United States v. Pereida , 75 F. App'x 213 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 21, 2003
Charles R. Fulbruge III
No. 02-41314 & 02-41321 Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
ANDY PEREIDA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-97-CR-224-1 & C-97-CR-289-1)
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Andy Pereida appeals the revocation of his supervised release
and the forfeiture of his appearance bonds. Primarily at issue is
whether the district court properly forfeited those bonds to the
mothers of Pereida’s children. The forfeiture is VACATED; the
remainder of the judgments is AFFIRMED; and these cases are
REMANDED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
I.
In 1998, Pereida pleaded guilty in one case to possession with
intent to distribute crack cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C); in a second case, he was convicted by a jury
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) & 924(a)(2). Pereida was sentenced to two
concurrent 57-month prison terms, followed by three years of
supervised release.
Pereida was released in January 2002. That April, he was
arrested for reckless driving and his vehicle impounded; during the
inventory search, a bulletproof vest (body armor) was found in the
trunk. At a subsequent revocation hearing, Garza, Pereida’s uncle,
testified that: the bulletproof vest was his; Pereida borrowed
Garza’s vehicle and Garza did not want the vest in his vehicle
while Pereida drove; and, therefore, Garza placed it in the trunk
of Pereida’s automobile but forgot to remove it. Contradicting
Garza’s testimony, Pereida’s ex-wife, Wilburn, testified that
Pereida had bragged to her about owning the vest.
At the time of the revocation hearing, Pereida was in the
process of divorcing his wife, Mirna Pereida. She is the mother of
two of his children and was expecting a third. According to the
separation agreement, Pereida was to pay $1,000 a month in child
support. From March through June 2002, Pereida had not done so;
Mirna Pereida sued in family court and recovered those payments.
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Pereida paid his July support on 18 or 19 July (it was due the
first of the month). At the time of the revocation hearing in late
August and early September 2002, he had paid only $700 of the
$1,000 August payment and was late on his September payment.
Pereida also paid child support to Wilburn, the mother of
another of his children. He was obligated to pay $300 per month,
together with $29,000 plus interest for prenatal care. At the time
of the revocation hearing, he had not paid for the prenatal care.
Upon Pereida’s mother’s death, he received an annuity yielding
$1,200 a month. In May 2002, several months before the revocation
hearing, Pereida converted the annuity for approximately $152,000.
(He will receive another lump sum distribution of $652,000 in 2004
and a final distribution of approximately $1 million.) That same
day, he purchased a new automobile for $56,990 from a dealership in
San Antonio. (Pereida gave the dealership a check for $67,948 to
pay for both the new vehicle and the negative equity on the vehicle
he was trading in.) Under the terms of his supervised release, he
was prohibited from traveling to San Antonio; he instructed the
sales manager to tell whomever called that the new vehicle had been
delivered to Corpus Christi. The sales manager did so when
Pereida’s probation officer called.
In early June 2002, a police officer stopped at a party at
Pereida’s residence because it appeared minors were consuming
alcohol. Pereida informed the officer he was on parole. The
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officer asked whether Pereida was allowed to drink alcohol on
parole and whether he was doing so. Pereida answered no to both
questions. Although Pereida was required to inform his probation
officer of police questioning within 72 hours, Pereida did not do
so.
On 27 June (for cocaine conviction) and 1 July 2002 (for
felon-in-possession conviction), the Government filed petitions to
revoke Pereida’s supervised release. It alleged Pereida: (1)
violated Texas Penal Code § 46.041 (felon in possession of body
armor); (2) failed to truthfully answer his probation officer
regarding police questioning in May and June; (3) failed to pay
child support for January through June 2002; and (4) failed to
notify the probation officer within 72 hours of police questioning.
At Pereida’s initial appearance on 2 July 2002, the magistrate
judge ordered him to post a $50,000 appearance bond in each case.
On Pereida’s motion, the magistrate judge reduced each bond to
$25,000. In doing so, the magistrate judge wrote on the order:
“Bail set at $25,000.00 cash, with electronic monitoring and curfew
set by Probation. Confirm payment of all child support”. United
States v. Pereida, No. C-97-CR-224 (S.D. Tex. 10 July 2002); United
States v. Pereida, No. C-97-CR-289 (S.D. Tex. 10 July 2002).
Pereida executed two cash appearance bonds on 12 July. They
did not include language regarding the “confirm payment of all
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child support” term written in the earlier order. In pertinent
part, each bond states:
If the defendant appears as ordered or
notified and otherwise obeys and performs the
foregoing conditions of this bond, then this
bond is to be void, but if the defendant fails
to obey or perform any of these conditions,*
[*Any violation of law shall constitute a
violation of conditions of release] payment of
the amount of this bond shall be due
forthwith.
On 16 July, the magistrate judge signed an order setting
conditions of release in both cases; Pereida also signed them.
They included: “Defendant is to submit confirmation of resolution
of all child support matters”.
On 13 August, the district court granted an order assigning
$25,000 of the appearance bond to Pereida’s attorney. On 21
August, the revocation hearing began. The court vacated the bond
assignment and stated it would assign the money to Pereida’s wife
and former wife because he was late paying his August child
support. Pereida was also remanded to custody. The hearing was
continued until September.
When the hearing resumed, the district court ruled that
Pereida had violated the supervised release terms for each
conviction, as alleged by the Government. The court also found
that Pereida traveled to San Antonio without permission and urged
the car dealer and his uncle (Garza) to lie.
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The district court revoked Pereida’s supervised release and
sentenced him to 22 months in prison in each case, to run
consecutively, followed by 14-months supervised release. It also
ordered the two appearance bonds forfeited to Pereida’s wife and
former wife: $40,000 to Mirna Pereida; $10,000 to Wilburn.
Defense counsel objected to the forfeiture, contending the court
did not have authority to order it because Pereida made all his
appearances. (Earlier in the proceeding, however, Pereida had
consented to the allocation of $40,000 to Mirna Pereida.) Judgment
was entered in both cases on 2 October 2002.
II.
Pereida appeals the revocation, sentences, and forfeiture. He
contends: (1) he was denied a fair and impartial revocation
hearing; (2) the evidence was insufficient to support the
revocation; (3) he was unlawfully sentenced; (4) he did not violate
the purported child support bond condition; (5) the bond forfeiture
was excessive and should have been set aside; and (6) the court
lacked authority to assign the bond money to Mirna Pereida and
Wilburn because the money can only be paid to the United States
Attorney only on the Government’s motion.
A.
The district court ordered Pereida’s bond forfeited because he
failed to timely pay $300 of his $1,000 August child support to
Mirna Pereida, failed to timely pay the September payment, and
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failed to reimburse Wilburn $29,000 for prenatal care. Pereida
contends: he did not violate the bond condition; and ordering the
money forfeited was improper. An order of bond forfeiture is
reviewed for arbitrariness or capriciousness. United States v.
Parr, 594 F.2d 440, 443-44 (5th Cir. 1979).
Although bond forfeiture may be ordered for violations other
than non-appearance, the terms of the bond are strictly construed.
United States v. Terrell, 983 F.2d 653, 655 (5th Cir. 1993) (citing
Brown v. United States, 410 F.2d 212 (5th Cir.), cert. denied, 396
U.S. 932 (1969)). Restrictions or conditions not within the
express language of the standard appearance bond form should be
recited in its body or, if attached, should be expressly referred
to. United States v. Clark, 412 F.2d 885, 886 n.2 (5th Cir. 1969)
(citing United States v. Egan, 394 F.2d 262, 267 (2nd Cir.), cert.
denied, 393 U.S. 838 (1968)).
Although the order modifying the appearance bonds (signed
before the bonds) and the conditions of release (signed four days
after the bonds) contained terms requiring Pereida to confirm
paying child support, the bonds did not contain such a condition.
On the other hand, the bonds did contain a term requiring Pereida
to appear “in accordance with any and all orders and directions
relating to the defendant’s appearance....”
In Terrell, the appearance bond contained the same condition.
Our court concluded that this term integrated conditions of release
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that related to defendant’s appearance. 983 F.2d at 655. The
conditions requiring defendant in Terrell to report weekly to the
pretrial service officer, stay within a certain geographic area,
and not possess controlled substances were held to relate to
defendant’s appearance and were, consequently, bond conditions for
which forfeiture was appropriate. Id. Our court reasoned that all
of these conditions either made it more likely defendant would
appear or less likely he would abscond. Id.Obviously, unlike the conditions in Terrell, the condition of
release requiring Pereida to confirm child support payment does not
relate to his appearance. This confirmation condition does not
make it more likely that Pereida will appear, nor does it reduce
the costs of locating him if he fails to do so. Thus, it is not
integrated as a bond condition through the “orders ... relating to
appearance” language. Further, no other language within the
appearance bonds arguably incorporates the child support
confirmation condition. Therefore, the district court erred by
ordering the bonds forfeited. (Accordingly, we need not address
whether the district court erred by declaring the money forfeited
to Mirna Pereida and Wilburn and not the United States.)
B.
Concerning the revocation of supervised release, Pereida
contends: (1) he was denied due process; (2) the evidence was
insufficient; and (3) his sentences were illegal and plainly
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unreasonable. In district court, Pereida did not object on any of
these grounds.
1.
Pereida contends his due process rights were violated because
the district court was biased, did not objectively evaluate the
evidence, put undue emphasis on the child support issue, and
interrupted his counsel during cross-examination. Pereida’s
failure to object results in this claim being reviewed only for
plain error. E.g., United States v. Ayers, 946 F.2d 1127, 1131
(5th Cir. 1991). For such error, there must be a clear and obvious
error affecting Pereida’s substantial rights; even then, we have
discretion whether to reverse and, generally, will not do so unless
that error also impugns the fairness, integrity or public
reputation of judicial proceedings. Id.The record does not support Pereida’s contention that the
district court acted with bias or did not objectively evaluate the
evidence. There is no absolute confrontation right during a
revocation proceeding, United States v. Grandlund, 71 F.3d 507, 510
(5th Cir. 1995), cert. denied, 516 U.S. 1152 (1996); in any event,
his counsel was allowed to sufficiently cross-examine witnesses.
There is no clear or obvious error affecting Pereida’s substantial
rights.
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2.
Next, Pereida contends the evidence was insufficient to
support finding he violated his supervised release conditions.
Where a defendant fails to object in district court to the
sufficiency of evidence, we review only to determine whether the
record is devoid of evidence supporting the judgment. E.g., United
States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002) (en banc),
cert. denied, 123 S. Ct. 1375 (2003).
The record is not devoid of such evidence. Pereida’s
probation officer testified that Pereida failed to truthfully
answer questions regarding police questioning during his party or
report such questioning. For the body armor violation: the
bulletproof vest was found in Pereida’s car; and his former wife
testified that he bragged about owning it. Finally, as for failing
to pay child support, it was shown Pereida: was sued by Mirna
Pereida to collect child support; was consistently late in making
payments; and had not paid September’s support at the time of the
revocation hearing.
3.
Finally, Pereida asserts his sentence was illegal or plainly
unreasonable because the aggregate of the consecutive 22-month
prison terms followed by 14 months of supervised release (58
months) is greater than the original 36-month term of supervised
release. Again, because Pereida failed to object in district
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court, this issue is reviewed only for plain error. United States
v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).
Concerning this issue, a court can impose “a term of
imprisonment followed by a term of supervised release, so long as
the aggregate of these two terms is less than or equal to the
defendant’s original term of supervised release”. United States v.
Bewley, 227 F.3d 343, 344 (8th Cir. 1994) (quotation omitted); 18
U.S.C. § 3583(h) (when supervised release revoked, term of
imprisonment can be ordered, followed by supervised release term,
as long as aggregate does not exceed original term of supervised
release). A district court, however, has the authority to impose
consecutive sentences upon the revocation of concurrent terms of
supervised release. United States v. Gonzalez, 250 F.3d 923, 926
(5th Cir. 2001). Each consecutive sentence is for 22 months, plus
14-months supervised release. This totals 36 months for each
sentence, which does not exceed the original supervised release
term of 36 months. There is no error, let alone plain error.
III.
The forfeiture of the two appearance bonds is VACATED; the
remainder of the judgments is AFFIRMED; and these cases are
REMANDED to district court for such further proceedings, consistent
with this opinion, as may be necessary.
VACATED IN PART; AFFIRMED IN PART; REMANDED
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