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UNITED STATES v. EQUERE

February 6, 1996

UNITED STATES OF AMERICA, PLAINTIFF,
v.
IFIOK JOHN EQUERE, DEFENDANT.



The opinion of the court was delivered by: BRODY

 Brody, J.

 February 6, 1996

 Before me is an Application for Return of Cash Bail, filed by Uko J. Equere ("Petitioner"), the brother of the defendant, Ifiok J. Equere. Petitioner posted cash bail in the amount of $ 2500 on behalf of his brother on September 10, 1993, *fn1" in order to secure his brother's appearance in court for a criminal matter. Despite the fact that his brother did appear in court, *fn2" and has since been sentenced *fn3" , served his sentence and been released from custody, the Petitioner's bail money has not been returned. Petitioner filed this Application for Return of Cash Bail on November 9, 1995, and the government filed a response in opposition. I held a hearing on this matter on January 24, 1996. For the following reasons, I will approve the Petitioner's application.

 I. 28 U.S.C. § 2044

 In its papers, the government claims that the defendant has not paid any portion of his $ 5000 fine, and that therefore the government is under no obligation to return Petitioner's bail money. See Government's Response to Order to Show Cause at 1-2. As authority for its position, the government cites 28 U.S.C. § 2044 which states:

 
On motion of the United States attorney, the court shall order any money belonging to and deposited by or on behalf of the defendant with the court for the purposes of a criminal appearance bail bond (trial or appeal) to be held and paid over to the United States attorney to be applied to the payment of any assessment, fine, restitution, or penalty imposed upon the defendant... This section shall not apply to any third party surety.

 The purpose of this statute is to enable the government to collect certain outstanding payments owed by a defendant. "Section 2044 codifies the discretion courts have long exercised, to pay, on a proper motion, bond or bail money to the parties with a legally established superior claim to it. . . It is a simple procedural mechanism by which the government, after the purposes of bail have been served, may make a motion as a judgment creditor that the court order the bond fund be delivered to it". United States v. Higgins, 987 F.2d 543, 546 n.3, 547 (8th Cir. 1993). According to the statute, a court does not have to grant a request to transfer bail funds; rather, the statute gives a court complete discretion in deciding such a matter.

 A. Plain Meaning of Statute Does Not Support Government's Claim

 Section 2044 grants courts authority to transfer bail funds if a defendant's own money has been used to post bond. The statute, however, does not extend such authority to a situation like the present case, in which a third party, not the defendant, has provided his own money to post defendant's bail. The statute states that "the court shall order any money belonging to and deposited by or on behalf of the defendant" be applied to the payment of any fine or penalty. 28 U.S.C. § 2044 (emphasis added). This language delineates the strict parameters of the statute, specifically preventing the government from using the statute as authority in cases such as the present one.

 Any other interpretation of the statute is unworkable. For example, the government may be under the false impression that the statute applies either to (1) money belonging to and deposited by defendant or to (2) money owned by a third party and deposited on behalf of a defendant. However, the wording of the statute precludes this possibility: if the phrase "the court shall order any money belonging to and deposited by or on behalf of the defendant" is read according to the second interpretation, it would be missing an operative word (such as "deposited") and would not make sense: "the court shall order any money. . . on behalf of defendant".

 The legislative history does not shed light on the interpretation of this phrase. I must assume, however, that Congress did not intend to enact a nonsensical statute. Furthermore, I cannot assume that Congress intended the second interpretation, but sloppy draftsmanship caused the omission of an operative word. I therefore have interpreted the statute according to its plain, logical and practical meaning: it applies only to "money belonging to" the defendant, which has been "deposited by" the defendant or "on behalf of the defendant", and does not apply to money owned by a third party.

 In the hearing, the government argued that the disclaimer applies only to a commercial organization acting as surety, and does not apply to a private individual. See Transcript at 4-5. However, there is no indication (in the statute itself or in the legislative history) that the broad language of the disclaimer should be narrowly defined, or that the disclaimer is limited to certain types of third parties or certain types of surety. As a result, the general, common meaning of the terms will be adopted, and under such interpretation, the disclaimer ...


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