United States of America, Plaintiff-appellee, v. Public Service Mutual Insurance Company, Appellant, 282 F.2d 771 (2d Cir. 1960)

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US Court of Appeals for the Second Circuit - 282 F.2d 771 (2d Cir. 1960) Argued September 28, 1960
Decided September 28, 1960

Fred Flatow, New York City (David E. Flatow, New York City, on the brief), for appellant.

Anthony H. Atlas, Asst. U. S. Atty., Southern Dist. of New York, New York City (S. Hazard Gillespie, Jr., U. S. Atty., New York City, on the brief), for plaintiff-appellee.

Before LUMBARD, Chief Judge, and TUTTLE*  and FRIENDLY, Circuit Judges.


We affirm in open court the order of the District Court for the Southern District of New York granting the government's motion under Rule 46(f) (3) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., for entry of judgment against Public Service Mutual Insurance Company upon a forfeiture of a $5,500 bail bond. The bond was for the appearance of Thomas Simmons to answer an indictment charging violation of the narcotic laws. Simmons went to trial on July 13, 1959 before Judge Edelstein and a jury and two days later, when counsel was to sum up, Simmons failed to appear. A further adjournment was taken to the next day and, when Simmons again failed to appear, the trial proceeded and Simmons was found guilty. He was finally apprehended on August 5, 1959 and sentenced to ten years imprisonment.

Even though Simmons' capture came about through information furnished by the appellant, it seems clear to us that the entry of judgment for the full amount of the bond was well within the discretion of the district court. Smaldone v. United States, 10 Cir., 1954, 211 F.2d 161 and U. S. v. Dudley, 242 F.2d 656 (5 Cir. 1957) are readily distinguishable on their facts.



Sitting by designation