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July 11, 1977


The opinion of the court was delivered by: MOTLEY



 On November 24, 1975 Gaston Robinson failed to appear during his trial for narcotics-related offenses. His surety was the Argonaut Insurance Company. On December 1, 1975 Judge Cannella, who was presiding over the trial of Robinson and his codefendants, ordered that the $50,000 bond be forfeited under Rule 46(e)(1), Fed. R. Crim. P. The Government moved for judgment on the forfeiture of the surety bond on October 7, 1976. On December 1, 1976 this court signed the forfeiture judgment, although leave was granted to move for reconsideration of this court's order. Such motion was made by Argonaut on December 15, 1976. On reconsideration, this court denies Argonaut's motion to set aside the judgment.

 Robinson was originally indicted in this District under Indictment 74 Cr. 817 which was filed on August 19, 1974. He was arrested on this indictment in Miami, Floria in early October. At that time bail was set at $100,000. When the bail was subsequently lowered to $50,000, Argonaut posted the bond. Robinson was then removed to the Southern District of New York where he was arraigned on 74 Cr. 817.

 On May 12, 1975 Robinson was arraigned on a superceding Indictment, 75 Cr. 429. At arraignment, Judge Cannella ordered the bond on 74 Cr. 817 to be transferred to the new bill. Robinson's attorney, Phillip Carlton, was ordered to notify Argonaut to this effect. It now appears that Carlton never did notify Argonaut of the superceding indictment and the order to transfer the bond.

 Robinson's trial before Judge Cannella began on October 20, 1975. On November 17, 1975 the Government moved that Robinson's bail be increased to $250,000. Aside from those facts already known, the Government added the following new reasons as a basis for its application: Robinson probably had a second passport in addition to the one already confiscated by the Government; certain harmful testimony against Robinson would be corrobrated by another Government witness thus strongly increasing Robinson's chance for conviction.

 Judge Cannella ordered that the bond be increased to $100,000. He gave Robinson 48 hours to obtain the new bond and put Robinson in the custody of his attorney - rather than committing the defendant until the new bond was posted. Judge Cannella subsequently extended the time during which the bond could be secured. As noted before, Robinson failed to appear on November 24, 1975. To this day he has not been apprehended.

 Argonaut advances four separate reasons why it is entitled to a return of its $50,000: 1) Judge Cannella ordered that the bail on the superceded indictment be exonerated; 2) where there is a material modification of the terms of the bond, the Government must notify the surety personally, and the Government failed to do this when the bond was increased; 3) the Government also failed to notify Argonaut when Judge Cannella ordered the bond to be transferred to the new indictment; and 4) Robinson should have been incarcerated when he failed to post the new bond within a reasonable time (i.e. by the end of the day on November 17, 1975).

 Argonaut's late-asserted claim - that the bond on 74 Cr. 817 was exonerated - is without merit. A reading of the full transcript in context demonstrates that this bond would be exonerated on the condition that it be transferred to the superceding indictment. The bond was never transferred and was thus never exonerated.

 The second contention of Argonaut is that the Government's duty was to notify it when Judge Cannella ordered the bond increased to $100,000.This argument rests on the interpretation of dicta in a little-cited Second Circuit case, United States v. Egan, 394 F.2d 262, cert. denied, sub nom. Stuyvesant Ins. Co. v. United States, 393 U.S. 838, 21 L. Ed. 2d 109, 89 S. Ct. 116 (1968). In that case the surety moved to set aside the forfeiture of his bond on the ground that he had no notice of certain occurrences in the trial court. Of direct relevance to this case was the surety's claim that it had no notice that the trial judge changed the conditions of the bond whereby the defendants were required to report to the marshal once every ten days as opposed to every day. The surety claimed that this extension increased the "getaway" time for the defendants and increased the surety's risk.

 The Court never reached the ticklish legal issue because it upheld the trial court's finding that the surety knew of this change. However, it said the following by way of dicta (at 267-68):

 If the Government moves the court for a modification of the terms of the bond, it should give reasonable notice of the motion to the defendant and the surety who moves for a modification of the bail terms, as in the present case, the surety must look to the defendant for notice of the motion or discover it itself from checking the court docket. Regardless of who the movant may be, if the court orders a material modification of the terms of the bond, the defendant must immediately post a new, properly executed bond, or a rider similarly executed for attachment to the old bond, containing the amended conditions. If such an instrument is not filed forthwith, the court must order the defendant held in the custody of the Attorney General until such a bond is furnished.

 In the instant case the Government moved that the bond be increased fivefold, no notice was given the surety by the Government (although the defendant, who was present in court, had notice), and despite the fact that "such an instrument [was] not filed forthwith" the defendant was not taken into custody.

 Application of the Egan dicta would be easy if it were not for the pause-giving facts that Shepards has revealed no case in which the dicta have been applied and the dicta appear to buck the apparent long-standing lack of sympathy extended sureties by other courts. The Argonaut bond has no requirement that the Government give the surety notice of any kind. Courts have held that under these circumstances no notice is required. United States v. Caro, 56 F.R.D. 16, 19 (S.D. Fla. 1972). Caro (at 19) also held that, in any case, notice to the defendant was tantamount to notice to the surety. See also United States v. Wray, 389 F. Supp. 1186 (W.D. Mo. 1975). The Eighth Circuit has imposed the strict requirement that the surety keep itself informed as to what occurs at trial. Stuyvesant Insurance Co. v. United States, 410 F.2d 524, 527, cert. denied, 396 U.S. 836, 24 L. Ed. 2d 87, 90 S. Ct. 96 (1969). ...

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