91 F.R.D. 169 | D.P.R. | 1981
MEMORANDUM AND ORDER
THE FACTS:
This case began with the filing on November 12, 1980, of an indictment charging Mr. Rufino O. Morales and one Nellie Lora
Once defendant arrived in this District, a Motion for Reduction of Bail was filed on December 17, 1980, and at a hearing in chambers before a U.S. Magistrate the possibility of posting a $150,000 surety bond was discussed. Finally, on December 24, 1980, a $125,000 surety bond
The arraignment was held on December 31, 1980, and the defendant was present with his attorney.
That is how things stood on February 24, 1981, when the case was called for trial. Defendant failed to appear, but at this time the Court did not order defendant arrested in view of the information offered to the Court by his attorney, Mr. Carbone.
“The starting point for determining the extent of the sureties’ obligation is ‘the language of (their) undertaking’ ”, U. S. v. Carr, 608 F.2d 886, 888 (1 Cir., 1979), interpreted in light of federal law principals which govern the interpretation of federal bail bonds. U. S. v. Catino, 562 F.2d 1 (2 Cir., 1977); U. S. v. Miller, 539 F.2d 445 (5 Cir., 1976). The bond
Further, the bond made it patently clear that “. . . if the defendant fails to obey or perform any of these conditions, payment of the amount of this bond shall be due forthwith. Forfeiture of this bond for any breach of its conditions may be declared by any United States District Court having cognizance of the above entitled matter at the time of such breach . . . ”. Such was the extent of the sureties’ obligation at the time they signed the Appearance Bond. U. S. v. Carr, supra. The bond further provided that if such a breach of conditions occurred, judgment would be entered against each debtor jointly and severally, execution being made according to the Federal Rules of Criminal Procedure (See Appendix).
The relationship that spawns when an Appearance Bond is signed is that of contract between the Government and the sureties. U. S. v. Plechner, 577 F.2d 566 (9 Cir., 1978); U. S. v. Lujan, 589 F.2d 436 (9 Cir., 1978), reh. den. 1979; U. S. v. Miller, supra, reh. den., 542 F.2d 576 (5 Cir., 1976). The wording of the bond makes the intention and commitment of the sureties manifest, and like any other contract, the bail bond should l?e interpreted to give effect to the reasonable intentions of the parties. As a general rule the terms of a bail contract are to be construed strictly in favor of the surety. U. S. v. Miller, supra.
Even though the jurisprudence favors the surety in the interpretation of the bail contract, the plain language of Rule
The mere fact that the defendant may appear in Court on the day following the breach of a condition of the bond, does not relieve the Court from its mandatory duty under Rule 46(e)(1). Appearance Bond Surety v. U. S., 622 F.2d 334 (8 Cir, 1980). Neither does the surety cease to be absolutely obligated to the government. It is the breach itself that triggers the mandatory declaration of the forfeiture pursuant to Rule 46(e)(1). Whatever may transpire afterwards may be the basis for a request for remission.
After the defendant failed to appear for his trial and the Court issued an order to show cause against the sureties, a hearing was held on March 27, 1981, at which time the sureties appeared represented by counsel. Although the sureties are not entitled to notice of their principal’s failure to appear, U. S. v. Vera-Estrada, supra; U. S. v. Marquez, 564 F.2d 379 (10 Cir, 1977), the Court did allow the sureties to avail themselves of the opportunity to come before the Court prior to the issuance of the order of forfeiture. The sureties were heard and they were granted an additional term of thirty days to file an affidavit with the Court explaining the steps
The obligation assumed by the sureties in this and any other appearance bond filed in federal courts are not to be taken lightly. The Court expects that the sureties, whether professionals, next door neighbors, mere acquaintances, or total strangers, will be watchful in keeping with their obligations to make sure that defendants will appear in court every time they are summoned to do so. Even more so, as in a case like the present, where the defendant is a resident alien, and lives in another district from their own. The knowledge that the sureties had of defendant’s background, occupation and mode of living, was nil. They failed in the essence of their undertaking under the bond contract.
We echo what other courts have said referring to the penalty of forfeiture:
*173 “The sanction of a forfeiture is required not only to vindicate the public interest, but to assure that sureties, whether professional or family and friends, will be vigilant at all times to assure the appearance of defendants if and when required. The failure of a defendant to so appear is an interference with the due, prompt and efficient administration of justice; this is an injury to the public, entirely apart from any expense to which the government is put to apprehend the defendant.” U. S. v. Burnett, 474 F.Supp. 761, 763 (S.D.N.Y., 1979).
Motion for forfeiture is GRANTED. The Clerk shall enter judgment thereon.
IT IS SO ORDERED.
. At present, defendant Nellie Lora has not been arrested and remains as a fugitive.
. Section 952(a) provides in part:
“(a) It shall be unlawful ... to import into the United States from any place outside thereof, any controlled substance in schedule
I or II____”
Section 963 provides:
“Any person who attempts or conspires to commit any offense defined in this subchap-ter, is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or the conspiracy.”
Section.812 of Title 21 classifies cocaine as a . narcotic drug controlled substance within Schedule II.
. The removal proceedings were conducted under the provisions of Rule 40(b) which sets forth the procedures to be followed when a person is arrested in a district distant from the originating district.
. The sureties, who are married to each other, posted two properties belonging to them: one located at No. 25 Muñoz Rivera St., Vega Alta, P. R.; and the other at Road No. 678, Pampa-nos Ward, Vega Alta, P. R. The appraised value of each, as determined by the Clerk of the Court, is $95,000 and $85,000 respectively.
. The documents signed by Mr. Pablo Tapia Rosado and Antonia Fuentes Suárez consisted of an Appearance Bond (also signed by defendant) under oath; a Justification of Surety (I), also under oath; and a Justification of Surety (II).
. At this time Mr. Rufino Morales was represented by Messrs. Víctor Gutiérrez and Luis Carbone, the latter absent from Puerto Rico, but scheduled to be back on January 20, 1981.
. The minutes of the Court for February 24, 1981, show that Mr. Luis Carbone informed the Court that he had spoken with defendant who was still in Miami because he could not get a flight to Puerto Rico the previous night (Monday, February 23).
. The transcript of the proceedings had in Court on February 25 shows that defendant knew since the beginning of the month of February that he was to stand trial on February 24 (Tr. p. 6, lines 23-25; p. 7, lines 1-9). On page 8, Mr. Carbone explained to the Court the results of two telephone conversations he had with the defendant and his wife on Monday, February 23, and Tuesday, February 24, respectively. In this latter conversation defendant’s wife expressed surprise that defendant was not in Puerto Rico “because supposedly he had left in (sic) the eight o’clock flight” (Tr. p. 8, lines 21-23).
. Copy of the Appearance Bond is made an Appendix to this Memorandum and Order.
. F.R.Cr.P. 46(e) reads in its pertinent part: “(e) Forfeiture.
“(1) If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail....” (Underlining ours)
. Although the Court originally released the defendant on bond pursuant to the provisions of the Bail Reform Act of 1966, 18 U.S.C. 3141 et seq, and more specifically Section 3146, the forfeiture proceedings must be conducted under the aegis of Rule 46, F.R.Cr.P. For a well reasoned opinion wherein the interplay among the Bail Reform Act of 1966, Rule 46, and the inherent powers of the Court in relation to bail is expounded, see Judge Renfrew’s Opinion in U. S. v. Stanley, 601 F.2d 380 (9 Cir., 1979). Also, U. S. v. Boothman, 498 F.Supp. 798 (D.Kan., 1980).
. F.R.Cr.P. 46(e)(4) reads:
“Remission. After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.” Paragraph (2) of Rule 46(e)(2) provides:
“Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. ...”
. The burden is on the surety, not on the government, to produce the defendant, or forfeit the bond. U. S. v. Brizuela, 508 F.2d 386 (9 Cir., 1974).