United States Case Laws
Click on the below to read United States Case Laws for the following years:
2012
2011
2010
2009
2008
2007
2006
2005
2003
United States Case Law 2012
In Sanchez v. County of El Paso, 2012 WL 3553350 (5th Cir. August 17, 2012) a Texas Bail Bond Board renewed a license applied for by the surety for the plaintiff’s bail bond agent business. The agent, however, owed approximately $105,000 in fines. The Board rescinded the license renewal unless the fines were paid. The surety elected to forfeit the license rather than pay the fines. The agent sued the County, the County Attorney and others objecting to the fines and to the license rescission. The district court dismissed the suit, and the agent appealed. The Court found that the complaint’s allegation that the fines were illegal was a legal conclusion not supported by any factual allegations, and held that the district court properly dismissed the claims related to the fines. The Court also noted that the surety, not the agent, held the license and concluded, “Without alleging a property interest of his own that could be impaired, Sanchez’s complaint fails to state a denial of a property right under federal law or a conspiracy claim under state law.” The Court affirmed dismissal of the suit for failure to state a claim.
In United States v. Parrett, Case No. 10-4550 (6th Cir. June 29, 2012) the defendant was arrested in Arizona on charges pending in Ohio. The surety provided a bond which guaranteed the defendant’s appearance and stated that it “is a continuing bond (including any proceeding on appeal or review) . . .” No electronic monitoring was ordered, and the defendant could travel between Arizona, Ohio and California. After trial and conviction, the court released the defendant pending sentencing, but imposed electronic monitoring and house arrest. The defendant did not report to the pretrial services office and was not fitted with the electronic monitoring device. Over nine months later, the court forfeited the bond. The surety was notified only after the forfeiture. Over two years later, the U.S. Marshal’s service recovered the defendant. The surety argued that release of the defendant after her conviction increased the surety’s risk, but the Court held that the bond itself was continuing and included post conviction release, so the surety had assumed that increased risk. The modification to the bond conditions (house arrest and electronic monitoring) decreased the surety’s risk. The delay in notifying the surety of the defendant’s flight did not prejudice the surety because there was no evidence the surety did anything to assist in recovery of the defendant. The Court affirmed the district court’s holdings denying relief to the surety.
In Gregg v. Ham, 2012 WL 1495410 (4th Cir. April 30, 2012) affirmed a judgment against a bail bondsman for §1983 civil rights violations and assault. The bondsman, accompanied by a deputy sheriff, went to a private home to search for the defaulting bond principal. The bondsman, who was armed with a shotgun, demanded entry to the house and searched unsuccessfully for the defendant. The plaintiff sued, settled with the County and the deputy sheriff, and recovered a jury verdict for actual and punitive damages against the bondsman. On the bondsman’s appeal the Court noted that §1983 applied because the presence of the deputy sheriff made the bondsman a state actor and held that he was not entitled to qualified immunity. The Court stated, “In sum, neither history nor policy support extending the qualified immunity defense to bail bondsmen.” The Court found sufficient evidence to support the jury’s conclusions that the plaintiff did not voluntarily consent to the search of her home and that she was in reasonable fear of bodily harm.
Zweifel v. Commissioner of Internal Revenue, Case Nos. 15226-10 and 15227-10 (U.S. Tax Ct. March 28, 2012) held that the bail agent’s deposits into a Build Up Fund were not deductable business expenses. The court recognized that if payments were made from the BUF to the surety company, they would be deductible at that point. The agent argued that they should be deductible when deposited and recognized as income if returned to the agent. The court cited a 1998 Ninth Circuit decision characterizing that argument as an attempt to turn the BUF into a tax shelter
United States Case Law 2011
AAA Bonding Agency Inc. v. U.S. Department of Homeland Security, Case Nos. 10-20515 and 10-20695 (5th Cir. October 31, 2011) decided several aspects of the on-going dispute between the Department of Homeland Security (DHS) and a surety and agent on immigration bonds (the obligors). The Court held: (1) DHS was not required to send the obligors a demand notice within 90 days of the date of the removal order; (2) bond breach determinations could be sent by regular mail instead of certified mail; (3) if a demand notice was sent to one of the obligors it triggered that obligor’s performance even though a demand notice was not sent to the other obligor and the “Both” box had been checked on the bond; (4) a demand notice must identify an obligor to trigger its performance even if both obligors have the same address; (5) a “run letter” sent to the alien prematurely (i.e. less than three days after notice to the obligors) cannot be cured by another demand notice, and such a bond remains forever unbreachable; (6) if a premature run letter was sent, DHS cannot avoid its consequences by arguing that the alien did not receive the letter; (7) on 9 bonds for which the file contained no run letter and the obligors produced no evidence a run letter was sent other than DHS’s standard practices, summary judgment was properly granted on the grounds that there was no genuine issue of fact that no run letter was sent; and (8) DHS’s regulations did not require exhaustion of administrative remedies and the obligors could argue in court a defense that was not raised in an optional administrative appeal.
United States Case Law 2010
In United States v. Gonzales & Gonzales Bonds and Insurance Agency, Inc., 2010 WL 2985545 (N.D.Cal. July 27, 2010) the Government sued an agent and surety to collect on certain immigration bonds and the defendants counterclaimed. The court held that the bonds were three party contracts among the surety, the United States and the principal and that there was Tucker Act jurisdiction over the surety’s counterclaim to recover money paid on forfeited bonds. The court also, however, held that the Department of Homeland Security’s administrative procedure for declaring a breach of the bond and for an administrative appeal of that declaration was valid and the court’s review would be on the arbitrary and capricious standard of the Administrative Procedures Act. The court rejected the surety’s contention that it was entitled to a de novo determination of its liability but did hold that the surety was entitled to discovery of the alien’s “A-file.” The surety could use information from the file to help show that the Government’s determination of a breach was arbitrary and capricious because it did not consider all pertinent information or did not follow the law, regulations, agreements or other authority.
Safety National Casualty Corp. v. U.S. Department of Homeland Security, 2010 WL 2219162 (S.D.Tex. May 28, 2010) addressed five issues that the parties could not resolve in their ongoing ADR procedure as follows: (1) a premature “run letter” bars a breach even if not received by the principal. (2) If the box requesting notice to both the surety and the agent is checked but the same address is listed for both, the government can comply by sending separate notices or by sending a single notice addressed to both at the common address. One notice addressed to one recipient, however, is not compliance. (3) This “notice to both” defense had to be raised in administrative proceedings to be preserved, and such exhaustion of administrative remedies was not excused as futile. (4) No bond involved in the case presented the issue of a “home grown” run letter not on Form I-166, therefore the court could not decide whether a premature such letter would bar breach of the bond. And, (5) the surety was entitled to assert offsets or credits to reduce the amount claimed by the government, but bond forfeitures the surety paid voluntarily could not be the basis for such an offset or credit.
In United States v. Gonzales & Gonzales Bonds and Insurance Agency, Inc., 2010 WL 2265213 (S.D.Ind. May 27, 2010) the United States sued an agent and surety on 18 immigrant delivery bonds. The Government filed suits against the same defendants to enforce other bonds in the Western District of Tennessee and the Northern District of California. The case filed in Tennessee had already been transferred to the Northern District of California, and the defendants made a motion to transfer this case as well. The court granted the motion for the convenience of the parties and witnesses and the interest of justice.
In Safety National Casualty Corp. v. U.S. Department of Homeland Security, 2010 WL 1849037 (S.D.Tex. May 11, 2010) the court considered motions related to enforcement of 14 out of 15 immigrant delivery bonds that it had remanded to the Department after finding that each was subject to one of two valid defenses based on defective notice to the surety and/or agent or failure to provide the Form I-166, “Run Letter” within the prescribed time. After remand, the Department attempted to cure any errors and issued new invoices demanding payment. The surety and agent disputed the claims and again sought judicial review. The surety and agent argued that the defects identified by the court could not be cured. The court agreed as to five bonds on which the Run Letter was sent well before the Department issued an I-340 Notice. The court held that an I-340 Notice had to be sent at least three days prior to sending the Run Letter and stated, “Once a Run Letter is sent, the bell is rung, and unless DHS sent the I-340 Notice at least three days before that, the bond will forever remain unbreached. The Court clarifies that this is a defect that can never be corrected.”
The court disagreed with the surety as to how the notices had to be mailed, whether the new notices were timely, and various procedural issues. The court relied on the proposition that it was required to give deference to the Department’s interpretation of its statutes and regulations but refused to give such deference to the Department’s interpretation of a contract. For the nine bonds involved, the court found the bonds were due and owing unless the surety or agent could produce Run Letters within 30 days.
United States v. Gonzales & Gonzales Bonds and Insurance Agency, Inc., 2010 WL 62469 (W.D.Tenn. January 11, 2010) was a suit by the United States on three immigration bonds. The defendants were the surety on the bonds and its managing general agent. The only connection to the Western District of Tennessee was that the bond principals were supposed to be delivered into federal custody in Memphis. The defendants moved to dismiss the case for improper venue or, in the alternative, to transfer it to the Northern District of California where the Government had filed a similar case involving other bonds. The court found that there was some basis for venue in the Western District of Tennessee but that the convenience of the parties and witnesses, location of the events giving rise to the suit, and the interest of justice all supported transferring the case. The court denied the motion to dismiss but granted the alternative motion to transfer and transferred the case to the Northern District of California.
United States Case Law 2009
United States v. Poe, 2009 WL 514069 (10th Cir March 3, 2009) rejected the defendant’s contention that evidence should have been suppressed because two bounty hunters discovered it in recovering him and called the police. The Court held that the bounty hunters were not state actors for Fourth Amendment purposes, but in doing so considered cases under §1983 and effectively said that the tests were the same. This case would be precedent to support an argument that bounty hunters who were acting for their own pecuniary interest and not at the instigation of the police would not be state actors for purposes of a civil suit.
In United States v. Santana, 2009 WL 1321783 (S.D.N.Y. May 8, 2009) the defendant failed to appear but was eventually rearrested and sentenced. One of the sureties on the bond, the defendant’s brother, moved to vacate the judgment of forfeiture. The court denied the motion. The surety did not aid in locating or arresting the defendant, and the defendant’s breach was willful and caused significant inconvenience to the government. The fact that forfeiture might work a hardship on the surety was not a ground to relieve him from his obligation.
In United States v. Blankenship, 2009 WL 3103789 (W.D.Tenn. March 27, 2009) the defendant’s brother posted a 10% cash deposit for a $10,000 bond. The defendant was rearrested on drug charges in violation of the conditions of his release. The United States sought to forfeit the bond, and the defendant’s brother sought return of his cash deposit. The court found that the bond was conditioned on only appearance and the defendant did not violate its terms. The court also noted that even if there had been a violation, the court could set aside a forfeiture if justice did not require forfeiture. Under the facts of the case in which the defendant was in custody and the Government did not show cost or inconvenience, “the Court can find no reason that Defendant’s surety, a relative, should be required to forfeit the $1,000.”
United States Case Law 2008
In United States v. Ahmed, 2008 WL 281968 (S.D.N.Y. January 28, 2008) the defendant pled guilty in 1993 and was sentenced but fled to Ghana before surrendering to begin her sentence. The Government moved to forfeit the bond secured by three personal sureties. The sureties did not appear and the bond was forfeited in1995. The Government, however, did nothing to collect on the forfeiture until 2007. At that time one of the sureties moved to set aside the order of forfeiture. The court rejected her claims that she did not receive notice of the forfeiture hearing and that her inability to pay (an alleged salary of $45,000 and credit cards debts of $55,000) justified reducing her debt. The court set aside the accrued interest and penalties for non-payment in light of the Government’s 12 year delay in seeking to collect but affirmed forfeiture of the entire bond amount.
In United States v. Griffin, 2008 WL 766507 (S.D.Ga. March 21, 2008) the court ordered a bond and a 10% cash deposit. The defendant’s mother deposited the cash. After the defendant fled, the Government moved for forfeiture of the bail. The defendant’s mother sought return of the cash deposit. The court found that the mother’s ill health and alleged lack of knowledge of her son’s whereabouts were not extraordinary circumstances justifying relief from forfeiture of the bail. The court granted the Government’s motion, entered judgment on the bond, and ordered that the clerk transfer the cash deposit to the Treasury.
In United States v. Famiglietti, 548 F.Supp.2d 398 (S.D.Tex. 2008) the sureties were the wife and adult children of the defendant. After the defendant fled the country, the Government moved to forfeit the bond. The court extensively discussed whether any part of the bond should be remitted and the importance to the functioning the federal Bail Reform Act that friends and family members of the defendant understand that the amount of the bond is “real” and will be forfeited. The court examined eight factors, refused to give any weight to the comparatively poor financial condition of the sureties, and held that no part of the forfeiture should be remitted.
Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval), 541 F.3d 997 (10th Cir. 2008) held that the indemnitor’s debt to the bondsman was not exempted from discharge as a “fine, penalty or forfeiture payable to and for the benefit of a governmental unit.” The bondsman paid the forfeiture to the State and sued the indemnitor. The indemnitor filed for bankruptcy and the bondsman objected to discharge of her claim. The Court reasoned that the debtor’s obligation was a matter of private contract and owed to the bondsman not to the State. Even if the bondsman was subrogated to the rights of the State, the State had no claim against the indemnitor. The Court was careful to say that it was not deciding the issue of whether the defendant’s or the bondsman’s debt to the State on the bond could be discharged.
United States Case Law 2007
Corrales v. Sanchez (In re Sanchez), 365 B.R. 414 (Bankr. S.D.N.Y. 2007) held that the bankrupt indemnitor’s debt to the surety was not for a “fine, penalty, or forfeiture payable to and for the benefit of a governmental unit” within the meaning of §523(a)(7) of the Bankruptcy Code. The surety sought to prevent discharge of the debt pursuant to §523(a)(7). The court noted that the indemnitor was not a party to the bond and was not indebted to the state. The debt was a purely contractual obligation owed to the surety and so dischargeable. Unfortunately, the court also discussed equitable subrogation and suggested that even if the debt had been owed to the state, a surety subrogated to the state’s position could not have asserted the dischargeability objection.
In United States v. Hoffman, 2007 WL 1052435 (S.D.N.Y. April 5, 2007) a defendant surrendered and was serving his sentence. He filed a motion for exoneration of his personal recognizance bond secured by a real property mortgage. His former attorney opposed the motion because the defendant owed him attorneys fees. The attorney argued that he was an officer of the court and the court should not exonerate the bond until the fees were paid. The court held that the purpose of the bond was to secure the defendant’s appearance and it was no longer required for that purpose. The court entered an order to exonerate the bond.
In United States v. LaJocies, 2007 WL 869692 (E.D.Cal. March 21, 2007) individuals posted bonds to assure the defendant’s compliance with the terms of his release. He violated those terms by using methamphetamines, and the bonds were forfeited. The sureties sought remission of the forfeitures. The court exercised its discretion to remit a part of each forfeiture.
In State v. Soileau (In re Soileau), 488 F.3d 302 (5th Cir. 2007) a bail bondswoman filed for bankruptcy to discharge $650,897.71 of unpaid forfeitures she owed the State. The State moved to dismiss the case on the ground that the State’s immunity under the Eleventh Amendment to the Constitution prevented the Bankruptcy Court from adjudicating the debt owed the State without the State’s consent. The Court held that the Bankruptcy Court had in rem jurisdiction to adjudicate the discharge of debts, and the states consented to that jurisdiction by ratifying the Constitution with its Bankruptcy Clause. The most interesting part of the decision, though, was a concurring opinion by Chief Judge Jones seeking to have the entire Fifth Circuit reconsider en banc its 2001 decision in another case that a bail bond forfeiture, as to the surety, was a dischargeable debt. The State, having lost that issue in 2001, did not argue it and instead relied on the Eleventh Amendment argument. Judge Jones, however, thought the 2001 decision was wrong and the debt should be non-dischargeable as a fine penalty or forfeiture owed the State, and in her concurring opinion she urged the entire court to reconsider that issue.
In Gonzales & Gonzales Bonds and Insurance Agency, Inc. v. Department of Homeland Security, 490 F.3d 940 (Fed.Cir. 2007) the agent and surety on almost 200 immigration bonds tried to obtain a judicial determination of their dispute with the Government over what, if anything, was owed. The agent and surety sued in U.S. District Court under the Administrative Procedures Act, which waives sovereign immunity for actions not seeking money damages. The court dismissed the case. The agent and surety filed an amended compliant alleging jurisdiction under the “Little Tucker Act” which waives sovereign immunity for suits founded upon a contract or regulation of the United States seeking money damages under $10,000. The Government claimed that more than $10,000 was owed on some of the bonds and the case was transferred to the Court of Federal Claims which has exclusive Tucker Act jurisdiction for such suits over $10,000. The agent and surety appealed the transfer. The Government then argued that the suit was not for money damages after all because the plaintiffs were trying to avoid paying the United States instead of trying to get money back from the United States. The Court of Appeals for the Federal Circuit agreed, vacated the transfer order and directed the U.S. District Court to dismiss the complaint for lack of jurisdiction.
United States v. Eslava-Rodriguez, 2007 WL 2412832 (S.D.Fla. July 23, 2007) ordered the defendant’s 10% cash appearance bond forfeited to the United States. The money was deposited with the clerk of court in 1991, and the defendant was sentenced in 1992 but remained free because he was cooperating with the Government in an investigation. He did not appear in 1992 to serve his sentence and has not been seen since. His attorney claimed to be assignee of the cash bond and sought its return. Instead, the court ordered the bond forfeited to the United States since the defendant unquestionably failed to appear and so breached the condition of the bond. There is no mention in the decision of any statute of limitations or argument over whether the Government could wait 15 years after the breach to seek forfeiture.
Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval), 2007 WL 2737939 (Bankr. N.D.Okla. September 12, 2007) and Affordable Bail Bonds, Inc. v. Thompson (In re Thompson), 2007 WL 2738171 (Bankr. W.D.Okla. September 12, 2007) held that the bail bondsman’s claims against indemnitors were dischargeable in bankruptcy. The bondsman paid the forfeitures, and the indemnitors filed for bankruptcy. The bondsman objected to discharge of the indemnitors’ obligations to the bondsman. In each case, the indemnitors were not principals on the bonds and had no obligation themselves to the State. The bondsman objected to discharge of the debt pursuant to §523(a)(7) of the Bankruptcy Code which exempts from discharge a debt that is “a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.”
The court noted that the bondsman could assert her own contract rights and was subrogated to the rights of the State. The indemnitors, however, had no obligation to the State, and their contractual obligation to the bondsman was a normal commercial contract to protect the bondsman from pecuniary loss not a fine, penalty or forfeiture owed to the State.
In the Thompson decision the court also discussed the discharge of debts owed by the bond principal and surety, although those issues were not part of the case. The court thought that if the bond principal filed for bankruptcy, its obligation as principal on the bond would fit within §523(a)(7) and would not be dischargeable. The court recognized a conflict in federal court of appeals decisions if a professional bondsman filed for bankruptcy. The Third Circuit would not permit discharge while the Fourth and Fifth would. If the surety were not a professional, such as a relative, he or she would more likely be denied a discharge.
In re Sandoval, 2007 WL 2916522 (Bankr. N.D.Okla. October 5, 2007) certified for direct appeal to the Court of Appeals for the Tenth Circuit the Bankruptcy Court’s Order of September 12, 2007, holding that the bankrupt indemnitor’s obligations to the bail bondsman were not exempted from discharge as a fine, penalty or forfeiture owed to the state. See, Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval), 2007 WL 2737939 (Bankr. N.D.Okla. September 12, 2007).
In United States v. Stathakis, 2007 WL 3124703 (E.D.N.Y. October 24, 2007) the defendant posted bail of $5 million secured in part by real property belonging to a third party. The Government alleged that the defendant violated the conditions of his bond by contacting a potential witness and sought to forfeit the bond. The bond conditions included that the defendant not violate any laws, and intimidating a witness would be a violation, but it was not clear that contacting a witness would be a violation. The court refused to forfeit the bond but at the hearing clearly and explicitly warned the defendant that it was now a condition of his release that he not contact any potential witness. The Government alleged that the defendant telephoned another witness, and the Government again sought to forfeit the bond. The third party whose property secured the bond opposed the motion. He argued that he understood the bond to guaranty only appearance, and at no time did the defendant fail to appear.
The court noted that the Bail Reform Act and Rule 46(f) permit conditions other than appearance and that the bond form itself includes additional conditions. The court nevertheless denied the Government’s motion and discharged the third party because the addition of a new condition (not even to contact witnesses) after the bond was filed materially increased the surety’s risk without his consent. Although a family member residing with the defendant can be found to have knowledge of such a change, here the third party guarantor was not a relative and did not reside with the defendant.
United States v. Lunn,519 F.Supp.2d 145 (D.Me. 2007) forfeited the defendant’s cash bond after he fled and had not been heard from for two years. Initially, his bankruptcy trustee sought to claim the cash, but after the bankruptcy trustee withdrew his objection the court found that there was no reason to delay and granted the Government’s motion for forfeiture.
Two Jinn, Inc. v. Lopez (In re Lopez), 2007 WL 4570072 (Bankr. D. Idaho December 24, 2007) held that discharge of an indemnitor’s obligation to the surety on a bail bond was not barred by Bankruptcy Code §523(a)(7), which prevents the discharge of fines, penalties or forfeitures payable to or for the benefit of a governmental unit. The court noted that other recent decisions established that the defendant’s obligation to the Government would not be dischargeable. There is a split of authority over whether the surety’s obligation to the Government would be dischargeable. The indemnitor’s contractual obligation to indemnify the surety for its pecuniary loss, however, is not owed to the Government and is not a fine or penalty. The court dismissed the surety’s complaint.
United States Case Law 2006
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 surety’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. §523(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 re Davis, 2006 WL 895086 (Bankr.E.D.Tex. March 16, 2006) held that neither the Eleventh Amendment nor §523(7) of the Bankruptcy Code barred discharge of the debtor bail bondsman’s debt to the State. The court reasoned that the State’s claim was based on a contractual obligation of the surety, not on her wrongdoing, and so forfeiture of the bond as to her was not a “fine, penalty or forfeiture” within the meaning of §523(7). The court’s reasoning may have led to the opposite result if the debtor had been the principal on the bond.
In Safety National Casualty Co. v. United States Department of Homeland Security, 2006 WL 1007495 (S.D.Tex. April 18, 2006) the surety sought to compel the Department of Homeland Security (DHS) to recognize defenses to demands on certain immigrant delivery bonds and to produce documents in compliance with the Freedom of Information Act. During the course of the case, the Court enjoined DHS from refusing further bonds from the surety, and the parties agreed to an Alternative Dispute Resolution agreement. In spite of the ADR agreement, DHS refused to produce certain documents. The Court rejected “FOIA” and “law enforcement” privileges asserted by DHS and ordered it to produce all documents in 50 files pursuant to the ADR agreement except for ones subject to attorney client, work product or informer’s privileges.
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.
United States v. Billini, 2006 WL 1586553 (S.D.N.Y. June 8, 2006) held that an individual who signed a bond as surety for the defendant was not entitled to any relief from the judgment of forfeiture. The defendant fled and was captured five years later. The surety did not help in locating the defendant. The court reviewed six factors to be considered and found that none of them favored relief other than the fact that the surety was a friend of the defendant not a professional surety.
In re United States Department of Homeland Security, 459 F.3d 565 (5th Cir. August 2, 2006) reviewed a discovery order of the U.S. District Court, see 2006 WL 1007495, in a case involving immigration bond forfeitures. The Court held that Fifth Circuit law recognizes a “law enforcement privilege” but that it is limited to on-going criminal investigations and does not apply to closed investigations, civil matters or people merely suspected of violations. The Court remanded the case to the District Court to conduct an in camera inspection of the disputed documents in light of the Court’s delineation of the privilege.
Zamora-Garcia v. Moore, 2006 WL 2380919 (S.D.Tex. August 16, 2006) is a continuing case involving Constitutional challenges to the Department of Homeland Security’s procedures for release of aliens while their immigration cases are under consideration. The plaintiffs assert, among other things, due process and equal protection violations because DHS does not recognize address changes and treats cash deposits differently than surety bonds to the disadvantage of the obligors making the cash deposits. The court denied the federal defendants’ motions to dismiss these particular claims.
Zamora-Garcia v. Moore, 2006 WL 2663802 (S.D.Tex. September 15, 2006) is another decision in a continuing case involving challenges to the Department of Homeland Security’s procedures for release of aliens while their immigration cases are under consideration. The court denied motions to dismiss filed by two sureties. The court held that it had pendent jurisdiction over the state law claims against the sureties and that the factual allegations were sufficient to support the various causes of action in the complaint including breach of contract, fraud and misrepresentation, and false imprisonment. The essence of the suit as to the sureties seemed to be that the sureties had a contractual obligation to tell the principal and indemnitors when there was a demand on the bond and failed to do so.
United States v. Urquiza, 2006 WL 2691074 (E.D.Wis. September 19, 2006) ordered return of a $30,000 cash bond even though the defendant failed to appear and was a fugitive in Mexico. When the defendant, an illegal alien, was arrested, ICE lodged a detainer against him. After the cash bond was posted, allegedly by the defendant’s relatives, the Government deported him to Mexico. The Court held that by deporting the defendant the Government made it impossible for him to appear and thus the bond should not be forfeited. In the alternative, the court thought that even if forfeiture was required, the forfeiture should be set aside in the interests of justice pursuant to Rule 46(f)(2). The court mentions, but does not really address, the Government’s argument that there were procedures by which the defendant could have sought to re-enter the United States to attend his trial.
In United States v. Billini, 2006 WL 3457834 (S.D.N.Y. November 22, 2006) the Court refused to reconsider its decision denying relief from bond forfeiture reported at 2006 WL 1586553 (S.D.N.Y. June 8, 2006).
United States Case Law 2005
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.
United States Case Law 2003
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.