622 F2d 782 United States v. Amend
622 F.2d 782
UNITED STATES of America, Plaintiff-Appellee,
Carol AMEND and Allegheny Mutual Casualty Company,
United States Court of Appeals,
July 30, 1980.
Ray Sandstrom, Fort Lauderdale, Fla., for defendants-appellants.
Robert E. Hauberg, U. S. Atty., James B. Tucker, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before BROWN, GEWIN and POLITZ, Circuit Judges.
POLITZ, Circuit Judge:
After her failure to secure a reversal of her conviction, Carol Amend was ordered to surrender to begin service of her sentence. The surrender date arrived; Amend did not. Allegheny Mutual Casualty Company (Allegheny) appeals an order of forfeiture of a bond for $50,000 which it had issued assuring Amend's appearance. We affirm the judgment of forfeiture.
Carol Amend was indicted on two counts of violating the federal Controlled Substance Act. Bond was set at $50,000. Allegheny issued its surety bond in that amount and Amend was released pending trial. After transfer to the Southern District of Mississippi, the case was tried to a jury. Amend was convicted, and on November 10, 1977, she was sentenced to two concurrent three year prison terms and to two concurrent two year special parole terms. She appealed and sought continuation of bail. She was allowed bail pending appeal and permitted to continue on the same bond. Allegheny was not notified of her release on the same bond pending appeal.
This court affirmed the convictions, United States v. Amend, 577 F.2d 145 (5th Cir. 1978), cert. denied, Amend v. United States, 439 U.S. 985, 99 S.Ct. 578, 58 L.Ed.2d 657 (1978). Pursuant to our mandate, the district court ordered Amend to surrender on January 8, 1979, to begin serving the sentence. Copies of the surrender order were mailed to Amend, her Florida attorneys of record, her Mississippi attorneys of record and to Allegheny. She did not appear in response to the surrender order. Following appropriate procedures, the district court issued an alias warrant and entered an initial bond forfeiture which was subsequently confirmed and made final.
On appeal, Allegheny argues that it issued an appearance bond extending to the time of sentencing but not continuing through the post-sentence appeal period. Allegheny contends that our decision in United States v. Dinneen, 577 F.2d 919 (5th Cir. 1978) is dispositive of the issue. Although Dinneen is pertinent and very helpful, it is not controlling.
At issue is whether the surety bond1 was intended to assure Amend's presence during the appeal process. In answering this question, we are cognizant of the rule that "the terms of a bail contract are to be construed strictly in favor of the surety, who may not be held liable for any greater undertaking than he has agreed to . . . However, like any other contract a bail bond should be construed to give effect to the reasonable intentions of the parties." United States v. Miller, 539 F.2d 445, 447 (5th Cir. 1976); Dinneen, supra. Compliance with the rule requires that we carefully review the express language of the bond before us. It provides that:
The defendant is . . . to obey and perform the further conditions of bond attached hereto and made a part hereof.
The "conditions of bond" referred to in the body of the main text of the surety contract, provide in relevant part:
I, Carol Amend, understand that . . .
3. I am required to appear before the United States Magistrate and/or the United States District Court in accordance with all notices;
4. . . . if my failure to appear is . . . while awaiting sentence or pending appeal or certiorari after conviction, the penalty is a fine . . . or imprisonment . . .
5. A violation of any condition of my bond may result in forfeiture of bail by the United States District Court . . .
Both Amend and Allegheny's representative signed the bond and conditions of bond attachment.
Do these provisions of the bond, when read in context with the entire contract, reflect an agreement of Allegheny to assure Amend's post conviction appearance both during and after conclusion of her appeal? We hold that they do.
Allegheny's reliance on Dinneen is misplaced. The language in the Dinneen bond, which is set forth in full in that opinion, and the language of the instant bond are markedly similar. However, there are crucial differences. The first distinction is the following language which appears in the Amend bond at the end of the paragraph beginning with the words, "The conditions of this bond are":
and to obey and perform the further conditions of bond attached hereto and made a part hereof.
The second significant distinguishing feature is the separate sheet entitled "Conditions of Bond" which is attached to the bond. It is this attachment which refers to appeals, appearances post appeal, and explicitly indicates that any violation of any condition may result in forfeiture of the bail.
It is entirely too facile to suggest that the language quoted above, taken from the Conditions of Bail attachment and relating to appeals, is simply a warning to Amend that if she fails to appear she may commit a criminal offense. The purpose of this contract is to secure the release of Amend and to assure her timely appearance when ordered; it sets out the obligations and responsibilities of the parties. The language concerning appeals and appearances post appeal must be understood in that light and not taken as an esoteric discussion on the criminal law of bond jumping.
We conclude from the language of this surety contract that it was the intention of Allegheny to issue a bond for $50,000 assuring the appearance of Carol Amend in response to any valid order of the District Court. When Amend failed to surrender as ordered by the court, the conditions of this bail bond were breached and forfeiture was in order.
The judgment of the district court is AFFIRMED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA : APPEARANCE BOND FOR
Carol Amend :
We, the undersigned, jointly and severally acknowledge that we and our
personal representatives are bound to pay to the United States of America the
sum of Fifty Thousand dollars ( $ 50,000 00
The conditions of this bond are that the defendant Carol Amend is to appear
before US DISTRICT COURT, SOUTHERN United States Magistrate for the Southern
District of Florida, at Miami, Florida, and in the United States District
Court for the Southern District of Florida at Maimi, Florida, and at such
other places as the defendant may be required to appear, in the above styled
matter as may be ordered by the magistrate or by the United States District
Court for the Southern District of Florida or any other United States
District Court to which the defendant may be removed or the cause
transferred; that the defendant is not to depart the Southern District of
Florida, or the jurisdiction of any other United States District Court to
which the defendant may be removed or the cause transferred after he has
appeared in such other district pursuant to the terms of this bond, except in
accordance with such orders or warrants as may be issued by the magistrate or
the United States District Court for the Southern District of Florida or the
United States District Court for such other district; that the defendant is
to abide any judgment entered in such 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, and to obey and perform
the further conditions of bond attached hereto and made a part hereof;
I acknowledge that I have read the above or that the above has been read to
me, and that I fully understand the conditions of my bond and the possible
penalties for violation of any of those conditions; and I further acknowledge
that I have been given a copy of this instrument, and that I have been
furnished the following information;
The Southern District consists of the following Florida Counties:
Monroe, Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River, Glades,
Okeechobee, Highlands, Hendry and Collier.
Addresses and telephone numbers for communicating with the United States
District Court, Southern District of Florida at Miami, Florida, are:
U.S. Magistrate, P.O. Box 012919, Miami, Florida 305-350-4301
U.S. Attorney, 300 Ainsley Bldg., Miami, Florida 305-350-4471
U.S. Marshal, P.O. Box 010391, Miami, Florida 305-350-5346
Clerk of Court, P.O. Box 010669, Miami, Florida 305-350-5214
Federal Public Defender, 505 Ainsley Bldg., Miami, 305-350-4391
The principal offices of the United States District Court are located at:
U.S. POST OFFICE & COURTHOUSE
N.E. First Avenue
Miami, Florida 33101
Dated at Miami, Florida, this 30 day of Mar , 1977
/s/ signature /s/ signature
POWER ATTORNEY Power No, XF--0042
ALLEGHENY MUTUAL CASUALTY COMPANY
Commerce Street, Newark, New Jersey 07102
KNOW ALL MEN BY THESE PRESENTS, that ALLEGHENY MUTUAL CASUALTY COMPANY, a
corporation duly organized and existing under the laws of the Sate of
Pennsylvania has constituted and appointed, and does hereby constitute and
Its true and lawful attorney-in-fact, with full power and authority to sign
the company's name and affix its corporate seal to, and deliver on its behalf
as surety, any and all obligations as herein provided, and the execution of
such obligations in pursuance of thse presents shall be as binding upon the
company as fully and to all intents and purposes as if done by the regularly
elected officers of said company at its home office in their own proper
person, and the said company hereby ratifies and confirms all and whatsoever
its said attorney-in-fact may lawfully do and perform in the premises by
virture of these presents.
THIS POWER OF ATTORNEY IS VOID IF ALTERED OR ERASED, THE OBLIGATION OF THE
COMPANY SHALL NOT EXCEED THE SUM OF FIFTY-ONE THOUSAND DOLLARS ($51,000.00)
AND MAY BE EXECUTED FOR RECOGNIZANCE ON BAIL BONDS ONLY.
THIS POWER-OF-ATTORNEY NULL AND
VOID UNLESS USED BEFORE 6/30/77 IN WITNESS WHEREOF,
CASUALTY COMPANY, byvirtue of authority
conferred by its
Board of Directors,
has caused these
presents to be
Amount of Bond 50,000.00 sealed with its
signed by its
Defendant (Name) CAROL AMEND attested by its
Secretary, this 1st
day of April, 1976.
Defendant Address 5014 N. KENDALL /s/ signature
City and State MIAMI, FLA. ALLEGHENY
Court US DIST CT. Br SOUTHERN DIST /s/ signature
Date of Execution 3-30-77 Secretary
Attorney-in-fact /s/ signature 1. A separate Power of Attorney must be
attached to each bond executed.
Signature 2. Powers of Attorney must not be
returned to attorney-in-fact, but
should remain a permanent part of
If the defendant appears as ordered and otherwise obeys and performs the
foregoing conditions of this bond, then this bond is to be void, but if the
defendant fails to obey or perform any of these conditions, payment of the
amount of this bond shall be due forthwith. Forfeiture of this bond for any
breach of its conditions may be declared by any United States District Court
having cognizance of the above entitled matter at the time of such breach and
if the bond is forfeited and if the forfeiture is not set aside or remitted,
judgment may be entered upon motion in such United States District Court
against each debtor jointly and severally for the amount above stated
together with interest and costs, and execution may be issued and payment
secured as provided by the Federal Rules of Criminal Procedure and by other
laws of the United States.
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
This bond is signed on this 30 day of MAR , 1977 at Miami, Florida.
SURETY Allegheny Mutual CAS & Co., DEFENDANT Carol Amend
BY/s/ signature , as agent Address 5015 N. Kendall Dr.
Address 1674 N.W. 17776 MIAMI 35157 FLA.
Phone 325 5288 Phone-----------------------------------
Signed and acknowledged before me this 3 day of Mar ,1977
Approved: /s/ signature
, U.S. Magistrate
CONDITIONS OF BOND
CASE NO. 77-1087-M
I, CAROL AMEND , understand that
I may not, at any time for any reason whatsoever, leave the Southern
District of Florida without first obtaining written permission of the United
States District Court, at Miami, Florida;
I may not change my present address in this District without first advising
in writing the Clerk of the Court, the United States Attorney and the United
States Magistrate before whom the foregoing bond was executed;
I am required to appear before the United States Magistrate and/or the
United States District Court in accordance with all notices;
If I fail to appear before the United States Magistrate or the United United
States District Court when ordered, an additional criminal case separate and
apart from the offense presently charged could be lodged against me; that if
my failure to appear is in connection with a charge of felony, or while
awaiting sentence or pending appeal or certiorari after conviction, the
penalty is a fine of not more than $5,000.00 or imprisonment of not more than
five years, or both; that if I fail to appear after being released on a
misdemeanor charge, the penalty is a fine of not more than the maximum
provided for the misdemeanor or imprisonment for not more than one year, or
A violation of any conditions of my bond may result in forfeiture of bail by
the United States District Court, and cause a Bench Warrant for my arrest to
JOHN R. BROWN, Circuit Judge, concurring:
I concur fully and unequivocally in the opinion of the Court. I write simply to alert the bench and bar that the problem posed by . . . United States v. Dinneen, 577 F.2d 919 (5th Cir. 1978), is now a matter solely of history. Subsequent to Dinneen, the Administrative Office of the United States Courts altered the form for a bond contract to provide explicitly for coverage of appeals. Form 17 has been amended to state:
It is agreed and understood that this is a continuing bond (including any proceeding on appeal or review) which shall continue in full force and effect until such time as the undersigned are duly exonerated.
The underscored language was added to clarify specifically the continuing nature of the bond throughout the process of review. Now and forever after we are released from the bonds of Dinneen and may proceed more surely in our review of the continuance of the surety bond through the bonded's appeal.
We reproduce the bond in the Appendix