Appendix — Cotton Belt Insurance v. United States

Appendix

1, Opinion and Judgment of the Court of Appeals.

2. Filing and Spreading Judgment of the Court of

Appeals.

CERTIFICATE OF SERVICE

I hereby certify that on this [Yr day of September, 1982,

three copies each of the Petition For Writ of Certiorari

were mailed, postage paid, to Andrea Sheridan Ordin,

United States Attorney, Central District of California and

to Sara Criscitelli, Msq., and the Solicitor General of the

United States.

Curis A. ScHAEFER

155 No. Redwood Dr., Suite 250

San Rafael, California 94903

Counsel for Petitioner

A2 Appendiz

Do Not Publish

United States Court of Appeals

For the Ninth Circuit

Unrrep States or AMERICA,

Plaintiff-A ppellee,

vs.

Arruur II. Biadas,

Defendant,

Corrox Beit Iysurance Company, IN.,

Surety and Real Party No. 81-5210

D.C. No.

in Interest-Appellant. CR 79-247

Unrrep States or AMEnica, — — —

Plaintiff -Appellee, CR 79-608

vs.

Davw Dix,

Defendant,

Corton Bett Insurance Company, Ixc.,

Surety and Real Party

in Interest-A ppellant.

MEMORANDUM

Argued and submitted — March 4, 1982

Decided — June 17, 1982

Appeal from the United States District Court

for the Central District of California

Robert J. Kelleher, District Judge, Presiding

Before: ELY and CANBY, Circuit Judges, and EAST,“

Disriet Judge.

*Honorable William G. East, Senior United States District Judge

for the District of Oregon, sitting by designation.

Appendiz A3

Cotton Belt Insurance Co. (Cotton Belt), as surety real

party in interest, appeals from an order of the District Court

denying its motion to vacate forfeitures of two bail bonds

to exonerate it from liability on those bonds. The cases were

consolidated in the District Court and on appeal because

they present indentical issues. We affirm.

Acting as a surety, Cotton Belt posted bail bonds to

secure the release of defendants Biagas and Dix from Gov-

ernment custody. The defendants failed to appear at trial,

thereby violating the express provisions of the bail bond

contract. The District Court then ordered forfeiture of the

bonds, but Cotton Belt was not notified of the forfeitures

for 273 days in the Biagas case and 348 days in the Dix case.

Rule 46(e) of the Federal Rules of Criminal Procedure

sets forth a statutory procedure for the forfeiture of bail

bonds, including provisions for the declaration of a forfei-

ture upon a breach of the conditions of the bond agreement,

the setting aside of a forfeiture in the interest of justice,

the entry of a judgment of defauit when a forfeiture has not

been set aside, and, after such a judgment has been entered,

the complete or partial remission of it when it appears that

justice does not require the enforcement of the forfeiture.

Rule 46(f) provides that the court shall exonerate the ob-

ligors and release any bail when the conditions of the bond

have been satisfied or when a forfeiture has been set aside

or remitted. Further, Rule 46(f) provides for the exonera-

tion of a surety either by a deposit of cash in the amount of

the bond or by a timely surrender of the defendant into

custody.

Cotton Belt contends that Rule 46(e) and (f) are, unless

supplemented or interpretated in accordance with Cali-

fornia or common law, constitutionally infirm. Cotton Belt

argues that Rule 46(e) fails to satisfy procedural due

process requirements because it does not provide for ade-

A4 Appendiz

quate notice of forfeiture to the surety, and that 46(f) is

unconstitutionally vague because it does not specifically

indicate when a surety’s surrender of a defendant into cus-

tody is “timely” for purposes of determining whether the

surety may be exonerated.

Any alleged vagueness in the term “timely surrender” is

irrelevant in this case, because it is undisputed that Cotton

Belt never surrendered either of these defendants into eus-

tody. Except in cases involving First Amendment freedoms,

challenges to statutes on the grounds of vagueness must be

evaluated under the facts of the particular case. United

States v. Powell, 423 U.S. 87, 92 (1975); United States v.

Mazurie, 419 U.S. 544, 550 (1975) ; United States v. Louder-

man, 576 F.2d 1383, 1388 (9th Cir.), cert. denied, 439 U.S.

896 (1978). Rule 46(f) is perfectly clear that, where there

is no surrender of the defendant into eustody, the surety

may not be exonerated on the bond for a “timely” surrender.

In United States v. Vera-Estrada, 577 F.2d 598 (9th Cir.

1978), this court squarely held that Rule 46 does not require

that a surety may be notified of its principal’s failure to

appear:

[Rjule 46(e), . R. Crim. P., establishes the proce-

dures which are o be followed in the federal courts

for the enforcement of liability of the surety. Notice

is required when the government moves for judgment,

but not when the defendant fails to appear and his

bond is forfeited. * “ * It is the swrety’s responsibiliity

to ensure the defendant does appear and learn when

he does not.

Id. at 599-600. (Citations omitted). (Emphasis supplied.)

Cotton Belt attempts to distinguish Vera-Estrada on the

grounds that the surety in that case argued that a Cali-

fornia state statute relating to notice of forfeiture was an

Appendix A5

implied term of the bail bond contract. Cotton Belt dis-

claims any such argument, but offers the same state statute

as a “guide to interpretation,” insisting that the bail bond

contract here must be read against the “background” of

either state or common law in order to avoid alleged due

process vagueness and notice problems. We disagree.

Neither Rule 46 nor the bail bond contract here is vague;

they simply do not require that notice of forfeiture be given

to the surety. Thus no “guide to interpretation” is required

in this case.

Further, notice of forfeiture is not required to satisfy

the requirements of due process. By contracting to act as

surety, Cotton Belt undertook contractual obligations to

insure the presence of its principals at trial. Cotton Belt

therefore had a duty to remain apprised of the whereabouts

of its principals. Vera-Estrada, 577 F.2d at 600; United

States v. Marquez, 564 F.2d 379, 380 (10th Cir. 1977);

United States v. Payne, 272 F. Supp. 939, 941 (D. Conn.

1967). Had Cotton Belt fulfilled its contractual duties, it

would have had actual notice that its principals failed to

appear.

Cotton Belt next contends that the failure of the District

Court clerk to promptly notify it of its principals’ failure

to appear rendered cure of its breach impossible. We dis-

agree. It was Cotton Belt's failure to remain apprised of its

principals’ whereabouts and to learn of their failure to ap-

pear which diminished its ability to cure its breach.

Next, Cotton Belt contends that the bail bond agreements

are contracts of adhesion. In particular, it challenges the

provision appointing the District Court clerk as the surety’s

agent for service of process and the provision which states

that the surety is “hound” to pay the bond “forthwith,”

which Cotton Belt interprets as a waiver of its right to con-

test immediate payment or to receive notice of forfeiture so

A6 Appendiz

that it may make a “timely surrender” of the principal.

These arguments are without merit. Cotton Belt freely

undertook the obligation to pay its principals’ bonds in the

event they failed to appear at trial. It cannot now reason-

ably contend that this obligation was forced upon it by the

Government. Further, as noted above, Cotton Belt had no

right to notice of forfeiture to waive.

Finally, Cotton Belt contends that equitable principles

entitle it to exoneration on the bond. This argument

amounts to no more than a recasting of the “impossibility

defense” defense argument, and is rejected for the same

reasons.

The judgments of the District Court in No. 81-5210 and

in No. 81-5211 are each affirmed.

AFFIRMED.

Appendiz A7

United States District Court

Central District of California

CriminaL Mix UTE GENERAL

Case No. CR-79-247-RJK

CR-79-608-RJK

Date: July 16, 1982

Docket Entry:

Present: Hon. Robert J. Kelleher, Judge

James Kimball N/A

Deputy Clerk Court Reporter Asst. U.S. Attorney

U.S.A. v. (Defendants Listed Below)

(1) Arthur Biagas

_.. present custody bond — 0/R

(2) David Dix

— present custody —— bond —

(3)

— present — eustody — bond — 07

(4)

— present custody ꝓ— bond — 0% R

Attorneys For Defendants

(1)

— present — appointed — retained

2)

— present — appointed — retained

3)

— present — appointed — retained

(4)

— present — appointed — retained

A8 Appendiz

Proceedings :

Re: Appeal of Cotton Belt Insurance Company after Bond

Forfeiture

Tun Covurr having received the mandate of the U.S.

Court of Appeals, Ninth Circuit, affirming the judgment of

the U.S. District Court in forfeiting the bonds in the above-

named cases,

Ir Is Onperep that the judgment of the Court of Ap-

peals is hereby filed and spread upon the minutes of this

court.

AUSA—Strike Force

William Murphy

68 Mitchell Blvd. #250

San Rafael, CA 94903

Minutes Form 6

Crim—Gen

Initials of Deputy Clerk