United States v. Ignacio Torres , 807 F.3d 257 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1538
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IGNACIO TORRES,
Defendant.
APPEAL OF: IGNACIO TORRES, SR. and
NOEMI LORENZANA
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-CR-604-1 — Harry D. Leinenweber, Judge.
____________________
ARGUED APRIL 9, 2015 — DECEMBER 2, 2015
____________________
Before FLAUM, RIPPLE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Ignacio Torres was indicted for
possession with intent to distribute 500 grams or more of co-
caine. He was released on bond, and his parents secured the
bond with a house they owned. Torres violated a condition
2 No. 14-1538
of his release, and the district court revoked his bond. At the
bond revocation hearing, the district court judge stated that
Torres should surrender “today.” Torres and his attorney
left the courtroom and went into the hallway. Torres’s coun-
sel reentered the courtroom to clarify exactly when Torres
needed to surrender. When Torres’s counsel returned to the
hallway, Torres was gone. Efforts to return Torres to custody
have not been successful. As a result, the district court de-
clared the bond forfeited. So Torres’s parents lost their
house. Because it was not unreasonable for the district court
to find that justice required bond forfeiture with Torres still
at large, we affirm the district court’s order of default judg-
ment on the forfeiture agreement.
I. BACKGROUND
On October 6, 2011, Ignacio Torres (“Torres”) was indict-
ed for possession with intent to distribute 500 grams or more
of cocaine in violation of 21 U.S.C. § 841(a)(1). Torres was
released on February 23, 2012, on a $200,000 bond secured
by real property owned by his parents, Noemi Lorenzana
and Ignacio Torres, Sr. (“Sureties”).
In connection with the bond, Sureties signed a forfeiture
agreement. Sureties agreed that “$200,000 of their equitable
interest in [their] … real property may be forfeited to the
United States of America, should … Torres fail to appear as
required by the court or otherwise violate any condition of
the [district court’s] order of release.” The district court’s or-
der of release ordered “that the defendant be released on the
condition that: [Torres] promises to appear in court as re-
quired and surrender to serve any sentence imposed.” It also
set forth the following additional conditions of release:
No. 14-1538 3
[1] the defendant must not violate any federal, state or
local law while on release.
[2] the defendant is placed in the custody of Noemi Lo-
renzana … who agrees (a) to supervise the defend-
ant in accordance with all of the conditions of re-
lease, (b) to use every effort to assure the defend-
ant’s appearance at all scheduled court proceedings,:
and (c) to notify the court immediately if the de-
fendant violates any conditions of release or disap-
pears;
[3] the defendant must post with the court … [a] forfei-
ture agreement and quick [sic] claim deed;
[4] the defendant must avoid all contact, directly or indi-
rectly, with any person who is or may become a vic-
tim or potential witness in the investigation or prose-
cution;
[5] the defendant must refrain from use or unlawful pos-
session of a narcotic drug or other controlled sub-
stance. Any testing may be used with random fre-
quency ….
The conditions also required Torres to wear an electronic
ankle monitor, although, at Torres’s request, the court later
removed this condition.
Torres pleaded guilty on June 27, 2013, but the district
court continued the issue of acceptance of the plea so that
Torres could remain out on bond until his sentencing. The
same day, U.S. Pretrial Services Officer James Wheatley con-
tacted Lorenzana to inform her that Torres tested positive
for marijuana and cocaine. At no time did Sureties ask to
cancel or withdraw from the bond.
On November 11, 2013, the government filed an emer-
gency motion to revoke bond after a witness in the case in-
formed the government that he had contact with Torres. The
4 No. 14-1538
next day, the district court held a hearing on the motion.
Sureties claim they did not receive notice of this court pro-
ceeding, though the government argues Sureties had to have
known about the proceeding because Torres lived with Lo-
renzana. The district court granted the government’s motion
to detain Torres and revoked his bond. The district court in-
formed Torres that surrender “should be today.” Torres, de-
fense counsel, and a Pretrial Services Officer left the court-
room together. Counsel and the Pretrial Services Officer re-
entered the courtroom to get clarification on the exact time
Torres had to surrender to the U.S. Marshals. By the time
counsel and the Pretrial Services Officer left the courtroom,
Torres was gone. The district court issued a bench warrant.
Torres apparently remains at large.
Two days after Torres fled, the government moved for a
declaration of bond forfeiture. The government refiled the
motion on December 10, 2013. Torres and Sureties filed their
response on December 16, 2013, requesting that the court ex-
onerate, i.e., release them from responsibility for, the bond
and set aside the forfeiture. The district court set a hearing
on the motion for February 18, 2014. On the date of the hear-
ing, the district court entered an order granting the govern-
ment’s motion and declaring forfeiture of the bond. It found
that Torres:
breached the condition of his pretrial release by: (1) using
unlawful narcotic drugs in or around June 2013; (2) hav-
ing contact with a potential witness against him on or
about November 10, 2013; (3) by violating 18 U.S.C.
§ 1073, which prohibits flight to avoid custody or con-
finement after conviction for a felony; and (4) by violating
federal law by ignoring a court order to surrender to the
U.S. Marshals on November 12, 2013.
No. 14-1538 5
The district court also found that Sureties had notice of any
material changes in the release conditions and did not object
to any changes, received notice of court proceedings, and
entered into a forfeiture agreement with the government.
The district court refused Sureties’ request to set aside the
forfeiture, finding the interests of justice did not justify such
an action. On February 26, 2014, the district court entered an
order of default judgment on the forfeiture agreement. Sure-
ties, represented by the same counsel as Torres, now appeal.
II. ANALYSIS
Sureties argue that the district court erred by refusing to
set aside the bond forfeiture because (1) bond was revoked
before Torres’s flight, and (2) Sureties were not given notice
of material changes in the conditions of Torres’s release. We
review a decision denying a request to set aside bond forfei-
ture for abuse of discretion. United States v. Santiago, 826 F.2d
499, 505 (7th Cir. 1987). “[A]n abuse of discretion occurs only
when no reasonable person could take the view adopted by
the trial court.” Id. (citing Lynch v. City of Milwaukee, 747 F.2d
423, 426 (7th Cir. 1984)). Factual findings are reviewed for
clear error. United States v. Baker, 227 F.3d 955, 967 (7th Cir.
2000). Sureties bear the burden of proving that the forfeiture
should be set aside. United States v. Foster, 417 F.2d 1254,
1256 (7th Cir. 1969).
“The court must declare the bail forfeited if a condition of
the bond is breached.” Fed. R. Crim. P. 46(f)(1). Neverthe-
less, the court may set aside bail forfeiture if “the surety later
surrenders into custody the person released on the surety’s
appearance bond” or “it appears that justice does not require
bail forfeiture.” Fed. R. Crim. P. 46(f)(2). Unless a district
court exercises its discretion to set aside the bail forfeiture,
6 No. 14-1538
the district court must enter a default judgment on the gov-
ernment’s motion. Fed. R. Crim. P. 46(f)(3)(A). Once judg-
ment is entered, the court also has the discretion to remit the
judgment in whole or part. Fed. R. Crim. P. 46(f)(4).
The Federal Rules of Criminal Procedure also describe
when the district court must exonerate the surety and release
the bond. “The court must exonerate the surety and release
any bail when a bond condition has been satisfied or when
the court has set aside or remitted the forfeiture. The court
must exonerate a surety … who timely surrenders the de-
fendant into custody.” Id. at 46(g).
A. Torres Was on Bond at Time of his Flight.
Sureties argue that their property should not be forfeited
because bond had been revoked before Torres’s flight. Sure-
ties claim “[o]nce a bond is revoked, a surety’s obligation to
ensure the continued good behavior of the individual re-
leased from custody is at an end” because the contract be-
tween Sureties and the government has terminated. In a
footnote, the government responds to the crux of Torres’s
argument by stating that “[b]ond conditions remain in effect
until the defendant surrenders.” We agree with the govern-
ment that revocation of a bond does not automatically ter-
minate a surety’s liability.
Although a bond proceeding occurs as part of a criminal
case, it is collateral to the criminal case and civil in nature.
See United States v. Santiago, 826 F.2d 499, 502 (7th Cir. 1987).
A bond agreement is a civil contract between the govern-
ment and the surety on behalf of a criminal defendant. Id.
The government and the surety agree that if the government
releases the defendant from custody, “the surety will under-
No. 14-1538 7
take that the [defendant] will appear personally at any speci-
fied time and place to answer.” United States v. Davis, 202
F.2d 621, 625 (7th Cir. 1953). So, the purpose of the bond
agreement and its forfeiture provisions are to ensure that the
defendant will attend every required court appearance and
submit to a sentence if found guilty. Stack v. Boyle, 342 U.S. 1,
4–5 (1951). In essence, the defendant is delivered to the cus-
tody of the surety, whose responsibility is to ensure the de-
fendant’s actions comply with the terms of his release. See
Taylor v. Taintor, 83 U.S. 366, 371 (1872) (“When bail is given,
the principal is regarded as delivered to the custody of his
sureties. Their dominion is a continuance of the original im-
prisonment.”). If the defendant fails to appear at the proper
time and place or violates a condition of release, “the surety
becomes the absolute debtor of the United States for” the
bond amount. Davis, 202 F.2d at 625.
The Forfeiture Agreement executed by Sureties incorpo-
rated the district court’s order outlining the conditions of re-
lease. As a result, and in accordance with the common law
principles of bail, Sureties agreed to ensure that Torres
would “appear in court as required and surrender to serve
any sentence imposed.“ They also agreed that if “Torres
fail[ed] to appear as required by the Court or otherwise vio-
late[d] any condition of the Court’s order of release,”
“$200,000 of their equitable interest in the … real property,
may be forfeited to the United States of America.”
Sureties’ argument has some logical appeal. If the district
court revoked bond, naturally, one could conclude that the
action terminated any agreement in connection with the
bond. This analysis would lead to a rule that when a district
court orders the defendant to surrender, bond is terminated.
8 No. 14-1538
However, this rule misses the point of the bond agreement.
The government released Torres from custody to Sureties
because Sureties assured the government that they would
return Torres to custody. Since the purpose of the agreement
was to ensure that Torres returned to custody, it follows that
the bond would not end until Torres was back in custody.
The district court’s revocation order merely compelled
Torres to return to custody, as opposed to a voluntary sur-
render or Sureties bringing him in. The revocation order did
not end the bond. Rather, it set the procedure for how to re-
turn Torres to custody.
This conclusion is supported by the Federal Rules of
Criminal Procedure. A court is not required to exonerate the
surety until “a bond condition has been satisfied” or until a
surety “timely surrenders the defendant into custody.” Fed.
R. Crim. P. 46(g). The most relevant general bond condition
was that Torres “promise[d] to appear in court as required
and surrender to any sentence imposed.” This did not occur.
Torres failed to appear in court and surrender himself as or-
dered by the district court. Therefore, the bond condition
was not satisfied, and it was still in effect. Further, Sureties
did not surrender Torres to custody after the district court
revoked the bond, so it was still in force. As a result, the
court was not required to exonerate Sureties. The mere order
of revocation does not terminate a bond. It is the defendant’s
return to custody pursuant to that order that terminates the
bond. See id. Therefore, a surety’s liability does not cease un-
til the defendant is taken into custody after a district court’s
bond revocation order. And since Torres was still on bond,
Sureties were liable when Torres fled.
Of course, returning a defendant to custody is not the on-
No. 14-1538 9
ly way a surety’s liability terminates. Rule 46(g) also requires
a court to exonerate a surety and its bond: (1) when a bond
condition has been satisfied, (2) when the court has set aside
or remitted the forfeiture, or (3) when the surety deposits
cash in the amount of the bond.
Lastly, Sureties contend that United States v. Milhelm, 834
F.2d 118 (7th Cir. 1987) and United States v. Castaldo, 636 F.2d
1169 (9th Cir. 1980) compel a different result. But we find
neither case helpful. In Milhelm, we held that an arrest war-
rant without more does not terminate bail obligations. 834
F.2d at 123. We explicitly avoided “the difficult issue of
when bail obligations do terminate after a violation.” Id. at
122–23.
In Castaldo, the defendant appealed his conviction pursu-
ant to the now-defunct bail jumping statute. Like Torres, Jo-
seph Castaldo appeared at his bond revocation hearing. 636
F.2d at 1170. At the beginning of the hearing, which took
place on April 30, 1979, Castaldo asked for a continuance to
substitute new counsel. The court denied the request, but
continued the remainder of the hearing until the end of the
court calendar. Id. Castaldo failed to appear when the case
was recalled. Id. Unable to locate Castaldo, the court forfeit-
ed the bail and issued an arrest warrant. Id. The district court
scheduled another hearing in the case for July 31, 1979, and
Castaldo did not appear at the hearing. Id. Castaldo was re-
captured in October 1979 and indicted for having failed to
appear at the July hearing. Id. The Ninth Circuit held that a
defendant who had been released on bail, whose bail had
been forfeited, and who had an arrest warrant issued for his
arrest cannot be convicted of bail jumping based on his fail-
ure to appear at a hearing scheduled after the forfeiture of
10 No. 14-1538
bail. Id. at 1171–72. Relevant to this case, the Ninth Circuit
seems to find that because the bail had been forfeited,
Castaldo was no longer released pursuant to bail. Id. This
makes sense. Forfeiture ended the bond agreement just as
returning the defendant to custody would. See Fed. R. Crim.
P. 46(g). Even under Castaldo, Sureties’ argument fails be-
cause the district court here had not forfeited his bond at the
time he fled. So, Torres was still “on bond.” In any event, be-
cause the Ninth Circuit had to determine whether bond was
still in effect after it had been forfeited, and our case deals
with whether bond was in effect between revocation and for-
feiture, Castaldo does not help Sureties.
B. District Court Did Not Clearly Err by Finding Sure-
ties Had Notice of All Material Changes in Release
Conditions.
Although Sureties state there were three material chang-
es to the circumstances of defendant’s release—removal of
electronic monitoring, Torres’s guilty plea, and bond revoca-
tion—they only argue that they failed to receive notice of the
bond revocation. They cannot claim lack of notice with re-
spect to the other two material changes because the record
contains evidence from which one can infer that they had
notice. Sureties’ primary argument is that the bond revoca-
tion was a material change in the conditions of Torres’s re-
lease of which they should have had advanced notice be-
cause “[i]mminent detention (as opposed to possible deten-
tion at some indeterminate future point) obviously gives rise
to a greater risk of flight.”
We assume, without deciding, that bond revocation is a
condition of release. But see United States v. DiCaro, 852 F.2d
259, 265 (7th Cir. 1988) (stating that bond revocation is a
No. 14-1538 11
sanction for violating condition of release). We hold, howev-
er, that Sureties were not entitled to notice that the district
court revoked the bond because it was not a material change
in the bond that increased their risk. Therefore, Sureties’ po-
sition is without merit.
When a material change is proposed to a condition of
bond, a surety is entitled to notice, an opportunity to be
heard, and an opportunity to revoke his or her commitments
if the judge alters the release conditions over the surety’s ob-
jections. United States v. King, 349 F.3d 965, 966 (7th Cir.
2003). Material changes “to a bond made without the con-
sent or knowledge of the surety may render the obligation
unenforceable.” Id. (citing Reese v. United States, 76 U.S. 13, 21
(1869)). A material change is a modification to the bond that
“significantly augments the risk that the defendant will not
appear when required.” Id. at 967 (citing United States v.
Gambino, 17 F.3d 572 (2d Cir. 1994)); see also State v. Ocampo-
Navarro, 93 P.3d 745, 2004 WL 1609122 at *4 (Kan. Ct. App.
July 16, 2004) (per curiam) (unpublished) (“A modification
to a bond agreement is considered material when noncom-
pliance with the new obligation could result in the revoca-
tion of a defendant’s bond.”). The increased risk must be dif-
ferent than the original risk the sureties assumed when post-
ing bond for a defendant. King, 349 F.3d at 968.
This bond revocation is not a material change in the
bond, so notice was not necessary. See id. at 967. Sureties
agreed to ensure Torres’s appearance as ordered by the dis-
trict court until he surrendered to serve any sentence im-
posed. That the bond might be revoked was a risk that Sure-
ties undertook when they initially agreed to the bond. The
scheduled hearing and even the revocation itself did not put
12 No. 14-1538
any new conditions on Torres. For these reasons, the revoca-
tion of the bond was not a material modification that in-
creased the Sureties risk and entitled them to notice.
Also, we note that while Sureties argue that the risk of
imminent detention created by the bond revocation was dif-
ferent from the original risk Sureties assumed, Sureties had
already agreed to assume the risk associated with imminent
detention. Contrary to Sureties’ contentions, before the revo-
cation hearing, Torres’s future detention was not a “possible
detention at some indeterminate future point.” Torres
pleaded guilty on June 27, 2013. The charge that Torres
pleaded to carries a mandatory minimum sentence of five
years’ imprisonment. The district court continued ac-
ceptance of the plea to allow Torres to remain on bond until
his sentencing. Sureties do not dispute their knowledge of
his guilty plea, and they knew Torres would serve time.
Again, they shoulder the burden of proving facts that sup-
port their argument that the bond should not be forfeited.
See Foster, 417 F.2d at 1256. By continuing to guarantee the
bond after Torres’s guilty plea, Sureties assumed the risk for
Torres in light of imminent detention. The district court did
not clearly err in finding the Sureties had notice of all mate-
rial changes.
To be clear, we do not hold that Sureties were not enti-
tled to notice of the hearing. Indeed, a surety should be in-
formed of any judicial proceedings that potentially affect his
or her interests. See King, 349 F.3d at 967. Here, the district
court determined that Sureties had notice of the hearing.
This finding was not clearly erroneous in light of the fact
that Torres’s attorney, who was present at the hearing, rep-
resented both Torres and Sureties. Torres, who also ap-
No. 14-1538 13
peared at the hearing, lived with Lorenzana. There is no evi-
dence on the record that Sureties did not receive notice of
the hearing. Sureties carry the burden to establish this fact.
See Foster, 417 F.2d at 1256. Therefore, the court did not clear-
ly error by finding that Sureties had notice of the hearing.
C. District Court Did Not Abuse its Discretion by Re-
fusing to Set Aside the Bond Forfeiture.
Because Torres was on bond when he fled, and because
the district court did not err in finding that Sureties had no-
tice of material changes, the district court did not abuse its
discretion by refusing to set aside the bond forfeiture. The
court may set aside a bail forfeiture if it appears that justice
does not require bail forfeiture. Fed R. Crim. P. 46(f)(2)(B).
“In most cases, the setting aside of a forfeiture … while the
defendant is still at large would undermine the purpose of
bail bonds, i.e., to insure the presence of the accused.” United
States v. Gutierrez, 771 F.2d 1001, 1004 (7th Cir. 1985). Here,
Torres is apparently still at large. So, in light of Torres’s con-
tinued flight and the circumstances discussed above, it was
not unreasonable for the district court to refuse to set aside
bond forfeiture.
Gutierrez outlines a six-factor test for district courts to
consider when deciding whether to set aside a bond forfei-
ture: “(1) the willfulness of defendant’s breach of conditions;
(2) the participation of the sureties in apprehending the de-
fendant; (3) the cost, inconvenience and prejudice suffered
by the government as a result of the defendant’s breach; []
(4) any explanation of mitigating factors presented by the
defendant [or surety];” (5) whether the surety is a profes-
sional bondsman or one of defendant’s friends or family
members; and (6) the appropriateness of the amount of the
14 No. 14-1538
bond. Id. at 1003–04 (internal citations omitted). The unique
factors presented by this case do not easily align with the
Gutierrez factors, so the district court’s failure to consider
these factors is not unreasonable. The district court handled
this tough case well. We sympathize with Sureties, but
Torres’s continued flight weighs heavily in favor of forfei-
ture and a finding that the district court did not err. Like us,
the district court seemed sympathetic to Sureties, having
suggested that forfeiture would not have been necessary if
Torres were in custody at the time the district court entered
the forfeiture judgment, which was three months after
Torres fled. Nonetheless, district courts should fully consid-
er the Gutierrez factors before ordering bond forfeiture. This
will ensure that district courts balance the appropriate fac-
tors in exercising its discretion and aid appellate review.
We note that the district court’s failure to remand Torres
to custody immediately does trouble us since Sureties were
not present to object to continuing their obligation until the
time and date of surrender set by the district court. This is-
sue could have been avoided if Torres had been taken into
custody at the conclusion of the hearing. We suggest that
district courts consider requesting a representative from the
U.S. Marshals Service to be present in the courtroom for
bond revocation hearings, if resources permit. The situation
here may have been avoided had someone been available to
take Torres into custody at the time the district court re-
voked the bond. While the lack of U.S. Marshal presence ar-
guably led to Torres’s flight, Sureties cannot avoid their con-
tractual duties because of it.
III. CONCLUSION
The judgment of the district court is AFFIRMED.