United States of America v Inkley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS |
| Judgment Date | 25 March 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0325-6 |
| Docket Number | 88/0286 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 1988 |
[1988] EWCA Civ J0325-6
Lord Justice Purchas
and
Mrs. Justice Heilbron
88/0286
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Gatehouse)
Royal Courts of Justice
MR. A. LAYTON (instructed by Messrs Oppenheimers) appeared on behalf of the Respondent/Plaintiff.
MR. C. A. CRITCHLOW (instructed by Messrs Edward Lewis & Co., London Agents for F. E. Hodgkinson Esq., Skegness) appeared on behalf of the Appellant/Defendant.
JUDGMENT OF THE COURT DELIVERED BY—
This is an appeal by Harold Reginald Inkley against an order of Gatehouse J. made on 21st October 19 87 by which he allowed an appeal from an order of Master Waldman of 30th April 1987 which set aside a judgment entered by default in favour of the plaintiffs, the United States of America, in the sum of £34,096.76, and further ordered that the statement of claim be struck out pursuant to 0. 18, r.19 of the Rules of the Supreme Court and under the inherent jurisdiction of the court. The learned judge allowed the appeal and reinstated the default judgment. The appeal raises a short but important point on the jurisdiction of the court to enforce an appearance bond entered into by the appellant to secure his attendance for trial in an American court upon an indictment preferred by the Grand Jury.
The facts can be shortly stated. The appellant is a British subject. In 1983 he was arrested in Florida, and together with others, charged with offences in the nature of fraud relating to the sale or attempted sale of non-existent oil wells to citizens of the United States of America. On 16th September 1983 in the United States District Court for the Southern District of Florida the appellant obtained in accordance with the Bail Reform Act and the Speedy Trial Act an order that he be released from custody upon certain provisions ("the release order"). The release order recorded that the defendant "agrees to abide by the conditions of release listed below and such special conditions of release as may be designated by the U.S. Magistrate or Court". There then follow a series of conditions of release including supervision by the pre-trial services agency, conditions for reporting regularly and restricting his movement beyond the boundaries of the Counties of Dade and Broward unless given permission by the pre-trial services officer. The release order also provided:
"METHOD OF RELEASE: UNSECURED 10% SURETY PENALTIES:
If I violate any condition of this release a warrant for my arrest may be issued immediately. After arrest, the terms and conditions of any further release will be redetermined.
If I fail to appear for any court or judicial officer as required, an additional criminal case may be instituted against me. If the failure to appear is in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction, the penalty is a fine of not more than $5,000 or imprisonment for not more than five years, or both;"
Undated, but clearly coming into existence upon the same occasion as the appellant's release by the court on 16th September 1983 and associated with it since the 10% surety is recorded by a court receipt of the same date in the sum of $4,800 and reference 83–754-CR-EBD, there was an appearance bond ("the Bond") which forms the subject matter of the action in relation to which this appeal is brought. The relevant provisions of the Bond are as follows. It refers to case No. 83–754-CR-EBD:
"We, the undersigned, jointly and severally acknowledge that we and our personal representatives are bound to pay to the United States of America the sum of Forty-Eight Thousand Dollars ($48,000) (10% deposited with Clerk of Court).
The conditions of this bond are that the defendant named above [Reggie Inkley] is to appear before the Hon. Peter L. Nimkoff, United States Magistrate for the Southern district of Florida, at Miami, Florida, and in the United States District Court for the Southern District of Florida at Miami, Florida, or by the United States District Court for the Southern District of Florida or any other United States District Court to which the jurisdiction of any other United States District Court to which the defendant may be removed or the cause transferred after he has appeared in such other district pursuant to the terms of this bond, except in accordance with such orders or warrants as may be issued by the magistrate or the United States district Court for the Southern District of Florida or the United States District Court for such other district, that the defendant is to abide any judgment entered in such matter by surrendering himself to serve any sentence imposed and obeying any order or direction in connection with such judgment as the court imposing it may prescribe, and to obey and perform the further conditions of bond attached hereto and made a part thereof.
If the defendant appears as ordered and otherwise obeys and performs the foregoing conditions of this bond, then this bond is to be void, but if the defendant fails to obey or perform any of these conditions, payment of the amount of this bond shall be due forthwith. Forfeiture of this bond for any breach of its conditions may be declared by any United States District Court having cognizance of the above entitled matter at the time of such breach and if the bond is forfeited and if the forfeiture is not set aside or remitted, judgment may be entered upon motion in such United States District Court against each debtor jointly and severally for the amount above stated, together with interest and costs, and execution may be issued and payment secured as provided by the Federal Rules of Criminal Procedure and by other laws of the United States.
It is agreed and understood that this is a continuing bond (including any proceeding on appeal or review) which shall continue in full force and effect until such time as the undersigned are duly exonerated."
The bond is signed by the magistrate named in the order, Peter L. Nimkoff, by another witness and by Inkley himself. Associated with the bond is another document carrying the same reference case number headed "Conditions of Bond". This sets out five conditions which substantially repeat the conditions in the release order. In particular Condition 4 repeats that failure to appear before the United States Magistrate or court when ordered may give rise to an additional criminal case separate and apart from the offence presently charged and the penalties ensuing. Condition 5 records that violation of any conditions of the bond may result in forfeiture of bail by the United States District Court and the issue of a warrant for arrest. This document is again signed by Inkley and by the same witness as the bond. Special conditions are recorded "as set in open court".
On 27th September 1983 the appellant's father died in hospital at Boston in England. Upon a motion to the United States District Court of the Southern District of Florida an order for permission to travel to England for the purposes of the funeral was granted on 28th September 1983. The appellant's passport was returned to him—it had been impounded on his arrest—and he was allowed to be absent from the State of Florida for 30 days.
He accordingly travelled to England and has remained here ever since. No extradition proceedings have, so far as we know, been issued.
On 17th April 1985 the United States of America, as plaintiff in the United States District Court Southern district of Florida, obtained a final judgment in the sum of $48,000 together with interest—"The court having noted the previous revocation and estreature of the said appearance bond, and having found no basis for exonerating or remitting the said bond". By writ dated 26th September 1986, with the statement of claim endorsed thereon, the United States of America started an action for recovery of the amount of the judgment they had obtained in Florida, together with interest thereon. On 21st October 1986 the plaintiffs obtained judgment by default. As already mentioned in this judgment, that judgment was set aside and the statement of claim struck out by Master Waldman; but was reinstated by Gatehouse J.
The power to release and require appearance bonds etc., are given by Article 3146 of the United States Code for Criminal Procedure, the relevant parts of which are:
3146. Release in noncapital cases prior to trial
"(a) Any person charged with an offense, other than an offense punishable by death, shall, at his appearance before a judicial officer, be...
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