Kiley and Fairchild, Circuit Judges, and Morgan, District Judge.*fn1
ROBERT D. MORGAN, District Judge.
Defendant prosecutes this appeal to review the order of the court below denying his motions to set aside a bail bond forfeiture theretofore ordered and for remission of the judgment entered upon the forfeited bond.
An indictment, filed February 3, 1966, in the United States District Court for the Northern District of Illinois, charged the defendant with three violations of the narcotics laws. 26 U.S.C. § 4705(a); 21 U.S.C. § 174. Bond was set in the amount of $25,000, and defendant was released from custody pending trial upon depositing with the clerk of the court cash bail in the amount of 10 percent or $2,500.
A jury trial, concluded on October 11, 1966, resulted in a verdict finding the defendant guilty upon all three counts. The cause was continued to November 28, 1966, for the disposition of post-trial motions. In the meantime, defendant remained free on bond.
Prior to the disposition of such motions and the imposition of sentence, defendant departed from the Northern District of Illinois without consent of the court. On October 30, 1966, defendant was arrested entering the State of California from Mexico with certain narcotic drugs in his possession, and a criminal charge was filed against him in the United States District Court for the Southern District of California.
On the day of his arrest in California, defendant contacted his attorney in Chicago and advised him of the fact of the arrest. On the same day, defendant's attorney advised the Assistant United States Attorney in charge of the case in the Northern District of Illinois that defendant had been arrested, that he was in custody in California, and that a criminal complaint had been filed against him in that State.
On the following day, the court entered an order revoking defendant's bail and ordered a bench warrant to issue for his arrest. No order of bond forfeiture was entered at that time.
On December 9, 1966, the District Court in Illinois issued its writ of habeas corpus ad prosequendum for the production of the defendant before the court for sentencing. Pursuant to that writ, defendant was returned to the Northern District of Illinois, in custody, by Deputy United States Marshals from that District. He was brought before the court on December 27, 1966 for sentencing. He was sentenced to a term of imprisonment for a period of twelve years and fined $1,000 on each of the three counts of his indictment. The duration of the prison sentence was subsequently reduced to a term of eleven years on each count.
An appeal, commenced to review defendant's conviction, was dismissed upon defendant's motion on October 10, 1967. On October 11, 1967, counsel for defendant filed in the District Court an assignment executed by defendant, assigning to said counsel all of defendant's rights in the $2,500 bail deposit, and authorizing and directing the clerk of the court to pay such deposit to defendant's attorneys.
On October 18, 1967, defendant's counsel filed a motion for an order directing the clerk of the court to pay the bond deposit to them pursuant to that assignment. On December 13, 1967, the court denied counsel's motion for directions to the clerk to pay the bond deposit to them and entered an order upon the government's motion forfeiting defendant's bond. A motion by defendant's counsel to set aside the forfeiture and for the remission of any judgment thereon was also denied by the court.
Thereafter, on September 29, 1968, the court entered its judgment against the defendant, pursuant to that forfeiture, in the amount of $25,000, and ordered that the clerk of the court apply the $2,500 deposit in partial satisfaction of the judgment. This appeal followed.
The Rule relating to bail provides that the court "shall declare a forfeiture of the bail" if there is any breach of the conditions of a bail bond, and "shall," on motion, enter judgment of default upon the bond against the principal and the sureties thereon unless the forfeiture ...