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.
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
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.
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 ...