The opinion of the court was delivered by: Parsons, District Judge.
A Federal Grand Jury sitting here in the Northern District
of Illinois returned on September 26, 1963, an indictment
charging Joseph D'Argento and four other persons with bank
robbery. The charge was that D'Argento and the others, on
September 23, 1963, with use of a firearm, robbed the Franklin
Park Bank, Franklin Park, Illinois, of approximately
$43,097.00. The return of the Grand Jury was made before the
Chief Judge of the District who set bail as to each defendant
in the amount of $50,000.00, and ordered the indictment
suppressed. Four days later, D'Argento and three of the other
defendants were apprehended in Chicago. The indictment was
then released, and the instant case was docketed and, by lot,
assigned to this Court.
On the same day of arrest, D'Argento appeared and moved this
Court for a reduction of his bail. His attorney, however, was
at the time insufficiently acquainted with the defendant, his
background and his financial condition, to address himself
reliably to the considerations spelled out in Rule 46 of the
Federal Rules of Criminal Procedure, whereupon the motion for
reduction was continued to a short date for further
Before this further hearing, however, the defendant made bail
and abandoned his motions. The Maryland National Insurance
Company executed as his surety an appearance bond in the full
amount of $50,000.00.
For many years and until recently, the form of the bond used
in this district was identical to Form 17 which appears in the
Appendix to the Federal Rules of Criminal Procedure. Recently,
however, a revised form has come into use, and was used in the
instant matter. A new condition appearing on it is the
"That the defendant is not to depart the Northern
District of Illinois * * * except in accordance
with such orders * * * as may be issued by * * *
the United States District Court for the Northern
District of Illinois."
The new form further provides much the same as did the
earlier form that:
"If the defendant fails to obey or perform any of
these conditions, payment of the amount of this
bond shall be due forthwith."
From the late hours of November 17, 1963, until the early
hours of November 19, 1963, Joseph D'Argento was out of the
Northern District of Illinois. He spent a day in Los Angeles,
California. Neither he nor his surety sought or obtained
permission of this Court to leave the district. In arranging
flights to and from Los Angeles, he used an alias. There is
evidence that on at least two additional occasions subsequent
to making bail in the instant case, he went to Los Angeles for
a day and then returned. On each of such occasions, including
November 18, he had pre-set court appearances to make in
proceedings against him in the Superior Court of California
for the County of Los Angeles. Allegedly, he also used these
trips for other purposes. Substantial FBI investigation
of his activities on November 18, resulted in his being
charged, upon his return, with theft of a Chicago-Los Angeles
shipment of furs.
On December 4, 1963, while D'Argento was in Federal custody
in Chicago, charged with one or more of these newer
violations, the United States Attorney appeared ex parte before
this Court and requested an immediate declaration of forfeiture
of the $50,000.00 bond on the ground that D'Argento had
breached the condition of the bond requiring Court permission
to leave the district. Evidence was heard and the order
declaring forfeiture was entered.
The entry of the declaration of forfeiture order was proper.
Rule 46(f)(1) makes forfeiture mandatory upon a finding that
there has been a breach of a condition of bail. United States
v. Kehrt, 15 Alaska 406, 128 F. Supp. 38 (D.Alaska 1955). And
a forfeiture may be requested ex parte. National Surety Co. v.
United States, 29 F.2d 92 (9th Cir. 1928); Western Surety Co.
v. United States, 51 F.2d 470 (9th Cir. 1931). It is sufficient
for a forfeiture if, in an ex parte hearing, the Court, is
satisfied from the evidence that the Government has reason to
believe that there has been a breach of a condition of the
bond. Accord, United States v. Eisner, 323 F.2d 38 (6th Cir.
1963); and a prima facie case of a breach is sufficient for a
forfeiture under any circumstances.
Bail bonds are contracts between sureties and the Government
which must be strictly construed in accordance with their
terms. Dudley v. United States, 242 F.2d 656 (5th Cir. 1957);
Heine v. United States, 135 F.2d 914 (6th Cir. 1943); and when
the Government shows a breach of any condition of the bond,
proof of actual damages to the Government is unnecessary,
since the full amount of the bond constitutes liquidated
damages in the nature of a penalty. Cf. United States v.
Davis, 202 F.2d 621 (7th Cir. 1953).
The surety may, nevertheless, be entitled to some relief.
Rule 46 of the Federal Rules of Criminal Procedure empowers
the District Courts to exercise considerable latitude in the
remission or setting aside of bail forfeiture. Paragraph
(f)(2) provides: "The Court may direct that a forfeiture be set
aside, upon such conditions as the court may impose, if it
appears that justice does not require the enforcement of the
forfeiture." (Emphasis added.) Paragraph (f)(4) provides:
"After entry of such judgment, the court may remit it in whole
or in part under the conditions applying to the setting aside
of forfeiture in paragraph (2) of this subdivision." (Emphasis
Clearly, in the adoption of Rule 46, there is indicated the
intention to broaden substantially the discretion of the
District Courts from that which had theretofore existed.
Larson v. United States, 296 F.2d 167 (8th Cir. 1961);
Smaldone v. United States, 211 F.2d 161 (10th Cir. 1954). Cf.
Continental Casualty Co. v. United States, 3 ...