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finding that this factor was "not a compelling consideration"
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No. 02-CV-5987 (ILG)
January 28, 2003
MEMORANDUM ORDER
BACKGROUND
On October 19, 2002, Luis Felipe Gallego ("Gallego"), 18 years of age, was arrested as he tried to enter the country with 4220.9 grams of heroin. Two days later, John and Neiza Gallego (the "sureties"), his adoptive father and natural mother, posted bail for him. After a bail hearing which both attended, they paid $10,000 into the court, and signed a bond for an additional $140,000. Neiza Gallego earns approximately $35,000 per year, and John Gallego approximately $17,000 per year. Tr. of bail hearing, October 21, 2002 at 26-27. On November 5, Luis Gallego violated the conditions of his bail by absconding. His mother later discovered that he was living in Colombia. She went there to try to persuade him to return to court. Though Gallego promised her that he would return, he refused to accompany her back to the United States, and remains at large. On November 12, 2002, the government moved for an order 1) forfeiting Gallego's bail, 2) entering judgment by default against all three of the Gallegos for $150,000, and 3) forfeiting to the United States the $10,000 cash posted as security.
The sureties do not contest the fact that Gallego violated the conditions of his bail and is presently at large, but urge the court to exercise its discretion to order only that they forfeit the $10,000 security, and not be forced to forfeit an additional $140,000, a sum they claim is far beyond their means. In support of their request, they urge the court to consider the following factors: 1) they were not fully cognizant of the risks they were exposing themselves to when they signed the bond; these were never explained to them by their son's attorney or the Magistrate Judge (this claim is untrue see Tr. of bail hearing at 34); 2) John Gallego, who only recently adopted the defendant, signed the bond only at the urging of his son's attorney, who told the Gallegos it would give a more "positive impression" to the court; 3) forfeiture of bail should not be a mechanism to enrich the government — in this case, the amount sought far exceeds the government's costs and inconvenience, considering that his criminal action has not proceeded far, and that there was no pre-arrest investigation; and 4) the impact of granting judgment for the full amount the government seeks would financially devastate them, as they own no property or assets, and earn only a small income which would be garnished from their modest salaries.
DISCUSSION
I. Legal Standard
Under Federal Rule of Criminal Procedure 46(f)(1), the court must declare bail forfeited if a condition of the bond has been breached. Rule 46(f)(2), however, allows the court to set aside a forfeiture of bail, "in whole or in part . . . upon such conditions as the court may impose" if "it appears that justice does not require bail forfeiture." Under Rule 46(f)(3), if the court does not set aside the forfeiture, it must, upon motion, enter a default judgment. Rule 46(f)(4), however, allows the court to remit a judgement enforcing such forfeiture "in whole or in part. . . under the same conditions specified in Rule 46(f)(2)." Under these rules, the court has broad discretion. United States v. Egan, 394 F.2d 262, 267 (2d Cir. 1968); United States v. Fook Dan Chin, 304 F. Supp. 403, 405 (S.D.N.Y. 1969); United States v. Velez, 693 F.2d 1081, 1083 (11th Cir. 1982); United States v. Bass, 573 F.2d 258, 259 (5th Cir. 1978). In determining whether a remission is called for, courts generally consider the following factors: 1) whether the breach was willful, 2) the cost, inconvenience and prejudice suffered by the government as a result of the breach, 3) any explanation or mitigating factors presented by the defendant, 4) whether the surety has assisted in the apprehension of the defendant, and 5) whether the surety is a professional or a friend or member of the defendant's family. United States v. Gambino, 1993 WL 300048, at *2 (S.D.N.Y. Aug. 5, 1993), aff'd, 17 F.3d 572 (2d Cir. 1994). These factors are meant to be illustrative, not exhaustive. Id. United States v. Lacey, 982 F.2d 410, 413 (10th Cir. 1992).
II. Consideration of the Factors
A. Willfulness
All of the evidence before the Court, uncontested by the sureties, demonstrates that Gallego's breach was willful. In violation of the conditions of his bail, Gallego failed to return to his parent's house by his assigned curfew. He then fled to Colombia without contacting his family. By no means can these actions be seen as the result of misunderstanding, carelessness or oversight. The Court therefore finds that Gallego's breach was willful.
B. Government's Cost, Inconvneience and Prejudice
Had Gallego come or been brought back to court, this consideration would weigh in favor of the sureties. There was no pre-arrest investigation, since Gallego first came to the authorities' attention when he was arrested while bringing heroin through customs. The government alleges no expense or inconvenience in locating Gallego since his breach, and indeed alleges no effort to do so. Since Gallego absconded only 17 days after his arrest, the criminal proceedings against him did not proceed far. Nevertheless, because Gallego is still at large, the amount of delay caused by his violation, and thereby the prejudice to the government, is unknowable and potentially indefinite. In most cases, remitting a forfeiture of bail while the defendant is still at large would undermine the purpose of bail — to insure the presence of the accused. United States v. Gutierrez, 771 F.2d 1001, 1004 (7th Cir. 1985); see also United States v. Diaz, 811 F.2d 1412, 1416 (11th Cir. 1987) ("The purpose of bond is to secure the presence of the defendant . . . and . . . [r]emission of forfeited bonds while their subjects are still at large would undermine that purpose.") (citingUnited States v. Skipper, 633 F.2d 1177, 1180 (5th Cir. 1981)); Velez, 693 F.2d at 1083 ("In most instances the surety seeks a reduction after the defendant has been returned to the court's jurisdiction"). Considering the totality of the circumstances, therefore, this factor cannot be said to weigh in the sureties' favor.
C. Explanation or Mitigating Factors
Gallego has offered no explanation for his breach, and has presented no mitigating factors; indeed, he has yet to return to court at all. The evidence shows that he simply absconded to avoid prosecution, and remains at large. This factor cannot, therefore, weigh in the sureties' favor.
D. Sureties' Assistance in Apprehending Defendant
This factor is again one which would weigh in the sureties favor were Gallego not still at large. They have provided all possible assistance to the government in apprehending Gallego, and indeed through their own efforts have located him and provided the government with his address in Colombia. If Gallego returns or is brought back to court, this factor will weigh heavily in support of the sureties' request for remission. As for now, though, it is of only minor importance.
E. Nature of Sureties
Here, the sureties are not professionals, but family members. The reasoning behind the consideration of this factor, however, had been said to lie in the fact that nonprofessional sureties may not fully comprehend the risks associated with posting a bail bond. See Gambino, 1993 WL 300048, at *6; United States v. Carvajal, 674 F. Supp. 973, 974-75 (E.D.N.Y. 1987); United States v. Frias-Ramirez, 670 F.2d 849, 853 (9th Cir. 1982). Here, the Magistrate Judge explained to the sureties the consequences of posting the bond, and Mr. Gallego indicated that he understood. Tr. of bail hearing at 34. Thus this factor, while favoring the sureties, is not a compelling consideration. See Gambino, 1993 WL 300048, at *7
F. Other Considerations
There are two other considerations which should be noted. The first pertains to the fact that Federal Rule of Criminal Procedure 46(d) (now 46(e)), as it read at the time bail was set, required sureties to describe by affidavit the property they proposed to use to secure the bond. No such affidavit appears to have been filed in this case. At the bail hearing, the Magistrate Judge inquired, as to the sureties' income, discovering that their combined income was around $50,000 a year, but made no inquires as to any property they might own. The Rule provides that no bond shall be approved unless the surety appears to be qualified, which may have been arguable here.
The importance of this consideration, however, is greatly reduced by the holding in Skipper that the sureties in that case could not avail themselves of the Magistrate's failure to abide by Rule 46(d), since the purpose of the rule was to assure the government of the sureties' financial ability and insure that the sureties had an incentive to secure the defendant's presence in court. 633 F.2d at 1180 (citing United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966)). Since the rule serves to protect the government and not the sureties, any failure to comply with it does not weigh in the sureties' favor. Id.
In addition, the sureties urge the court to consider their meager financial means, and the undue hardship to which forfeiture would submit them. The cases are clear, however, that the court may not consider the financial plight of the sureties, since it is the interests of justice, not of the sureties, that must be considered. See Gambino, 1993 WL 300048, at *7; Carvajal, 674 F. Supp. at 974 (quoting United States v. Ciotti, 579 F. Supp. 276, 278 (W.D. Pa. 1984)); Diaz, 811 F.2d at 1416;Gutierrez, 771 F.2d at 1004; But see U.S. v. Agueci, 379 F.2d 277, 278 (2d Cir. 1967) (per curiam) (affirming denial of relief while recognizing financial hardship of third parties).
III. Balancing of the Factors
Unfortunately for the sureties, the factors that might weigh in their favor are undermined by the fact that Gallego remains at large. In the one case this Court has found where remission was granted in the defendant's absence before the court, there were special circumstances not present here. See Velez, 693 F.2d at 1084 (bondsman relied upon magistrate to his detriment in modifying bond agreement and defendant and his sister never formally executed a personal surety bond); see also Skipper, 633 F.2d 1180 n. 6 ("No case has been cited and we have found none remitting a forfeited bond while the defendant was still at large."); Velez, 693 F.2d at 1084 n. 7 (remission of forfeited bond while accused remains at large undermines purpose of bail bond); Cf. Bass, 573 F.2d at 260 (cases involving the remission of a forfeiture have considered the ultimate appearance of the defendant as grounds for remission).
The modern cases in this circuit addressing the issue of remission or discharge have all denied the requested relief, even when the defendant had ultimately appeared. See Gambino, 1993 WL 300048, at *8; Agueci, 379 F.2d at 278; Egan, 394 F.2d at 265-68; U.S. v. Accardi, 241 F. Supp. at 120 (S.D.N.Y. 1964); U.S. v. Ciena, 195 F. Supp. at 513 (S.D.N.Y. 1961).
There is therefore little or no precedent directly supporting the sureties' claim. There are, however, a number of considerations that suggest remission would be a fair course to follow. The sureties here are not professionals who earn a premium for posting the bond, but rather concerned family members who stand to make nothing and lose much. See Gutierrez, 771 F.2d at 1004; Ciotti, 579 F. Supp. at 278. The government has been put to relatively little expense in the case. The sureties were in no way responsible for Gallego's flight, and have made diligent, indeed successful, efforts to locate him. The sureties do not seek complete remission, being willing to forfeit the $10,000 paid into court (which was Gallego's money from an accident settlement), but ask only that they not be ruined financially by the imposition of a $140,000 obligation that they cannot possibly satisfy other than by an essentially indefinite garnishment of their salaries.
Finally, and perhaps most persuasively, the deterrence factor may be small in such a low profile case. In Gambino, the court of appeals upheld the trial court's denial of the sureties' motion for remission, finding that there was a high deterrence value in full forfeiture in a high profile narcotics and racketeering case. 17 F.3d at 575. Similarly, the appeals court in Agueci affirmed the district court's denial of relief, in spite of recognizing the financial hardship of the sureties, based on the strong public interest in ensuring the appearance of defendants in large-scale narcotics prosecutions. 379 F.2d at 278. The court noted that the case was one of the most important narcotics prosecutions in years, and that the defendant's arrest and subsequent disappearance were widely publicized. Id. One might deduce from the reasoning in Gambino and Agueci that the argument for remission is stronger where the case, such as this one, is neither high profile nor alleges racketeering.
Nevertheless, the Court cannot find that all of the appropriate considerations, taken together, favor granting remission while Gallego is still at large, as they might were he in custody. As the district court noted in Gambino:
the Court is mindful of the effect that a remission would have on the integrity of the bail system. If individuals charged with notorious crimes who are released on bail after the posting of a large bond are led to believe that a portion of that bond will be remitted in the event of flight simply because the forfeiture involves a large amount of money, the credibility of the bail system would be substantially undermined. While the appearance bond clearly is not to be used as punishment for the underlying offense of jumping bail, the Government does have a legitimate interest in enforcing its rights under the bond in order to deter such conduct by other future defendants.Gambino, 1993 WL 300048, at *7
CONCLUSION
The court therefore declares a forfeiture of bail, and orders entry of a default judgment against Gallego and the sureties in the amount of $150,000. Ten thousand dollars of this judgment is to be satisfied by the immediate forfeiture of the money paid into court by the sureties. Enforcement of the remainder of the judgment and forfeiture of the $140,000 bond is hereby stayed for 60 days from the entry of this order, at which time, if Gallego has returned or been apprehended, the Court may reconsider the sureties' request for remission.
SO ORDERED.