United States Bail Law

U.S. v. Humberto Laura-Cota, 262 F. Supp.2d 1118 (S.D. Cal. 2003) set aside forfeiture of the bond because the Government increased the surety’s risk by deporting the defendant.

In United States v. King, 349 F.3d 964 (7th Cir. 2003) the trial court, over the government’s objection, permitted the defendant to travel to Nigeria despite the fact that he had shown what the court calls a propensity for flight. However, he in fact returned to New York and then skipped. The Seventh Circuit’s decision contains excellent language on exoneration of the surety by an unconsented to increase in the risk assumed, including “That a material change in risk can discharge the surety’s obligation is a staple of suretyship law; the principle is not limited to criminal cases.” The court holds, however, that the increased risk from letting the defendant travel to Nigeria did not discharge the surety because the defendant in fact returned to the United States before fleeing. In effect, the court looks at whether the surety was actually harmed by the action which increased its risk. If it was not actually harmed, it is not discharged. The Seventh Circuit, however, clearly states that if the surety had been harmed, i.e., Mr. King had stayed in Nigeria, the surety would have been discharged.

United States v. Garza, 2005 WL 673325 (5th Cir. March 23, 2005) held that bail agents did not have standing to appeal denial of their motion to remit the bond forfeiture. The agents did not present any evidence that they paid the forfeiture or had a contractual obligation to indemnify the surety company. The court specifically found that the corporate surety paid the forfeiture and that the motion was filed allegedly in the capacity of sureties not in a representative capacity on behalf of the corporate surety. [Not published].

In United States v. Zuluaga-Berrio, 377 F.Supp.2d 611 (W.D. Tex. 2005) the defendant fled to Mexico but was apprehended by the Mexican authorities and retrieved by the U.S. Marshal’s Service. The Government incurred some expense in bring him back from Mexico. The surety moved for remission of the bond forfeiture. The court held that forfeiture was mandatory when the defendant failed to appear but that complete or partial remission of the forfeiture was within the discretion of the court under Federal Rule of Criminal Procedure 46(f). The court granted a partial remission because the defendant was in custody but was not surrendered by the surety or bail agent. For reasons not explained, the surety had paid only $7,600 of the $25,000 penal sum, and the court ordered remission of forfeiture of the unpaid balance. This would seem to punish the surety for making the partial payment, or conversely to reward the surety for not paying the entire forfeiture. It would seem to have made more sense to base the amount forfeited on the Government’s expense in obtaining custody or the delay involved, but since the decision does not explain why only $7,600 was paid, there may have been a connection between the amount and the Government’s expense or the amount and some other rationale for computing the partial remission.

In United States v. Rojas, 2005 WL 3006078 (11th Cir. November 10, 2005) the defendant failed to appear, the bond was forfeited, and the bail agent started foreclosure proceedings against the residence of the indemnitor. The indemnitor took out a second mortgage and paid the amount of the bond to the agent. The defendant was eventually recovered, and the indemnitor asked the trial court to vacate the forfeiture and order the agent to return her money. The trial court ordered return of the money, less the agent’s expenses in recovering the defendant, but the Court of Appeals held that there was no federal jurisdiction over the contractual dispute between the bail agent and the indemnitor.

In United States v. Varner, 2006 WL 482398 (W.D.Va. March 1, 2006) the conditions of the defendant’s release included not using drugs, drug treatment and home detention. He violated those conditions but never failed to appear. The court revoked his bond, forfeited the bail and incarcerated the defendant. The surety, the defendant’s sister who had pledged real property, moved for reconsideration of the forfeiture. The court held that the surety was bound only by the written bail agreement, and it was conditioned only on appearance. The key factor was that an outdated bail bond form was used. The 1998 form only required appearance, unlike the December 2003 form that would have required both appearance and compliance with the other conditions of release. The court granted the motion for reconsideration and exonerated the bond.

In re Lopes, 2006 WL 695748 (Bankr. S.D.N.Y. March 21, 2006) rejected the professional bail bond agency’s objections to the dischargeability of its claim against the debtor. The debtor was an indemnitor on a bail bond written for her husband. The husband failed to appear, and the bond agency paid the forfeiture. The indemnitor then filed for bankruptcy. The bond agency argued that the debt should be non-dischargable pursuant to 11 U.S.C. ยง523(a)(7) as a fine, penalty or forfeiture payable to or for the benefit of a governmental unit that is not compensation for an actual pecuniary loss. The court held that the debt was a simple contractual obligation owed to a private party and was to compensate the bond agency for its pecuniary loss in paying the forfeiture. The court recognized that if the debtor had been the principal on the bond, and therefore directly obligated to the government, the bond agency could have been subrogated to the government’s rights and argued that the money owed on the bond was a penalty and not compensation for a pecuniary loss.

In United States v. Mena, 2006 WL 1294623 (S.D.N.Y. May 10, 2006) the defendant was released on a personal recognizance bond co-signed by his wife and two others. The defendant did not appear for sentencing and is a fugitive. The wife moved to set aside or reduce the amount of the bond. The court noted that hardship on the surety was not a grounds to reduce the bond and denied her motion.

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