United States v. Catino Opinion

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ŷQ S6 if^A^ITED STATES COURT OF APPEALS 
F oe t h e  S econd  C ie c u it

Nogi-3?§ l̂, 1292, 1293, 1294, 1295—September Term, 1976. 
(Argued June 16, 1977 Decided August 22, 1977.)

Docket Nos. 77-1162, -1163, -1164, -1165, -1166

U n it e d  S tates of A m erica ,
Appellee,

A lfred  C a tin o ,
Defendant,

P u blic  S ervice  M u tu a l  I n su r a n c e  Co., A n t h o n y  C a tin o , 
T h eresa  P eduto , M ary M aeiccio  a n d  J erry  D e P eo ,

Appellants.

B e f o r e  :
W a term a n , S m it h  a n d  Oa k es ,

Circuit Judges.

Appeal from judgment of forfeiture of bail bond entered 
in the United States District Court for tlie Southern Dis­
trict of New York, Milton Pollack, Judge, on ground that 
surrender of defendant for sentencing did not exonerate 
surety and indemnitors, so that they were liable upon de­
fendant’s later flight following unsuccessful appeal.

Affirmed.

H. E llio t  W ales, New York, N.Y., for Appel­
lant Public Service Mutual Insurance Co.

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J .  J e ffr e y  W e ise n fb l d , New York, N.Y. (Nancy 
Eosner, New York, N.Y., of counsel), for 
Appellants Catino, Peduto, Mariccio and 
DeFeo.

J akte W. P abver, Assistant United States Attor­
ney (Robert B. Piske, Jr., United States 
Attorney for the Southern District of New 
York, James P. Lavin, Audrey Strauss, 
Assistant United States Attorneys, of coun­
sel), for Appellee.

O a k e s , Circuit Judge:
The surety and indemnitors of a $50,000 bail bond posted 

to obtain the release from confinement of Alfred Catino 
appeal from a judgment of forfeiture entered in the United 
States District Court for the Southern District of New 
York, Milton Pollack, Judge. The bail bond in question 
was furnished on September 28, 1973, after Catino was 
arraigned on narcotics charges in the district court. Fol­
lowing Catino’s conviction, his bail was continued until the 
time of sentencing, which occurred on February 26, 1974. 
At that time bail was continued over Government objection 
pending appeal; the bail bond was not rewritten, despite 
questioning by Judge Pollack addressed to the sufficiency 
of the $50,000 bail. Neither the surety nor the indemnitors 
at that time or thereafter appeared to object or complain 
about the continuance of bail.

Catino’s conviction was affirmed in United States v. 
Malta,li, 503 F.2d 971 (2d Cir. 1974), cert, denied, 420 U.S. 
995 (1975). He was instructed to surrender on March 17, 
1975. He failed to appear, and a bench warrant was issued 
for his arrest. On February 14, 1977, it appearing that 
Catino had jumped bail and was a fugitive from justice,

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the Government moved to have Catino’s bail forfeited and 
judgment entered against the surety, pursuant to Fed. E. 
Grim. P. 46(e)(1), (3). The surety company and indem­
nitors (hereafter “appellants”) asserted in opposition to 
the motion that the hail bond was exonerated by Judge 
Pollack’s pronouncement of sentence following conviction 
or by his continuance of bail status pending appeal without 
the consent of the surety. Judge Pollack granted forfeiture 
on March 9, 1977, United States v. Catino, 427 F. Supp. 
1009 (S.D.N.Y. 1977), and this appeal followed. We affirm.

At the outset we must determine whether state or federal 
law governs questions of interpretation in connection with 
federal bail bonds. While three circuits have held that 
state law governs, United States v. D’Anna, 487 F.2d 899, 
900, 901 (6th Cir. 1973); United States v. Qonware, 415 
F.2d 82, 83 (9th Cir. 1969); Palermo v. United States, 61 
F.2d 138, 140 (8th Cir. 1932), cert, denied, 288 TJ.S. 600 
(1933), we believe, along with the Fifth Circuit, United 
States V. Miller, 539 F.2d 445, 448, 449 (5th Cir. 1976) 
(per curiam), that federal law should govern. Federal 
regulation of bail procedures in the federal courts is per­
vasive, as the court below noted, 427 F. Supp. at 1010 n.3 
(citing the Bail Eeform Act of 1966, 18 U.S.C. § 3141 et 
seq., and Fed. E. Crim. P. 46), and federal bail bonds may 
have distinctive features not found in state bonds. More 
importantly, federal fiscal interests are affected, since it is 
the United States Government that is seeking recovery of 
the forfeiture. The involvement of these interests makes 
application of federal law appropriate, see BanJc of 
America National Trust S  Savings Association v. Parnell, 
352 U.S. 29, 33 (1956). It may be that the need for national 
uniformity and certainty may be less compelling here than 
in a case like Clearfield Trust Co. v. United States, 318 U.S. 
363, 367 (1943) (federal commercial paper), since bail bond

5439



practice apparently varies from one federal district to 
another. But there is nothing “peculiarly local” about bail 
bond law, nor would any important state policies be affected 
by a decision to apply federal law to bail bonds in federal 
court, compare United States v. Tasell, 382 U.S. 341, 352-53 
(1966) (declining to apply federal law, despite a Federal 
Government fiscal interest, in an area involving state 
policies regarding the family and family property). Ac­
cordingly, we hold that the interpretation of federal bail 
bonds is a matter of federal law. The development of 
federal common law in this area may, of course, be in­
formed by relevant state law holdings. See generally P. 
Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and 
Wechsler’s The Federal Courts and the Federal System 
762-76 (2d ed. 1973).

The bond here in issue includes two provisions that are 
not found in the illustrative form for an appearance bond 
(Form 17) appended to the Federal Rules of Criminal 
Procedure. The provisions are as follows:

[T]he defendant is to abide any judgment entered in 
[the above entitled] matter by surrendering himself 
to serve any sentence imposed and obeying any order 
or direction in connection with such judgment as the 
court imposing it may prescribe.

It is agreed and understood that this is a continuing 
bond which shall continue in full force and effect until 
such time as the undersigned are duly exonerated.

427 F. Supp. at 1012. By the terms of this bond, therefore, 
it continued in effect until such time as the surety and 
indemnitors were exonerated. Fed. E. Grim. P. 46(f), 
moreover, provides that “when the condition of the bond 
has been satisfied or the forfeiture thereof has been set

5440



aside or remitted, the court shall exonerate the obligors 
and release any bail.” Under that rule the surety may also 
be exonerated “by a deposit of cash in the amount of the 
bond or by timely surrender of the defendant into custody.” 
Under the provisions of 18 U.S.C. § 3142, retained by the 
Bail Reform Act, a surety at any time may arrest the party 
charged and bring him before the appropriate authority, 
who shall recommit the party so arrested and endorse on 
the recognizance “the discharge and exoneratur[sic] of 
such surety . . . ,” thus enabling the surety to protect himself 
from potential liability when he feels that his risk is too 
great. No exoneration under any of these provisions took 
place here.

Appellants argue that they were exonerated when Catino 
surrendered on the date of sentencing or, alternatively, 
that continuation of the district court bond through the 
appellate process without their consent constituted a 
material modification of the surety contract and accordingly 
exonerated their obligations. These arguments are in 
essence the same, since both require a finding that appel­
lants agreed to do no more than surrender Catino for 
sentencing. In support of this contention, appellants point 
to the practice in the United States District Court for the 
Southern District of New York. That practice was evi­
denced by the statement of a deputy clerk offered as proof 
herein, to the effect that an appeal bond is separate and 
distinct from a trial bond and must be executed with the 
clerk following approval by the United States Attorney’s 
office and a court hearing. Judge Pollack and the United 
States Attorney, it is argued, should have had Catino post 
a new appeal bond before he was released. Their omission, 
the argument runs, should not be charged to appellants, 
who produced Catino for sentencing.

In United States v. Miller, supra, 539 P.2d at 448-49, the 
Fifth Circuit held:

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[W]]ien, as here, the bond states that the principal is 
to surrender himself for execution of the sentence and 
to abide by orders of the court in connection with the 
judgment, the pronouncement of sentence does not 
exonerate the surety. . . . [Tjhere is no per se federal 
rule that pronouncement of sentence exonerates a 
surety. . . . During [post-sentencing events] a surety 
remains liable on the bond if . .. [it] has agreed to such 
liability . . .  by the langmage of its undertaking.

Accord, United States v. Gonware, supra, 415 F.2d at 84; 
United States v. Wray, 389 F. Supp. 1186, 1190-91 (W.D. 
Mo. 1975). Contra, United States v. D’Anna, supra (apply­
ing Michigan law). Appellants argue that these cases are 
limited to circumstances in which execution of sentence is 
stayed for a brief period of time to allow a defendant to 
put his affairs in order, as opposed to the more extended 
time involved when a defendant is free pending appeal. 
But the increased risk for the surety, resulting from the 
increased chance of flight once the defendant knows he has 
been convicted and knows he is not being placed on pro­
bation, is similar in both cases. The risk of flight after 
appeal has been unsuccessful may be higher, but in the 
interim the surety always has the option of arresting the 
defendant and surrendering him to the court.

Appellants also seek to distinguish Miller, Gonware and 
Wray, supra, on the ground that, while the district courts 
in those cases retained jurisdiction during the stay of 
sentence, the court below lost all jurisdiction once the 
notice of appeal was filed. But, as held in United States 
V. Bloch, 543 F.2d 35, 37 (7th Cir. 1976), “ [t]he filing of a 
notice of appeal, although transferring jurisdiction over 
the case from the district court to the Court of Appeals, 
does not render the district judge powerless or without 
jurisdiction to enforce the conditions of a bond under which

5442



defendant lias been released pending appeal.” Bather, 
“ [t]he court retains jurisdiction . . .  for the limited pur­
poses of reviewing, altering or amending the conditions 
under which that court released the defendant, and is 
empowered to revoke or forfeit the defendant’s bond during 
the pendency of an appeal . . . .” Id. This holding follows 
from the fact that, under 18 U.S.C. § 3148, it is the district 
court that in the first instance has the power to grant or 
deny bail pending appeal. See also Fed. E. App. P. 9(b).

We therefore follow United States v. Miller, supra, in 
holding that the relevant issue is whether appellants agreed 
to be liable during appeal “by the language of [their] 
undertaking,” 539 F.2d at 449. The bond here by its terms 
not only was a continuing bond, which “continue [d] in full 
force and etfect” until exoneration, but it also contained a 
condition that Catino surrender “to serve any sentence 
imposed.” Thus the bond as written, imposing as it did 
conditions more stringent than those in the standard form 
of appearance bond, was on its face both a trial and appeal 
bond.  ̂ If the surety felt that the premium charged there­
for was insufficient to cover the risk after appeal was taken.

1 Indeed, the bond here contained the principal conditions found in a 
standard form appeal bond. According to the form submitted to us by 
the surety, Surety’s Reply Brief at Al, the appeal bond requires that 
the defendant "shall surrender himself in execution of the judgment 
and sentence appealed from upon such day as the District Court of 
the United States for the Southern District of New York may direct 
. . . and shall appear before the District Court . . .  on such day or days 
as shall be set for a retrial of said ease . . . and shall not depart the 
jurisdiction of the District Court , . . without leave The bond
involved in this case included the conditions that the defendant would 
"abide any judgment . . .  by surrendering himself to serve any sentence 
imposed and obeying any order or direction in connection with . such 
judgment,” would "appear . . .  in accordance with . . . orders . . . relating 
to [his] appearance," and would "not . . . depart the Southern District 
of New York except in accordance with [district court] orders.” 427 
P. Supp. at 1011-12. The bond here thus meets all of the above three 
appeal bond conditions.

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it should have come forward either at the time of sentence 
or pending appeal.^

Judgment affirmed.

In view of the plain language of the bond, the district court’s refusal 
to accept the surety’s offer of proof as to the practice of the district 
court clerk’s office was proper, particularly since appellants make no 
claim that the bond at issue was in the form customarily used by the 
district court.

5444
480-8-23-77 USCA—4221

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