Opinion
Case No. CR2-06-129(2).
March 26, 2009
ORDER
I. INTRODUCTION
Now before the Court is the motion of surety bondsman, Garcia Bail Bonds, to Set Aside Bond Forfeiture (doc. no. 924). For the reasons explained below, the motion is DENIED.
II. BACKGROUND
On May 23, 2006 Garcia Bail Bonds ("Garcia") executed a surety bond to the Government in the amount of $100,000 on Defendant Rebecca S. Parrett's ("Parrett") behalf. (Doc. no. 22). Garcia signed a continuing bond which guaranteed Parrett's appearance including post-trial on "appeal or review." ( Id.) The bond specifically required her "to abide by any judgment entered in such matter by surrendering to serve any sentence imposed" and remained in effect "until such time as [she was] exonerated." ( Id.) The bond conditions permitted Parrett to travel between Ohio, California, and Arizona. ( Id.) Parrett was not ordered to submit to electronic monitoring or home confinement under the bond agreement signed by Garcia. ( Id.)On March 13, 2008, Parrett was convicted on all charges against her after a six week jury trial. This Court ordered that Parrett's pre-trial bond conditions were to continue until sentencing, but also imposed the additional requirement that Parrett be subject to house arrest and electronic monitoring in Arizona. Parrett, however, never contacted Pretrial Services in Arizona to set up electronic monitoring. Instead, she violated the terms of her bond and remains at large. Consequently, this Court ordered her arrest on March 28, 2008.
Then, on January 14, 2009, this Court issued a Declaration of Bond Forfeiture, ordering that Parrett's surety bond be forfeited. Two weeks later, Garcia moved to set aside the bond forfeiture. (Doc. no. 924.) Garcia argues that its obligation as a surety should be discharged because the Government allowed Parrett to remain out of custody and travel to Arizona after her conviction "in the hope that she would show up to be placed on electronic home monitoring" without notifying or receiving Garcia's consent. ( Id.)
III. LAW ANALYSIS
Federal Rule of Criminal Procedure 46(f)(2) gives a court the power to set aside a bond forfeiture if "it appears that justice does not require bail forfeiture." A bond surety's obligations under a bail bond are only discharged by a modification of bail conditions if the government materially increases the surety's risk without notification and consent of the surety. United States v. Casey, 671 F.2d 975, 976-77 (6th Cir. 1982); United States v. Martinez, 151 F.3d 68, 72 (2d Cir. 1998). Garcia argues that it should be relieved of its obligations in this case because the Government allowed Parrett to remain out of custody after her conviction and permitted her to leave the jurisdiction to go back to Arizona to be placed on electronic monitoring. Garcia contends that Parrett was an even greater flight risk after her conviction and that it received no notice of her conviction and would not have consented to her subjection to home monitoring pending sentencing. The Government opposes Garcia's Motion arguing that: (1) the conviction did not materially modify the bond; and (2) the added post-trial requirement that Parrett was subject to house arrest and electronic monitoring did not increase the risk. The Court agrees.
The Court finds that the conditions of Parrett's bail were not modified in a manner which materially increased Garcia's risk. In support of its Motion, Garcia submitted the affidavit of John Garcia who claims that he would not have agreed to continue the bond after Parrett's conviction. This testimony is belied, however, by the fact that Garcia signed a continuing bond that guaranteed Parrett's appearance even after her conviction. As such, Garcia assumed whatever increased risk resulted from Parrett's conviction. Garcia, 671 F.2d at 977; Martinez, 151 F.3d at 72-73. Moreover, the conditions of the bond signed by Garcia permitted Parrett to travel freely between Ohio, Arizona, and California. Thus, the fact that the Court and the Government permitted Parrett to return to Arizona for home monitoring after her conviction did not increase the risk to the surety. In fact, the post-trial modification of the bond decreased the risk to Garcia as it added restrictive conditions to Parrett's bond, including that she would thereafter be subject to house arrest and electronic monitoring.
Because neither Parrett's conviction, nor the post-trial addition of a house arrest and electronic monitoring requirement to Parrett's bond increased the risk to Garcia, the Government's failure to disclose those developments does not relieve Garcia of its obligations under the bond. Garcia has also requested a hearing on its motion; however, the Court concludes that a hearing would serve no purpose as the briefs and affidavits set forth all the relevant facts for the resolution of the motion. Martinez, 151 F.3d at 74 (no hearing required on sureties' claims where such a hearing would serve no purpose); United States v. Gutierrez, 771 F.2d 1001, 1003 (7th Cir. 1985) (decision to hold a hearing on a surety's motion to set aside a bond forfeiture is committed to the district court's discretion). Consequently, Garcia's Motion to Set Aside Forfeiture (doc. no. 924) is DENIED as is its request for a hearing on that Motion.