February 26, 1996       [Not For Publication]

                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

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        No. 95-1803



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                 HERBERT E. PLYMPTON,



                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



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



                                Boudin, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                          and Rosenn,* Senior Circuit Judge.
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            Charles J. Rogers, Jr. on brief for appellant.
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            Michael   P.  Iannotti,  Assistant  United  States  Attorney,  and
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        Sheldon Whitehouse,  United States Attorney,  on brief for  the United
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        States.





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        *Of the Third Circuit, sitting by designation.





























                 Per Curiam.  Herbert Plympton was convicted after a jury
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            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







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            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.
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            1956) (per curiam).



                 It is so ordered.
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