United States v. Adam Sortini ( 2012 )

FILED
NOT FOR PUBLICATION NOV 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10499
Plaintiff - Appellee, D.C. No. 1:06-cr-00100-OWW-1
v.
MEMORANDUM*
ADAM JOHN SORTINI,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted October 19, 2012
San Francisco, California
Before: HAWKINS, N.R. SMITH,** and MURGUIA, Circuit Judges.
Appellant Adam Sortini appeals the district court’s order granting the
government’s 28 U.S.C. § 2044 motion to apply a $38,000 cash bond to Sortini’s
restitution obligation and denying his Federal Rule of Criminal Procedure
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Judge N.R. Smith was drawn to replace Judge B. Fletcher and has
read the briefs, reviewed the record, and listened to a recording of oral arguments.
(“FRCP”) 46(g) motion to exonerate the bond. Sortini posted the bond to secure
his presence at sentencing and then later assigned it to a third party. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
FRCP 46(g) requires a district court to release bond monies when a bond
condition has been satisfied. Satisfaction of a condition, however, does not
automatically release the monies; the district court must enter an order directing
their release. See, e.g., United States v. Toro, 981 F.2d 1045, 1046-47 (9th Cir.
1992) (ordering the exoneration of bonds in response to FRCP 46 motions).
Therefore, as here, absent an order from the district court releasing a bond, the
bond remains available for purposes of section 2044.1
Sortini’s assignment of the bond had no effect on the bond’s availability for
application toward his restitution obligation. First, section 2044 addresses “money
belonging to and deposited by or on behalf of” the defendant. Id. It is undisputed
that (1) the monies at issue on appeal were, under California law, community
property that belonged to Sortini, who deposited them or had them deposited on his
1
Sortini filed his FRCP 46(g) motion after the government moved pursuant
to section 2044 to apply the bond toward Sortini’s restitution obligation. Section
2044, which expressly prohibits the release of bond monies after entry of a plea or
guilty verdict and before sentencing “except upon a showing that . . . restitution
cannot be imposed for the offense,” 28 U.S.C. § 2044 (2006) (emphasis added),
evidences Congress’s intent to keep monies belonging to and deposited by or on
behalf of a defendant available for application toward any restitution obligation
imposed upon the defendant.
behalf; and (2) the third-party assignee did not own any interest in the bond at the
time it was deposited. Thus, the district court properly determined that the bond
was subject to section 2044. Second, section 2044 contains no exception for bond
monies assigned by defendants to third parties after they are deposited with the
district court. Cf. id. (exempting from the statute funds belonging to third parties at
the time of deposit). Such an exception to section 2044 would enable defendants
to evade payment of their restitution obligations simply by assigning their bonds,
thereby undermining the purpose of the statute as set forth above. Therefore, the
bond was subject to section 2044, even in light of Sortini’s assignment.
The district court properly determined that the government, not the third-
party assignee, had a superior right to the bond monies and did not err by applying
Sortini’s bond to his restitution obligation.
AFFIRMED.