author: NICKERSON, District Judge.

text:
    In re GRAND JURY TESTIMONY OF ATTORNEY X.
    No. 85 C 2504.
    United States District Court, E.D. New York.
    Nov. 12, 1985.

      Raymond J. Dearie, U.S. Atty., E.D. of N.Y., Brooklyn, N.Y., Edward A. McDonald, Attorney-in-Charge, Organized Crime Strike Force, E.D. of N.Y. (Norman Bloch, of counsel), Brooklyn, N.Y., for U.S. of America.
    Kostalanetz & Ritholz (Robert S. Fink, Elliot Silverman, Michael L. Spiegel, of counsel), New York City, for intervenor.
   NICKERSON, District Judge.

Since November 1983 a grand jury in this district has been investigating alleged criminal activities of the Lucchese organized crime family. The government contends that the intervenor, the client of Attorney X (the Attorney), criminally obstructed that investigation. To determine whether the obstruction was intentional the government wishes to compel the Attorney to testify before the grand jury as to what he was told about the investigation by a third person and what he then conveyed to his client. The Attorney and the intervenor claim that these communications are immune from disclosure under (1) the attorney-client privilege, (2) the joint defense privilege, (3) the work product doctrine and (4) the relevancy and need test referred to in In re Grand Jury Subpoena Served Upon John Doe, Esq., 759 F.2d 968 (2d Cir.1985), rehearing en banc granted July 16, 1985.

For several years the government has been investigating allegations of racketeering, extortion of labor peace payoffs, and other offenses in connection with the air freight industry at John F. Kennedy International Airport. As part of that investigation the government obtained tape recordings of conversations at the home of Frank Manzo. According to the government, these conversations revealed that he and other members of the Lucchese family were engaged in various crimes. A grand jury, empaneled on November 21, 1983 to investigate these alleged crimes, handed up on February 19, 1985 a 23-count indictment charging eleven defendants, including Manzo, with RICO conspiracy, multiple Hobbs Act violations, securities fraud and mail fraud. The mail fraud charge, naming four defendants, relates to activities involving $250,000 of Sullivan County, New York bonds purchased through a New York municipal bond broker.

The grand jury obtained evidence that the Attorney’s client was involved in the Sullivan County bonds transaction. It is now investigating the charge that the Attorney’s client criminally obstructed the investigation of that transaction.

The government seeks to compel the Attorney to testify before the grand jury as to conversations he had with a third person and with his client about the grand jury investigation. The questions the government proposes to ask include the following:

Were you told that a federal grand jury in the Eastern District of New York was investigating the Sullivan County bonds deal involving Gabriele Hueglin? Were you told that your client’s name had been mentioned during the investigation? Were you told that William Bar-one appeared to be the target of the investigation? If so, who told you? If so, when were you told?
Did you tell your client that a federal grand jury in the Eastern District of New York was investigating the Sullivan County bonds deal involving Gabriele Hueglin? Did you tell your client that he had been mentioned during the investigation? Did you tell your client that William Barone appeared to be the target of the investigation? If so, when did you do so?

I

The intervenor claims that the information that the government seeks to elicit by these questions is privileged as attorney-client communications. The privilege is primarily designed to protect confidential communications from the client to the attorney. See In re Sealed Case, 737 F.2d 94, 98 (D.C.Cir.1984); United States v. International Business Machines Corp., 66 F.R.D. 206, 211 (S.D.N.Y.1974). But a communication from an attorney to his client is privileged if it would “reveal confidential information communicated by the client to the lawyer,” International Business Machines Corp., supra, or if it consists of legal advice given to the client. See United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir.1980). Where the information sought from the lawyer is not confidential, the fact that it may incriminate the client is “not a valid reason to invoke the attorney-client privilege.” In re Shargel, 742 F.2d 61, 63 (2d Cir.1984).

The information about the grand jury investigation that the Attorney obtained from a third person and relayed to his client is clearly not confidential. Where an attorney is a mere “conduit” the client may not invoke the privilege. See United States v. Hall, 346 F.2d 875 (2d Cir.), cert. denied, 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965).

The intervenor argues that although the information sought may not be confidential its disclosure would permit inferences as to confidential matters such as the concerns of his client and the reasons for his seeking representation. However, the court is satisfied by the facts stated in the government’s in camera affidavit that these concerns are no longer, if they ever were, confidential.

Finally the intervenor says that if the Attorney is forced to answer the proposed questions he will have to reveal the legal advice he gave to his client. But the intervenor has made no showing as to what legal advice would be revealed or why the Attorney would be unable to exclude the legal information from the factual information in making his responses.

II

The intervenor asserts that the information he received about the grand jury investigation was obtained by the Attorney from an attorney representing another subject of the grand jury’s investigation. Therefore, intervenor argues, the statements are privileged as joint defense communications.

The joint defense privilege is:

[wjhere two or more persons who are subject to possible indictment in connection with the same transactions make confidential statements to their attorneys, these statements, even though they are exchanged between attorneys, should •be privileged to the extent they concern common issues and are intended to facilitate representation in possible subsequent proceedings.

Hunydee v. United States, 355 F.2d 183, 185 (9th Cir.1965).

But the information that the third party attorney conveyed to the Attorney and that he conveyed to his client was not confidential. This is not a case where the client of an attorney told him in confidence facts that the attorney then relayed to another attorney whose client was also subject to grand jury investigation. The court is satisfied from the facts in the government’s in camera affidavit that the third party attorney did not obtain the information which he gave to the Attorney from his client. The addition of another attorney to the chain of communicators does not change the non-confidential nature of the information transmitted.

III

The intervenor asserts that the facts that the Attorney learned about the grand jury investigation were obtained as part of his preparation for litigation and are protected as attorney’s work product. The Attorney says that if he is forced to answer the proposed questions he will have to disclose his own mental impressions of the statements made to him by the third party attorney. Further the intervenor argues that the government has not shown any need for the Attorney’s testimony since the third party attorney can testify as to what he said to the Attorney.

In Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947), the Supreme Court recognized that “unwarranted inquiries into the files and the mental impressions of an attorney” by the opposing attorney would provide substantial intrusion into the effective preparation of a client’s case. Thus, the Court held that the work product of a lawyer reflected in “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other, tangible and intangible ways” should be protected from disclosure unless the opposing attorney can show need. Id. at 511, 67 S.Ct. at 393. The Court also said that oral statements made by witnesses to an attorney in the course of his preparations for trial are absolutely privileged from disclosure. Id. at 512, 67 S.Ct. at 394. However, in the Hickman case the attorney seeking the oral statements could show no need. He had sufficient access to all the witnesses and to the facts in his opponent’s possession.

In Upjohn Co. v. United States, 449 U.S. 383, 401-02, 101 S.Ct. 677, 688-89, 66 L.Ed.2d 584 (1981) the Supreme Court reconsidered the rule that no showing of necessity could “overcome protection of work product which is based on oral statements from witnesses.” The Court declined to say that such statements are absolutely protected and suggested that a very strong showing of “necessity and unavailability by other means” might permit compelled disclosure of such information. Id. at 402, 101 S.Ct. at 689. Thereafter, the Second Circuit held that the government had shown the requisite need where it sought notes of interviews with officers of a corporation accused of bribing government officials, and demonstrated that the information was essential to prove what these corporate officers knew and when they knew it. In re John Doe Corp., 675 F.2d 482, 492 (2d Cir.1982). The court also stated that discovery of the attorney’s notes would not “tread upon any substantial interest protected by the work-product immunity” because they merely paraphrased statements of the witnesses and did not reveal the mental processes or legal theories of the attorney. Id. at 493.

The questions that the government wishes to ask the Attorney seek to elicit his and his client’s knowledge of certain unprivileged facts but not the Attorney’s thought processes or mental impressions. Moreover, although the Attorney received the statements at issue in the course of his preparation for litigation, they are not of the sort of statements discussed in the Hickman and Upjohn cases. The third party’s attorney was not a prospective witness interviewed in anticipation of trial.

Compelling disclosure of a witness’s statements in response to interview questions might reveal an attorney’s litigation theories and strategies. Here the information obtained by the Attorney is not evidence intended for use in defense of his client. The Attorney simply confirmed the existence of a grand jury investigation and the client’s potential need for representation. The interests that the work product doctrine is intended to protect are not at stake.

Even if these statements were protected as work product, the government has shown the requisite need for their disclosure. As in the In re John Doe Corp. case, the government needs to discover the information in order to ascertain what the Attorney’s client knew and when he knew it. Intent is an essential element of the crime. The testimony of the third party attorney as to what he told the Attorney would not establish what the Attorney’s client knew.

IV

Finally the intervenor contends that the government has not made a showing of need such as the majority panel opinion in In re Grand Jury Subpoena Served Upon John Doe, Esq., 759 F.2d 968 (2d Cir.1985), rehearing en banc granted July 16, 1985, required to justify calling an attorney as a witness before a grand jury when his client is under investigation by that grand jury. Since the court granted rehearing en banc in that case the panel opinion is not binding on this court. See United States v. Morchower, 718 F.2d 1093 (4th Cir.1983) (unpublished opinion). But even if it were, this court deems it inapplicable.

In the Doe, Esq. case the majority held that the government has the burden of showing “not only that the information sought is necessary to the grand jury investigation, but that there is no other reasonably available source for that information than the attorney.” Id. at 976-77. The decision was based on the sixth amendment right of an accused to the assistance of counsel of his own choice in the “preparatory stages long before trial.” Id. at 972. A crucial element in that case was the fact, conceded by both parties, that if the attorney, who had represented the client for almost two decades, was called to testify he would be forced to disqualify himself from representation. The opinion assumed that this would have caused significant hardship to the client.

This case is quite different. There is neither a concession by the government nor any degree of certainty that if the Attorney does testify he will be forced to disqualify himself. Indeed, the Attorney has not stated that the intervenor if indicted will choose the Attorney to represent him at trial. The intervenor has retained more than one highly experienced and capable counsel in this matter and it is mere speculation whether he will choose the Attorney to represent him at a trial.

Even if the Attorney were disqualified, the impact on his client’s right to counsel of his own choice would be minimal. Intervenor does not claim that the Attorney has represented him for decades, or that the Attorney has special knowledge or experience that make his services critical. Plainly the intervenor has access to attorneys of the highest caliber.

The government’s application to compel the grand jury testimony of the Attorney in accordance with the proposed questions is granted. So ordered.


source: Caselaw Access Project

author: BENJAMIN F. GIBSON, District Judge.

license: Public Domain

text:
    Robert C. SPRATT, Plaintiff, v. COUNTY OF KENT, Philip J. Heffron, Sheriff, A. Thomas Palmer, and Roland Tanis, Defendants.
    No. G81-817 CA.
    United States District Court, W.D. Michigan, S.D.
    Nov. 12, 1985.

      Robert A. Yingst, Berrien Springs, Mich., for plaintiff.
    Shelia A. Kinney, Clary, Nantz, Wood, Hoffius, Rankin & Cooper, Sheila A. Kinney, Grand Rapids, Mich., for defendants.
   OPINION

BENJAMIN F. GIBSON, District Judge.

FINDINGS OF FACT and CONCLUSIONS OF LAW

Plaintiff claims that he was unjustly discharged from his employment as a social worker for Kent County because of his religious beliefs. He claims that his rights under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., have been violated. He also claims, under 42 U.S.C. §§ 1983 and 1985, that defendants deprived him of his constitutional rights to equal protection and freedom of religion and speech.

I. FINDINGS OF FACT

Set forth below are the Court’s general findings of fact. Findings relating specifically to plaintiff’s legal theories are incorporated into the Court’s discussion of those theories.

1. Plaintiff Robert Spratt is a citizen of the United States of America and a resident of the State of Michigan.

2. Plaintiff obtained a Bachelor of Science Degree and a Masters Degree in Social Sciences from Michigan State University.

3. Plaintiff was employed by Kent County as a counselor to provide counseling and therapy for inmates at the Kent County Honor Camp and was later transferred to the Jail to provide the same service for those inmates.

4. Plaintiff describes himself as a “Pentecostal Christian.” Such individuals, according to plaintiff, belong to different Christian churches and denominations or belong to no particular denomination. They are tied together, plaintiff explained, by their belief that the Gifts of the Holy Spirit are alive today. Plaintiff described Pentecostal Christianity as a “belief system.” Plaintiff explained that he is an “evangelist” who attempts to spread the Gospel whenever the opportunity presents itself. In the Court’s judgment, plaintiff is very sincere in his beliefs.

5. Plaintiff filed a charge against defendants with the EEOC and received his right to sue letter on August 7, 1981. Thereupon, and in a timely fashion, he filed his complaint with this Court.

6. Defendant Philip Heffron is, and was at all times pertinent to this litigation, Sheriff of the County of Kent, a municipal corporation in the State of Michigan.

7. Defendant Roland Tanis is a resident of the State of Michigan who, at all times pertinent to this litigation, was employed at the Kent County Sheriff’s Department.

8. Defendant A. Thomas Palmer, at all times pertinent to this litigation, was a County paid lieutenant of the Kent County Sheriff’s Department who directed the Inmate Services Program at the Kent County Correctional Facility.

9. While employed as a social worker for Kent County and assigned to the Kent County Jail, plaintiff used a counseling technique which he described as “treatment by spiritual means.” According to plaintiff, this treatment modality is a means of allowing the spirit of God to

administer to both the counselor and counselee. Among the specific techniques used by plaintiff were Bible reading, prayer, addressing spiritual issues, and, in at least one instance, the “casting out of demons.”

10. Plaintiff explained that, when initiating therapy with an inmate, he generally spent the first few sessions diagnosing whether the inmate suffered any mental illnesses (the predominant ones he encountered being depression and anxiety). He would then present to the inmate various means by which the illness could be treated. One of the options suggested was treatment by spiritual means.

11. Plaintiff testified that he only treated by spiritual means when an inmate requested that particular treatment modality. When asked whether he used any encouragement with respect to the different options, plaintiff responded that he did in some cases but not as a general rule.

12. Plaintiff was first employed by Kent County at the Honors Camp, a youth correctional facility. Sheriff Heffron transferred plaintiff from his assignment in the Honors Camp to the Kent County Jail in September of 1978. Sheriff Heffron decided to transfer plaintiff because plaintiff’s evangelically religious methods of counseling had alienated many of the youths at the camp. It is not clear whether the reason for the transfer was made clear to plaintiff.

13. Plaintiff admits that Lieutenant Palmer told him immediately after the transfer to the jail that he was not to carry his Bible into the jail. Plaintiff complied with this requirement by bringing some inmates into his office for counseling where he freely used the Bible.

14. Sheriff Heffron testified that the County makes provision for the spiritual needs of inmates by having available a corp of chaplains from various faiths. Those chaplains are not paid by the County. Sheriff Heffron has established a policy that does not permit county paid social workers to use religious counseling because he believes he is constitutionally compelled to maintain an atmosphere of religious neutrality within the jail.

15. According to Sheriff Heffron, plaintiff was advised when he came to work full time at the jail that he was not to intermix religious counseling with psychological counseling, but was to refer requests for religious counseling to the chaplains at the jail. The Sheriffs policy forbidding treatment by spiritual means, even when requested by an inmate, was made known to all counselors employed at the jail.

Plaintiff testified that he was never told absolutely that he was not to use treatment by spiritual means. He testified that Sheriff Heffron told him to use it only as a last resort and to use it discretely. Sheriff Heffron denied that he made such statements.

The Court resolves this conflict in the evidence in defendants’ favor. Sheriff Heffron and Lieutenant A. Thomas Palmer both testified that plaintiff was advised to cease his religious counseling when he came to the jail. Based on other, inconsistencies in plaintiff’s testimony, the Court concludes that plaintiff’s denial of such advice is based on selective recall and that plaintiff’s testimony in this regard is not credible.

16. At a meeting in April of 1979 with plaintiff, Sheriff Heffron expressed concern regarding complaints from women inmates that plaintiff was using religious counseling. The sheriff advised plaintiff that one reason such counseling was inappropriate was that, as sheriff, he could be sued by inmates who were offended by plaintiff’s practices. The Sheriff testified that he told plaintiff to cease his religious counseling. In plaintiff’s version of this meeting, Sheriff Heffron did not absolutely prohibit him from using religious counseling, but merely advised him to be discrete about it. Again, the Court finds the sheriff’s testimony to be more credible.

17. Plaintiff’s case work supervisor at the jail was defendant Roland Tanis. Plaintiff admitted that he had difficulty accepting Tanis as his supervisor because he considered his academic credentials to be superior to those of Tanis. At a meeting held in April of 1979, Sheriff Heffron clarified for plaintiff the fact that Tanis was and would be his supervisor and that Tanis had the ultimate authority to determine the type of counseling service inmates were to receive.

18. Plaintiff was suspended for five days on December 17, 1979, for insubordination. That suspension resulted from a complaint from the mother of an inmate after plaintiff had purportedly cast a demon out of her son. In the suspension notice, Sheriff Heffron advised plaintiff he was being suspended “because of continuing complaints that you are using religion in your psychological counseling, after being informed that it was not in the best interests of this Department, or the inmate being counseled, to do so.”

19. Plaintiff grieved his suspension. The grievance was denied. Plaintiff was advised that the County would not permit him to introduce or use his religious beliefs or practices as part of his counseling techniques and that failure to adhere to that direction would result in his discharge.

20. The issue of Tanis’s supervision was again brought out at a January 18, 1980, meeting attended by plaintiff, Sheriff Heffron, Roland Tanis, Lieutenant Palmer, and plaintiff’s minister. At that meeting, Sheriff Heffron reiterated that Tanis was and would be plaintiff’s casework supervisor and that plaintiff should not use his Bible in counseling.

21. At one point, plaintiff attempted to convince the Kent County Community Mental Health Department to write into the job description of the counselor assigned to the jail a statement that counseling by spiritual means would be appropriate. Plaintiff also suggested to the Sheriff that, in order to allow plaintiff to continue spiritual counseling, the County should take out malpractice insurance to protect itself from the liability that might arise if an inmate sued the County because of plaintiff’s counseling methods.

22. On February 26, 1980, plaintiff was reprimanded for using waiver forms that he drew up to obtain the consent of inmates to treat them by spiritual means. Plaintiff had not obtained approval from any of his superiors for use of the forms.

23. Sheriff Heffron fired plaintiff on that same day for insubordination. In his termination letter, Sheriff Heffron advised plaintiff that he was being terminated because he “continued to practice an improper mix of religion and psychological counseling” and did not “have a desire or willingness to follow the direction given to [him]....”

24. Plaintiff admitted that he was insubordinate on the issue of reading the Bible and praying with inmates. He stated that it would have been a violation of his religious beliefs to refuse to do these things under the circumstances.

25. When asked whether he ever made any effort to accommodate plaintiffs religious beliefs, Lt. Palmer stated that he had not because those beliefs did not “fit in” with the job plaintiff was hired to perform. Lt. Palmer testified that Sheriff Heffron had a policy that counselors simply could not use religion in their counseling.

Similarly, Sheriff Heffron opined that accommodation was not possible in plaintiffs case. He explained that he felt he was compelled by law not to allow religious counseling by a county social worker. He did not ask plaintiff to shed his Christian beliefs when he came to work, but he did ask him to leave them out of his counseling. Sheriff Heffron testified that he gave some thought to means to accommodate plaintiffs religious beliefs but concluded that the only solution was to absolutely prohibit religious counseling.

26. Dr. Alcid Pellitier, who has a masters degree in psychology and a doctorate in education, opined that religion may, in some circumstances, be an appropriate part of the counseling process because counselors “use whatever the patient gives us.” Dr. Pelliter added that, if the patient was not religious, it would be improper for a therapist to impose his or her religion on the patient.

27. At one point, plaintiff testified that it is not possible to separate his religious beliefs from his role as a counselor. Yet plaintiff also testified that his religion does not require him to read the Bible or pray with co-workers. He testified further that it was not inconsistent with his religious beliefs to give non-religious treatment if that is what the inmate asked for. At one point, plaintiff explained that treatment by spiritual means was not the practice of his religion, but was a practice of mental health counseling.

28. Plaintiffs testimony regarding the circumstances under which he used treatment by spiritual means was somewhat contradictory. The Court concludes from the totality of his testimony that plaintiff did in fact use his position as a counselor in the Kent County Jail to evangelize. Although plaintiff would not have forced treatment by spiritual means upon an unbelieving inmate who rejected that approach, he would have strongly encouraged treatment by spiritual means for any inmate who was at all receptive. Further, based on plaintiffs continuing acts of insubordination, Sheriff Heffron and the other defendants had every reason to believe plaintiff would continue his practice of treating by spiritual means.

29. The Court finds that with respect to the establishment and enforcement of his policy prohibiting religious counseling by County social workers, defendant Heffron acted with good faith belief that such policy was compelled by law. This good faith extended to each of defendant Heffron’s actions toward plaintiff. Additionally, defendant Heffron set and enforced this policy and took each of his actions toward plaintiff solely in his official capacity as the Sheriff of the County of Kent.

30. At one point, the sheriff sought legal advise regarding his dealings with plaintiff. The opinion of the County’s legal counsel, given to the County Personnel Director and the sheriff, stated that the sheriff’s policy was necessary to safeguard inmates’ religious freedom rights and to comply with constitutional requirements of governmental religious neutrality.

31. Defendant Palmer’s actions pertaining to plaintiff were also motivated by good faith, without malice, and were taken only pursuant to his responsibilities as the Director of the Inmate Services Program at the Kent County Correctional Facility. In that position he was responsible for implementing the sheriff’s policies and directives. He had no authority to disregard or alter the sheriff’s policy in order to accommodate plaintiff or anyone else.

32. The Court finds no credible evidence that defendant Tanis was motivated in his actions pertaining to plaintiff except by a good faith intent to obey Lt. Palmer’s directives that he supervise plaintiff’s caseload and report his findings.

33. Plaintiff failed to prove that any of the individual defendants had animus toward Christians, Pentecostal Christians, Pentecostal Christian counselors who seek to treat by spiritual means, or toward any other religious group in which plaintiff claims membership.

II. CONCLUSIONS OF LAW

Plaintiff has raised statutory claims of discrimination under Title VII as well as constitutional claims under 42 U.S.C. §§ 1983 and 1985. The Court will address these issues seriatim.

A. TITLE VII CLAIMS

Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides that an employer may not “discharge any individual ... because of such individual’s ... religion.” 42 U.S.C.A. § 2000e-2(a)(l) (1981). Section 701 further explains that

[t]he term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

42 U.S.C.A. § 2000e(j) (1981).

Defendants argue that they have not violated Title VII in this case because: 1) plaintiff has failed to establish a bona fide religious belief, see Yott v. North American Rockwell Corp., 602 F.2d 904 (9th Cir. 1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1316, 63 L.Ed.2d 761 (1980); 2) plaintiff was not qualified to perform the job for which the county hired him because he was not able to follow the direct orders of his supervisors, see Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); 3) the County had a legitimate, nondiscriminatory reason for plaintiff’s discharge, namely his insubordination, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806, 93 S.Ct. 1817, 1824-1826, 36 L.Ed.2d 668 (1973); and 4) the County accommodated plaintiff’s religious beliefs to the extent it was possible to do so in these circumstances, see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 2276, 53 L.Ed.2d 113 (1977). Because the Court finds for defendants on the latter argument, it need not address the first three arguments.

The issue raised in this case is different than that raised in a typical accommodation case where an employee is requesting an adjustment in his work schedule to permit him to observe his sabbath. Here the religious practice for which plaintiff was seeking accommodation was a religiously compelled need, when called upon, to engage in prayer and the quoting of scripture. It appears, and the Sheriff could certainly conclude, that plaintiffs religious beliefs also compelled him to engage, to some extent, in evangelizing. That is, if an inmate was at all receptive to plaintiffs suggestion that treatment by spiritual means was indicated, the evidence suggests that plaintiff would have strongly urged the inmate to accept that form of treatment.

Considering the facts of this case and the constitutional law in the area of religious practice in public institutions, the Court concludes that Sheriff Heffron had very limited flexibility with which to accommodate plaintiffs religious practices. The sheriff had an obligation under the establishment clause of the constitution to maintain a policy of neutrality on religious matters. See Wallace v. Jaffree, — U.S. -, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). He was required to avoid the appearance of favoring one religion over others or religion over nonreligion. At the same time, Sheriff Heffron had an obligation to allow for the free religious exercise of the inmates. See, e.g., Hoggro v. Pontesso, 456 F.2d 917, 918 (10th Cir.1972); Cooper v. Pate, 382 F.2d 518, 521 (7th Cir.1967). Sheriff Heffron chose to walk the narrow line between the free exercise and establishment clauses by forbidding county paid social workers from using religious counseling techniques while, at the same time, allowing inmates access to voluntary chaplains of all faiths who serviced the jail.

Within these narrow straits, the sheriff made what this Court considers to be reasonable efforts to accommodate plaintiffs religious practices. He advised plaintiff that he had a policy that prohibited the county social workers from using religious counseling techniques. He warned plaintiff repeatedly when he discovered that plaintiff was crossing the line that his poli-

cy had drawn. Sheriff Heffron also asked for legal advice to determine whether plaintiffs religious needs could be accommodated. Finally, he gave plaintiff numerous opportunities to change his practices. The Court concludes that defendant County, acting through Sheriff Heffron, made every effort at accommodation reasonably available under the circumstances. See Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84, 97 S.Ct. at 2276 (1977) (employer need not take actions that would adversely affect others or bear more than a de minimis cost in order to accommodate an employee’s religious practices); McDaniel v. Essex International, 571 F.2d 338, 344 (6th Cir.1978); Baz v. Walters, 599 F.Supp. 614 (D.C.Ill.1984) (discharge of government chaplain appropriate when chaplain continued to evangelize and proselytize against orders). Accordingly, plaintiff has not proven a violation of Title VII.

B. CONSTITUTIONAL CLAIMS

1. First Amendment

The first amendment to the Constitution provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” U.S. Const., amend. I. Because the first amendment applies with equal force to the states, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), its two mandates apply to state and local governments.

Although plaintiff has raised a claim under the free exercise clause, both the establishment clause and the free exercise clause must be considered in evaluating his first amendment claim. Administrators of public institutions, such as schools and prisons, are required to balance the first amendment rights of their employees to freely exercise their religions against the first amendment’s prohibition on the “establishment” of religion and against the free exercise rights of other individuals. See, e.g., Lynch v. Indiana State University Board of Trustees, 177 Ind.App. 172, 378 N.E.2d 900, 905 (Ind.), cert. denied, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1978) (finding no constitutional violation when public school dismissed instructor who insisted on reading the Bible to his students in the classroom).

Here, plaintiff has asserted a first amendment right to freely practice his religious beliefs. The Court does not deny that plaintiff has certain rights to practice his religion freely in our society. When, however, exercise of an individual’s first amendment rights potentially violates free exercise rights of others or the mandates of the establishment clause, the individual’s rights are not absolute. See Bender v. Williamsport Area School District, 741 F.2d 538, 550 (3d Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 1167, 84 L.Ed.2d 319 (1985). On the facts of this case, the Court concludes that plaintiff’s constitutional right to the free exercise of his religion does not go so far as to permit him to use religious counseling methods against the orders of his superiors.

It has been held that the practice of permitting lay witnesses to enter jail cell blocks for the purpose of preaching, singing, and witnessing to inmates violates the free exercise rights of prisoners who do not wish to hear the message if no efforts are made to ensure that those inmates are not present. Campbell v. Cauthron, 623 F.2d 503, 509 (8th Cir.1980). The free exercise clause requires that no inmate be subjected to force indoctrination. 623 F.2d at 509.

This same rationale would prohibit plaintiff’s conduct in this case. Here, evidence suggests that, although plaintiff did not overtly coerce inmates into accepting religious counseling, he suggested to at least some inmates that treatment by spiritual means was the preferred method of treatment. Thus, there was a danger of forced indoctrination.

Further, the facts of this case are even stronger than those of Campbell because the establishment clause is implicated as well. Here, rather than having lay witnessing by individuals outside the jail staff, the individual bringing the religious message to the inmates was an employee of the county. Thus, the County could be accused of violating the establishment clause. See Lynch v. Indiana State University Board of Trustees, 378 N.E.2d at 908.

The Court concludes that plaintiff’s use of religious counseling was potentially violative of the establishment clause and the free exercise rights of inmates. Because plaintiff’s free exercise rights must be limited to the extent that his conduct would infringe upon the establishment clause or constitutional rights of others, he cannot assert a constitutional right to continue such conduct. Cf. O’Malley v. Brierly, All F.2d 785, 789 (3d Cir.1973) (priests had no absolute right under the free exercise clause to give religious counseling to inmates).

Similarly, any claims that plaintiff could make under the free speech clause of the first amendment must fail as well. In the public employment context, once an employee asserts a free speech right, the Court must determine whether the employer’s curtailment of plaintiff’s speech results from the need to protect a compelling state interest. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). That compelling interest exists here. The County is not required to let plaintiff speak on religious issues if that speech violates the establishment clause or the free exercise rights of inmates.

2. Equal Protection

Plaintiff has not carried the burden of proving an equal protection violation. No evidence was presented to suggest that plaintiff was disciplined and ultimately fired because he was a Christian or a Pentecostal Christian. The weight of evidence suggests that Sheriff Heffron and the other defendants applied the sheriff’s policy prohibiting religious counseling to all counselors, irregardless of religion. Because plaintiff has not proven that he was treated in a particular way because he was a member of an identifiable class, his equal protection claim must fail. See Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (gender); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (race); Brown v. Alexander, 718 F.2d 1417 (6th Cir.1983) (membership in a particular union); Rodgers v. Tolson, 582 F.2d 315 (4th Cir.1978) (member of a group of residents who had criticized city commissioners).

3. Conspiracy

In addition to his Claims under 42 U.S.C. § 1983, plaintiff has raised a claim under 42 U.S.C. § 1985(3) alleging a conspiracy on the part of the individual defendants to deprive plaintiff of his constitutional rights. Just as plaintiff has failed to establish an identifiable class for the purposes of his 1983 equal protection claim, he has similarly failed to establish the class-based invidiously discriminatory animus necessary to support a claim under section 1985. Macho v. Brian, 641 F.2d 447, 450 (6th Cir.1981). Thus, this claim fails.

      . Defendants have also argued that the accommodation provision of Title VII is unconstitutional. The Court finds it unnecessary to rule on the constitutionality issue in light of its finding that any accommodation obligation imposed on the County has been met.

      . The Court has not resolved whether plaintiffs practice of praying with and reading scripture to inmates was a "religious practice.” Different portions of plaintiffs testimony give conflicting views on this issue. Plaintiff testified at one point that he was religiously compelled to pray and share scripture with inmates who requested him to do so. At other points in his testimony, plaintiff said that his use of treatment by spiritual means was not a practice of religion but a practice of mental health counseling. For purposes of plaintiffs Title VII arguments, the Court will assume arguendo that his praying and sharing scripture with inmates was a religious practice.

      . Although plaintiff originally stated a claim that his due process rights were violated, because he did not raise that claim at trial or in his post-trial filings, the Court presumes that it has been dropped.


author: GORDON THOMPSON, Jr., Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Mike Tellez BANKS, Defendant.
    Crim. No. 83-1041-JLI.
    United States District Court, S.D. California.
    Nov. 13, 1985.
    Edward C. Weiner, Asst. U.S. Atty., San Diego, Cal., for plaintiff.

      J. Edward Harris, Dimeff & Harris, San Diego, Cal., for Dependable Ins. Co.
   MEMORANDUM DECISION

GORDON THOMPSON, Jr., Chief Judge.

This case requires the Court to determine the scope of a surety’s contractual obligations under a bail bond contract, a contract interpretation issue of great interest to criminal defendants, sureties, and the government.

I

Mike Tellez Banks was arrested and taken into custody on November 4, 1983 as he crossed the International Border at San Ysidro with heroin concealed in his 1972 Oldsmobile. At his initial appearance on November 7, 1983, Magistrate Curtis McKee set a cash or corporate surety bond in the amount of $100,000. On November 10, 1983, a five-count indictment was returned against defendant Banks, charging him with importation of heroin, possession of heroin with intent to distribute, illegal importation of monetary instruments, false statements, and interstate and foreign travel in aid of racketeering enterprises. Defendant was afforded a bail review on November 16, 1983 at which Magistrate McKee affirmed the $100,000 bond. A second bail review hearing was held on December 13, 1983 and the bond was re-affirmed by Magistrate McKee. On December 21, 1983, District Judge J. Lawrence Irving held another bail review hearing, •affirming the written findings of Magistrate McKee and the bond set at $100,000.

On January 18, 1984, upon the posting of the $100,000 bail bond by the surety Dependable Insurance Company, Inc. [Dependable], defendant Mike Tellez Banks was released from custody. The defendant made all his required appearances before the district court up to and including his stipulated facts court trial on April 5, 1984. Judge Irving found Mr. Banks guilty on all counts. Sentencing was set for May 25, 1984, and later continued until June 11.

Defendant appeared before Judge Irving for sentencing on June 11, 1984. At the conclusion of the sentencing, defense counsel asked the Court for a short extension (until the end of the day) to “file the notice of appeal and be able to do all the necessary paperwork downstairs to present and file this bond pending the appeal of this matter.” Judge Irving ordered defendant to appear for a status hearing on August 27, denied the government’s request to raise the bond pending appeal to $200,000, but did not explicitly exonerate the appearance bond executed by Dependable. Nor did he explicitly continue the appearance bond posted by Dependable as an appeal bond.

Events subsequent to the sentencing are somewhat unclear. What is clear, however, is that defendant Banks never obtained a separate appeals bond. Yet Mr. Banks did appear for status conferences before Judge Irving on August 27, 1984 and October 29, 1984. The Ninth Circuit later affirmed Banks’ conviction. Notice of the hearing to file the certified copy of the Ninth Circuit’s affirmance was sent to defense counsel on April 18, 1985.

The date for filing the Ninth Circuit’s decision in the district court was set for May 13, 1985. That date arrived; unfortunately defendant didn’t. The government moved for forfeiture of the “appeal bond in this case” and the issuance of a bench warrant. Judge Irving granted both motions.

On July 12, 1985, the government moved for a default judgment on the forfeiture of the bond. Dependable responded by moving to set aside the forfeiture and exonerate the bond.

II

Dependable claims that the bond should not be forfeited because it was no longer in effect when defendant Banks failed to surrender into custody after his conviction was affirmed. Dependable’s argument is that the language of the bond only provided for Banks’ appearances before the trial court prior to appeal of the conviction. The government contends that the bond remained in effect throughout the appellate process.

The central task thus presented in this case is to determine the extent of obligation undertaken by the surety Dependable, a matter of contract interpretation. Collateral to this question is the effect, if any, of Judge Irving’s rulings regarding the bail bond at the June 11, 1984 sentencing.

To put this issue into the proper contextual framework, it is necessary to reiterate the basic principles of bail bonds. A bail bond is a contract between the government and the defendant and the surety. . United States v. Lujan, 589 F.2d 436, 438 (9th Cir.1978); United States v. Plechner, 577 F.2d 596, 598 (9th Cir.1978); accord United States v. Martinez, 613 F.2d 473, 476 (3rd Cir.1980). As with any other contract, the liabilities of the parties under the contract depend upon the intention of the parties as evidenced by the wording of the contract. United States v. Morales, 91 F.R.D. 169, 171 (D.P.R.1981).

The language of the bond contract is to be strictly construed in accordance with its terms. United States v. Lujan, 589 F.2d 436, 438 (9th Cir.1978). The bond at issue here, labelled “Bond for Preliminary Appearance,” contained the following pertinent language:

The conditions of this bond are that ... the said defendant is to appear in the United States District Court for the Southern District of California in accordance with all orders and directions of the Court relating to appearance of the said defendant before said Court, or in any other United States District Court to which the case may be removed or transferred.
... If the defendant complies with all of the conditions of this bond and appears as ordered, then this bond is to be void, but if the defendant fails to perform these conditions, payment for the amount of the bond shall be due forthwith.

The government argues that the language providing that the defendant must appear in accordance with “all orders” evidences the parties’ intentions that the surety was to be responsible for defendant’s appearance in the district court after appeal. This Court believes, however, that in this particular case the parties’ intentions are better understood by examining what language, usually found in other bail bonds, was not included in this contract, and by examining the parties’ actions as evidence of their intentions.

Many courts have examined similar language from other bail bonds in an effort to determine the parties’ intentions as to the extent of the surety’s liability. Although interpreting virtually identical language, the courts’ rulings have been diverse. At least three other cases, United States v. Martinez, 613 F.2d 473 (3rd Cir.1980), United States v. Catino, 562 F.2d 1 (2d Cir.1977), and United States v. Dinneen, 577 F.2d 919 (5th Cir.1978), presented the same factual pattern as before the Court in this case: Defendant failed to appear for execution of sentence after his conviction was affirmed on appeal. In each case, defendant had not obtained an appeal bond separate from the appearance bond. Unlike the bond executed by Dependable, however, all of the bonds in these cases contained the provision that the bond was a “continuing bond” remaining in “full force and effect until exoneration.” In addition, each of these bonds provided as a condition that the defendant would “surrender for execution of sentence.” In Martinez and Catino, the Third and Second Circuits held that this language evidenced the parties’ intent that the bond remain in effect throughout the appeal. In Dinneen, the Fifth Circuit concluded that this language only made the surety liable during brief, reasonable stays of execution and not for a failure to surrender after affirmance of conviction on appeal.

The principal Ninth Circuit case addressing the interpretation of a bail bond contract is United States v. Gonware, 415 F.2d 82 (9th Cir.1969). In that case, the trial court stayed the execution of defendant’s sentence for approximately two days. When the defendant failed to appear two days later, the government moved to forfeit the defendant’s bail. The bond provided for the defendant to appear in court “in accordance with all orders” or “wherever prosecution may be ordered.” The court recognized that the bond did not expressly address the subject of stays of execution of sentence but concluded nonetheless that the parties intended the surety to remain liable during a short stay of execution of sentence. Key to the court’s conclusion was its interpretation of “prosecution” as continuing until the date defendant begins serving his sentence. The Ninth Circuit also noted that its conclusion was reasonable in light of the widespread and common practice of the courts in granting short stays to allow defendants to get their affairs in order before serving their sentence.

To a certain degree, all of the bail bonds in these cases contained similar language. All contained provisions that the defendant agreed to obey all court orders relating to appearance. This very basic provision is the essence of a bail bond contract — to guarantee appearance by the defendant. The bonds held to be in effect during or after appeal, however, also contained provisions relating to the bond’s continuing nature and/or specifically requiring the defendant to surrender for execution of sentence.

By contrast, the language of the bond entered into by Banks and Dependable was distinctively different. Dependable’s bond was entirely silent as to whether the bond was a “continuing bond.” Neither does the bond contain any language about the bond continuing in full force and effect until exonerated by the court. Instead, the contract specifically provides that the bond would become void when the defendant complied with the conditions by appearing as ordered.

Based on this explicit language and the absence of language regarding liability during appeal found in other bail bonds, the Court concludes that the reasonable intention of the parties to this bail bond contract was not to create a bond covering appearances during or after appeal. It was not the intention of the parties that this bond be in effect during the appellate process.

This conclusion, based on the plain meaning of the bail bond, is borne out by the parties’ actions. Defense counsel, at the sentencing hearing of June 11, 1984, asked for a short stay or extension so that he could file the notice of appeal and arrange for an appellate bond. This request evidences Mr. Banks intention (as represented through his defense counsel) that the bond cover only trial court appearances before appeal. Also, the defense counsel represented that he had contacted the “original bail bondsman” who “originally posted this bond.” The reference to “original” suggests that Mr. Banks’ contemplated that a “subsequent” bond would be necessary on appeal.

Thus, based on the language of the contract itself, a comparison with language of other bail bonds, and the parties’ actions as evidence of their intentions, the Court concludes that the parties intended that the bail bond only cover appearances before the district court occurring before the final judgment was appealed.

Ill

The additional issue remains as to whether Judge Irving could order the appearance bond executed by Dependable to continue in effect during the appeals period despite the parties’ intentions that the bond terminate before appeal.

Dependable argues that it cannot be held responsible for Banks’ appearances after sentencing because the increased risk of flight after sentencing was not something it bargained for when entering the bail bond. The government apparently argues that Judge Irving could extend the appearance bond’s coverage, under the reasoning of the Martinez case and an extension of the Gonware holding.

The Martinez court, in the course of interpreting a bail bond set and posted at the pretrial stage, engaged in an extensive analysis of the comparative risks of flight prior to and during appeal. The court concluded that the risk of flight during appeal of a conviction was not necessarily greater than that during a brief stay of execution of sentence, where typically a separate appeals bond is not obtained. Id. at 479. According to the Martinez court, if the trial judge, after balancing the increased risk of flight after conviction against defendant’s record in making appearances during trial, concludes that bond on appeal should remain at the same amount as the trial bond, he has implicitly determined that risk of flight is not increased on appeal. Thus, the appearance bond could be continued as an appeal bond as the surety was not taking on a risk of liability greater than it had bargained for. The court reasoned that, if courts can permissibly extend an appearance bond for a short period during a stay of execution of sentence, as in Gonware, then an appearance bond could also remain effective during appeal.

What the Martinez court failed to recognize, however, is that the surety’s obligation or scope of liability is not affected just by the amount of bond subject to forfeiture. “Converting” an initial appearance bond into an appeals bond does materially affect the surety’s risk, even if the amount of the bond remains the same. The surety, Dependable in this case, entered the appearance bond contract based on the expectation and understanding that the surety’s liability would cease before appeal. Extending the time frame of the bond such that the surety remains accountable for defendant’s appearances during or after appeal plainly increases the surety’s risk beyond what it bargained for. Such an extension is not the same as an extension for a brief, reasonable, and definite period of time, as with the Gonware -type short stays of execution of sentence. The time when a criminal conviction is on appeal is neither brief nor definite. Thus extending a bond throughout appeal is unlike the common practice of extending an appearance bond during a brief stay of execution of sentence. Given the widespread nature of the practice, it can safely be said that sureties are aware of this practice and adjust for the risk accordingly when executing the bail bond contract.

Thus, although a court may implicitly acknowledge that the risk of flight for a particular defendant does not increase during appeal by fixing bail on appeal in the same amount, the surety’s risk is nonetheless increased when the term of the contract is extended beyond the contemplation of the parties. The court has no authority to change a term in the contract without the surety’s consent, when that change increases the surety’s obligation. See United States v. LePicard, 723 F.2d 663, 665 (9th Cir.1984) (no authority holding that court can unilaterally impose on the bail surety a new and different obligation). Cf. United States v. Galvez-Uriarte, 709 F.2d 1323, 1324 (9th Cir.1978) (government may not increase surety’s risk without surety’s knowledge and consent).

IV

In conclusion, the Court finds that the parties intended that the bail bond at issue, executed on January 18, 1984, apply only to appearances before the district court prior to appeal of Mr. Banks’ conviction. Although the appearance before the district court to spread the Ninth Circuit’s mandate was technically an appearance “before the district court”, it was not an appearance contemplated by the parties under the contract.

All of the bond’s conditions were fulfilled and the bond could have been exonerated as of the June 1984 sentencing. See Fed.R. Crim.P. 46(f) (court shall exonerate the obligors and release any bail when the condition of the bond has been satisfied). The bond is hereby ordered exonerated. Dependable’s motion to set aside forfeiture is granted; government’s motion to enter default judgment on forfeiture of the bond is denied.

IT IS SO ORDERED.

      . Following are the relevant portions of the June 11, 1984 2:00 p.m. sentencing hearing of Mr. Banks:
      THE CLERK: No. 15 on calendar, Case No. 83-1041, United States of America v. Michael Tellez Banks.
      MR. ESPINOZA: Edmundo Espinoza on behalf of Mr. Mike Banks, who is present in court on bond.
      MR. WEINER: Edward Weiner for the United States.
      (Defendant sentenced and appeal rights given.)
      MR. ESPINOZA: Your Honor, concerning the matter of bail pending appeal, your Honor, I would ask the Court — Mr. Banks’ bail is $100,-000. I have contacted the original bail bondsman, Mr. Reeder, who originally posted this bond, and Mr. Reeder is in his office right now. I would ask the Court to allow me until 5:00 o'clock today, or 4:30, to file the notice of appeal and be able to do all the necessary paperwork downstairs to present and file this bond pending the appeal of this matter.
      As the Court well knows, Mr. Banks has made all the Court appearances in this case. We had approximately two to three bail hearings in this case, one before this Court. At that time we presented all the evidence that we had, proof of employment and family ties in Los Angeles and the lack of prior record and so forth, and at that time the Court, as well as Mr. Weiner — Mr. Weiner said Mr. Banks was not going to make his court appearances, the reason he wanted to post the bond was because he wanted to leave the country and fail to appear. And Mr. Banks has shown this Court: He is here. He has been sentenced by this court.
      Mr. Banks is a U.S. citizen, too many ties in the community to be able to leave the state or the country.
      I would ask the Court to allow me that time and set the bond in the same amount, considering the overall circumstances and the facts that I just indicated to the Court.
      I don't think that the Court should have any risk whatsoever as far as Mr. Banks either going into Mexico or doing anything in violation of the Court’s conditions in this case.
      THE COURT: Mr. Espinoza, let me stop you. What is your position, Mr. Weiner? Do you have any objection to his remaining out?
      MR. WEINER: Well, we do. He now stands a convicted felon. On previous occasions he was making his court appearances and I was happy to see he made them. The one factor I would like to indicate to the Court which is involved in the appeal seems to be a very minor issue; that is, the sufficiency of the search warrant in Los Angeles which involved only the one gram of cocaine which was seized and not charged in this particular case. Unless Mr. Espinoza has some other issues to bring to the Ninth Circuit’s attention on the appeal it seems to me it would be in the nature of possibly a frivolous appeal and not even one that would affect the sentencing and the conviction.
      THE COURT: I can't imagine Mr. Espinoza filing a frivolous appeal, and I’m sure he doesn’t want to reveal his innermost secrets to you as to the basis of the appeal.
      MR. ESPINOZA: I had told Mr. Weiner about this way back. Mr. Weiner knows that.
      MR. WEINER: But, in all seriousness, I believe he stands in a different light now and probably the bond should be at least doubled to $200,000.
      MR. ESPINOZA: Your Honor, it’s impossible. Mr. Banks was two and a half months in custody—
      THE COURT: By impossible you mean it’s impossible for him to make $200,000?
      MR. ESPINOZA: To make over $100,000. He made the arrangements. I told him to make the arrangements. I even made the arrangements for the bail bondsman to reduce or be able to negotiate even the ten percent in this case. He could not post $100,000. He spent two and a half months at MCC.
      THE COURT: To refresh my recollection, what is — is it a corporate surety?
      MR. ESPINOZA: Corporate surety totally supported by and guaranteed by a property which is in Los Angeles.
      THE COURT: I remember that.
      MR. ESPINOZA: And we went through it.
      THE COURT: All right. So your request is for me to allow Mr. Banks to remain on bond until sentencing?
      MR. ESPINOZA: Correct.
      THE COURT: And the Government, Mr. Weiner, opposes it because he has now been sentenced.
      MR. WEINER: That’s right.
      MR. ESPINOZA: On the same appellate bond to be in the same amount.
      THE COURT: All right. All right. Give me a date, Lynn.
      MR. ESPINOZA: Your Honor, we can have a review pending the appeal. We can have a review, status, so the bondsman could be around.
      THE COURT: Why don’t we set it for status in 60 days? I’ll allow him to remain on bond for 60 days and order him to return here — How about August 7?
      MR. ESPINOZA: That is fine.
      THE COURT: We might make it a condition he be supervised by pretrial services. I don’t think that was done originally because he was in custody.
      MR. ESPINOZA: That’s fine.
      THE COURT: Mr. Vincent, do you want to make any comments?
      PROBATION OFFICER: No, your Honor. We would be happy to supervise him.
      THE COURT: You will be subject to supervision, Mr. Banks, during this period of time, and you are ordered to return to this courtroom at 9:00 a.m. August 27, 1984. Do you understand?
      DEFENDANT: Yes, sir.
      THE COURT: And if there is any contact with law enforcement authorities between now and August 27, that is to say if you violate any law and it’s brought to my attention, you will go to jail immediately. Do you understand?
      DEFENDANT: Yes, sir.
      THE COURT: And if you fail to appear on August 27, 1984, I will order a warrant for your arrest. Do you understand?
      DEFENDANT: Yes.
      (Proceedings adjourned).

      . United States v. Tellez Banks, 758 F.2d 656 (9th Cir.1985).

      . The transcript of the Monday, May 13, 1985 2:00 p.m. hearing is as follows:

        THE COURT: And where might Mr. Banks be, Mr. Espinoza?
      MR. ESPINOZA: I do not know where Mr. Banks is, your Honor. I talked to Mr. Banks concerning the notice that we have received from the Ninth Circuit in this matter the day after Mr. Weiner told me of the date.
      THE COURT: Let me stop you. Why don’t you call the case?
      THE CLERK: No. 12 on calendar, Case No. 83-1041, United States of America v. Mike Tellez Banks for hearing petition requisite to filing certified copy of judgment from the U.S. Court of Appeals affirming the decision of the U.S. District Court.
      MR. ESPINOZA: Your Honor, Edmundo Espinoza appearing on behalf of Mr. Michael Banks, who is not present in court.
      MR. WEINER: Edward Weiner for the United States.
      MR. ESPINOZA: As I stated to the Court, your Honor, sometime approximately — Mr. Weiner, about 10, 13 days ago?
      MR. WEINER: I believe so.
      MR. ESPINOZA: Mr. Weiner informed me in the hallway that he had received a notice from the Ninth Circuit stating about this date, May 13. The day after, I gave a call to Mr. Banks in Los Angeles, the same number that he's had for three or four years, and I talked to him and I explained what the Ninth Circuit had stated, and I told him there was a hearing today and that he was to be here to surrender. He told me that he understood and that he was going to be here.
      I tried calling him yesterday three or four times. The telephone rings but no answer. I called him two times this morning and again no answer; and Mr. Banks is not here.
      THE COURT: Mr. Weiner.
      MR. WEINER: We are going to move for the forfeiture of the appeal bond in this case and the issuance of a bench warrant after the Court, I guess, orders the mandate to be spread from the Court of Appeals decision.
      THE COURT: All right. The mandate will be spread and the Court will issue a bench warrant for the arrest of Mr. Banks.
      MR. ESPINOZA: Thank you.
      THE COURT: Thank you, Mr. Espinoza. Bond will be forfeited.
      (Proceedings adjourned.)

      . The circuits are split in their views on whether the bail bond should be interpreted in light of state or federal law. The Sixth and Eighth Circuits have ruled that bail bonds in federal criminal cases must be interpreted in accord with state law. United States v. D'Anna, 487 F.2d 899, 900 (6th Cir.1973); United States v. Palermo, 61 F.2d 138, 140 (8th Cir.1932); cert. denied, 288 U.S. 600, 53 S.Ct. 318, 77 L.Ed. 976 (1933). The First, Second, and Fifth Circuits have concluded that federal law should guide the interpretation of bail bonds. United States v. Carr, 608 F.2d 886, 887-88 (1st Cir.1979); United States v. Catino, 562 F.2d 1, 2 (2d Cir. 1977); United States v. Miller, 539 F.2d 445, 447 n. 2 (5th Cir.1976). Two circuits have found it unnecessary to decide the issue. United States v. Martinez, 613 F.2d 473, 477 (3rd Cir.1980);
        United. States v. Marquez, 564 F.2d 379, 380 (10th Cir.1977).
      An older Ninth Circuit case approved the use of state law to interpret bail bonds, United States v. Gonware, 415 F.2d 82, 83 (9th Cir. 1969), but later Ninth Circuit opinions have characterized that ruling as not controlling. See United States v. Mendoza-Acuna, 764 F.2d 699, 701 n. 5 (9th Cir.1985) (noting that Gonware relied on a repealed statute which mandated that state law govern in questions concerning bail); United States v. Vera-Estrada, 577 F.2d 598, 599 n. 2 (9th Cir.1978) ("Gonware dictum is not controlling"). This Court also concludes that it is not necessary to determine whether state law or federal law should be used as a guide in interpretation in order to resolve the issue presented in this case.

      . E.g., United States v. Martinez, 613 F.2d 473 (3rd Cir.1980); United States v. Carr, 608 F.2d 886 (1st Cir.1979); United States v. Dinneen, 577 F.2d 919 (5th Cir.1978); United States v. Catino, 562 F.2d 1 (2d Cir.1977); United States v. Marquez, 564 F.2d 379 (10th Cir.1977); United States v. Miller, 539 F.2d 445 (5th Cir.1976); United States v. D’Anna, 487 F.2d 899 (6th Cir.1973); United States v. Gonware, 415 F.2d 82 (9th Cir. 1969).

      . Compare United States v. D’Anna, 487 F.2d 899, 901 (6th Cir.1973) (appearance bond does not extend surety’s liability beyond sentencing) with United States v. Martinez, 613 F.2d 473, 478-80 (3rd Cir.1980) (appearance bond remains effective throughout appeal) and United States v. Dinneen, 577 F.2d 919, 921 (5th Cir. 1978) (appearance bond terminates at sentencing, allowing for brief stays of execution of sentence).

      . In another case with the same factual pattern, the Fifth Circuit reached a different conclusion based on the language in the bond contract. In United States v. Amend, 622 F.2d 782 (5th Cir. 1980), the court held that one of the bond’s conditions was that defendant appear to surrender into custody after affirmance of her conviction on appeal. The bond provided that "if [defendant’s] failure to appear is ... while awaiting sentence or pending appeal or certiorari after conviction, the penalty is a fine ... or imprisonment.” Id. at 783. The court held that this provision reflected an agreement by the surety to assure defendant’s appearance after conclusion of her appeal.
      Three other cases, arising out of different factual circumstances, confronted bonds with language identical to that in Martinez, Catino, and Dinneen. In United States v. Marquez, 564 F.2d 379 (10th Cir.1977), the defendant was convicted but before sentencing was granted a new trial. The defendant failed to appear at the second trial. The Tenth Circuit held that the parties’ intended the bond obtained for the first trial to be in effect for appearances at the second trial. In United States v. Carr, 608 F.2d 886 (1st Cir.1979), after the defendant failed to appear at trial, the surety argued that the bond only covered appearances at the arraignment on indictment. The First Circuit held that the Ianguage of the bond requiring the defendant to surrender for sentence and providing that the bond remained in effect until exoneration plainly reflected parties' intent to cover appearances at trial. In United States v. Miller, 539 F.2d 445 (5th Cir. 1976), the trial court granted the defendant a brief stay of execution of sentence, but he failed to appear for remand into custody as ordered. The Fifth Circuit held that the parties’ intention, by inclusion of the "continuing bond” and "surrender for sentence” language, was that the surety would remain liable during “brief reasonable stays of execution of sentence.”

      . One other case, United States v. D'Anna, 487 F.2d 899 (6th Cir.1973), relied heavily on state law in interpreting a bail bond. This bond did not include any reference to a "continuing bond” or "surrender for sentence.” The Sixth Circuit, interpreting state law as it applied to the contract, held that the court could not extend the bail bond beyond sentencing without the consent of the surety.

      . Some courts compare the language of the bonds before them with the so-called "standard form" bail bond contract, appended to the Federal Rules of Criminal Procedure. E.g., Catino,
        562 F.2d at 3. Form 17, which was abrogated effective August 1, 1983, contained language very similar to that of Dependable’s bond and did not contain the language regarding "continuing bond” or "surrender for execution of sentence.” Apparently there was some question as to the proper interpretation of Form 17. According to United States v. Amend, 622 F.2d 782, 787 (5th Cir.1980) (Brown, J., concurring), Form 17 was altered by the Administrative Office subsequent to the Dinneen case to explicitly provide 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.”

      . Mr. Banks' counsel was very much aware of the terms of the bond and the circumstances of its execution, since counsel “made the arrangements for the bail bondsman to reduce or be able to negotiate even the ten percent in this case.” See supra note 1.

      . See supra note 1.

      . The government could argue, however, that Banks’ failure to secure a separate appellate bond evidences his intention that the appearanee bond remain in effect during the appeals process. More likely, Mr. Banks’ failure to obtain a separate appeals bonds is evidence of his desire to avoid paying for another bond. It is not known why Mr. Banks did not obtain the separate appeals bond. The government’s inference from Mr. Banks’ failure to secure a bond is outweighed by the plain meaning of the contract language and the discussion between counsel and court at the June sentencing.

      . Many courts have considered the "risk of flight” argument in interpreting the language of bail bonds. The major assumption underlying the rationale is that a defendant is much more likely to flee once sentence has been handed down. As a practical matter, the risk of flight in most cases would seem to increase at the time of conviction, rather than at the time of sentencing. However, appearance bonds have uniformly been held to be in effect up to and including the sentencing after conviction, regardless of whether an appeal is taken. Miller, 539 F.2d at 449; Gonware, 415 F.2d at 84-85.

      . In this case, defendant filed his notice of appeal on June 22, 1984. The Ninth Circuit affirmed his conviction on March 22, 1985 — exactly nine months later. In 1984, in the Ninth Circuit the median time for all appeals (civil and criminal) from filing of the complete record to disposition was 9.5 months. This figure compares to 10.5 months in 1983, 13.3 months in 1982, and 17.3 months in 1981. 1984 Federal Court Management Statistics.

      . Gonware, 415 F.2d at 84.


author: HENRY WOODS, District Judge.

text:
    J.I. CASE CREDIT, Plaintiff, v. Bill BARTON a/k/a William Franklin Barton, Jr., a/k/a W.F. Barton, Jr., a/k/a William F. Barton d/b/a Barton Farms; Floran Miller and Audrey Miller, His Wife; and Citizens Bank of Jonesboro, Defendants, Citizens Bank of Jonesboro, Floran Miller, and Audrey Miller, Third Party Plaintiffs, Hornor-Morris Abstract Company, Third Party Defendant.
    No. H-C-84-123.
    United States District Court, E.D. Arkansas, E.D.
    Nov. 13, 1985.
    Robert E. Young, Rhine, Rhine & Young, Paragould, Ark., for plaintiff.
    Bill W. Bristow, Jonesboro, Ark., for Flo-ran and Audrey Miller.
    David Solomon, Helena, Ark., for Hornor-Morris Abstract Co.
    Stephen M. Reasoner, Barrett, Wheatley, Smith & Deacon, Jonesboro, Ark., for Citizens Bank of Jonesboro.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

HENRY WOODS, District Judge.

FINDINGS OF FACT

1. Plaintiff J.I. Case Credit obtained a judgment entered August 24, 1982 against Bill Barton d/b/a Bill Barton Farms in the amount of $12,946.36 with interest in the amount of 10% from April 5, 1982 to August 24, 1982, and thereafter at the federal rate plus attorney’s fees in the amount of $1,294.64 (Plaintiff’s Exhibit [hereinafter referred to as PX] 1). This judgment was apparently taken in the name of Bill Barton because the lease to Case and financing statement were signed “Bill Barton” (Defendant’s Exhibit [hereinafter referred to as DX] 1).

2. This judgment was filed in Phillips County, Arkansas on September 13, 1982 in the office of the Circuit Clerk and Recorder and is abstracted in Judgment Record Book 9 at page 3 (PX 6).

3. Under the name of William Franklin Barton, Jr., the judgment debtor inherited the following Phillips County property by his father’s will of April 7, 1978:

An undivided one-third (V3) interest in the South Half of Section 16, South Half of the Northeast Quarter of Section 16, the West Half of the Southwest Quarter of Section 15 and the South Half of the Northwest Quarter of Section 15, all in Township 5 South, Range 1 East, in Phillips County, Arkansas. (PX 5).

A certified copy of the will was filed for record on May 5, 1982 (DX 7) after the death of Barton’s father on July 2, 1980 (PX 5). Prior to the making of this will, the wife of William Franklin Barton, Sr. had died. During the pertinent period involved herein, there was no William Franklin Barton, Sr.

4. The property described in paragraph No. 3, supra, was sold by the judgment debtor to Floran Miller, et ux on October 13, 1983 by warranty deed signed “William F. Barton.” The sale was financed in part by a loan from the Citizens Bank of Jonesboro, Arkansas and secured by a mortgage dated October 20, 1983. In this transaction all the parties including the bank were represented by attorney Curtis L. Huckaby of Lake City, Arkansas.

5. All the parties mentioned in paragraph No. 4, supra, personally or through their attorneys knew that J.I. Case had a judgment against Barton. They did not know that the judgment had been filed for record in Phillips County so as to constitute a lien on Barton’s Phillips County property.

6. The parties mentioned in paragraph No. 4 all relied on an abstract prepared by Hornor-Morris Abstract Co of Helena, Arkansas to conclude that the Case judgment had not been filed in Phillips County. This abstract was certified from July 6, 1951 to March 4, 1983 at 9:00 A.M. The certificate recites that among others not involved herein it is for the benefit of William Franklin Barton, Jr. and the Citizens Bank of Jonesboro. It also recites that within the certified time frame there was no judgment against William Franklin Barton, Jr. The judgment in favor of Case filed September 13, 1982 was not included in the abstract because it was indexed under Bill Barton d/b/a Bill Barton Farms. The abstractor did not search for judgments under the name of “Bill Barton.”

7. The abstract was extended and certified to March 23, 1983 at 9:00 A.M. from March 4, 1983 for the benefit of William Franklin Barton, Jr., the Citizens Bank and others not pertinent herein. It certified that there were no judgments against William Franklin Barton, Jr. Included in this certified abstract was a satisfied judgment in favor of Frances Bailey, et al against W.F. Barton, Jr. filed March 11, 1983. (DX 7).

8. The abstract was extended to June 27, 1983 and certificated to, among others, William Franklin Barton, Jr. No judgments were shown against the latter. It was subsequently extended to October 17, 1983 for the benefit of Floran Miller, et ux among others not involved herein. No judgments were shown against William Franklin Barton, Jr. It was last extended to November 1, 1983 for the benefit of Floran Miller, et ux. There was no reference to Barton in the certification of judgments. (DX 7).

9. Relying on the above-mentioned abstract, attorney Huckaby rendered a title opinion for the benefit of Floran Miller, et ux, Barton, and the Citizens Bank in which he failed to call attention to the judgment lien of J.I. Case Credit filed in Phillips County. (DXs 4 & 5).

10. On November 2, 1983 Mr. Anthony Bartels, attorney for Case, directed the following letter to Mr. Walter Morris, President of Hornor-Morris Abstract Co.:

Please find enclosed copy of our can-celled check in the amount of $3.00 paid to the Phillips County Clerk, Patsy Nicholls for filing our Judgment in the above matter. Also enclosed is a copy of our ledger card.
If you would be so kind as to advise me why this Judgment did not show up in your abstract, we would be most appreciative.

I look forward to your advice. (DX 6). The abstract company through Ms. Dorothy James replied as follows:

Enclosed please find judgment sheet showing judgment recorded in Judgment Docket Book 9, page 3, in Phillips. County, Arkansas, which you will please insert in the proper place in the abstract wherein we certified judgments against William Franklin Barton, Jr., among others. This judgment was inadvertently overlooked as the defendant is shown to be “Bill Barton, d/b/a Bill Barton Farms.” You will notice on our judgment sheet “only the foregoing names and initials certified to and no other.” However, we do try to show nicknames. You have our sincerest apologies for this oversight, and appreciate your calling it to our attention. (DX 1).

CONCLUSIONS OF LAW

There are two simple issues in this case. The first is whéther a judgment filed and indexed in Phillips County, Arkansas under the name “Bill Barton” operates as a lien against land devised to the judgment debtor under the name of “William Franklin Barton, Jr.” Although some issue is raised by the parties as to the omission of “Jr.” from the name of the judgment debt- or, we do not regard such omission as significant. At all pertinent times herein, both of Barton’s parents were dead. It is a common practice to drop the “Jr.” from one’s name in this situation.

The real question revolves around the relationship of the proper names “William” and “Bill.” Is the latter a nickname for the former? It is at least a nickname, so characterized by Webster’s Third New International Dictionary (1961). But “Bill” for “William” is probably more than a nickname. According to H.L. Mencken, “Bill” is a diminutive of William. “In the South-em highlands, say Dr. Josia I. Combs, diminutives are widely used and ‘any highlander is lucky if he escapes with his original first name.’ The same might be said of most parts of the country.” In a sense “Bill” is a nickname. But we agree with Mencken that it is considerably more than a nickname. “Bill” vis-a-vis “William” is an alternative name, a substitute or as Mencken suggests, a diminutive. This analysis is borne out by Barton’s own practice. On some occasions he signed his name W.F. Barton, Jr., (DXs 11 & 12; PX 4), sometimes William F. Barton, (PX 3), and sometimes Bill Barton (Court’s Exhibits 1 & 2). In Burns v. Ross, 215 Pa. 293, 64 Atl. 526 (1906), the court held, “the record of a judgment against one whose Christian name is ‘Francis,’ if indexed under the name of ‘Frank,’ charges a prospective purchaser from the judgment debtor’s heirs with notice of the existence .of the judgment.” From my view of the relationship of “Bill” to “William,” it follows that a judgment filed in the name of “Bill Barton” constitutes a lien on land inherited in a will under the name of William Franklin Barton, Jr.

The second question is whether omission of the judgment against “Bill Barton” constituted a breach of the abstractor’s duty to Floran Miller et ux and the Citizens Bank. Supplement to the abstract was ordered by Mr. Huckaby who was acting as attorney for both Millers and the bank. Miller paid for the abstract by his own personal check. (DX 8). The abstractor’s certificate of March 4, 1983, covering a period from July 6, 1951 to March 4, 1983 and embracing a period when the “Bill Barton” judgment was on file, specifically recited that it was for the benefit of Citizens Bank. The same is true of the certificate of March 23, 1983. The certificate of October 17, 1983 continuing the abstract from June 27, 1983 to October 17, 1983 recited that it was for the benefit of the Millers. We are not impressed with the abstractor’s argument that he owed no duty to the bank and the Millers.

While the lawyer for the latter knew that Case had a judgment against Barton, he did not know it was filed in Phillips County. He was entitled to rely on the abstract for a resolution of that question. I find that the abstractor breached its duty to both the Millers and Citizens Bank by omitting the Case judgment from the abstract. My holding in this regard is substantially bolstered by the abstractor’s letter of March 7, 1983 to Anthony W. Bartels, the attorney who obtained the judgment against Barton for Case. “This judgment was inadvertently overlooked as the defendant is shown to be ‘Bill Barton d/b/a Bill Barton Farms.’ You will notice on our judgment sheet ‘only the foregoing names and initials certified to and no other.’ However, we do try to show nicknames.” (DX 1) (emphasis added).

Omission of the middle name or initial is not dispositive. The common law did not recognize middle initials or middle names. It only recognized Christian names. “The law knows but one Christian name and the omission or insertion of the middle name or of the initial letter of that name is immaterial.” Games v. Stiles, 39 U.S. 322, 327, 10 L.Ed. 476 (14 Pet.) (1840). The common law rule has been recognized in this state. Fincher v. Hanegan, 59 Ark. 151 26 S.W. 821 (1894).

Judgment will be entered declaring that the judgment of J.I. Case Credit v. Bill Barton d/b/a Bill Barton Farms constitutes a lien on the property in Phillips County, Arkansas, described herein, but the -Citizens Bank of Jonesboro and Floran Miller et ux will be awarded judgment over against the Hornor-Morris Abstract Company.

      . This characterization appears in a roundabout manner. "William" is defined as a "piece of paper money." The derivation is given as follows: [fr. bill, after Bill (nickname for William): William, given name].

      . H.L. Mencken, The American Language, 519 (4th ed. 1960).

      . H.L. Mencken, supra (quoting Language of the Southern Highlander, Publications of the Modern Language Association, Vol. XLVI, No. 4, p. 1313).

      . H.L. Mencken, supra, note 2.

      . A nickname in the true sense would be such a name as “Butch” which, according to the testimony, is a name by which many of his friends called Barton.