United States of America, Plaintiff-appellee, v. Brett Allen Bursey, Defendant-appellant, 515 F.2d 1228 (5th Cir. 1975)

This appeal arises from a unique procedural matrix. In the Spring of 1973, Appellant Brett Allen Bursey was convicted by a jury in the Southern District of Texas of possession of peyote in violation of 21 U.S.C. § 841(a), and was sentenced to four years imprisonment. Brett Bursey was granted leave to proceed in forma pauperis on appeal, and counsel was appointed to represent him. Bond pending appeal was set at $10,000. At the time of the initiation of his appeal, Brett Bursey was in the South Carolina State Penitentiary on an unrelated conviction. In order that he might be released immediately upon the expiration of his South Carolina sentence, Brett Bursey arranged while still incarcerated there for the posting of a cash deposit on his Southern District of Texas bond. By letter of August 27, 1973, to the clerk of the federal district court in South Carolina, Brett Bursey advised that a 10% deposit on his bond was to be deposited into the registry of the court, that his own financial status had not changed "since the court accepted my petition to proceed in forma pauperis," and that upon performance of bond conditions, the 10% deposit should be returned to his parents, Dr. or Mrs. Don C. Bursey.

On August 31, 1973, Brett Bursey was released on an appearance bond in connection with his peyote possession case, executed by him before Charles W. Gambrell, a federal magistrate in the District of South Carolina.¹  The bond recited that a cashier's check for $1,000, representing the 10% deposit, had been lodged in the registry of the District Court for the District of South Carolina. On the same day, Magistrate Gambrell transmitted the bond, the check, and Brett Bursey's August 27 letter to the Deputy Clerk of the District Court for the Southern District of Texas in Corpus Christi. The Deputy Clerk in Corpus Christi transmitted the check to the Deputy Clerk in Houston on September 4, with directions that the deposit should revert to the Bursey parents upon disposition of the case.

Brett Bursey's peyote conviction was subsequently reversed on Fourth Amendment grounds. United States v. Bursey, 5 Cir. 1974, 491 F.2d 531. On remand the district court dismissed the indictment against Brett Bursey in an order entered May 14, 1974. Nothing further of consequence transpired until September 23, 1974. On that date, without notice to the parties or a prior hearing, the district court entered an order directing the clerk of the court to transmit $1,000, the amount of Brett Bursey's cash deposit on bond, to the Administrative Office of the United States Courts for deposit in the Treasury as reimbursement for the costs of his appointed counsel.²  Authority for the order was laid to 18 U.S.C. § 3006A(f).³  The order of the district court has been executed, and the parties agree that the $1,000 has by this time reached the Treasury.

Brett Bursey filed a notice of appeal from the district court's September 23 order on October 3, 1974. On December 13, 1974, Brett Bursey's parents, who were not parties to the proceedings before the district court in their son's criminal case, filed a motion in this court for leave to intervene, together with a supplemental memorandum of law. Their petition recites that the $1,000 cash deposit was their property and that they, rather than Brett Bursey, are thus the real parties in interest. This motion, never opposed by the Government, was granted by a judge of this court in an order entered December 26, 1974. The three appellants Bursey have briefed and argued this cause together on the theory that the district judge erred in ordering the cash deposit to be deposited in the Treasury because the funds belonged to the senior Burseys alone. Specifically, they maintain that the trial court's summary action was not authorized under 18 U.S.C. § 3006A, and that it offends their due process rights to a prior hearing and Brett Bursey's statutory right to bail pending appeal. They pray for an order returning the cash deposit to Dr. and Mrs. Don C. Bursey. The United States has argued in response that the trial judge's actions were proper and that, in any event, this court lacks jurisdiction at this time to grant the relief sought to these parties. On its jurisdictional points the Government argues that the elder Burseys' claims must fail, first because they were not parties below, and second because sovereignty immunizes the government from any action to withdraw the property already covered into the Treasury. We conclude that jurisdiction exists to determine the merits of the case between these parties; on the merits, we hold that the district court erred in distributing the cash deposit funds without an "adequate inquiry"; we thus remand with directions that the court vacate the order appealed from, allow appellants an opportunity to plead, and conduct such further proceedings as are necessary to comply with our holding here.

We turn first to the question of sovereign immunity.

The parties agree that the September 23 order of the district court has been carried out and that the $1,000 deposit has become safely lodged in the Treasury of the United States. With the passage of this money into the Treasury, the Government argues that the sovereign immunity of the United States dispossesses the district court of any jurisdiction to order its reimbursement to the Burseys and that this appeal is now moot. Instead, the Government asserts, the Burseys must be relegated to the initiation of a separate action against the Government under the Tucker Act,⁴  for the recovery of their lost deposit.⁵ 

We are not assured of the correctness of the Government's premise, for which it offers no authorities, that sovereign immunity protects it from an order to return money awarded it in a lawsuit if it appears on direct appeal that the award was erroneous. Certainly there can be no doubt that if the order of the district court had been stayed, and the deposit money had never reached the Treasury, then an order vacating the September 23 order and refunding the deposit to Brett Bursey or his assigns would be within our jurisdiction. But the Government asserts that the speed of execution of the district court's order cuts off our review and even the lower court's reconsideration. This reasoning seems contrary to the ordinary conceptions of appellate review. See 28 U.S.C. § 2106; cf. note 11 infra. We need not pursue this precise line of inquiry, however, because we think that in any event the Government's waiver of sovereign immunity in the Tucker Act is applicable here. The Government admits that the Tucker Act comprehends claims of the substantive nature asserted here; the only question is whether the Tucker Act's waiver may be invoked only upon the initiation of a separate suit.

In United States v. Lewis, 5 Cir. 1973, 478 F.2d 835, aff'g E.D. La. 1972, 342 F. Supp. 833, two individuals sought in a coram nobis proceeding to exonerate themselves from certain decade-old convictions under the income tax code which were no longer viable under Marchetti v. United States⁶  and Grosso v. United States,⁷  and to recover fines paid under their sentence of conviction. A coram nobis motion, as the Supreme Court held in United States v. Morgan, 1954, 346 U.S. 502, 505 n.4, 74 S. Ct. 247, 249, 98 L. Ed. 248, 253, "is a step in the criminal case⁸  and not . . . the beginning of a separate civil proceeding." Thus, while the Government conceded in Lewis that the order setting aside the petitioners convictions was correct, it asserted, as here, that any recovery of the fines must be sought in a separate action brought under the Tucker Act. We rejected this contention, holding that

This statute (the Tucker Act) is one which confers a jurisdiction upon the district courts. It is not procedural. We can see no reason why a person who has paid a fine pursuant to an unconstitutional statute should be required to resort to a multiplicity of actions in order to obtain reimbursement of money to which he is entitled.

This invocation of Tucker Act's waiver of jurisdiction in a criminal coram nobis proceeding has consistently been followed in other courts. See De Cecco v. United States, 1 Cir. 1973, 485 F.2d 372;⁹  Pasha v. United States, 7 Cir. 1973, 484 F.2d 630; United States v. Summa, D. Conn. 1972, 362 F. Supp. 1177; See also United States v. Rothstein, 7 Cir. 1911, 187 F. 268.

In a parallel vein on the civil side, we have eschewed the "traditional rule"¹⁰  and held that a Tucker Act claim for affirmative relief against the government may proceed upon a counterclaim, and need not be brought as a separate suit.¹¹  United States v. Springfield, 5 Cir. 1960, 276 F.2d 798, 803-04. In so concluding we reasoned that

the statute should be interpreted from a practical rather than a technical standpoint. Nothing in the statute itself precludes such an interpretation. And in a situation where no substantive rights are at stake, the only question being whether litigation is going to be disposed of in an expeditious or inexpeditious manner, we think that an interpretation which lends itself to sound judicial administration is justified.¹² 

We adhere to the recognition of Lewis and Springfield that invocation of the Tucker Act's waiver is not conditioned upon the procedural context in which it is sought.¹³  The matter at bar is, of course, not a coram nobis proceeding or a counterclaim, but one connected even more closely to the original order pursuant to which the Bursey cash deposit was forfeited. The principle of conserving judicial resources operative in those cases all the more strongly supports our conclusion of the applicability of the Tucker Act's waiver here. In the absence of any other evident obstacles¹⁴  (and the Government has raised none), we find no jurisdictional bar to allowing the Burseys to seek Tucker Act relief in the present proceeding on remand.

The Government filed no opposition to the senior Burseys' motion to intervene on appeal, and does not argue now that permission to intervene on appeal, as such, was improperly granted. It does maintain, however, that intervention on appeal cannot make up for the senior Burseys' absence below. We conclude against the Government on this point, and our reasoning delves us immediately into the substance of the case.

Title 18 U.S.C. § 3146(a)¹⁵  provides in pertinent part that when a criminal defendant is to be released on bond,

(the district judge) shall . . . impose the first of the following conditions of release which will reasonably assure the appearance of the person . . .

(1) . . .

(2) . . .

(3) require the execution of an appearance bond in a specified amount and the deposit in the registry of the court, in cash or other security as directed, of a sum not to exceed 10 percentum of the amount of the bond, such deposit to be returned upon the performance of the conditions of release;

(4) require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or

(5) . . ..

Brett Bursey was released under subsection (3) procedures, intended by Congress to be the less onerous of the two bonding alternatives. Nothing in § 3146 or any other provision of the Bail Reform Act of 1966 requires that cash deposited under § 3146(a) (3) be property of the party bonded, and we discern no basis in reality or in law for a presumption that it be his. See S.D. Tex. R. 22(E), infra note 16; Neely v. United States, S.D. Fla. 1973, 357 F. Supp. 713; cf. Heine v. United States, 6 Cir. 1943, 135 F.2d 914; United States v. Davis, 2 Cir. 1943, 135 F.2d 1013, aff'g on the opinion below S.D.N.Y. 1942, 47 F. Supp. 176; but cf. United States v. Werner, N.D.Okl.1931, 47 F.2d 351; United States v. Widen, N.D. Ill. 1930, 38 F.2d 517; cf. also Rudd v. United States, 7 Cir. 1943, 138 F.2d 745. Upon the performance of the conditions of release, then, a third party supplying a § 3146(a) (3) deposit would ordinarily be entitled to the return of his deposit, in accordance with the explicit language of that provision.¹⁶ 

The Government contends, however, that such a right to return of a deposit is qualified by § 3006A(f), which it reads to subject such a deposit to a Governmental claim for compensation for providing an attorney. To weigh this argument, we look to the legislative context of § 3006A(f). Title 18 U.S.C. § 3006A(b), dealing with the adequate representation of criminal defendants provides that:Unless the defendant waives representation by counsel, the United States magistrate or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him.

Section 3006A(c) provides additionally that:

If at any time after the appointment of counsel the United States magistrate or the court finds that the person (for whom counsel was appointed) is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate.

Section 3006A(f) provides in turn:

Whenever the United States magistrate or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid . . . to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section.

We think it manifest that these three subsections, all of which deal with the conditions under which an apparently indigent defendant must provide all or part of his own counsel's fees, are to be read in pari materia insofar as they describe the manner of inquiry required of the Magistrate or court and the standards to be applied in determining the defendant's financial ability to provide for his own representation. Thus we think it clear that the reference to "funds available for payment" in subsection (f) refers solely to circumstances in which funds would have been available for payment for representation. Moreover, a finding that such funds are available "from or on behalf of a person furnished representation" under subsection (f) must be predicated upon an "appropriate inquiry," as in subsection (b).

We also conclude that the mere deposit of cash under 18 U.S.C. § 3146(a) (3) to secure the release of a criminal defendant does not conclusively establish that the deposited funds were available for Government reimbursement under subsection (f). To begin with, as we have already noted, the Bail Reform Act's provisions do not establish that a § 3146(a) (3) cash deposit was the property of the defendant.¹⁷  Subsection (f) also envisions the capture of funds "available for payment . . . on behalf of a person furnished representation" (emphasis added), but there is no reason to presume that any third party willing to provide funds for a bond deposit for a criminal defendant money which would ordinarily be refunded would necessarily also supply funds to be expended for the payment of counsel. That is, in the terms of the statute, there is no reason to presume that a bail deposit which was property of a third party sponsor was alternatively available to the defendant for payment for representation. Yet a holding that a bond deposit is automatically forfeit under subsection (f) would mean in practical terms that an indigent defendant eligible for release under § 3146(a) (3) who could (on promise of its refund) scrape together a bond deposit from his own resources or those of others, but who could not expend his money or that of his benefactors on counsel fees, would be effectively denied bond on account of his indigence. Such a conclusion runs counter to the recognition that "access" of some kind or for some purpose to funds does not necessarily establish ineligibility for appointed counsel, see, e. g., United States v. Kelly, 7 Cir. 1972, 467 F.2d 262, 266, cert. denied 1973, 411 U.S. 933, 93 S. Ct. 1905, 36 L. Ed. 2d 393; United States v. Cohen, 8 Cir. 1969, 419 F.2d 1124, 1127; see also Cuevas v. Wilson, N.D. Cal. 1966, 264 F. Supp. 65, 72, and flatly contradicts Congress' explicit purpose in enacting § 3146(a) (3) to facilitate the release of indigent defendants on bond when detention is not required to serve the ends of justice. See Bail Reform Act of 1966, Pub. L. No. 89-465, § 2, 80 Stat. 214.

The existence of the Brett Bursey cash bond deposit, then, did not necessarily establish that the Government was entitled to its recovery under § 3006A(f). On the contrary, the district court would have been obliged to return the deposit to the elder Burseys under § 3146(a) (3), had it been demonstrated that it was their property and that it was unavailable for payment for Brett Bursey's representation. Moreover, we think the elder Burseys would have been entitled upon a timely motion to intervene below to protect their asserted interest in the cash deposit. No rule specifically provides for the intervention in a criminal case by a party in the position allegedly occupied by the Bursey parents here. Had the Bursey parents been obliged to commit themselves as sureties for their son on the full amount of the bond under § 3146(a) (4) in order to secure his release, however, they would have become parties below by operation of F.R.Crim.P. 46(e) (3),¹⁸  and clearly there would have been no procedural bar to their participation in proceedings regarding the disposition of their undertaking.¹⁹  Under § 3146(a) (3) they were not required to obligate themselves for more than their deposit, or to become parties to the bond itself. That fact does not necessarily lessen the substantiality of their interest or the necessity of their intervention in order to protect themselves from error in the handling of their deposit from any source, however. Moreover, to hold that a subsection (3) depositor could never participate in proceedings to dispose of his undertaking would run counter to Congress' design in enacting subsection (3) as an administratively simpler and economically surer means than subsection (4) for a trustworthy defendant to procure his release on bond. As we find nothing to the contrary in F.R.Crim.P. 46(e) (3)²⁰  or any other provision, these considerations compel our conclusion that a timely limited intervention by an asserted subsection (3) depositor such as the Burseys here may be proper. See F.R.Crim.P. 57(b).²¹  But cf. Bankers Mortgage Co. v. McComb, 10 Cir. 1932, 60 F.2d 218.

The Bursey parents never intervened before the trial court's summary disbursement of the Brett Bursey bond deposit, however; having notice of nothing to the contrary, they apparently rested upon the representations of their son's August 27, 1973, letter, and the September 4, 1973, directive of the Deputy Clerk in Corpus Christi, that the bond deposit should be returned to them. We think this inaction did not forfeit the senior Burseys' asserted interests in this case, because the district court's summary action was not to be anticipated.

In this case the district court based its finding of the availability of the $1000 deposit for payment under subsection (f) solely upon the fact that those funds had been deposited on the appearance bond, and the court, in accordance with its practice under Local Rule 22(E), summarily disbursed the funds without notice to the parties. In so proceeding we think the district court failed to make an "appropriate inquiry" as to the availability of the funds for payment as required under subsection (f). The inconsistency of Local Rule 22(E) must yield. The record before the trial court reflected Brett Bursey's representation, in his August 27 letter, that the posting of the cash deposit did not affect his own financial status and his direction that the cash deposit was to be returned to his parents. These circumstances were sufficient to raise a question as to the "availability for payment" of the bond deposit: given these facts, and given the court's own prior recognition of Brett Bursey's entitlement to appointed counsel as an initial matter, the district court was under a duty to inquire further before concluding that the cash deposit money was available for payment in compensation for counsel, see Wood v. United States, 5 Cir. 1967, 387 F.2d 353; United States v. Cohen, 8 Cir. 1969, 419 F.2d 1124; cf. Cuevas v. Wilson, N.D. Cal. 1966, 264 F. Supp. 65, 72. At the very least, such an inquiry should have involved notice to Brett Bursey of the anticipated disbursement and an opportunity for him and his sponsors (upon a prompt motion to intervene, cf. McDonald v. E. J. Lavino Co., 5 Cir. 1970, 430 F.2d 1065) to present their objections thereto.²²  In the absence of the initiation of any such inquiry by the district court, without which the court could not properly have appropriated the deposit under § 3006A(f), the Burseys were entitled to stand on their expectations that the September 4, 1973, directions of the Deputy Clerk of the district court in Corpus Christi to refund the deposit to the elder Burseys would be carried through. Nothing in this record indicated that the cash deposit on Brett Bursey's bond was his property; indeed, all signs pointed toward other ownership, and the court had no basis for belief that it was appropriate for forfeiture under § 3006A(f). The trial court had no basis for proceeding to dispose of the bond deposit in any way other than to return it under § 3146(a) (3). In these circumstances it is evident that the elder Burseys cannot be dispossessed of their interest by failing to anticipate the trial court's error in summarily appropriating the cash deposit, and by failing to intervene before that error transpired. Thus we²³  conclude that the elder Burseys were properly permitted to intervene upon appeal²⁴  and that upon remand they must be allowed to raise their claim of entitlement of erroneous forfeiture at this stage in these proceedings.

This discussion has already developed our conclusions regarding the merits of the Burseys' points on appeal: we conclude that the court below erred in summarily committing the Brett Bursey bond deposit to the United States. The trial court concluded that the deposited sums were funds available to the defendant for the payment of counsel fees. On this record, however, all that the court could properly have concluded was that the $1,000 was available for deposit for the release of Brett Bursey from custody pending appeal. Funds available for payment for representation are repayable to the Government under the Criminal Justice Act; but nothing in that Act or the Bail Reform Act mandates that a person who has made funds available for deposit on an accused's bond also has necessarily dedicated the funds to or for counsel fees. The construction contended for by the Government here appropriating bond deposits as "available" for reimbursement for costs of representation would discourage potential benefactors from ever making bond deposits for trustworthy defendants. If Congress intended so to transmute bond money into counsel fee money, it could have done so without linguistic ambiguity or abracadabra. But the imputation of Congressional avarice sought by the Government is not the letter or purpose or rational extension of the legislation as enacted; on the contrary, it chills the statute's overriding concept and spirit to sub-zero levels.

So persuaded, we conclude that the disbursement order entered below must be vacated. The Burseys urge us to proceed further, and to direct that the forfeited funds be returned to Dr. and Mrs. Bursey, but we are unprepared so to hold on this record. The facts asserted by the Burseys to establish conclusively their ownership of the deposit money and its unavailability on behalf of Brett Bursey for payment for representation have not been tested at the district court level, as they must be. We are unwilling, in this virgin legal territory, to engage in any hypothetical analysis of alternative fact situations as they may appear and be weighed by the trial judge. Thus, we hold only that the district court erred in summarily appropriating the cash deposit to the Treasury in the circumstances of this case; and we remand the cause for further proceedings.

The cause is remanded with directions that the judgment appealed from be vacated and for further proceedings not inconsistent with this opinion.