UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RONALD E. JACKSON, DEFENDANT, JOSEPH M. MCLAUGHLIN, FOR AMERICAN DRUGGIST INSURANCE COMPANY, MOVANT-APPELLANT
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The court held that the bonding company's notice of appeal was timely filed under the civil rules, and the trial court did not abuse its discretion in forfeiting the bond.
The American Druggist Insurance Company posted a bond for Ronald E. Jackson, who failed to appear for a hearing and is believed to have fled. The tria…
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CLARK, Circuit Judge:
The American Druggist Insurance Company appeals a judgment entered against it causing it to forfeit an appearance bond. The bond was issued on behalf of Ronald E. Jackson who had been arrested for drug smuggling. Jackson failed to appear at an evidentiary hearing and is believed to have fled to Ecuador or Colombia. Subsequently, a hearing was held and the court entered an order forfeiting bond against the bonding company. The judgment was entered on October 26, 1981 and notice of appeal was filed on November 13, 1981.
We hold that the appellant filed a timely notice of appeal. Although an issue of first impression in this circuit, we find that the enforcement of a bond forfeiture is a civil matter and therefore governed by Federal Rule of Appellate Procedure 4(a), which provides for a thirty-day period to file a notice of appeal in civil matters. A similar result was reached in the analogous case of United States v. Zarafonitis, 150 F. 97, 99 (5th Cir. 1907). We find our position in accord with that of the Ninth Circuit in United States v. Plechner, 577 F. 2d 596, 597 (9th Cir. 1978). Although the Tenth Circuit has taken a contrary position in United States v. Jones, 567 F. 2d 965 (10th Cir. 1977), we do not find its reasoning persuasive. Thus, the bonding company’s appeal is properly before us.
The appellant argues that there is no signature on the order of forfeiture and there is no indication that it was filed with the Clerk of the Northern District of Georgia. We direct the appellant’s attention to page 118 of the record on appeal. There appears an order signed by Judge Yining on October 26, 1981 and clearly marked as having been filed with the Clerk of the Northern District of Georgia on October 27, 1981. Consequently, there is no merit to this contention.
Next, the appellant contends that Judge Vining abused his discretion in denying its motion for a continuance on October 26. Specifically, the surety believes the continuance should have been granted because it felt it could have eventually produced Jackson for trial. In reviewing the lower court’s determination that enforcement of the forfeiture was required, the standard of review is whether the district judge acted arbitrarily or capriciously. United States v. Skipper, 633 F. 2d 1177, 1180 (5th Cir. 1981). We hold that the trial judge did not act arbitrarily or capriciously in the instant case. Jackson was a bonding risk. He had previously jumped bail in other criminal proceedings against him. The appellant knew or should have known of this situation. Thus, the appellant took a chance and lost. The trial judge’s ruling was entirely proper. We have examined the appellant’s contentions and find that they do not merit a reversal. Consequently, we affirm the judgment of the court below.
AFFIRMED.
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United States v. Santiago, 826 F.2d 499 (7th Cir. 1987)…e time limitation (sixty days) for civil appeals in Rule 4(a)(1), Fed.R.App.P. applies. See, e.g., United States v. Brouillet, 736 F. 2d 1414, 1415 (10th Cir.1984); United States v. Roher, 706 F. 2d 725, 726 (5th Cir.1983); United States v. Jackson, 691 F. 2d 478, 479 (11th Cir.1982); United States v. Martinez, 613 F. 2d 473, 482 n. 30 (3d Cir.1980); United States v. Plechner, 577 F. 2d 596, 597-98 (9th Cir.1978). See also Wisconsin v. Wickstrom, 134 Wis.2d 158, 162-64, 396 N.W. 2d 188 (1986). In Roher, the…
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United States v. Brouillet, 736 F.2d 1414 (10th Cir. 1984)…exceptions are excluded____” Id. at 967. Subsequent to Jones, four other circuits have faced this question, and they have uniformly adopted the opposite view. See United States v. Roher, 706 F. 2d 725, 726 (5th Cir.1983); United States v. Jackson, 691 F. 2d 478, 479 (11th Cir.1982); United States v. Martinez, 613 F. 2d 473, 482 n. 30 (3rd Cir.1980); United States v. Plechner, 577 F. 2d 596, 597-98 (9th Cir.1978). These circuits view a motion relating to the forfeiture of a bail bond as essentially a civil…
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United States v. Hallahan, 768 F.2d 754 (6th Cir. 1985)…ocedure 4(a)(1) governs the appeal in this case, this is not a situation in which the United States’ participation in contempt holding is in the “traditional” posture required for the sixty day provision to apply. See, e.g. United States v. Jackson, 691 F. 2d 478, 479 (11th Cir.1982) (appeal from forfeiture of an appearance bond must be taken within thirty days); United States ex rel. Petrofsky v. Van Cott, 588 F. 2d 1327 (10th Cir.1978), cert. denied, 444 U.S. 839, 100 S.Ct. 77, 62 L.Ed.2d 50 (1979); In re…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Plechner, 577 F.2d 596 (9th Cir. 1978)
- United States v. Jones, 567 F.2d 965 (10th Cir. 1977)
- United States v. Skipper, 633 F.2d 1177 (5th Cir. 1981)