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April 10, 2001


The opinion of the court was delivered by: Sweet, District Judge.


Defendant Lenny Batista ("Batista") has applied for an order directing that he has complied with the bail conditions imposed by the Honorable Andrew J. Peck, Magistrate Judge. Specifically, Batista seeks a ruling to the effect that the government's decision not to approve three proffered cosigners was arbitrary, and that they be approved. The government opposes the motion on the grounds that the proposed suretors are neither financially responsible nor able to exert moral suasion over Batista. In the alternative, Batista seeks to have the bail conditions modified.

For the reasons set forth below, the motion to approve Angel L. Rodriguez is granted, but the motion to approve the remaining proposed suretors will be denied, although the number of suretors required will be reduced from five to three.

At a bail hearing on December 13, 2000, Judge Peck imposed the following release conditions on Batista: $250,000 personal recognizance bond co-signed by five financially responsible persons and secured by $15,000 in cash, surrender of travel documents, and home incarceration with electronic monitoring.

These conditions were consistent with the recommendation of the United States Pretrial Services office, which views Batista as a flight risk due to the fact that he has family ties in Puerto Rico, misrepresented facts regarding his criminal history when interviewed by that office, and faces a mandatory ten-year minimum term if convicted. Moreover, the government represents that one of Batista's codefendants has already fled the jurisdiction.

As of January 16, 2001, when this Court held a bail modification hearing, Batista's brother, Albert Santiago, had signed the bond for $15,000 in cash. At the hearing, Batista moved to amend the conditions from five to three cosigners, or in the alternative that he be released once three suretors signed the bond, and granted three additional weeks in which to secure two additional co-signers. The motion was denied, although Batista was granted leave to renew his application once three suretors had co-signed the bond.

Legal Standard for Bail Conditions

Neither party has provided any authorities regarding the appropriate standard for assessing the terms, "financially responsible." However, Judge Peck stated at the bail hearing that the suretors would need to possess enough assets so that they would collectively be able to pay the full amount of the bond if necessary. (Dec. 13, 2000 Tr. at 14.) In a similar case, the Honorable Charles S. Haight has confirmed that the relevant standard is "the ability to pay the amount specified in the bond if [the defendant] fails to appear at trial." United States v. Gotay, 609 F. Supp. 156, 156 (S.D.N.Y. 1985). See also 18 U.S.C. § 3142(c)(1)(B)(xii) (requiring that sureties be "solvent," with "a net worth which shall have sufficient unencumbered value to pay the amount of the bail bond.").

In addition to the requirement of financial responsibility, a defendant must show that the proposed suretors exercise moral suasion to ensure the defendant's presence at trial. As the Honorable Milton Pollack has noted:

[T]he Court is entitled to have a moral as well as a financial assurance . . . of the defendant's appearance in Court when required . . . [T]he function of bail is not to purchase freedom for the defendant but to provide assurance of his reappearance after release on bail. . . . The bail is not for the purpose of providing funds to the government to seek the defendant should he go underground or flee the jurisdiction. Bail is intended as a catalyst to aid the appearance of the defendant when wanted.

United States v. Melville, 309 F. Supp. 824, 826-27 (S.D.N.Y. 1970). Appropriate factors to consider when weighing whether a proposed suretor exercises moral suasion vary from case to case, but may include the strength of the tie between the suretor and defendant (i.e. family or close friend, close or estranged), the defendant's roots in the community, and the regularity of contact between suretor and defendant. See, e.g., U.S. v. Sierra, No. 99 CR. 962(SWK), 1999 WL 1206703 (S.D.N.Y. Dec. 16, 1999) (considering with approval local community ties and moral suasion exerted by friends and cousins in the United States); U.S. v. Julio Rodriguez, No. 84 Cir. 841(JFK), 1984 WL 1380, *2 (S.D.N.Y. Dec. 27, 1984) (rejecting offer of defendant's cousin-in-law to post bond on Florida house owned by his corporation); Melville, 309 F. Supp. at 828 (considering defendant's roots in the community and analogizing suretor to "character witness at trial"). See also 18 U.S.C. § 3142(g)(3)(A) (enumerating factors to consider in setting bail conditions).

The number of suretors to be required is within the discretion of the court, and should be tailored to meet the same goals as the financial and moral suasion conditions, namely ensuring the defendant's presence at trial without imposing an undue burden.

Proposed Suretors

Batista has located three additional individuals in Puerto Rico who were willing to sign the bond. However, the government has rejected all of them on the ground that they are of insufficient means to constitute "financially ...

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