed for bail forfeiture without proof of
actual damages. He is in error. Before the adoption of the
Federal Rules of Criminal Procedure in 1946, interstitial
concerning bail in the Federal Courts were expressly governed
by state procedural law by virtue of a conformity statute.
(Former Title 18, § 591 — since repealed). See Heine v. United
States, 135 F.2d 914 (6th Cir. 1943). However, the present
statute, Title 18, § 3041 provides, in part, that "A United
States judge or commissioner shall proceed under this section
according to rules promulgated by the Supreme Court of the
United States." This Court derives from Rule 46 of the Federal
Rules of Criminal Procedure a policy necessitating the use of
Federal, rather than State, law to govern all matters
pertaining to bail bonds in the Federal Courts, including such
questions as what constitutes breach of a condition of a bail
bond, how much evidence is necessary to sustain a declaration
of forfeiture in an ex parte hearing, what defenses are
available to sureties, whether conditions of a bond are
reasonable, whether exemplary damages may be allowed for bail
forfeiture without proof of actual damages to the Government,
and how much of a bail bond should be set aside or remitted
after forfeiture. See Note, Rules of Decision In Nondiversity
Suits, 69 Yale L.J. 1428 (1960); Clearfield Trust Co. v. United
States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943);
Fansteel Metallurgical Corp. v. United States, 172 F. Supp. 268,
145 Ct.Cl. 496 (1959); United States v. Starr, 20 F.2d 803 (4th
Cir. 1927); United States v. Travelers Indemnity Co.,
215 F. Supp. 455 (W.D.Mo. 1963).
Under Federal law, exemplary damages are permitted for bail
forfeiture without proof of actual damage to the Government.
"In every case there must be a penalty over and above the mere
amount of the expense to the Government." United States v.
Ciena, 195 F. Supp. 511 (S.D.N.Y. 1961). The justification of
the penalty is that it serves to discourage future violations
of bail covenants and to deter defaults. United States v.
Smith, 5 F.R.D. 274 (W.D.Ky. 1946).
"If the principal and those who have put up the
bail know that all that will be lost by a
temporary absence of the principal is the expense
to which the Government will be put, a situation
will have been created where a principal and his
friends can purchase respite at a semi-fixed
price. Another result * * * would be that those
who stood to lose would relax their vigilance in
preventing default * * *." United States v.
Ciena, 195 F. Supp. 511, 512 (S.D.N.Y. 1961).
All bondsmen must become more aware of their duties and
responsibilities. If they disregard these things,
intentionally or through neglect, then a forfeiture of the
entire amount they guarantee would be proper. The risk they
assume presumably is fully understood by them and it is not
the judiciary's prerogative to subsidize the bonding business
or any particular member thereof.