United States v. Perez-Verdugo

          REPORT AND RECOMMENDATION RE: SURETY GERARDO MARTINEZ' MOTION TO VACATE FORFEITURE OF BAIL, EXONERATE BOND, AND ORDER RECONVEYANCE OF REAL PROPERTY [ECF NO. 67]

          HON. JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE.

         On May 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.)^[1] 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.)

         For the reasons set forth below, the Court RECOMMENDS that Martinez's Motion to Vacate Forfeiture be DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         The Court derives the following summary of events from the docket:

04-09-13	Defendant Alberto Perez-Verdugo (“Defendant”) was arrested pursuant to an arrest warrant stemming from an indictment.
04-12-13	The Court set bond for Defendant in the amount of $50, 000.00 secured by real property. (ECF No. 9.)
04-25-13	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.)
07-11-13	The Court, via a minute order, set a motion hearing for August 5, 2013. (ECF No. 22.)
07-25-13	Defendant filed an acknowledgement of the August 5, 2013 motion hearing date and his obligation to appear at it. (ECF No. 23.)
08-05-13	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 No. 24.)
08-12-13	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.)
08-14-13	The United States filed a motion for forfeiture of bond, which was served on Martinez by mail. (ECF No. 27.)
08-20-13	The Court granted the United States' motion, and the posted property bond was ordered forfeited. (ECF No. 28.)
12-20-16	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.)[2]
02-03-17	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 admitted: 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.)
05-21-18	Martinez filed the instant Motion to Vacate Forfeiture. (ECF No. 67.)

         II. LEGAL STANDARD

         A bail 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).

         Under 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 Cir. 1985)).

         Once a 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 Cir. 1968))).

         III. ANALYSIS

         Primarily 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 ...