USCA1 Opinion

February 26, 1996

[Not For Publication]

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-1803

UNITED STATES OF AMERICA,

Appellee,

v.

HERBERT E. PLYMPTON,

Defendant, Appellant.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Rosenn,* Senior Circuit Judge.

____________________
____________________

Charles J. Rogers, Jr. on brief for appellant.

______________________
Michael
P. Iannotti,
______________________
Sheldon Whitehouse,
__________________
States.

Assistant

United

United States Attorney,

States

Attorney,

on brief for

the Uni

____________________

____________________

____________________

*Of the Third Circuit, sitting by designation.

Per Curiam.
__________

trial

of three counts of possession and concealment of goods

stolen from

interstate commerce and sentenced

imprisonment

and

convictions and

On April

$444,231.69.

The

to this court

in a

$35,000

Plympton's attorney filed

bail, posted

following

a motion

Plympton's

in 1993, be returned to one George Gotauco.

government

objected

funds toward

fine pursuant

12,

totaling

to 41 months'

United States v. Black, No. 94-1852.

_____________
_____

18, 1995,

requesting that

arraignment

restitution

sentence were submitted

separate appeal.

July

Herbert Plympton was convicted after a jury

the

and filed

outstanding assessment,

to 28 U.S.C.

1995,

a motion

denied

2044.

The

Gotauco's motion

to apply

The

the bail

restitution,

and

district court, on

and

granted

the

government's motion.

Because 28 U.S.C.

"to any

third party

district court

establish

2044, by its terms, does

surety," the

that

central issue before

was whether there was

we need

not reach

the

sufficient evidence to

that Gotauco was a bona fide surety.

court held that he was not.

not apply

The district

On appeal, the government argues

this question--which

presents some

difficult interpretive problems--and urges us to dismiss this

appeal

because

the appellant,

Plympton, lacks

standing to

press for the return of the bail funds to Gotauco.

The standing

argument

that

issue is itself

Plympton

himself

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difficult:

has standing

There is

but

also

an

proffered counter

also

argument by

a possibility that,

have urged that he

the government; and

on a proper

there is

motion, Gotauco might

be substituted as the appellant

in place

of Plympton who did file a timely notice of appeal.

Because

of

the complexity

of

the issues,

we

issued an

order

on

January 16, 1996, requesting the parties to file supplemental

memoranda addressed both to merits and standing issues.

The government filed

counsel did

Plympton's

would be

now

not do

so; the

counsel who

Clerk's

promised

Office then

that the

no response

dismissed for

want

has been

1956) (per curiam).

It is so ordered.
________________

filed.

of prosecution.

Commissioner of Internal Revenue,

__________________________________

230 F.2d

Plympton's

contacted

overdue response

filed not later than February 19, 1996.

passed, and

appeal is

a timely response, but

A week has

The present

Whittal
_______

948 (1st

v.

Cir.

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