United States District Court, S.D. California
REPORT AND RECOMMENDATION RE: SURETY GERARDO
MARTINEZ' MOTION TO VACATE FORFEITURE OF BAIL, EXONERATE
BOND, AND ORDER RECONVEYANCE OF REAL PROPERTY [ECF NO.
JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE.
21, 2018, Surety Gerardo Martinez (“Martinez”)
filed a motion captioned “Motion Application for Motion
to Vacate Forfeit Bail; Exonerate of Bond and Order for
Reconveyance of Real Property” (“Motion to Vacate
Forfeiture”). (ECF No. 67.) The United States filed a response in
opposition on October 16, 2019. (ECF No. 74.) The Court held
a hearing on the matter on October 17, 2019, at which
Martinez appeared. (ECF No. 75.) At the Court's
invitation, the United States filed a supplemental response
in opposition on October 25, 2019. (ECF No. 80.)
reasons set forth below, the Court
RECOMMENDS that Martinez's Motion to
Vacate Forfeiture be DENIED.
FACTUAL AND PROCEDURAL HISTORY
Court derives the following summary of events from the
Defendant Alberto Perez-Verdugo
(“Defendant”) was arrested pursuant to
an arrest warrant stemming from an indictment.
The Court set bond for Defendant in the amount of
$50, 000.00 secured by real property. (ECF No. 9.)
The Court conducted an examination of sureties, and
Martinez was examined under oath. Following
Martinez's testimony, the Court approved
Martinez as a surety and the bond was filed the
same day. (ECF Nos. 12; 13.)
The Court, via a minute order, set a motion hearing
for August 5, 2013. (ECF No. 22.)
Defendant filed an acknowledgement of the August 5,
2013 motion hearing date and his obligation to
appear at it. (ECF No. 23.)
Defendant failed to appear at the August 5, 2013
motion hearing. The Court issued a no-bail bench
warrant but stayed it until August 12, 2013. (ECF
Defendant failed to appear on August 12, 2013, and
the Court issued a bench warrant for Defendant. The
United States' oral motion to forfeit the bond
was granted. (ECF No. 25.)
The United States filed a motion for forfeiture of
bond, which was served on Martinez by mail. (ECF
The Court granted the United States' motion,
and the posted property bond was ordered forfeited.
(ECF No. 28.)
More than three years after his failure to appear,
Defendant was arrested in the Central District of
California by the United States Marshals Service.
(ECF No. 34.)
Defendant, pursuant to a plea agreement, entered a
guilty plea to Count 1 of the Superseding
Information. (ECF Nos. 42; 45.) As part of the
factual basis in the plea agreement, Defendant
On July 11, 2013[, ] the Court set August 5, 2013[,
] as the date for the instant case's Motion
Hearing. Defendant knew of the Court's order
and his obligation to appear before the Court on
August 5, 2013. On July 23, 2013, in writing, . . .
[D]efendant acknowledged the Court's order and
[his] obligation to appear before the Court on
August 5, 2013. Defendant's Acknowledgement was
filed with the Court on July 25, 2013. On August 5,
2013, Defendant willfully failed to appear for the
August 5, 2013 motion hearing.
(ECF No. 45 at 4.)
Martinez filed the instant Motion to Vacate
Forfeiture. (ECF No. 67.)
bond is considered to be “a contract between the
government and the defendant and his surety.”
United States v. Plechner, 577 F.2d 596, 598 (9th
Cir. 1978) (citing United States v. Gonware, 415
F.2d 82, 83 (9th Cir. 1969)). Its purpose is to provide a
disincentive for a pretrial criminal defendant to “flee
or hide himself” in that is it assumed “the
threat of forfeiture of one's goods will be an effective
deterrent to the temptation to break the condition of
one's release.” Bandy v. United States, 81
S.Ct. 197, 197 (1960).
the Federal Rules of Criminal Procedure, “[t]he court
must declare the bail forfeited if a condition of the bond is
breached.” Fed. R. Crim. P. 46(f)(1). The Court does
not have discretion over whether to forfeit a bond;
“forfeiture is thus mandatory.” United States
v. Nguyen, 279 F.3d 1112, 1115 (9th Cir. 2002) (citing
United States v. Abernathy, 757 F.2d 1012, 1015 (9th
bond is forfeited, a court can nonetheless set aside or remit
all or part of the bond under certain circumstances.
“Rules 46(e)(2) and (e)(4) allow the district court to
set aside or remit all or part of the bond if it appears that
justice will not be served by enforcing the
forfeiture.” Abernathy, 757 F.2d at 1015. In
the Ninth Circuit, courts are guided by the following six
non-exhaustive factors in deciding whether or not to remit or
set aside forfeiture of bail:
1) the defendant's willfulness in breaching a release
condition; 2) the sureties' participation in apprehending
the defendant; 3) the cost, inconvenience, and prejudice
suffered by the government; 4) mitigating factors; 5) whether
the surety is a professional or a member of the family or a
friend; and 6) the appropriateness of the amount of the bond.
Nguyen, 279 F.3d at 1115-16 (quoting United
States v. Amwest Surety Ins. Co., 54 F.3d 601, 603 (9th
Cir. 1995)). The factors are non-exclusive and need not all
“be resolved in the government's favor.”
Id. at 1116 (quoting United States v.
Sar-Avi, 255 F.3d 1163, 1167 (9th Cir. 2001)).
Furthermore, “[t]he party seeking to have the court set
aside or remit the forfeiture bears the burden of
establishing grounds for such action.” United
States v. Logan, No. 95CR1468-IEG, 2009 WL 1605326, at
*1 (S.D. Cal. June 5, 2009) (citing United States v.
Cervantes, 672 F.2d 460, 461 (5th Cir. 1982) (“The
burden of establishing grounds for a set aside or remission
is on the party challenging the forfeiture.”)); see
also United States v. Gambino, 17 F.3d 572, 574 (2d Cir.
1994) (“The burden of establishing grounds for
remission is on the party challenging the forfeiture.”
(citing United States v. Egan, 394 F.2d 262, 267 (2d
citing California authorities, Martinez argues that the
previously forfeited bond should be exonerated because
“all conditions for the bond have been satisfied [as
Defendant was re-arrested] and are now moot.” (ECF No.
67 at 8.) The United States argues that, applying the factors