
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        February 26, 1996       [Not For Publication]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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,  Assistant  United  States  Attorney,  and            ______________________        Sheldon Whitehouse,  United States Attorney,  on brief for  the United        __________________        States.                                 ____________________                                 ____________________                                    ____________________        *Of the Third Circuit, sitting by designation.                 Per Curiam.  Herbert Plympton was convicted after a jury                 __________            trial  of three counts of possession and concealment of goods            stolen from  interstate commerce and sentenced  to 41 months'            imprisonment  and  restitution  totaling  $444,231.69.    The            convictions and  sentence were submitted  to this court  in a            separate appeal.  United States v. Black, No. 94-1852.                                _____________    _____                 On April  18, 1995,  Plympton's attorney filed  a motion            requesting that  $35,000  bail, posted  following  Plympton's            arraignment  in 1993, be returned to one George Gotauco.  The            government  objected  and filed  a motion  to apply  the bail            funds toward  the  outstanding assessment,  restitution,  and            fine pursuant  to 28 U.S.C.    2044.  The  district court, on            July  12,  1995,  denied  Gotauco's motion  and  granted  the            government's motion.                  Because 28 U.S.C.    2044, by its terms, does  not apply            "to any  third party  surety," the  central issue before  the            district court  was whether there was  sufficient evidence to            establish  that Gotauco was a bona fide surety.  The district            court held that he was not.  On appeal, the government argues            that  we need  not reach  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  issue is itself  difficult:   There is  an            argument  that  Plympton  himself  has standing  but  also  a                                         -2-                                         -2-            proffered counter  argument by  the government; and  there is            also  a possibility that,  on a proper  motion, Gotauco might            have urged that he  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  a timely response, but  Plympton's            counsel did  not do  so; the  Clerk's  Office then  contacted            Plympton's  counsel who  promised  that the  overdue response            would be  filed not later than February 19, 1996.  A week has            now  passed, and  no response  has been  filed.   The present            appeal is  dismissed for  want  of prosecution.   Whittal  v.                                                              _______            Commissioner  of Internal  Revenue,  230 F.2d  948 (1st  Cir.            __________________________________            1956) (per curiam).                 It is so ordered.                 ________________                                         -3-                                         -3-
