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January 28, 2003


The opinion of the court was delivered by: I. Leo Glasser, United States District Judge.



On October 19, 2002, Luis Felipe Gallego ("Gallego"), 18 years of age, was arrested as he tried to enter the country with 4220.9 grams of heroin. Two days later, John and Neiza Gallego (the "sureties"), his adoptive father and natural mother, posted bail for him. After a bail hearing which both attended, they paid $10,000 into the court, and signed a bond for an additional $140,000. Neiza Gallego earns approximately $35,000 per year, and John Gallego approximately $17,000 per year. Tr. of bail hearing, October 21, 2002 at 26-27. On November 5, Luis Gallego violated the conditions of his bail by absconding. His mother later discovered that he was living in Colombia. She went there to try to persuade him to return to court. Though Gallego promised her that he would return, he refused to accompany her back to the United States, and remains at large. On November 12, 2002, the government moved for an order 1) forfeiting Gallego's bail, 2) entering judgment by default against all three of the Gallegos for $150,000, and 3) forfeiting to the United States the $10,000 cash posted as security.

The sureties do not contest the fact that Gallego violated the conditions of his bail and is presently at large, but urge the court to exercise its discretion to order only that they forfeit the $10,000 security, and not be forced to forfeit an additional $140,000, a sum they claim is far beyond their means. In support of their request, they urge the court to consider the following factors: 1) they were not fully cognizant of the risks they were exposing themselves to when they signed the bond; these were never explained to them by their son's attorney or the Magistrate Judge (this claim is untrue see Tr. of bail hearing at 34); 2) John Gallego, who only recently adopted the defendant, signed the bond only at the urging of his son's attorney, who told the Gallegos it would give a more "positive impression" to the court; 3) forfeiture of bail should not be a mechanism to enrich the government — in this case, the amount sought far exceeds the government's costs and inconvenience, considering that his criminal action has not proceeded far, and that there was no pre-arrest investigation; and 4) the impact of granting judgment for the full amount the government seeks would financially devastate them, as they own no property or assets, and earn only a small income which would be garnished from their modest salaries.


I. Legal Standard

Under Federal Rule of Criminal Procedure 46(f)(1), the court must declare bail forfeited if a condition of the bond has been breached. Rule 46(f)(2), however, allows the court to set aside a forfeiture of bail, "in whole or in part . . . upon such conditions as the court may impose" if "it appears that justice does not require bail forfeiture." Under Rule 46(f)(3), if the court does not set aside the forfeiture, it must, upon motion, enter a default judgment. Rule 46(f)(4), however, allows the court to remit a judgement enforcing such forfeiture "in whole or in part. . . under the same conditions specified in Rule 46(f)(2)." Under these rules, the court has broad discretion. United States v. Egan, 394 F.2d 262, 267 (2d Cir. 1968); United States v. Fook Dan Chin, 304 F. Supp. 403, 405 (S.D.N.Y. 1969); United States v. Velez, 693 F.2d 1081, 1083 (11th Cir. 1982); United States v. Bass, 573 F.2d 258, 259 (5th Cir. 1978). In determining whether a remission is called for, courts generally consider the following factors: 1) whether the breach was willful, 2) the cost, inconvenience and prejudice suffered by the government as a result of the breach, 3) any explanation or mitigating factors presented by the defendant, 4) whether the surety has assisted in the apprehension of the defendant, and 5) whether the surety is a professional or a friend or member of the defendant's family. United States v. Gambino, 1993 WL 300048, at *2 (S.D.N.Y. Aug. 5, 1993), aff'd, 17 F.3d 572 (2d Cir. 1994). These factors are meant to be illustrative, not exhaustive. Id. United States v. Lacey, 982 F.2d 410, 413 (10th Cir. 1992).

II. Consideration of the Factors

A. Willfulness

All of the evidence before the Court, uncontested by the sureties, demonstrates that Gallego's breach was willful. In violation of the conditions of his bail, Gallego failed to return to his parent's house by his assigned curfew. He then fled to Colombia without contacting his family. By no means can these actions be seen as the result of misunderstanding, carelessness or oversight. The Court therefore finds that Gallego's breach was willful.

B. Government's Cost, Inconvneience and Prejudice

Had Gallego come or been brought back to court, this consideration would weigh in favor of the sureties. There was no pre-arrest investigation, since Gallego first came to the authorities' attention when he was arrested while bringing heroin through customs. The government alleges no expense or inconvenience in locating Gallego since his breach, and indeed alleges no effort to do so. Since Gallego absconded only 17 days after his arrest, the criminal proceedings against him did not proceed far. Nevertheless, because Gallego is still at large, the amount of delay caused by his violation, and thereby the prejudice to the government, is unknowable and potentially indefinite. In most cases, remitting a forfeiture of bail while the defendant is still at large would undermine the purpose of bail — to insure the presence of the accused. United States v. Gutierrez, 771 F.2d 1001, 1004 (7th Cir. 1985); see also United States v. Diaz, 811 F.2d 1412, 1416 (11th Cir. 1987) ("The purpose of bond is to secure the presence of the defendant . . . and . . . [r]emission of forfeited bonds while their subjects are still at large would undermine that purpose.") (citing United States v. Skipper, 633 F.2d 1177, 1180 (5th Cir. 1981)); Velez, 693 F.2d at 1083 ("In most instances the surety seeks a reduction after the defendant has been returned to the court's jurisdiction"). Considering the totality of the circumstances, therefore, this factor cannot be said to weigh in the sureties' favor.

C. Explanation or Mitigating Factors

Gallego has offered no explanation for his breach, and has presented no mitigating factors; indeed, he has yet to return to court at all. The evidence shows that he simply absconded to avoid prosecution, and remains at large. ...

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