There is a disclaimer at the end of the statute which lends further support to this interpretation of the statute. It states, "this section shall not apply to any third party surety", thus reinforcing the notion that money provided by a third party is not within the purview of the statute.
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 applies to all types of third party surety, including the situation here.
B. Caselaw Does Not Support Government's Position
The only case that the government cites as authority for its position is an Eighth Circuit case, United States v. Higgins, 987 F.2d 543 (8th Cir. 1993), which focuses on two subjects that are not of concern here
, and does not mention the issue of a third party posting bail. Without any authority for its claim, the government is in no position to attempt to contradict the plain meaning of a federal statute which dictates that the government request be denied.
II. POLICY CONSIDERATIONS
In addition to being persuaded by the plain meaning of the statute and the lack of caselaw on point, my decision here is also motivated by policy concerns.
If bail money belonging to third parties could regularly
be applied to certain debts of defendants, there would be clear incentives for defendants to avoid repaying debts, and clear disincentives for third parties to post bond. To avert such harms, the use of a third party's bail money should be limited to its core purpose - to secure a defendant's appearance in court.
Once such a purpose is satisfied, a third party's money should promptly be returned.
III. RESPONSE TO GOVERNMENT'S SUGGESTION
During the hearing, the government argued that the Petitioner's request to resolve this matter is "a bit premature" (since the defendant has until the year 2000 to pay off his debt) and that the resolution of this claim should be postponed until then. See Transcript at 6. I disagree with the government's position and decline to endorse its suggestion. The issue in this case - whether a third party's bail money can ever be applied towards a defendant's fine - is ripe for resolution now. Regardless of whether the defendant pays the fine by the year 2000 or not, Petitioner's money cannot be used towards the fine. Therefore, there is no reason to defer my ruling.
Furthermore, the Petitioner filed this application after waiting months for the return of his money,
and he deserves to have the matter given prompt attention and adequate consideration. The Petitioner has a right to his money, and this right must be acted upon now.
For the above reasons, I find that the bail money at issue here should be returned to Petitioner. I therefore order the following:
AND NOW, this 6Th day of February, 1996, upon consideration of the Application for Return of Cash Bail filed by Uko J. Equere and the government's response, IT IS ORDERED that the United States government RETURN the bail money posted by Uko J. Equere in the amount of $ 2500 on behalf of Ifiok J. Equere TO UKO J. EQUERE forthwith.
Anita B. Brody, J.