Unpublished Disposition, 845 F.2d 329 (9th Cir. 1987)

MEMORANDUM^* 

The United States appeals the district court's order requiring that $40,000 of bail posted by the defendant, Daniel Bailey, be paid to Bailey's attorney, Paul Mast, pursuant to an assignment from Bailey to Mast. The government asserts that its tax levy on the posted bail has priority over the assignment. We affirm.

Bailey was indicted and arrested on mail fraud charges. He posted a $500,000 surety bond and a $50,000 cash bond. He later pleaded guilty. On March 2, 1987, pursuant to a stipulation between the United States and Bailey, the district court reduced Bailey's cash deposit from $50,000 to $10,000 and ordered that the difference be refunded to Bailey. On the same day, Bailey filed an "Assignment of Bail" with the district court, assigning the entire $50,000 of the cash bail to his attorney, Mast. On March 3, 1987, the IRS served a Notice of Levy on the district court clerk for delinquent taxes owed by Bailey. On March 24, 1987, Judge Letts entered a minute order directing the parties to show cause why Mast was not entitled to the funds pursuant to the assignment, or, alternatively, why the IRS levy should not be complied with.

A hearing was held on April 7, 1987. At the conclusion of the hearing the district court orally ruled that Mast was entitled to the $40,000. The court reasoned that the money was being held by it to ensure the effective operation of the criminal justice system. The court observed that Bailey owed Mast for past legal services and that paying the money to Mast would ensure Mast's continued representation of Bailey, saving the court the time and expense of appointing new counsel. The court also noted that if Bailey was unable to assign or otherwise control the bail fund his flight risk would increase. In his Order issued May 7, 1987, Judge Letts stated that " [n]o evidence was presented to the Court" on the issue why the government's levy on the bail fund should take precedence over the prior assignment of the fund to Mast.

The government now asserts that it is entitled to the bail fund because it had recorded four notices of tax liens prior to the assignment. Although copies of the lien notices were attached to the Memorandum of Points and Authorities submitted by the government, the Notices were never entered into evidence before the district court. Nor was there a request that the district court take judicial notice of the documents. After the hearing the district court's order reflected that no evidence had been introduced to support the government's contention. The government failed to bear its burden of showing why Mast was not entitled to the funds pursuant to the assignment.

The Notices were never in evidence so that Mast would have had the opportunity and obligation to object or call rebuttal witnesses. We recognize that if the lien notices were properly of record before us the government would have a strong argument that its interest is superior to Mast's under 26 U.S.C. §§ 6321 and 6323. We cannot, however, review what is not in evidence. The government could have made a motion to correct the district court's order or requested additional findings of fact if such findings were warranted. The government did not avail itself of those opportunities.

Accordingly, the judgment of the district court is

AFFIRMED.