United States of America, Appellee, v. Vincent Gigante, Defendant-appellant,andrew Gigante, et al., Sureties-appellants, 85 F.3d 83 (2d Cir. 1996)

Defendant-appellant Vincent Gigante and his sureties (collectively "Appellants") appeal from an order entered April 8, 1996 in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, that denied reconsideration of the district court's imposition of a bail condition requiring the forfeiture of bail collateral if defendant-appellant Vincent Gigante commits a federal, state, or local crime while released on bail. Gigante, who is charged with various offenses relating to his alleged role as the boss of the Genovese organized crime family, is awaiting the outcome of a hearing on his competence to stand trial. Although Gigante had originally been released on personal recognizance, the district court in March 1996 modified the conditions of Gigante's release, ordering him to post a $1,000,000 appearance bond, which is secured by the family homes of the sureties (Gigante's three children and their spouses), and subjecting his release to the additional condition that he not commit a crime. Appellants argue on appeal that the district court lacks the authority to order the forfeiture of their bond and collateral if Gigante commits a crime while released on bail.

The parties disagree over whether Appellants' challenge to the forfeitability of their bond and collateral is ripe for review. While a challenge to the imposition of a condition of release is immediately appealable, see 18 U.S.C. § 3145(c); United States v. Zuccaro, 645 F.2d 104, 105 (2d Cir.) (per curiam), cert. denied, 454 U.S. 823, 102 S. Ct. 110, 70 L. Ed. 2d 96 (1981), a challenge to a threatened sanction is premature if that sanction has not yet been finally imposed, see United States v. Amiel, 995 F.2d 367, 370 (2d Cir. 1993); United States v. Vaccaro, 931 F.2d 605, 606 (9th Cir. 1991); American Druggists Ins. Co. v. Bogart, 707 F.2d 1229, 1235 n. 5 (11th Cir. 1983); United States v. Ryan, 580 F.2d 151, 152 (5th Cir. 1978) (per curiam).

In its order, the district court characterized the potential forfeiture of Appellants' bond as a "condition" of Gigante's release, stating that: "Gigante will be released on the condition that the sureties will forfeit their collateral if he commits a federal, state, or local crime during his release." United States v. Gigante, 166 F.R.D. 3, 6 (E.D.N.Y. 1996). The appearance bond itself, on the other hand, provides that: "The bail will be forfeited if any of the ... special conditions of release or any of the other conditions specified in the bond are violated." The appearance bond, standing alone, might well be read as stating a future event upon whose occurrence forfeiture would ensue pursuant to Rule 46 of the Federal Rules of Criminal Procedure,¹  thus rendering the appeal premature. However, we will accept the district court's assessment of its order as stating a present (and therefore appealable) condition, and proceed to the merits.

Rule 46(e) (1) explicitly authorizes forfeiture of bail for "breach of condition of a bond." Appellants argue that this authorization was implicitly narrowed by the enactment of 18 U.S.C. § 3142(c) (1) (B) (xi), which authorizes as a condition of bail that the person released "execute an agreement to forfeit [property] upon failing to appear as required," and 18 U.S.C. § 3142(c) (1) (B) (xii), which authorizes the condition that "solvent sureties ... agree [ ] to forfeit [property] to assure appearance of the person [released] as required." Based upon these provisions, Appellants contend that property which secures a bail bond may be forfeited only upon the defendant's failure to appear.

Section 3142(c) (1) (B) (xiv) authorizes, however, the imposition of "any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community." Id. (emphasis added). Reading all of the foregoing provisions together, we conclude, in accord with the First, Fifth, Seventh, Ninth, and Tenth Circuits and substantially for the reasons stated in Judge Nickerson's memorandum and order, see Gigante, 166 F.R.D. at 3-6, that a bail bond and its collateral may be forfeited not only for the defendant's failure to appear, but also for other violations of bond conditions, including the defendant's commission of a crime, see United States v. Dudley, 62 F.3d 1275, 1277-78 (10th Cir. 1995); United States v. Vaccaro, 51 F.3d 189, 191-92 (9th Cir. 1995); United States v. Patriarca, 948 F.2d 789, 793-94 & n. 3 (1st Cir. 1991); United States v. Santiago, 826 F.2d 499, 506-07 (7th Cir. 1987); United States v. Dunn, 781 F.2d 447, 449-50 & n. 9 (5th Cir. 1986).

We accordingly affirm the order of the district court.