The opinion of the court was delivered by: COHILL
Presently before us is a motion filed by Attorney Charles F. Scarlata in which he seeks the remission of a $5,000.00 bond which was forfeited when his client, Defendant Anthony Ciotti, failed to report to the designated federal institution to begin serving his sentence. Although we sympathize with Mr. Scarlata's situation, believe that he did an outstanding job in representing Mr. Ciotti and recognize that he had nothing to do with Mr. Ciotti's disappearance, we must deny this motion.
In 1981, the defendant was convicted of violating 21 U.S.C. §§ 841 (a)(1) and 846, and was sentenced to fifteen years imprisonment. His $5,000.00 bond was continued pending appeal.
On May 2, 1983, after his appeals were exhausted, Mr. Ciotti was notified by the United States Marshal's Office that he was to report to the designated institution by May 13, 1983. The defendant did not report and his whereabouts are still unknown. On May 17, 1983, we revoked bond and issued a warrant for his arrest.
Two days after bond was revoked, Mr. Scarlata, as the movant, filed a motion asking us to set aside the forfeiture and to release the $5,000.00 to him since the bond receipt is in his name. In the motion, Mr. Scarlata stated that Mr. Ciotti had agreed that the $5,000.00 bond, when returned, would go to Mr. Scarlata as payment for his legal services. Mr. Ciotti paid the $5,000.00 and put Mr. Scarlata's name on the receipt. The motion further stated that the defendant would not benefit and that the government would not be prejudiced if the bond money were returned. We denied this motion, without prejudice, so that the movant could file a similar motion following the apprehension of the defendant.
On December 21, 1983, Mr. Scarlata filed the same motion asserting that, even though the defendant still remains at large, he should not be deprived of his fee. It is this second motion which we now consider.
Forfeitures of bail bonds are controlled by Fed. R. Crim. P. 46(e). Rule 46(e) states in pertinent part:
(1) Declaration. If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail.
(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.
(Emphasis supplied.) As evidenced by the use of the words "shall" in subsection (1) and "may" in subsection (2), a district court must declare a forfeiture if a defendant breaches a condition of bond, but it is within the court's discretion to set aside the forfeiture and return the money. See United States v. Frias-Ramirez, 670 F.2d 849 (9th Cir. 1982), cert. denied sub nom., Frias v. United States, 459 U.S. 842, 103 S. Ct. 94, 74 L. Ed. 2d 86 (1982); United States v. Stanley, 601 F.2d 380 (9th Cir. 1979); United States v. Yim, 348 F. Supp. 708 (C.D. Cal. 1972); United States v. Bradley, 43 F.R.D. 278 (W.D. Pa. 1967).
Most petitioners seeking remittance are either the defendants themselves, or sureties. We have found no cases where a third-party requests the forfeiture to be set aside. Though this situation is unique, we believe the cases dealing with sureties are analogous. In addition, the factors to be considered by a district court when deciding whether "justice does not require the enforcement of the forfeiture" are the same whether the remittance is sought by the defendant, the surety, or an interested third-party.