Posted 8/20/2016

In State v. Stomps, 2016 Wash. App. LEXIS 1671 (Wash. App. July 19, 2016), the Court of Appeals affirmed the conviction of a bail recovery agent on counts on first degree robbery, second degree kidnapping and second degree assault in connection with a botched recovery attempt.

In State v. Mungia, 2016 N.J. Super. LEXIS 99 (N.J. Super. Ct. App. Div. July 20, 2016), sureties appealed a trial court’s decision to grant only partial remission of their bail bonds after the defendants were located in foreign countries and the State refused to extradite them.  This matter involved three defendants whose release was secured by bail bonds and who each failed to appear.  The defendants were located by the sureties in foreign countries (Honduras, Dominican Republic and Columbia) and this information was forwarded to the New Jersey Department of Law and Public Safety.  In each case, there was no indication that the State sought extradition.  In each of the cases, the bonds were forfeited.  The sureties moved to vacate the forfeitures based on the State’s failure to obtain extradition of the three defendants.  The trial court modified the forfeiture and awarded the sureties 30% remission and ordered them to pay the remaining 70%.  The sureties appealed.  The Appellate Division noted that the defendants were fugitives at the time they fled abroad.  Thus, there is a presumption against remission.  The court held that the failure to extradite does not excuse the sureties from the obligations of the bond and normally would not justify remission if the State had no ability to obtain extradition.  In cases where a surety locates a defendant and extradition is possible, but the State elects not to request extradition, there is no bar against remission and the trial court should consider the equities.  Apparently because extradition was possible in this case, the court then reviewed the trial court’s assessment of the factors to determine whether to remit bail.  The court noted that the trial court found that the sureties were diligent in locating the defendants but did not do all they could to keep the defendants in the United States.  The court found that the trial court did not abuse its discretion in determining a 30% remission.  The court rejected the argument that the State’s failure to extradite increased the sureties’ risk or rendered performance under the bond impossible.  The court concluded that the failure to extradite did nothing to increase the risk of flight before the defendants fled or make it impossible for the sureties to prevent a failure to appear.  The court affirmed the trial court’s grant of 30% remission. 

In People v. Lexington National Insurance Co., 2016 Cal. App. LEXIS 625 (Cal. App. July 28, 2016), the surety appealed the trial court’s denial of its motion to vacate a bail forfeiture.  The defendant was charged with a misdemeanor and the surety had secured her release with a $50,000 bond.  At a hearing where the defendant waived her right to a speedy trial and was granted a continuance, the court set a date for a pre-trial hearing and ordered the defendant to appear.  The defendant did not appear at the pre-trial hearing.  The surety argued that because the defendant was charged with a misdemeanor, she was not lawfully required to appear at the pre-trial hearing.  The Court of Appeal held that, under People v. Safety National, 62 Cal. 4th 703 (2016), section 977’s requirement of personal presence at “all other proceedings” gives rise to a “lawfully required” appearance under section 1305(a).  The Court rejected the surety’s argument that Safety National did not apply because that case involved a felony defendant and the defendant in this case was charged only with a misdemeanor.  The Court held that Safety National’s rationale that a defendant is lawfully required to appear when specifically ordered to do so is equally applicable to misdemeanor cases.  The Court affirmed the trial court’s denial of the motion to vacate the forfeiture.

In State v. Tabb, 2016 La. App. LEXIS 1484 (La. App. August 3, 2016), the surety furnished bonds to secure the defendant’s release.  After the defendant failed to appear at her arraignment the court entered judgment of bond forfeiture against the surety.  About 5 months after the entry of judgment, the defendant was arrested and detained in Colorado as a fugitive.  The State of Louisiana did not issue a warrant for extradition to Colorado and the defendant was released on bond.  Hours before the defendant’s release, the surety moved to have its obligations deemed satisfied on the basis that the defendant was incarcerated in Colorado.  The trial court granted the surety’s motion and the State appealed.  The State argued that the surety failed to meet one of the conditions under La. Code Crim. P. art. 345(D) for satisfaction of the bond – payment of transportation cost for the return of the defendant.  The Court of Appeals reversed the judgment of the trial court.  It found that the surety had not satisfied article 345(D) at the time of filing its motion as it had not paid transportation costs.  The Court stated, “Even though the State had not sought extradition and the sheriff's Transportation Division had not ascertained, or informed [surety] … the amount of transportation costs, there is no indication in La.Code Crim.P. art. 345(D) that a surety's obligation to pay transportation costs is dependent on the State seeking extradition or notifying the surety of the amount of costs.”  In addition, the Court noted that the surety’s motion was filed just hours prior to the defendant’s release.  The Court held that releasing the surety of its obligations was inappropriate, as the defendant was no longer incarcerated.  Finally, the Court stated that the statute requires a “fortuitous event” for a judgment of forfeiture to be set aside, and failure to issue a warrant of extradition was not an event that was unforeseen. 

In State v. Dennis, 2016 La. App. LEXIS 1562 (La. App. August 10, 2016), the surety furnished bonds to secure the defendant’s release.  After the defendant failed to appear at a hearing, the court entered a judgment of bond forfeiture against the surety.  The surety filed a motion to set aside the forfeiture under La.Code Crim.P. art. 345(D), which addresses circumstances where a defendant is found to be incarcerated in a foreign jurisdiction during the 180-day surrender period.  With its motion, the surety attached a letter of verification from the Marion County Sheriff’s Office stating that the defendant was incarcerated in Marion County Jail during the surrender period, but was released prior to the surety’s filing of the set-aside motion.  The trial court denied the motion and the surety appealed.  The primary issue on appeal was whether 345(D) was intended to relieve a surety from its obligations when the defendant had been incarcerated, but was no longer incarcerated as of the date of the surety’s set-aside motion.  The Court of Appeal held that considering the purpose of the statute, which is to return a defendant to custody, 345(D) is intended to relieve a surety from its obligations only when the defendant is still incarcerated at the time the surety’s motion is filed.  The surety also argued that it should be released from liability because it was not reasonably foreseeable that the Marion County Sherriff’s Office would release the defendant.  The Court rejected this argument, as it was not raised with the trial court.  Moreover, the Court held that the surety had not satisfied the burden of proving that the defendant’s release made it impossible for the surety to perform under the bond.  After the surety learned of the defendant’s incarceration and subsequent release, it had had four more months to locate and apprehend the defendant.  The Court affirmed the denial of the motion to set aside the forfeiture.

In Sappington v. Tennessee, 2016 U.S. Dist. LEXIS 109127 (W.D. Tenn. August 17, 2016), a defendant brought civil rights claims (under 42 USC § 1983) against several parties, including the bail agent.  The court dismissed the claim against the bail agent holding that the agent was not acting under the color of state law.  (“The allegation that [bail agent] . . . arrested Sappington, though resulting in state action, does not make it an actor of the state.”)