Opinion
93 Cr. 13-2.
January 28, 2008
Attorney for Plaintiff U.S. DEPARTMENT OF JUSTICE, Michael J. Garcia, United States Attorney, Southern District of New York, New York, NY, By: Sharon E. Frase, Assistant United States Attorney.
Attorney for Defendant, FREEMAN NOOTER GINSBERG, New York, NY, By: Louis M. Freeman.
OPINION
Alberta Tackie ("Tackie" or the "Movant"), a surety on the personal recognizance bond ("Bond") of Amina Ahmed ("Ahmed" or the "Defendant"), has moved, pursuant to Federal Rule of Criminal Procedure 46, to set aside the Court's order of default and forfeiture and remit the Bond. For the reasons set forth below, the motion is granted in part.
Prior Proceedings
Amina and Yahya Ahmed were arrested on December 17, 1992, and charged with narcotics distribution, in violation of Title 21, United States Code, Sections 812, 841(a)(1), and 841(b)(1)(A). On December 23, 1992, Yahya Ahmed was detained, and Amina Ahmed was released on a $200,000 personal recognizance bond, which was signed by three sureties: Sharifa Mohammed, Tackie, and Tanko Mohammed. The Bond stated that one of the conditions of Ahmed's release was that she appear before the Court as directed. Ahmed also signed an order of "Advice of Penalties and Sanctions," indicating that she understood the conditions of her release and the penalties she faced if she failed to comply with those conditions.
The Ahmeds were subsequently indicted on a narcotics distribution conspiracy charge, in violation of Title 21, United States Code, Section 846, and on a substantive narcotics charge, in violation of Section 841(b)(1)(A). On September 13, 1993, Ahmed pled guilty to the conspiracy count, and was sentenced by the Court on September 16, 1994, to ten years' imprisonment plus five year of supervised release, and was directed to surrender to the U.S. Marshals Service at 10 a.m. on October 28, 1994. Ahmed did not surrender for service of her sentence on October 28, 1994 and has not surrendered since then. The Government subsequently attempted to have Ahmed extradited from Ghana.
On December 21, 1994, the Government filed a Notice of Motion for Judgment of Default and Forfeiture ("Forfeiture Motion") of the Bond for Ahmed, informing all parties that the Government would move before the Court at noon on January 18, 1995, for entry of a default judgment and forfeiture order. According to an affirmation of service provided by the Government, the forfeiture motion was mailed by the Government to all three sureties, including Tackie, at the address provided by her to the Court and included on the bond: 333 East 181st Street, Apt. #7W, Bronx, New York 10457. According to counsel for Tackie, she did not receive a copy of the Notice of Motion. The docket report does not contain an entry indicating that the Clerk of Court sent notice of the forfeiture motion to Tackie.
The forfeiture motion was heard on January 18, 1995, and that same day, the Court issued an order granting the motion and also forfeiting the $12,000 which had been posted to secure the Bond (the "January 18 Order"). Tackie received a copy of the January 18 Order. The instant motion was heard and marked fully submitted on September 26, 2007.
The Facts
According to counsel for Tackie, her activities and knowledge are set forth below. Tackie did not submit a sworn affidavit to the Court with her moving papers, nor did she testify to these facts in a manner subject to cross-examination. However, during oral argument on the instant motion, Tackie averred before the Court that the facts contained in her moving papers are, to the best of her knowledge, true (Hr. Trans. 16).
Sometime shortly before Ahmed was to surrender, Tackie discovered Ahmed's intentions to flee to Ghana and Tackie called the Federal Bureau of Investigation ("FBI") to inform them of Ahmed's plans. She eventually contacted an agent, informed the agent of whom she was and why she was calling, and provided the agent with the name of the airport from which Ahmed intended to leave. She left her contact information with the agent, assuming that she would be called if needed. When she was not subsequently contacted by the Government, Tackie assumed her efforts to prevent Ahmed from fleeing the country had been successful.
Having never received notice of the Government's Forfeiture Motion, at the end of January 1995, Tackie received a copy of the January 18 Order. According to Tackie, she did not fully understand the import of the order. Tackie did not receive any further information, letters, bills, or instructions from the Government until February 2007, when she received a bill in the amount of approximately $440,000.00 from the Government for the amount of the Bond, plus interest and penalties for failure to remit the $200,000.00.
Upon receiving the bill, Tackie contacted the Government and cooperated by going to the office of the Financial Litigation Department in the Southern District of New York and filling out a financial summary. Tackie earns approximately $45,000.00 a year and has approximately $55,000.00 in credit card debt.
The Statutory and Legal Framework
Under Federal Rule of Criminal Procedure Rule 46(f), "the court must declare bail forfeited if a condition of the bond is breached." Fed.R.Crim.P. 46(f)(1). However, the forfeiture may be set aside in whole or in part if "(A) the surety later surrenders into custody the person released on the surety's appearance bond or (B) it appears that justice does not require bail forfeiture." Fed.R. Crim P. 46(f)(2). If the court does not set aside a bail forfeiture, "it must, upon the Government's motion, enter a default judgment." Fed.R. Crim P. 46(f)(3).
There is no dispute that the circumstances required for bond forfeiture under Rule 46(f)(1) were met in this case, as (1) the bond required Ahmed to appear before the Court as directed and (2) Ahmed failed to appear. A condition of the bond was breached and it was therefore appropriate for the Court to forfeit Ahmed's bail under Rule 46(f)(1).
However, after the court has entered default judgment enforcing a forfeiture, it may subsequently remit that judgment in whole or in part, pursuant to Rule 46(f)(4), under the same conditions outlined in Rule 46(f)(2). Tackie moves pursuant to this provision for the remission of the judgment forfeiting Ahmed's bond. More specifically, Tackie alleges that the Government failed to provide notice of the Forfeiture Motion, in violation of her due process rights under the Fifth Amendment and in contravention of Rule 46.
The Bond Was Appropriately Forfeited
As the Government explains, the notice provision contained in Rule 46 specifies that by entering into a bond, each surety "submits to the district court's jurisdiction and irrevocably appoints the district clerk as its agent to receive service of any filings affecting its liability." Fed.R.Crim.P. 46(f)(3)(B). The Rule further states that "[t]he government must serve any motion, and notice as the court prescribes, on the district clerk. If so served, the clerk must promptly mail a copy to the surety at its last known address." Fed.R.Crim.P. 46(f)(3)(C). No evidence has been submitted that the clerk performed the notice obligation outlined in Rule 46.
While the clerk's failure to give notice may violate the designation of the clerk as the agent for service of process, no authority on the subject has been cited by the parties and, on this record, Tackie received appropriate notice. Although, through counsel, Tackie has insisted that she never received the Notice of Motion, the Government has submitted an appropriate affidavit of service and therefore, on this record, service has been made.
The Government has submitted, and the court file includes, an affidavit of service upon Tackie by certified mail dated December 21, 1994.
Enforcement of the Bond and Remittal of the Accrued Penalties and Interest is Appropriate
Under Rule 46, a court has broad discretion in determining whether to remit a bond forfeiture. Among the factors that a court may consider are: (1) the willfulness of the defendant's breach of the bond conditions; (2) the expense and prejudice, if any, suffered by the Government as a result of the breach; (3) the participation, if any, of any of the sureties in securing the return of the defendant; (4) the appropriateness of the amount of the bond; (5) any explanation or mitigating factors presented by the defendant; and (6) whether the sureties are professional or friends or members of the defendant's family. See United States v. Gambino, 17 F.3d 572, 574 (2d Cir. 1994) (citing United States v. Carvajal, 674 F. Supp. 973, 974 (E.D.N.Y. 1987)). The burden of establishing grounds for remission is on the party challenging the forfeiture. Id.
The Defendant's willfulness in breaching the bond conditions is clear. The Government has incurred expense in achieving a sentence that has not been served, trying to locate the Defendant as a fugitive, initiating extradition proceedings, and moving to forfeit bail. The amount of the bond was reasonable and justified in light of the seriousness of the crimes and, in particular, the minimum ten-year sentences facing the Defendant. Furthermore, Ahmed remains at large, and "remission of forfeited bonds while their subjects are still at large would undermine [their] purpose."United States v. Chuong Din Pham, No. 04 Cr. 1109 (KNF), 2005 U.S. Dist. LEXIS 11386, at * 12 (S.D.N.Y. June 8, 2005) (citingUnited States v. Gallego, No. 02 Civ. 5987 (ILG), 2003 WL 1193536, at *2 (E.D.N.Y. Jan. 29, 2003)); see also Id. at *7 (collecting cases).
However, according to her counsel, Tackie is not a professional surety with the experience and the means to ensure satisfaction of the conditions of the Bond, but rather a personal surety with limited means to do so. Despite those limited means, Tackie did what she could to try to ensure the Defendant did not flee by spending a day on the phone trying to contact the right person at the FBI. According to her Tackie, when no one contacted her after that day, Tackie believed she had done her duty in preventing the Defendant from escaping.
The Government does not dispute that from January 1995 to January 2007, it made no effort to enforce the Bond. The interests of justice dictate that the interest on the Bond and penalties for failure to pay be forfeited as a consequence of the delay in enforcement, which has resulted in the interest and penalties assessment.
The Government has stated its intention to achieve a payment plan, in light of Tackie's financial circumstances, which, on this record, have not been established by an appropriate evidentiary submission. Tackie points to her debt and insufficient salary as further justification for setting aside the forfeiture. Even accepting that payment of the bond will be a financial hardship for Tackie, the Court is bound to follow the well-settled precedent that it is the interests of justice, not the financial plight of the surety, that is the appropriate test for determining whether to remit the forfeiture. See United States v. Mena, No. 01 Cr. 680 (TPG), 2006 U.S. Dist. LEXIS 28296, at *7 (S.D.N.Y. May 10, 2006) (citations omitted).
As already noted, Tackie has not submitted sworn testimony subject to clarification with respect to her circumstances as a surety and her notification to the Government of Ahmed's anticipated flight, factors which might well be considered in the interests of justice. The affidavit of counsel, though highly regarded, does not fill the evidentiary gap noted by the Government.
Under these circumstances, it is appropriate for the Government to seek enforcement of the Bond.
Conclusion
The motion to remit the forfeiture is granted, in the interests of justice, with regard to the interest and penalties. With regard to the amount of the bond, the motion is denied.
It is so ordered.