Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 CR 470-9 -- Marvin E. Aspen, Judge.
Posner, Coffey, and Easterbrook, Circuit Judges.
The appellant, Esther Cruz, appeals the district court's denial of her motion to set aside the forfeiture and return the bond posted to secure Rafael Santiago's release. We affirm.
The facts of this case are not in dispute. Pursuant to a grand jury indictment handed down the previous day, Rafael Santiago was arrested July 23, 1985, and charged with drug trafficking; bond was set at $25,000 cash. Santiago was unable to post the required cash bond and moved for a modification of the bond and requested that the court allow a friend, the appellant Cruz, to post real estate as security in lieu of Santiago's posting cash. On August 14, 1985, the appellant executed an "Assignment of Interest in Real Estate to the United States of America" and a "Forfeiture Agreement." The Forfeiture Agreement provided:
"Pursuant to Order entered by Magistrate Joan Humphrey Lefkow in case number 85 CR 470 on August 15, 1985, Esther Cruz hereby agrees that:
The real property posted as security on the $25,000 bond set in case number 85 CR 470, said property being commonly known as 1714 North 17th Avenue, Melrose Park, Illinois, shall be forfeited to the United States of America should the defendant Rafael Santiago fail to appear as required by this Court or otherwise violate any condition of this Court's order of release."
On that date she signed a forfeiture agreement that provided that her real estate (property) would be forfeited to the United States Government if the defendant Santiago "violate[d] any condition of [the] Court's order of release." Magistrate Patrick Mahoney at the time of approving the filing of the real estate interest in lieu of the $25,000 bail issued an order of release dated August 16, 1985 setting forth Santiago's conditions of release in part in the following language:
"this Court hereby orders defendant's pretrial release upon his execution of an unsecured appearance bond in the amount of $25,000, secured by the property of Esther Cruz, 1714 17th Avenue, Melrose Park, subject to the following conditions:
1. That defendant not commit a Federal, state or local crime during the period of his release, . . ."
On February 3, 1986, Santiago was named in an indictment that superseded the original indictment of July 22, 1985. The superseding indictment charged him with the same offenses contained in the original indictment as well as additional drug offenses. The district court allowed Santiago's bond posted in response to the charges in the original indictment to "stand as bond in this instance." On February 7, 1986, while on bail, Santiago was arrested once more and again charged with a drug related offense specifically with conspiracy to distribute heroin and cocaine between January 24 and February 5, 1986 (crimes not set forth in the original or superseding indictments). On February 10 the prosecutor filed a motion to revoke Santiago's bail and detain him. The next day a lengthy detention hearing was held before Magistrate Lefkow consisting of 36 pages of transcribed testimony. James Whitmer, a special agent of the FBI in Chicago, the only witness called, testified to Santiago's involvement in the sale of drugs in Chicago in the latter part of January and early February 1986. His testimony included the fact that (1) an informant had purchased heroin from Santiago, (2) government agents monitored a telephone call during which arrangements were made for a drug sale involving Santiago, (3) he recognized Santiago's voice on a tape recording made later that same day, January 31, 1986, when Santiago sold the drugs to the government informant, and (4) when Santiago was arrested he had in his possession six marked government twenty dollar bills. Whitmer further testified that the informant had told him that the back room of La Abusa Dora Lounge, a tavern operated by the appellant Cruz, was used to process and package heroin and cocaine. Whitmer also testified that during a search of the tavern's back room on February 7, 1986, FBI agents seized a "triple-beam balance" scale which is commonly used to weigh narcotics. After hearing this testimony, Magistrate Lefkow found "that the defendant [Santiago] is a danger to the community for continuing to engage in -- at least probable cause that he continued to engage in the distribution of narcotics." In addition, the Magistrate recited in her February 21 order of detention that "no condition or combination of conditions [would] reasonably assure the safety of persons and the community." Magistrate Lefkow ordered Santiago detained finding that he had violated one of the conditions of his release that read that he "not commit a . . . crime during the period of his release" and that both the defendant and Cruz were so advised.
On March 3 Judge Aspen accepted a plea agreement in which Santiago pleaded guilty to three counts charged in the superseding indictment. In the plea agreement presented to the court the government agreed as follows, that it:
"will not prosecute defendant Rafael Santiago for any criminal violations relating to the charges described in the criminal complaint [of February 7, 1986] in case number 86 CR 83 but will fully apprise the District Court and the United States Probation Office of the nature and scope and extent of defendants [sic] conduct regarding those charges and related matters in aggravation and mitigation relevant to the issue of sentencing. "
After accepting the guilty plea, the trial court ordered that Santiago's "bond [Cruz-Real Estate] be forfeited."
On May 7, 1986 the appellant Cruz, pursuant to Rule 46(e)(2) of the Federal Rules of Criminal Procedure, filed a motion to set aside the forfeiture and return the bond. In support of her motion Cruz argued that (1) Santiago never missed any court dates, (2) there was no evidence that she knew of Santiago's illegal activities or facilitated them in any manner, (3) she signed ambiguous documents in pledging her real estate, and (4) the government suffered no injury as a result of Santiago's alleged drug transactions. After the trial judge denied her ...