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United States v. Martinez

United States District Court, Ninth Circuit

November 12, 2013



WILLIAM Q. HAYES, District Judge.

The matters before the Court are the motions to set aside bond forfeiture or for remission filed by surety Raymond Patenaude (ECF No. 128) and sureties Michael Herritt and Melanie Herritt. (ECF No. 130).


On April 14, 2011, a federal grand jury returned an Indictment charging Defendant Steven Martinez with various crimes related to a scheme to defraud his clients and the Internal Revenue Service ("IRS") out of more than $11 million. (ECF No. 1). Defendant was arrested and taken into custody by IRS agents. Id.

On April 18, 2011, a bond hearing was held before a United States Magistrate Judge. (ECF No. 50-2). During the hearing, Counsel for the Government described an extensive fraudulent scheme in which Defendant used millions of dollars for his own personal benefit. Id. at 5-8. The Government requested that the Magistrate Judge set a bond secured by real property in the amount of $500, 000. Id. Defense counsel proposed a personal appearance bond. Id. at 11. The Magistrate Judge set a bond in the amount of $350, 000. (ECF No. 9). The Magistrate Judge issued an order setting conditions of pretrial release in part as follows:

IT IS ORDERED that the defendant shall be released subject to the condition that the defendant: (a) not commit a federal, state, or local crime during the period of release, (b) make all court appearances and (c) comply with the conditions itemized below... execute a personal appearance bond in the amount of $350, 000 P/S secured by: a trust deed to the United States on real estate approved by a Federal Judge; [and] the co-signature of one financially responsible adult.


On April 19, 2011, surety Raymond Patenaude signed an Appearance Bond which stated:

The conditions of this bond are that the defendant is to appear as ordered by the United States District Court for the Southern District of California at San Diego... Further, the conditions of pretrial release set forth in the order filed in this matter and a part of the record therein are further conditions of this bond.... [I]f the defendant fails to obey or perform any of these conditions, payment of the amount of this bond shall be due forthwith.

(ECF No. 12 at 1). On April 19, 2011, Patenaude signed the Justification of Surety and Surety Agreement, which provided, in part: "If the defendant does not appear or comply with the conditions of release, [Patenaude] will be required to pay the amount of the bond, any security [he has] posted may be taken by the Government to satisfy the bond, and a judgment may be entered against [him]." (ECF No. 12 at 5).

On April 21, 2011, a bond hearing and surety exam was held before the Magistrate Judge. Defense counsel proffered the first surety as attorney Raymond Patenaude. Defense counsel noted that Patenaude was "a local attorney of some significance whose name you may even know." (ECF No. 50-3 at 16). Patenaude was not present at the hearing. Defense counsel proffered that Patenaude's net worth was in excess of $2 million. Id. During the April 21, 2011 hearing, defense counsel proposed another surety, Michael Herritt, who agreed to post his real property, which he owned "free and clear" (with the exception of some tax liens). (ECF No. 50-3 at 12, 19). Michael Herritt was present during the hearing, the Magistrate Judge informed Herritt that Defendant was accused of serious federal offenses with substantial prison time, and Herritt acknowledged that he knew and understood the charges. The following exchange occurred between the Magistrate Judge and Michael Herritt:

MAGISTRATE JUDGE: Well, you have to understand that for whatever reason Mr. Martinez [violates] any of the conditions of his release, any of the conditions, that you'll lose your home?
HERRITT: If he - if he comes back and appears back in court?
MAGISTRATE JUDGE: If Mr. Martinez violates any of the conditions of release, all of them that I set -
MAGISTRATE JUDGE: And we'll go through them again, so you understand them.
MAGISTRATE JUDGE: If Mr. Martinez violates the conditions of release, and a court, me, for example, finds that he did, in fact, do so, you will lose your home.
MAGISTRATE JUDGE: Do you understand that?
HERRITT: I understand that.
MAGISTRATE JUDGE: Despite that, are you still willing to go forward?
MAGISTRATE JUDGE: So by signing on for the bond, you're going to be responsible in part for Mr. Martinez' compliance with ...

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