Opinion
No. CR 00-40242 CW (WDB).
February 17, 2005
OPINION AND ORDER DENYING SURETY'S MOTION TO RECONVEY PROPERTY AND GRANTING GOVERNMENT'S MOTION FOR ENTRY OF JUDGMENT ON FORFEITURE OF BOND
On January 10, 2002, surety Guadalupe Martinez posted a $150,000 bond for the pre-trial release of defendant Enrique Loya Villalobos. Mrs. Martinez posted real property — her home — to secure the $150,000 bond. The bond imposed a variety of conditions under which defendant Loya Villalobos was permitted to remain out of custody pending the disposition of the criminal charges against him.
Subsequently, after the defendant pled guilty, but before he was to appear for sentencing, he left the jurisdiction, committed a felony in Kern County, and was sentenced to state prison. He was briefly returned to this court for sentencing on his federal conviction. At this point he has been returned to the state prison system. When he has completed the custodial portion of his state court sentence, he will be delivered to the Bureau of Prisons to begin serving his federal sentence.
On July 27, 2004, Mrs. Martinez filed before District Judge Wilken a motion asking the court to reconvey to her the real property she had posted when she executed the $150,000 bond. On August 4, 2004, the United States filed both its Opposition to Mrs. Martinez' motion and a counter-motion for "Judgment on Forfeiture of Bond." Shortly thereafter, Judge Wilken referred these motions to the Magistrate Judge's Court.
After substantial continuances at the parties' request, additional papers were filed in January and early February of this year. On February 10, 2005, the court conducted an evidentiary hearing in this matter, taking testimony from Mrs. Martinez and her daughter, Melissa Loya, who is now married to Mr. Loya Villalobos. After considering all the evidence in the record, including the declarations submitted in support of the briefing that preceded the evidentiary hearing, and after considering counsels' arguments and the pertinent authorities, the court DENIES the surety's motion to reconvey the property she posted and GRANTS the government's motion for judgment on the forfeiture of the bond. The reasoning that supports these rulings is summarized below and was explained more fully on the record during the evidentiary hearing. The facts set forth here are not disputed.
FACTUAL BACKGROUND
On December 7, 2000, the United States filed a complaint alleging that Mr. Loya Villalobos, along with many other named parties, conspired to distribute and distributed chemicals and equipment knowing that they would be used to illegally manufacture methamphetamine. In December of 2000 the Grand Jury indicted Mr. Loya Villalobos on these charges, exposing him to a maximum penalty of life in prison and a four million dollar fine.
The court issued a no bail warrant for the defendant's arrest in December of 2000. Mr. Loya Villalobos, however, remained a fugitive until August 21, 2001, when deputy marshals took him into custody. The next day he made his initial appearance in this court. He was remanded into custody pending a detention hearing. A few days later Mr. Loya Villalobos waived the timing of that hearing. In December of 2001 the prosecutor and defense counsel reached agreement on terms and conditions of release. On January 11, 2002, the defendant and his surety appeared in court to execute a bond reflecting those terms and conditions.
Among other provisions, the bond signed by Mr. Loya Villalobos and by Mrs. Martinez (his surety) in open court prohibited the defendant from committing any crime and from leaving the Northern District of California. Mrs. Martinez agreed to serve as his Third Party Custodian and to permit him to reside in her home in East Palo Alto. As an essential term of the government's agreement not to oppose Mr. Loya Villalobos' release, Mrs. Martinez also posted the real property in which she resided as security for the $150,000 bail on which the parties had agreed.
The only exception to this prohibition was that the defendant was permitted to travel to Sacramento solely for the purpose of meeting with his lawyer.
In 2003 Mr. Loya Villalobos entered a guilty plea. He was awaiting sentence when, in early November of that year, without permission from the court, he left this district and traveled to Kern County, California. On November 5, 2003, he was arrested in Kern County on charges of conspiring to manufacture methamphetamine and to possess ephedrine for that purpose. Subsequently, he pled guilty in the Kern County Superior Court to money laundering charges and was sentenced to four years in state prison. He remains in state custody pursuant to that sentence today. During 2004 he was temporarily returned to federal custody to be sentenced on the federal conviction. He has not yet begun serving his federal sentence.
THE PERTINENT LEGAL PRINCIPLES
Federal Rule of Criminal Procedure 46(f) is the ultimate source of the legal principles that control the court's disposition of this dispute. Under that Rule, the court "must declare the bail forfeited if a condition of the bond is breached." There is no dispute that defendant breached two conditions of the bond by traveling without permission outside this District and by committing a crime. Thus, the court was required to forfeit the bond. However, Rule 46(f) also permits a court to set aside such a forfeiture (in whole or in part) if the surety surrenders the defendant into custody or if "it appears that justice does not require bail forfeiture." F.R.Cr.P. 46(f)(2)(A) and (B). As the surety did not surrender the defendant into custody, it is only the latter provision that Mrs. Martinez is in a position to invoke. Thus, the issue posed by the surety's motion is this: has she shown that "justice does not require bail forfeiture"?
The authorities make it clear that district courts have considerable discretion in deciding this issue and in fixing conditions on which all or some portion of a bail forfeiture should be set aside. The authorities instruct district courts, when making these determinations, to take into account the following non-exhaustive list of considerations: (1) whether the defendant's breach of the conditions of release was willful, (2) whether actions by the government unknown to the surety, increased the risk that the defendant would violate the terms and conditions of his release, (3) whether the surety assisted in apprehending the defendant, (4) whether the surety assisted, played any role in, or was in some measure responsible for the conduct by the defendant that breached the release conditions, (5) any cost, inconvenience, or prejudice suffered by the government as a result of the defendant's breaching conduct or of the surety's actions or inactions, (6) whether the surety was a professional bail bondsman or was a family member or friend of the defendant, (7) the appropriateness of the amount of the bond, and (8) any other pertinent mitigating circumstances that were not taken into account when addressing the other identified factors. See United States v. Nguyen, 279 F.3d 1112, 1115-16 (9th Cir. 2002); United States v. Amwest Surety Insurance Company, 54 F.3d 601 (9th Cir. 1995).
See, e.g.,, United States v. Aguilar, 813 F.Supp. 727 (N.D. CA 1993), where the government, without informing the sureties, enlisted the cooperation of the defendant in efforts to catch bigger fish, sending him out of state to participate in what was supposed to be a sting operation. Farther away from home and the influence of his sureties, and perhaps becoming progressively more apprehensive about his own safety as a result of his undercover work for the government, the defendant fled. These considerations played a significant role in the district court's decision to set aside the forfeiture.
As with many similar balancing tests, courts that are working in this arena are not engaged in a mathematical exercise. They are not simply to determine how many of the pertinent factors favor the surety and how many favor the government, then base their ruling on which party's raw numerical score is higher. Rather, the authorities make it clear that the relative weight the courts may ascribe to the acknowledged factors can vary from case to case — and that in some circumstances one or two factors might play a determinative role, even if all the other factors seemed to point toward a different outcome.
It also is important to keep clearly in focus what the benchmarks or measures are that courts should use when they are deciding how much weight to ascribe, in any given factual setting, to the factors the courts are balancing when deciding whether a surety has shown that "justice does not require bail forfeiture." The ultimate sources of such benchmarks or measures are the purposes that animate the Bail Reform Act and the particular balance of policies by Congress reflected in that legislative scheme.
Thus, when judges fix the relative weight of the competing factors they must determine, in the specific factual situation before them, what effect a proposed weighting would have on those purposes and on the way Congress chose to balance policies. Courts may ascribe considerable weight to a factor when doing so clearly would promote the purposes of the Act. On the other hand, it would not be appropriate to ascribe considerable weight to a factor if doing so would tend to undermine the purposes of the Act or to upset the balance of policies reflected in the statute. In short, it is Congress' purposes, and Congress' balance of policies, that must determine whether "justice does not require bail forfeiture." Stated differently, the content of the word "justice" (the criteria for its determination) must derive from the purposes of the Bail Reform Act — not from some floating or abstract sense of fairness or from concepts or policies without roots in that Act.
One of the questions raised by the circumstances in the matter at bar is what kinds of considerations a district court may take into account under the last of the acknowledged categories: `other mitigating factors.' While we are not sure what kinds of considerations might be included appropriately in this category, the authorities clearly identify one kind of consideration that this category cannot include. Surprisingly (at least at first blush), district courts are not permitted to take into account, when deciding whether a surety has shown that "justice does not require bail forfeiture," the nature and relative severity of the harm that would be visited upon the surety if the court refused to set aside the forfeiture. In United States v. Nguyen, for example, the Court of Appeals for the Ninth Circuit expressly refused to adopt "a `loving relative' exception to [the Circuit's] bond forfeiture jurisprudence." In upholding a trial court's refusal to set aside even part of a forfeiture, the majority in Nguyen clearly rejected the argument (advanced in the dissenting opinion) that judges should take into account (as a mitigating factor) the effect the forfeiture would have on the sureties — even if that effect would be devastating and the amount of money forfeited to the government clearly was much greater than the costs the government incurred because of the defendant's breach.
Some possibly `mitigating' considerations that have occurred to us (but that do not exist here) might arise out of the circumstances in which the surety made the decision to sign the bond. For example, an unsophisticated surety might not have understood important terms of the bond contract because the court failed to inform the surety what the central terms of the bond were and what the consequences to the surety could be if the defendant breached. Or the government might fail to disclose (in the proceedings leading up to the bond decision) significant information known to it that obviously increased the risk that the defendant would not comply but that the proposed surety was unlikely to know. Or a surety who is a close relative or friend of the defendant might have been pressured to make a hasty and only emotionally driven decision immediately following the defendant's arrest — when she was first informed of the charges.
Another kind of mitigating circumstance might arise out of the nature of the breach by the defendant. Some breaches are more fairly described as technical than others — and some that are more substantive nonetheless have no adverse consequences for any other person, the government, or the court. Thus, the nature of the breach (which is a different inquiry from whether the breach was "willful") might, in some circumstances, be considered a mitigating factor.
279 F.3d 1112, fn. 2 (9th Cir. 2002).
This position is consistent with the vast weight of authority from other federal jurisdictions. See United States v. Diaz, 811 F.2d 1412, 1416 (11th Cir. 1987) ("The court realizes the distress that has been thrust on the appellants by these events, however, we are obliged to find that there was no abuse of discretion by the lower court in its dismissal of this request for remission of forfeited bond. Even though appellants stand to lose their house as a result of this forfeiture, the `financial plight' of the movant is not within the criterion with which the court may base its decision on remission.") (internal citations omitted); United States v. Gutierrez, 771 F.2d 1001, 1004, (7th Cir. 1985) ("The court . . . may not consider the financial plight or interests of the movant."); United States v. Skipper, 633 F.2d 1177 (5th Cir. 1981) (where defendant is still at large, justice required enforcement of forfeiture despite significant financial hardship to sureties); see also United States v. Bradley, 43 F.R.D. 278 (W.D. Pa. 1967); United States v. Ciotti, 579 F.Supp. 276 (W.D. Pa. 1984).
What might account for this seemingly harsh view? At the outset, we must emphasize that a desire to punish either the defendant or the surety plays no role in this policy arena. The purpose of enforcing the terms of bonds is not to punish anyone — but to increase the likelihood, generally, that defendants and sureties will take their bond commitments seriously and that defendants will attend scheduled court appearances and not engage in criminal activity while they are on pretrial release.
We feel constrained to make this point clearly — in part because the dissent in United States v. Nguyen, 279 F.3d 1112, 1118 (9th Cir. 2002), might be construed as suggesting that the primary driver in bond enforcement decisions is an interest in punishing defendants or their families.
If it is not an interest in inflicting punishment, what other considerations might support the apparently harsh notion that judges who are ruling on motions to set aside bail forfeitures may not consider the severity of the financial blow that enforcing the bond would deal to the sureties? We can find at least some justifications for this notion when we consider the circumstances in which trial courts must make bond decisions and the purposes that bonds are intended to achieve. By clear Congressional mandate, a federal trial court is required to release a defendant who has only been accused, not convicted, if the court can identify any set of terms and conditions that would reasonably assure the particular defendant's appearances in court and the safety of the community. Thus, clear federal policy, rooted in the presumption of innocence, compels district courts to be open to all measures or terms that appear reasonably likely to reduce the risk that a defendant will flee or commit violent crimes while the federal prosecution is pending. It is in this setting that trial courts make decisions about bonds — the core purpose of which is enable judges to honor every defendant's entitlement to pretrial release whenever a set of constraints and personal pressures can be fashioned that deliver the requisite reasonable assurances.
Often, a surety bond is essential to delivering the reasonable assurances on which defendants' entitlement to release turns. Persons accused of federal crimes often have substantial criminal records and few assets. They usually have a pattern of making bad judgments. Without help, many would remain in custody, sometimes for years, before their federal case is resolved. And professional bail bondsmen generally are reluctant to make commitments on behalf of federally charged defendants because in federal courts any violation of terms of release can support forfeiture of a bond, while in many state courts a surety is exposed to loss on a bond only if he cannot deliver the defendant back to the court. These circumstances leave federal defendants who seek pretrial release (and federal judges trying to comply with their constitutional and statutory duties) peculiarly dependent on commitments by family members and friends.
To serve the purposes of the Bail Reform Act, however, bail commitments by family and friends must be real. This follows for several reasons. First, judges who are making bail decisions need to develop some sense of the sincerity and meaningfulness of a proposed surety's professed confidence in the defendant. An assurance to the court by a proposed surety that the defendant will abide by the conditions of release may acquire more credibility as the consequences that the surety will suffer if the defendant breaches increase in relative severity. Generally, a surety who believes that she will suffer substantially if the defendant breaches is more likely to exercise considered judgment about the reliability of the defendant than a surety who doesn't expect to suffer significantly if her assurances to the court are ill-placed. It would impair substantially the court's ability to assess how real the surety's apparent vote of confidence in the defendant was if the surety were permitted to assume that her promises were not likely to be enforced.
Another factor in this equation is the likelihood that the surety will make some meaningful effort to monitor the defendant's conduct while he is out of custody and put pressure on him to comply with the rules. A surety who believes that her exposure under a bond is real and significant is more likely to care about how and what the defendant is doing while he awaits the disposition of his case — and is more likely to put pressure on the defendant to toe the line. One primary purpose of having family members or close friends sign bonds is to enlist them as extra monitors and additional sources of pressure on the defendant to honor the terms of his pretrial release. A judge who thinks that a surety assumes that her bond commitments are not likely to be enforced cannot expect that surety to serve as a significant source of discipline on the defendant. And such an additional source of discipline may well be necessary for the court to develop the reasonable assurances (about court appearances and community safety) without which the defendant's entitlement to pretrial release would never mature.
There is an additional (related but not identical) reason for which it is important that sureties and defendants understand that bond commitments made by sureties are real (i.e., significant and likely to be enforced). A judge who is trying to decide whether he can release a defendant needs to have some level of confidence that the defendant himself will feel pressure (from within, not just from without) to comply with the terms the court sets. One important source of such `internal' pressure on a defendant is fear that if he breaches, he will impose real harm on people he cares about. That source of pressure would be diluted, if not extinguished, if the defendant were permitted to infer that nothing bad (of any consequence) would happen to his sureties if he breached. Again, a judge who thought that a defendant held this view would be less able to develop the assurances the law requires in order to release a defendant before trial.
For all of these reasons, if a judge could not have confidence that proposed sureties believe that their exposure on a bond is real, i.e.," that they will in fact be required to pay the government the face value of the bond if the defendant commits a serious breach of the bond's terms, the judge would not be able to ascribe any meaningful weight to the proffering of sureties when determining whether he has been presented with reasonable assurance that the defendant will make his appearances and not commit any violent crimes. And a judge who cannot ascribe real weight to the proffer of sureties will much more often be forced to keep defendants in custody until their case is resolved — sometimes a period of several years. So it is essential to protecting the rights of defendants that judges be able to attach real significance to commitments by sureties — and judges can do that only if they can assume that sureties really believe they will be required to pay the face value of the bond if the defendant commits a serious breach of its terms.
These facts set the stage for understanding why courts are not permitted to take into account the severity of the financial hardship that a surety would suffer when courts are deciding whether a surety has shown that "justice does not require bail forfeiture." For many federal defendants, the only possible source of sureties is their circle of family members and friends. But a significant percentage of persons charged in federal court with crimes are poor — and their families and friends have quite limited financial resources. So, in many instances, the proffer of potential sureties consists only of people with limited means. The fact that they have limited assets and modest incomes, however, need not make their willingness to serve as sureties insignificant in the pretrial release calculus. The risk they would take by signing a bond could be very real because the government could collect modest amounts from them, relentlessly, over a considerable period, and because the existence of a large debt to the federal government would ruin their credit rating and could fatally impair their ability to achieve other economic ends.
This kind of risk, however, and the reality it gives to surety commitments by people without substantial resources, would disintegrate if such proposed sureties knew that the government could not force them to pay the bond amount simply because they had limited assets and collecting on the debt would impose great financial hardship on them. Thus, if severity of financial hardship were a ground for setting aside a forfeiture, or for significantly reducing the amount owing, courts could not assume that sureties with limited means would believe their bond commitments were real. Not being able to make that assumption, courts could not ascribe significance in the bail calculus to proffers of sureties with limited means. Without meaningful support from such sureties, many more defendants would be required to remain in jail for the long periods before their cases are resolved. And that development would contravene the fundamental purposes of the Bail Reform Act. It follows that if courts are to give reality to the rights of defendants that that Act confers, they must not permit bond commitments, so essential to pretrial release, to be eviscerated by the magnitude of the potential impact on the surety. In fact, the greater that magnitude, the more meaningful the bond commitment. And the more meaningful the bond commitment, the more likely the release of the defendant.
Paragraph 2 of F.R.Cr.P. 46(f) permits courts to set aside portions of forfeitures. In exercising their discretion under this Rule, courts are required to consider whether remitting some portion of the bond would be consistent with the applicable legal principles. While a surety with limited means might suggest that a court should set aside a significant portion of a forfeiture when it is clear that enforcing the full debt would impose severe financial hardship, adopting this approach would have virtually the same eviscerating effect on bond promises by people of limited means as the notion that forfeiture should be set aside fully on a showing of such hardship (assuming no other fault in the surety in the circumstances surrounding the defendant's breach). If sureties thought that the actual value of the bond would be determined after the fact (of breach) on some sliding scale of severity of financial impact they would not take the face amount of the bond, set by the court, seriously. They would not know what their real exposure was — and could be encouraged to assume that, at the most, it was some unpredictable but substantially smaller figure. If sureties were permitted to make these kinds of assumptions, courts could ascribe little or no weight to their willingness to sign bonds with significant face value.
APPLICATION OF THE LEGAL PRINCIPLES TO THE PENDING MATTER
We turn now to consider the factors that the authorities teach us are relevant to determining whether Mrs. Martinez has established that "justice does not require bail forfeiture" and, therefore, that some or all of the forfeiture should be set aside.(1). There is no dispute that the defendant's breaches of the terms of his pretrial release were willful. He intended to leave the jurisdiction, he knew that he did not have permission to do so, and he pled guilty to committing a felony in another part of the state. It bears mentioning, moreover, that the felony for which he was arrested in Kern County was closely akin to the crime with which he was charged in this court (both involved efforts to profit from illegal trafficking in methamphetamine).
(2). Mrs. Martinez does not contend, and there is no evidence to support even a suspicion, that any action or inaction by the government played any role in the breaches by Mr. Loya Villalobos. The government did nothing to increase the risk faced by the surety.
(3). Mrs. Martinez did not assist in apprehending the defendant. According to her testimony at the evidentiary hearing on this matter, she did not even know the defendant had absconded until after he was arrested by local authorities in Kern County.
(4). There is no evidence that either Mrs. Martinez or her daughter, then the fiancé of the defendant and now his wife, knew in advance that the defendant intended to breach his bond conditions, assisted him in absconding or committing new crimes, interfered in any way with the government's efforts to bring the defendant to justice, or unreasonably delayed reporting what they knew about the apparent breaches. The papers the government submitted earlier in these proceedings alleged that Mrs. Martinez' daughter, Melissa Loya left the jurisdiction with the defendant and was arrested with himin Kern County. The government has produced no evidence to support this allegation — and, without contradiction, Melissa Loya denied it under oath during the evidentiary hearing. Ms. Loya told the court that she had spoken with the defendant over the phone about the possibility of having lunch together (here in the East Bay) sometime during the morning of the day the defendant absconded — and that she had no idea he had left or what he was up to until about 1:00 a.m. the following morning, when she learned from the mother of the person with whom the defendant had been traveling that he was in custody.
Mrs. Martinez testified that, consistent with her normal schedule, she had left the house very early on the day the defendant absconded, before he was expected to arise, and that, also consistent with normal routines, when she returned home from work that day he was not in the house. She assumed he was still at work — as he usually did not return from his job in a restaurant until around midnight, after Mrs. Martinez was asleep. Mrs. Martinez also testified that she first learned that the defendant had absconded at about 1:00 a.m. the day following his unauthorized departure — from the same parent who came to the house to report the arrest in Kern County. Thus, Mrs. Martinez understood that the defendant was already in custody and did not think she needed to call the authorities (generic, in her mind) to report something they already knew. Moreover, later that morning her daughter called the defendant's lawyer to tell him what she had learned and to enlist his assistance. Counsel was promptly able to confirm that the defendant was in custody. In these circumstances, it was reasonable for the surety to assume that a telephone call to Pretrial Services or to the federal prosecutor was unnecessary.
(5). The defendant's breaching conduct imposed some costs on the government and delayed his sentencing a little. Because he left our jurisdiction and was in custody in Kern County, the Marshal had to spend manpower and money to retrieve him for sentencing in this court. He then had to be returned to state custody to complete his four year prison term. When he has completed his jail time on the state conviction the Marshal will again be required to spend manpower and money to pick him up and deliver him to a federal penal institution. Counsel for the government conceded that the cost of this activity by the Marshal is very difficult to calculate reliably. While that cost clearly is not huge, it also is not di minimis — and may well reach several thousand dollars.
There is a suggestion in a few cases (not binding here) that there should be some relationship between the amount of the forfeiture on a bond and the cost burdens that the defendant's breach imposed on the government. With respect, this suggestion seems misplaced. Citing two cases decided in other circuits before the Bail Reform Act became law, the dissent in United States v. Nguyen, 279 F.3d 112, at 1120 and fn. 10 (9th Cir. 2002), argued that "[r]emission should be used to accomplish a rough proportionality between the extent of the forfeiture and the extent of the government's burden." Accepting this approach, however, would defeat the primary purposes of setting bail and posting bonds: to put pressure on defendants to appear in court when ordered, to commit no crimes, and to comply with the other important conditions the court imposes on their pretrial release (e.g., do not use or possess drugs or weapons). If defendants and sureties knew that the amount of the bond that was set by the court was not the real amount of their exposure — and that that exposure would be fixed later based only on how much extra cost the breaches imposed on the government, in many cases bond commitments would lose virtually all of their meaning. They would not serve as effective deterrents to breaches because defendants and sureties could safely assume that if the breaches were local the consequences (as measured by extra costs imposed on the government) would be of no great moment. In that environment, the only function that the face value of the bond would serve would be to set a cap on the sureties' and the defendant's exposure; otherwise, the face value would tell themnothing about the real magnitude of the risk they take when they agree to sign.
(6). Mrs. Martinez was not a professional in the bail bond business. She was the mother of the defendant's fiancé — in essence, a family member.
(7). It is not clear on what basis it could be contended that the amount of the bond was inappropriate. That amount ($150,000) was the product of a pre-release negotiated agreement between the defense and the government. No one has suggested that at the time she signed the bond Mrs. Martinez thought that the agreed-upon amount was unreasonable. Nor has anyone suggested that any party to the bond negotiations, any signatory on the bond, or the court understood that guessing about what it would cost the government to return Mr. Loya-Villalobos to custody (if he were to abscond) played any role at all in determining what the amount of the bond should be.
The dissent in United States v. Nguyen, 279 F.3d 1112, at 1118 (9th Cir. 2002), speculated that the $100,000 bond amount in that case "was probably designed to cover the expense of fetching Nguyen if he fled to a foreign country or otherwise put the government to great expense." This speculation is supported by no cited evidence and is likely incorrect. Having set bond amounts for more than twenty years, this court can report never having even considered the possible cost of fetching a defendant in fixing bond amounts. Nor has this court ever heard of any other judge basing a bond amount on a guestimate of this kind.
There are at least three reasons that it is unlikely that a judge would-base a determination of the amount of a bond on any such consideration: (1) it is impossible to predict, even within an expansive zone, what the cost of fetching a defendant might be — or to predict the size of any other kinds of costs a defendant's breaches might impose on the government, (2) the Bail Reform Act nowhere even hints that courts are to consider costs to the government of possible breaches when courts go about identifying the terms and conditions that will provide reasonable assurance that the defendant will make his appearances and not engage in criminal activity during the pretrial period, and (3) there is no logical connection between the possible cost of fetching a defendant and the purposes of requiring the signing of a bond — which are, essentially, to pressure the defendant to show up in court when he is supposed to and to refrain from engaging in criminal activity. In fact, basing the amount of the bond on a guess about what it might cost the government if defendant breached could undermine the primary purposes of bonds if that guess yielded a figure clearly too low to impose any real pressure on the defendant to comply with the terms of the bond. That circumstance would be especially likely to arise when defendants and/or their sureties have considerable assets or the ability to generate considerable income.
Before Congress adopted the Bail Reform Act in 1984 some courts had suggested that bond jurisprudence (to use too big a word) should be rooted at least in part in concepts drawn from the theory of liquidated damages. Perhaps these roots in contract law help explain the notion that there should be some play or relationship between the amount of a bond, on the one hand, and, on the other, the anticipated (but fundamentally incalculable) costs that a breach would impose on the government.
After adoption of the Bail Reform Act, however, it is not clear that there is any source of support in the statutory scheme for the notion that the size of a bond should be correlated with the court's or the government's guesses about how much it might cost to return a fugitive defendant to custody or to compensate for harms caused by other possible breaches. We acknowledge that about a decade after passage of the Bail Reform Act the Court of Appeals for the Ninth Circuit declared (in apparent dictum) that it "regards forfeiture as a form of liquidated damages." United States v. Amwest Surety Insurance Company, 54 F.3d 601, 604 (9th Cir. 1995). But liquidated damages for what? Only for the unpredictable costs of retrieving a fugitive? Or for that cost plus any others caused by breaches?
Moreover, after adoption of the Bail Reform Act, it is not clear why it remains conceptually necessary to rationalize enforcement of the terms of a bond on a liquidated damages theory. Apparently worry that bonds would be invalidated as unlawful forms of `punishment' was one source of the liquidated damages fiction. At least when the surety is in no sense at fault for the defendant's breach, however, it is difficult to understand how enforcing the terms of the bond could be viewed as a `punishment.'
More to the point, Congress clearly intended to displace traditional approaches to pretrialrelease decisions when it enacted the comprehensive scheme set forth in the Bail Reform Act. That legislation clearly interred the notion that the sole purpose of a bond (or of any other term of pretrial release) was to assure the defendant's appearance in court. Rather, the Bail Reform Act reflects at least two fundamental Congressional purposes: to reasonably assure the appearance of the defendant in court and to reasonably assure the safety of the community. The express adoption of this second purpose represents a significant change in pretrial release decision theory. With the addition of a second and very different purpose for imposing release conditions, the need to justify bond enforcement in terms of liquidated damages theory should have evaporated. Rather, enforcement decisions now should be rooted in the purposes and policies that inform the new (as of 1984) statutory scheme. Under that scheme, the purpose of a bond is clear: to put pressure on the defendant to abide by all the terms and conditions of his release, not just the condition that he show up in court.
No party to this kind of bond could rationally understand that the face amount is determined by trying to guess what the economic consequences of a breach might be and thus to be sure that the persons or entities that suffer such consequences are compensated. There is no expectation in the signatories to the bond "contract" that it is in essence a liability insurance policy. I have never seen any evidence that that kind of thinking plays any role in the minds of persons in my court who are trying to decide whether to sign a bond to support a defendant's pretrial release. Unlike other bonds, a surety bond in a federal criminal case is not intended by anyone to be an economic safety net for victims of breaches. Rather, it is intended to cabin and control the behavior of a person whose reliability is suspect and who might well present a danger to society.
Nor was the amount of the bond inconsistent with the figures set for other defendants in the same case. The court set the bond amounts at $500,000 for two co-defendants, at $300,000 for one, at $250,000 for another, at $200,000 for three others, and at $150,000 for two other defendants. No defendant's bond in this large-scale drug conspiracy case was set lower than the $150,000 figure set for Mr. Loya Villalobos — even though he had remained a fugitive for a substantial period while other defendants had not. Moreover, having been responsible for fixing the bond amounts in federal cases for more than 20 years, this court can affirm that the $150,000 figure was well within the range of bonds commonly set in this jurisdiction for similarly situated defendants; in fact, this figure is on the low end of that range.
This court set the following bond amounts for other defendants in this case: Diane Engel: 150,000; Kotylenko: 500,000; Kesel: 500,000; Gifford: 200,000. Jose Navarro: 200,000; Juanita Navarro: 250,000; Maragrita Navarro: 300,000; Echeverria: 150,000; Domingo Lopez: 200,000.
(8). Are there any other mitigating factors (which may not include the severity of the financial impact on the surety) that would support setting aside at least some of the bail forfeiture? None have been brought to our attention. Mrs. Martinez has not contended that she did not understand the terms of the bond when she signed it — or what charges and potential penalties Mr. Loya Villalobos faced. Nor has she suggested that she was incompetent or in any way emotionally or intellectually impaired when she made this commitment on behalf of Mr. Loya Villalobos. Mrs. Martinez has not asserted that she was pressured by anyone to sign the bond, or that her decision was made in haste with too little information, or that the government withheld from her information that clearly increased the likelihood that the defendant would breach.
Mrs. Martinez knew that the defendant had been a fugitive for many months before he was taken into custody. Her daughter was engaged to the defendant. He had been in jail (locally) for several months (between August 21, 2001 and January 11, 2002) before she executed the bond contract in open court. Mrs. Martinez obviously had plenty of time to consider her decision — and she had ample opportunity to make inquiries that would inform her judgment about the magnitude of the risk she would be taking.
In sum, we are aware of no `other mitigating factors' that would support setting aside all or part of the bail forfeiture.
WEIGHING THE FACTORS
Having considered all the pertinent factors, we conclude that only two cut clearly in favor of setting aside some or all of the forfeiture. As far as the court can tell, Mrs. Martinez is an innocent victim of Mr. Loya Villalobos' misconduct; she appears to have signed the bond in good faith and not to have been responsible in any way for his breaches. The other factor in her favor is that she is not a professional bail bondsman — but a friend/family member who was motivated by compassion and a desire to help.
None of the other factors support Mrs. Martinez' request for relief. The breaches by the defendant were very serious — exposing the community to significant harm by repeating in another jurisdiction the same kind of felonious conduct on which he was awaiting sentencing. His breaches cut to the core of the bond commitment. The government bears no responsibility for his conduct or for increasing the risk to the surety. Mrs. Martinez did not detect or report the breaches and was unable (without fault) to do anything to help the government apprehend the defendant. The breaches imposed some costs on the government. The amount of the bond was entirely appropriate — in fact, on the low side. And there is nothing in the circumstances under which Mrs. Martinez decided to sign the bond that gives rise to concern that her commitment was notknowingly, competently, and voluntarily made.
This configuration of the pertinent considerations shapes the ultimate question we face: when, through no fault of the government, the defendant has deliberately violated the most central terms of a reasonable bond, should the court set aside some part of the forfeiture solely because the surety is not morally responsible for the violations and is a family member? We conclude that the answer must be no.
To hold otherwise would do severe harm to the purposes of the Bail Reform Act and to the interests under that Act of defendants who can secure pretrial release only if courts give meaningful weight in the release calculus to surety commitments by family members and friends who do not have substantial assets or income. If a surety's innocence (with respect to the defendant's breaching conduct) and status as a family member or friend were sufficient, standing alone, to justify setting aside a significant portion of a forfeiture, courts could have no confidence that bond commitments by such persons would be understood as real by either defendants or sureties. A defendant who could anticipate that his relatives would not face any serious consequences if he fled or engaged in criminal activity (as long as it did not appear that they were involved in his misconduct) would feel little or no pressure to abide by the core terms of the bond. Such a defendant could flee or could traffic in drugs without worrying that his mother or his grandmother or his sister or his wife would suffer. And when deciding whether to agree to serve as sureties, family members and friends would not need to be as careful or circumspect as they would be if they knew their exposure was both real and sizeable. Thus the courts could not have much confidence in the reliability of their apparent expressions of confidence in the defendant.
Nor is it sufficient to suggest that the solution lies in partial remittitur of a reasonably set bond. The core shortcomings of partial remittitur (atleast when based solely on the innocence and status of the surety as a family member) are arbitrariness and unpredictability. If a surety and a defendant knew that, regardless of the seriousness of the breach, an `innocent' surety would not be required to pay the full amount of the bond, the capacity of "fear of consequences" to discipline the bond commitment process would be fatally compromised. Defendants and sureties could let themselves believe that remittitur would take most of the sting out of a breach. That possibility would receive way too much play in the minds of people already intensely motivated (by the desire to get out of jail, or to get their relative out of jail) to resolve doubts in their own favor. The face amount of the bond would become meaningless. No one would know what the real amount of the bond was — what any particular judge on any particular day would make the surety pay. Bond amounts fixed by judges with reputations for compassion or liberality would be especially vulnerable to disrespect — and thus would do little (regardless of how high they were set) to achieve the ends of the Bail Reform Act.
The upshot of all this would be to leave more defendants, especially poor defendants, injail — because judges ruling on detention motions would not be able to ascribe significant weightto proposed commitments by non-professional sureties with limited means. Because this `upshot' would frustrate the central purposes of the Bail Reform Act, we cannot endorse a line of reasoning that would support it. Instead, we must conclude that Mrs. Martinez has failed to establish that, in these circumstances, "justice does not require bail forfeiture."
For the reasons set forth above, the court DENIES the motion by Mrs. Martinez to set aside the bail forfeiture in this matter and GRANTS the government's motion to order entry of judgment on that forfeiture.