135 F.2d 1013 | 2d Cir. | 1943
Dissenting Opinion
(dissenting).
The precedents to date favor the Government's contention herein that a fine imposed on plea of guilt may be collected from United States bonds deposited as bail under 6 U.S.C.A. § 15; as stated by Phillips, J., in Bankers’ Mortgage Co. of Topeka, Kan. v. McComb, 10 Cir., 60 F.2d 218, 221: “So long as the claims of the United States remain unsatisfied, bonds or notes deposited under section 15, supra, are conclusively presumed to be the property of the defendant and may be applied in satisfaction of the requirements of the bail bond, regardless of the claims of third persons.” United States v. Widen, D.C.N.D.Ill., 38 F.2d 517; United States v. Werner, D.C.N.D.Okl., 47 F.2d 351; United States v. Heine,* D.C.E.D. Mich., July 27, 1942.
The opinion below does not discuss whether the priority granted over the fine exists only in favor of third-party claimants of the bonds or extends also to the accused. Conceivably the legislature could have' adopted either course; but to my view, there are difficulties in each which lead me to hesitate to find any such legislative intent in the absence of its definite expression. If only a third person may claim the bonds without paying the fine, then the clerk of court must meet opposing claims of ownership — made after the criminal cause proper has reached an appropriate conclusion — which he is in no position to combat or to test adequately and with due regard to the interests of the United States. Even though he originally ac
The last case cited is now on appeal Sixth Circuit. † Appellant refers to another recent case as in accord. United States v. Abrasart, D.C.E.D.Ill., March, 1943 *. The particular point here involved was not discussed in Jacobson v. Hahn, 2 Cir., 88 F.2d 433, holding that bonds deposited as bail could not be held to satisfy income tax claims against the accused after he had been acquitted. Many state statutes provide for, or are construed to allow, collection of the fine from the cash bail; see 8 C.J.S., Bail, § 53, p. 109; 7 A.L.R. 389. The reasons in support are well stated in the leading case of People ex rel. Gilbert v. Laidlaw, 102 N.Y. 588, 7 N.E. 910.
† It was later decided, and is now reported in 135 F.2d 914.
* No opinion.
Lead Opinion
Order affirmed on opinion below, D.C., 47 F.Supp. 176.