The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DECLARATION OF FORFEITURE AND SET-ASIDE OF BOND, AND REMISSION OF FULL AMOUNT OF BOND TO SURETY (Doc. 46)
Plaintiff United States of America (the "government") has moved for an order declaring forfeiture of Defendant Justin Gladding's $100,000 bond. Contending that justice does not require the bond's forfeiture, Defendant counters that the forfeiture should be set aside and remitted under F.R.Crim.P. 46(f)(2) and (f)(4). Surety Patricia Robb has not separately appeared.
This Court heard the motions on Wednesday, August 4, 2010. United States Attorney Deanna Martinez appeared on behalf of the government; Marc Days, Assistant Public Defender, on behalf of Defendant. Surety did not appear. Having fully considered the applicable facts and law, the undersigned recommends that the bond be declared forfeited, that the forfeiture be set aside, and that the full amount of the bond be remitted to Surety.
I. Procedural and Factual Background
Defendant is awaiting trial on criminal charges set forth in an indictment filed July 16, 2009 (Doc. 3). Defendant was arraigned and remanded to custody on August 27, 2009 (Doc. 7). On September 1, 2009, the Court ordered Defendant released from custody on a $100,000 bond, secured by real property located at 92 South Main, Wallingford, Vermont (Doc. 10). The real property is owned by a third party, Surety Patricia Robb, who is Defendant's mother.
An order setting conditions of release was signed and filed on September 21, 2009 (Doc. 14). Among other conditions of release, Plaintiff agreed not to use or possess a computer or access the internet by computer or other device unless approved by the Pretrial Services Officer (Doc. 14). On October 30, 2009, the Court entered a pretrial release violation petition following Defendant's alleged unauthorized use of a computer (Doc. 16). Following a contested hearing on November 16, 2009, this Court found no clear and convincing evidence that Defendant violated the conditions of release and entered an amended order setting conditions of release in which Defendant agreed not to possess alcohol (Docs. 21, 22).
On December 15, 2009, the Court entered a pretrial release violation petition following Defendant's failure to report for a drug test on December 4, 2009 (Doc. 26). On December 22, 2009, Defendant admitted the violation, and the Court amended the curfew condition of release to require home detention, with Plaintiff to be responsible for the additional monitoring costs (Doc. 29, 30). As an additional condition of release, Defendant agreed to attend counseling for alcohol dependency, drug dependency, and/or depression (Doc. 30).
On January 11, 2010, after Defendant failed a drug test, the Court entered a third pretrial release violation petition (Doc. 32). An arrest warrant issued and bail was revoked (Doc. 33). Following Defendant's initial appearance on January 13, 2010, the Court ordered Defendant detained until further order (Doc. 34). On June 22, 2010, the government moved for forfeiture of bond (Doc. 46). Following bail review on June 23, 2010, the Court denied Defendant's release on bond (Docs. 47, 49).
"Federal courts are authorized by Federal Rule of Criminal Procedure 46 ([f])(1) to order forfeiture of a bail bond upon a breach of a condition of release." United States v. Vaccaro, 51 F.3d 189, 191 (9th Cir. 1995). Federal Rule of Criminal Procedure 46 provides, in pertinent part:
(1) Declaration. The court must declare the bail forfeited if a condition of the bond is breached.
(2) Setting Aside. 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.
(A) Default Judgment and Execution. If it does not set aside a bail forfeiture, the court must, upon the government's motion, enter into a default judgment.
(B) Jurisdiction and Service. By entering into a bond, each surety submits to the district court's jurisdiction and irrevocably appoints the district clerk its agent to receive service of any filings affecting its liability.
(C) Motion to Enforce. The court may, upon the government's motion, enforce the surety's liability without an independent action. The government must serve any motion, and notice as the court prescribes, on the district clerk. If so served, the clerk ...