Opinion
01 CR 680 (TPG).
May 9, 2006
OPINION
The Government has filed a motion pursuant to Fed.R.Crim.P. 46(f) for an Order and Judgment of Default on Forfeiture of a $100,000 appearance bond issued for defendant Jose Mena.
The motion is granted.
BACKGROUND
On June 13, 2001, Mena was arrested and charged with conspiracy to traffic in firearms. Magistrate Judge Dolinger set bail in the amount of $100,000. Mena signed a $100,000 personal recognizance bond, which was co-signed by Mena's wife, Paulina Bello, and Monique Patron and Miguelina Bello. The bond is dated June 15, 2001.
Mena was indicted on July 13, 2001, and entered a guilty plea on February 26, 2002. Mena was scheduled to be sentenced on May 29, 2002. On April 3, 2002, Monique Patron, one of the co-signers on Mena's bond contacted the Government stating that she had credible information — including information from Mena's wife Paulina Bello — that Mena was preparing to flee to the Dominican Republic to avoid sentencing. The same day, the Court issued a warrant for Mena's arrest for violation of his bond conditions. The U.S. Marshals Service attempted to locate Mena, but was unsuccessful. Mena failed to appear for sentencing and has not appeared at any time thereafter.
The Government filed the present motion on December 29, 2005. The Government served Mena with the motion papers at the address of his last counsel of record, and served the three sureties by Federal Express at the addresses listed for those individuals on the bond. Paulina Bello received service. The motion papers sent to Miguelina Bello were returned to the Government as undeliverable. The motion papers sent to Monique Patron were not returned to the Government, indicating that they had been received.
In any event, legal service has been made upon the sureties under Fed.R.Crim.P. 46(f)(3)(B), which provides that each surety "irrevocably appoints the district clerk as its agent to receive service of any filings affecting its liability." Id. The Government therefore properly effected service when it filed its motion papers with the Clerk of Court.
A brief hearing was held on January 18, 2006, the return date of the motion. The only surety to attend this hearing was Paulina Bello ("Bello"), who appeared pro se. None of the other sureties appeared at that hearing or at any time since.
Bello does not speak English, and was therefore accompanied by a friend, Daisy Gutierrez, who interpreted. The matter was adjourned until February 2, 2006, to give Bello time to try to secure counsel.
At the February 2, 2006 hearing, Bello again appeared pro se, with Gutierrez translating, and stated that she had been unable to obtain counsel. The Court then requested that the Government provide Bello with a full description of the applicable law regarding bail forfeiture and Bello's consequent liability as a surety on the bond. At the hearing, Gutierrez stated that Bello wished to comply with her obligations, but also stated that at the time she signed the bond, "she was not entirely aware of all the consequences or all that was going on because of the stress of the case." The Court then requested that the Government attempt to locate any evidence relating to whether the sureties on Mena's bond were explained the risks and obligations of co-signing the bond.
On February 6, 2006, the Government wrote the Court, with copies to all sureties, setting forth the statutory provisions and case law relevant to bail forfeiture proceedings. On February 14, 2006, Bello wrote asking the Court to set aside or lower the bail forfeiture on the grounds that she has no assets, and supports herself and her children solely by means of her job as a licensed child care provider. In her letter, Bello also repeated her earlier statement that, at the time she signed the bond, she was unaware that she could be held liable if Mena failed to appear.
A further hearing was held on February 16, 2006. At this hearing, the Court questioned Bello extensively, through an interpreter, regarding facts relevant to whether she understood the consequences of acting as a surety on the bond at the time she signed it. Bello testified that although she signed the bond, she was unable to read it because she does not read English. She also testified that she does not recall whether an interpreter was present or whether the bond was translated into Spanish for her. Although Bello testified that she was never told that if Mena failed to appear she would be liable for the amount of the bond, in a subsequent letter to the Court, dated February 17, 2006, Bello admitted that she did not truly recall the events surrounding her co-signing the bond.
In a letter to the Court dated March 30, 2006, the Government pointed to evidence on the face of the bond that a Spanish interpreter was present when Bello signed the bond, to translate the bond and explain its terms to her. Both pages of the bond are stamped "INTERPRETER NEEDED." This notation is followed on each page by the name Francisco Olivero, who is in fact a Spanish interpreter used to perform such translations. There is a second name on the first page of the bond — Elena Rich. The further notation indicates that she interpreted for defendant Mena, who signed the bond on a different day than the sureties. On the basis of what is presented on the face of the bond itself, the court finds that the bond was translated to both Mena and the sureties. The bond specifically warned that a surety would be liable for the amount of the bond if Mena failed to appear.
DISCUSSION
Fed.R.Crim.P. 46(f)(1) states that "the court must declare the bail forfeited if a condition of the bond is breached." In the present case, there is no dispute that Mena violated a condition of his bond by failing to appear for sentencing on May 29, 2005. The Court is therefore duty-bound to declare Mena's bail forfeited.
However, the court may set aside a bail forfeiture under certain conditions. The applicable provision is Fed.R.Crim.P. 46(f)(2), which states:
The court may set aside in whole or in part a bail forfeiture upon any condition the court may impose 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.
As Mena has not been surrendered into custody by any of the sureties, bail forfeiture may be set aside only if it appears that justice does not require it. The court is to consider the following factors in making this determination: (1) whether the defendant's breach of the bond conditions 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. See United States v. Gambino, 17 F.3d 572, 574 (2d Cir. 1994); United States v. Carvajal, 674 F. Supp. 973, 974 (E.D.N.Y. 1987).
The court is not permitted to consider the financial hardship of the sureties because it is the interests of justice — and not the interests of sureties — which must be considered. United States v. Chuong Din Pham, 04-CR-1109, 2005 U.S. Dist. LEXIS 11386 (S.D.N.Y. June 8, 2005); United States v. Gallego, 02-CV-5987, 2003 U.S. Dist. LEXIS 2838 (E.D.N.Y. January 29, 2003); Carvajal, 674 F. Supp. at 974.
Having considered and weighed the required factors as they apply to the present case, the Court finds that it must declare a forfeiture of bail and enter a default judgment against Mena and the sureties. Mena willfully fled the United States to avoid facing sentencing. The Government was put to considerable expense in preparing for a sentencing that never took place, trying to locate Mena as a fugitive, and indicting Mena for bail jumping.
Furthermore, no valid mitigating factors have been presented to the Court that would support setting aside the bail forfeiture. Mena has not appeared in Court since he fled, let alone offered an explanation for his breach. Bello asserts that her financial status should weigh as a mitigating factor because a bail forfeiture and the concomitant default judgment would be an economic hardship for her. Though the Court is sympathetic to this request, as described above, the law is clear that financial hardship cannot be considered.
The fourth factor to be considered is whether the surety seeking set-aside has assisted the Government in apprehending the defendant. Bello did not assist, but had no ability to do so. This factor therefore weighs neither in favor of, nor against, a declaration of forfeiture.
The final factor is whether the surety is a professional, or a friend or member of the defendant's family. In considering this factor, courts have examined whether a non-professional surety understood the risks and obligations imposed upon them by signing the bond. United States v. Chuong Din Pham, 04-CR-1109, 2005 U.S. Dist. LEXIS 11386 (S.D.N.Y. June 8, 2005); United States v. Gallego, 02-CV-5987, 2003 U.S. Dist. LEXIS 2838 (E.D.N.Y. January 29, 2003).
Bello, of course, is not a professional surety, but Mena's wife. However, the Court is satisfied that Bello and the other sureties had the bond translated for them, including the financial consequences that would result from its breach.
Having considered all of the required factors, the Court finds that it is required to declare the bail forfeited and enter a default judgment against Mena and all three sureties, including the one who appeared, Paulina Bello.
CONCLUSION
The Court declares a forfeiture of bail and orders entry of default judgment against Mena and the sureties in the amount of $100,000. Enforcement of the judgment is hereby stayed for 60 days from the entry of this order, at which time, if Mena has returned or been apprehended, the Court may consider the sureties' request for remission.
SO ORDERED.