State of Tennessee v. Abdirizak Omar Yussuf ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 11, 2009 Session
STATE OF TENNESSEE v. ABDIRIZAK OMAR YUSSUF
In re: RADAR BONDING COMPANY, INC.
Direct Appeal from the Criminal Court for Davidson County
No. 2005-C-2589 J. Randall Wyatt, Jr., Judge
No. M2008-01161-CCA-R3-CD - Filed November 5, 2009
Appellant, Rader Bonding Company, Inc., appeals the judgment of the Davidson County Criminal
Court ordering complete forfeiture of the bail bond in the case of Defendant, Addirizak Omar
Yussuf. Appellant argues that the State’s refusal to seek extradition of Defendant, who had fled to
Sweden, constituted an extreme case under State v. Frankgos, 114 Tenn. 76, 85 S.W. 79, 80-81
(Tenn. 1905) which relieved Appellant of its responsibility under the bond agreement. Following
a review of the record and the parties’ briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ., joined.
Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, Abdirizak Omar Yussuf.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Amy Eisenbeck, Assistant District Attorney
General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
Defendant was indicted on September 20, 2005, on one count of attempted second degree
murder and one count of aggravated assault. Appellant was surety on the bail bond issued for
Defendant in the Davidson County Criminal Court in the amount of $50,000. Defendant failed to
appear before the court for a jury trial on May 22, 2006. A conditional forfeiture was taken against
Defendant on that date, and a capias was issued for his arrest. The trial court also issued a writ of
scire facias notifying Appellant that the amount of the bond would be forfeited unless within 180
days Defendant was produced or Appellant showed cause why the bond should not be forfeited. On
March 9, 2007, the trial court issued a final forfeiture in the amount of $50,000. Following a hearing
on June 8, 2007, the trial court reissued the writ of scire facias, entered a conditional judgment
against Appellant, and extended Appellant an additional 180 days within which to produce
Defendant.
A hearing on the final forfeiture of Defendant’s bond was heard on February 21, 2008. Jerry
Jordan, the secretary for Appellant, testified that he maintained the company’s files for each person
for whom the company had issued a bond. Defendant’s file contained a report from Jonathan
Shorthouse, the investigator hired by Appellant to locate Defendant after he failed to appear in court.
Mr. Jordan stated that according to Mr. Shorthouse’s investigation, it was believed that Defendant,
a Somalia national, was currently residing somewhere in Sweden with his girlfriend, Shukri Ahmed.
Ms. Ahmed was also a Somalian who had been given asylum by the Swedish government under the
United Nations Relocation Effort. The information was provided primarily by Defendant’s family
members and members of the Somalian community in Davidson County. Mr. Jordan stated that
Appellant had not yet incurred the costs necessary to ascertain Defendant’s exact location within
Sweden because the State had indicated that it did not wish to seek extradition. Mr. Jordan said,
however, that Appellant stood ready to assume the expenses associated with returning Defendant to
the United States should the State choose to pursue extradition.
The State called Assistant District Attorney General Lisa Naylor as a witness. General
Naylor stated that she had participated in the extradition from Mexico of three Mexican nationals
charged with Class A felonies in Tennessee under the extradition treaty between Mexico and the
United States. General Naylor stated that the extradition process involved significant time, expense,
and State resources. General Naylor explained that in order to obtain an unlawful flight from
prosecution warrant through the United States Attorney’s Office, the State was essentially required
to submit its entire case-in-chief supporting the charges. General Naylor stated that because of the
“rigorous process” of obtaining extradition, the State pursued extradition only in those cases
involving the most serious criminal charges.
The trial court found that Appellant had assumed the risk that Defendant might flee the
State’s jurisdiction at the time it agreed to secure Defendant’s appearance in court. The trial court
acknowledged Appellant’s reluctance to incur the expense necessary to locate Defendant’s current
address in Sweden in view of the State’s refusal to seek extradition, but found that “but for Mr.
Shorthouse’s report based on secondhand knowledge, the whereabouts of the Defendant would
remain unknown.” Accordingly the trial court found “that the Defendant’s whereabouts are
unconfirmed and without specificity.”
The trial court found that:
despite the arguments and proof offered by [Appellant], that the circumstances
present in the Defendant’s matter do not arise to an “extreme case” as contemplated
by the Court of Criminal Appeals. The Court finds that the Defendant’s flight to
another county was a foreseeable contingency when his bond was secured.
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Accordingly, the trial court found that Appellant’s bond in the amount of $50,000 was
subject to final forfeiture.
II. Analysis
On appeal, Appellant argues that the trial court abused its discretion in entering a final
forfeiture judgment against Appellant because the State’s refusal to seek Defendant’s extradition
from Sweden, notwithstanding Appellant’s responsibility for the costs incurred in the process,
rendered Appellant’s contractual obligation to produce Defendant impossible. Relying on In re
Sandford & Sons Bail Bonds, Inc., 96 S.W.3d 199 (Tenn. Crim. App. 2002), Appellant contends that
the State’s refusal to seek extradition constitutes a breach of the State’s implied covenant not to
interfere, through action or inaction, with the covenant between Appellant, as surety, and Defendant,
as principal.
The forfeiture of bail bonds is governed by Tennessee Code Annotated sections 40-11-201
through 40-11-215. Specifically, Tennessee Code Annotated section 40-11-201(a) authorizes a trial
court to enter a conditional judgment of forfeiture against a defendant and his sureties when a
defendant fails to appear in court in accordance with a bail bond agreement. Upon the entry of a
conditional judgment, the trial court must additionally issue a writ of scire facias requiring the
defendant and his sureties to show cause why the judgment should not become final. T.C.A. § 40-
11-202. To this end, the trial court must afford the defendant and his sureties a hearing prior to final
forfeiture. Indemnity Ins. Co. of North America v. Blackwell, 653 S.W.2d 262, 264 (Tenn. App.
1983). At this hearing, a surety or bonding company may petition the court for relief from forfeiture.
However, the surety bears the burden of proving that its petition should be granted. In re Paul’s
Bonding Company, Inc., 62 S.W.3d 187, 193 (Tenn. Crim. App. 2001).
A surety may be exonerated from forfeiture by its surrender of the defendant to the court at
any time before payment of the judgment of forfeiture. T.C.A. § 40-11-203. Otherwise, the surety
must seek relief pursuant to Tennessee Code Annotated section 40-11-204. That statutory provision
provides that:
the judges of the general sessions, circuit, criminal and supreme courts may receive,
hear and determine the petition of any person who claims relief is merited on any
recognizances [or bail bonds] forfeited, and so lessen or absolutely remit the same,
less a clerk’s commission . . ., and do all and everything therein as they shall deem
just and right, and consistent with the welfare of the state, as well as the person
praying such relief.
A trial court’s discretion under Tennessee Code Annotated Section 40-11-204 is “broad and
comprehensive, empowering trial courts to make determinations ‘in accordance with [their]
conception of justice and right.’” State v. Shredeh, 909 S.W.2d 833, 835 (Tenn. Crim. App. 1995)
(quoting Black v. State, 154 Tenn. 88, 290 S.W. 20, 21 (1927)). “Accordingly, in reviewing the trial
court’s determinations in the instant cases, we apply an abuse-of-discretion standard.” In re Paul’s
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Bonding Co., 62 S.W.3d at 194 (citing State v. William Bret Robinson, No. E1999-00950-CCA-R3-
CD, 2000 WL 1211316, at *3 (Tenn. Crim. App., at Knoxville, Aug. 28, 2000)). Under an abuse-of-
discretion standard, this Court grants the trial court the benefit of its decision unless the trial court
“applied an incorrect legal standard, or reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997);
see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
In In re Paul’s Bonding Co., we further stated:
Of course, in order to determine whether the trial court in these cases applied an
incorrect legal standard, we must define the correct legal standard. In this regard, our
supreme court and this Court have narrowly circumscribed the circumstances in
which a trial court possesses the authority to grant relief pursuant to Tennessee Code
Annotated section 40-11-204. We acknowledge the apparent contradiction in
limiting a trial court’s “broad and comprehensive” discretion to make determinations
in accordance with its conception of justice and right to a small number of
circumstances. Nevertheless, citing our supreme court’s decision in State v.
Frankgos, 114 Tenn. 76, 85 S.W. 79, 80-81 (Tenn. 1905), we have stated that
[t]he authority to relieve sureties from liability may only be exercised
in extreme cases, such as the death of the defendant or some other
condition making it impossible for sureties to surrender the
defendant; the good faith effort made by the sureties or the amounts
of their expense are not excuses.
Shredeh, 909 S.W.2d at 836; see also State v. Le Quire, 672 S.W.2d 221, 222-223
(Tenn. Crim. App.1 984). Our supreme court in Frankgos, 85 S.W. at 81, explained
that “[t]o relieve sureties upon [lesser] grounds ... would encourage defendants to
forfeit their bail, and bring about a very lax administration of the criminal laws of the
state.”
In re Paul’s Bonding Co., 62 S.W.3d at 194.
A bail bond is “a contract between the government on one side and the criminal defendant
and his surety on the other, whereby the surety assumes custody of the defendant and guarantees to
the State either the appearance of the defendant in court or the payment of the full amount of bail set
by the court.” In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d at 202. Typically, prior to or
simultaneously with the execution of a bail bond,
[a professional] bondsman and the defendant form a contract in which the bail
bondsman agrees, for a fee, to act as the defendant’s surety. In addition to paying the
fee, the defendant agrees to appear in court for all scheduled appearances. The
bondsman only makes a profit when he is able to collect fees from the defendant and
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avoid paying the amount of the bond to the court.... His business depends on the
appearance in court of his clients.
There is, of course, risk that the defendant will sign the contract with the bondsman,
secure release and leave the jurisdiction or refuse to appear in court. To protect his
investment, the bondsman must be thorough not only in assessing the risk of flight
before writing the bond, but in keeping tabs on the defendant after the bond is
written. The profit motive is presumed to insure diligent attention to his custodial
obligation.
Id. (citing Holly J. Joiner, Note, Private Police: Defending the Power of Professional Bail Bondsman,
32 Ind. L. Rev. 1413, 1422 (1999)).
The State’s role in a bail bond contract was reviewed extensively by this Court in In re
Sanford &Sons Bail Bonds, Inc. We first observed that the restrictive interpretation of Tennessee
Code Annotated section 40-11-204 “is grounded in part in public policy considerations, Frankgos,
85 S.W. at 81, but also seemingly stems from the rule articulated by the United States Supreme Court
in Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 369, 371 (1873), that a surety will be relieved of its
obligation under a bail bond only when performance is rendered impossible by a supervening act of
God, act of the State that is the beneficiary of the bail bond, or act of law that is operative in the
beneficiary State and obligatory in its effect upon her authorities.” Id. at 203. The Taylor rule
reflects the common law of contracts which requires:
that if a party charge himself with an obligation possible to be performed, he must
abide by it unless performance is rendered impossible by the act of God, the law, or
the other party. Unforeseen difficulties will not excuse performance. Where the
parties have made no provision for a dispensation, the terms of the contract must
prevail.
Columbus Ry. Power & Light Co. v. Columbus, 249 U.S. 399, 412, 39 S. Ct. 349 (1919).
As a party to the bail bond contract, “t]here is also an implied covenant on the part of the
government, when the recognizance or bail is accepted, that it will not in any way interfere with th[e]
covenant between [the principal and his sureties], or impair its obligation, or take any proceedings
with the principal which will increase the risks of the sureties or affect their remedy against him.”
Reese v. United States, 9 Wall. 13, 76 U.S. 13, 21-22 (1869). That is, “a surety does not assume the
risk that the State will interfere with the surety’s performance of its obligation under the bail bond.”
In re Sandford & Sons Bail Bonds, Inc., 96 S.W.3d at 204 (citing Reese, 76 U.S. at 21-22). “A
State’s material breach of this implied covenant will relieve a surety of its obligation under a bail
bond.” In re Sandford & Sons Bail Bonds, Inc., 96 S.W.3d at 204 (citing Reese, 76 U.S. at 22,
United States v. Galvez-Uriarte, 709 F.2d 1323, 1324-25 (9th Cir. 1983)).
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Appellant argues that the State materially breached its covenant not to interfere with
Appellant’s contractual obligations by refusing to extradite Defendant from Sweden. The cases
relied upon by Appellant in its brief in support of its argument illustrate the various ways a State’s
actions may relieve a surety of its responsibilities under the bond agreement. See Galvez-Uriarte,
709 F.2d at 1324-25 (finding that the State breached its implied covenant not to interfere with the
contractual arrangement between the surety and the defendant when the Assistant United States
Attorney agreed with defense counsel that the defendant could return to Mexico pending trial in
violation of the terms of the bond agreement); State v. Liakas, 86 N.W.2d 373, 377-380 (Neb. 1957)
(holding that the surety’s obligation under a bail bond agreement was discharged when the State
voluntarily waived jurisdiction over the defendant and extradited him to another state to stand trial
for offenses committed in that jurisdiction); Octavio Castanada d/b/a O. Castaneda’s Bail Bonds
Company v. State, 138 S.W.3d 304 (Texas Crim. App. 2003) (addressing the issue of the statutory
procedure a bonding company must pursue under Texas Code of Criminal Procedure Article 17.16
to raise a defense of liability on its bond when the principal is released to the custody of another
jurisdiction, in that case, the INS).
As reflected in these cases and as emphasized by this Court in In re Sandford & Sons Bail
Bonds, Inc., however, it must be the action of the State which causes “the surety’s inability to satisfy
its obligation under the bail bond.” Id. at 204 (citations omitted). In In re Paul’s Bonding Company,
Inc., three Mexican nationals were indicted on drug and extortion charges in Tennessee. Id., 62
S.W.3d at 189. After the Appellant agreed to secure the appearance of each defendant, the
defendants fled to Mexico. Id. Appellant sought relief from the conditional judgments of forfeiture
arguing, among other issues, that it had entered into the bail bond contract with the understanding
that an extradition treaty existed between Mexico and the United States. Id. at 191. After the
defendants failed to appear for a scheduled court date, however, Appellant learned from the Office
of the District Attorney General “that, as a practical matter, the extradition treaty between the United
States and Mexico is unenforceable,” and the District Attorney General declined to institute
extradition proceedings against the defendants. Id. Appellant argued that “the existence of an
extradition treaty between the United States and Mexico warrants relief as the treaty lulled the
bonding company into a “false sense of security.” Id. at 194.
This Court concluded that “the lack of an enforceable extradition treaty between the United
States and Mexico does not warrant relief.” Id. at 195 (emphasis in original). We continued:
[i]f the appellant did not know the difficulties inherent in recapturing fugitives who
have fled to Mexico, it was the appellant’s business to obtain the relevant
information prior to entering into bail bond agreements with Mexican citizens.
Nothing in the record before this court suggests that the relevant information was
unavailable to the appellant at the time of the execution of the bail bonds at issue.
Indeed, [counsel for the bonding company] conceded at the September 8, 1999
hearing that the appellant could have obtained the information through adequate
investigation.
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Id. (see also Shredeh, 909 S.W.2d 836 (concluding that the lack of an extradition treaty between
Jordan and the United States under the facts of that case did not warrant relief under Tennessee Code
Annotated section 40-11-204).
We observed in In re Sandord & Sons Bail Bonds, Inc. that our previous holding in In re
Paul’s Bonding Company, Inc. reflects the principle that “a ground for relief asserted by the surety
will not constitute an ‘extreme case’ for purposes of Tenn[essee] Code Ann[otated] [section] 40-11-
204 if it is a realization of a risk assumed by the surety in entering into the bail bond agreement.”
In re Sandford & Sons Bail Bonds, Inc., 96 S.W.3d at 203.
In In re Sandford & Sons Bail Bonds, Inc., the defendant, a Mexican national, was
surrendered to the Immigration and Naturalization Service by the Hamblen County Sheriff’s
Department after the Appellant had entered into a bail bond contract with the defendant. Id. at 201.
The trial court denied Appellant relief from the entry of a final judgment of forfeiture without a
hearing, finding only that the defendant’s deportation to Mexico did not constitute a ground for
relief. We concluded, however, that the trial court erred in not conducting a hearing to determine
if under the facts and circumstances presented in the case, the surety’s failure to produce the
defendant was caused by the State’s conduct or whether the defendant’s deportation was a
foreseeable risk assumed by the surety upon execution of a bail bond contract.
As noted by this Court, “in entering into bail bond agreements involving aliens, sureties are
necessarily cognizant of and assume the risk that, subsequently, the defendant will engage in conduct
subjecting him to deportation proceedings.” Id. at 205. On the other hand, “[t]he surety does not
assume the risk that the State will encourage the deportation of a defendant or otherwise refuse to
cooperate in a defendant’s or surety’s efforts to stay deportation proceedings pending trial.” Id.
“Thus, to the extent the State’s action or inaction effects a defendant’s deportation and renders the
surety’s performance of its obligation under the bail bond impossible, a court may grant relief
pursuant to” Tennessee Code Annotated section 40-11-204. Id.
In the case sub judice, the breach of the bond agreement at issue occurred when Defendant
voluntarily fled the United States, through no action or inaction on the part of the State. The risk of
a defendant’s flight is inherent in every bail bond agreement. In re Sandford & Sons Bail Company,
Inc. 96 S.W.3d at 202. Thus, the bondsman must evaluate the risk of flight before writing the bond
and be diligent “in keeping tabs on the defendant after the bond is written.” Id., (quoting Holly J.
Joiner, supra, at 1422). “The exercise of due diligence by bail bond agents in processing bail bonds
is expected as a matter of due course.” In re Paul’s Bonding Company, Inc., 62 S.W.3d at 194.
Mr. Jordan was not the agent who wrote Defendant’s bond agreement and, therefore, had no
personal knowledge as to what questions were asked when Defendant’s bail bond contract was
executed. Nonetheless, we note that Appellant’s investigation of Defendant (which occurred
approximately nineteen months after Defendant failed to make a scheduled court appearance)
revealed that Defendant, a Somalian national, initially traveled to the United States with his adoptive
mother’s “family unit” to escape the Somalian wars, that Defendant and the victim of the charged
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offenses belonged to different warring Somalian clans, that Defendant had impregnated Ms. Ahmed
at some point while she was in the United States, that Defendant was ostracized by his family unit
for impregnating Ms. Ahmed out of wedlock and “for not adhering to social customs,” and that
Defendant fled to Sweden after his adoptive family’s ostracization. Appellant faxed a report of its
investigation to the United States Marshall’s Office but took no further steps to confirm the
information gained through the interviews or to determine Defendant’s exact location.
Appellant, as surety, “knowingly and absolutely” contracted that Defendant would be made
available in court when scheduled. See Frankgos, 85 S.W. at 81. The State’s policy decision not
to pursue extradition after Defendant fled was not the conduct that caused the breach of contract.
See State v. Seybert, 745 P.2d 687, 689 (Mont. 1987) (concluding that the State “does not have a
duty to remedy the surety’s breach of contract” by seeking extradition of the defendant after the
defendant voluntarily fled the state’s jurisdiction); State v. Ohayon, 467 N.E.2d 908, 911-12 (Ohio
App. 1983) (concluding that a surety will not be relieved of its obligations when it is unable to
produce the defendant due to foreign policy decisions as between the United States and Israel when
the defendant voluntarily fled the country prior to his initial court appearance).
Under Defendant’s theory that a surety is absolved of responsibility if the State decides not
to pursue extradition of a missing defendant, a bonding company’s obligations would be greatly
reduced. That is, if a bond is issued to a foreign national who then voluntarily flees the country, the
surety would be relieved of all obligation if the State decides that pursuing extradition is not in the
best interest of the State. In other words, the State would serve as the “surety’s surety,” a
relationship that is contradictory to the policy considerations examined in Frankgos. In Frangos, our
supreme court stated that:
[the statutory provision granting relief from a surety’s bail bond obligations] certainly
was not intended to authorize courts to relieve sureties upon bonds and recognizances
of parties charged with crime, who had made default and were still at large, merely
because the sureties had, in good faith, and at much expense, made unavailing efforts
to recapture them. These obligations are not mere idle forms, but are required and
made for the purposes expressed in them. Good faith is not involved. The sureties
knowingly and absolutely contract that their principal shall be present at the time in
the obligation stated, to answer the state upon the charge preferred against him; and,
if they fail to do so, they must comply with the terms of the bond or recognizance.
A wise and sound public policy requires a rigid enforcement of these bonds when
breached.
Frankgos, 81 S.W. at 81.
Based on our review, we conclude that the trial court did not err in entering a final judgment
of forfeiture when Defendant voluntarily fled the country and the surety was unable to produce him
in court as called for in the bail bond contract. Appellant is not entitled to relief on this issue.
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As a corollary argument, Appellant directs our attention to Tennessee Code Annotated
section 40-11-201 which addresses the situation in which a surety is unable to produce a defendant
because she or he is imprisoned in another state. This section provides that the appearance or bail
bond remains in effect until a detainer is filed against the detaining authority, and the surety remains
responsible for the expenses of returning the defendant to the State once he is released by the other
jurisdiction. T.C.A. § 40-11-201(c). Effective June 20, 2008, the legislature amended this statutory
section to provide that if the detainer request is refused or the detaining authority releases the
defendant notwithstanding the filing of the detainer, “the surety may not be liable in the
undertaking.” 2008 Tenn. Pub. Acts ch. 1131 (emphasis added).
Defendant submits that the 2008 amendment “shows a clear public purpose that the surety
and the State should both work together” in returning a defendant to Tennessee, and compares the
obtaining of an unlawful flight from prosecution warrant with the issuance of a detainer. However,
extradition is an entirely different procedure than detainer. The Interstate Compact on Detainers,
codified at Tennessee Code Annotated sections 41-23-101 to-209, has as its primary purpose to
provide cooperative procedures among the states for the expeditious and orderly disposition of
charges against a prisoner. Dillon v. State, 844 S.W.2d 139 (Tenn. 1992). Extradition, however,
is the process by which a person who is not in custody may be lawfully arrested and returned to
another state or jurisdiction for offenses committed in that state. Extraditions between states are
covered by the Uniform Criminal Extradition Act, Tennessee Code Annotated sections 40-9-101 to
-130. Extraditions between countries are handled through treaties. It is presumed that the legislature
was aware of the existing state of the law concerning extraditions and detainers when it enacted
Chapter 1131 of the Tennessee Public Acts, and chose not to address scenarios involving
extraditions. State v. Adams, 45 S.W.3d 46, 59 (Tenn. Crim. App. 2000) (citing Owens v. State, 908
S.W.2d 923, 926 (Tenn. 1995)). Appellant’s argument in this regard affords no relief.
CONCLUSION
After a thorough review, we affirm the judgment of the trial court.
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THOMAS T. WOODALL, JUDGE
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