United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber Judge.
Government brings a Motion for Judgment of Default on Bond
(Dkt. No. 60), requesting the Court enter a default judgment
in the amount of $50, 000 against corporate surety Foster
Bail Bonds. For the following reasons, the Court denies the
December of 2017, a grand jury in the Northern District of
Illinois indicted Himer Elisea (“Elisea”) for
possession with intent to distribute and distribution of one
kilogram of heroin in violation of 21 U.S.C. §§
841(a)(1) and 846. (Indictment, Dkt. No. 10.) Elisea, who
resided in Georgia, was arrested, arraigned, and released
subject to conditions. The conditions of his pretrial release
included: a 9:00 p.m. to 6:00 a.m. curfew; not to travel
outside the Northern District of Georgia; and GPS monitoring.
(Order Setting Conditions of Release, Ex. B to Mot. for J. of
Default on Bond, Dkt. No. 60-2.) Foster Bail Bonds
(“Foster”), a corporate surety located in
Georgia, secured Elisea's $50, 000 bond. (Appearance
Bond, Ex. A to Mot. for Default, Dkt. No. 60-1).
occasions, Elisea sought to modify the conditions of his
pretrial release. He first requested leave to travel to
Destin, Florida from May 25, 2018, through May 28, 2018,
purportedly for a work training conference. (Mot. to Modify
Conditions of Release, Dkt. No. 33.) Elisea provided a letter
from his employer, Catalina Rojas of P&C Construction
Group, to support this request. (Rojas Letter, Ex. A to Mot.
to Modify, Dkt. No. 33-1.) His second request was to modify
his curfew. Elisea's motion erroneously stated that the
curfew was 7:00 p.m. to 7:00 a.m. and asked that the curfew
be lifted so that he could work longer hours when required by
his employer. (Motion to Modify, Dkt. No. 40). The Court
granted both requests.
Court set Elisea's trial date for February 4, 2019.
(Minute Entry, Dkt. No. 43.) Just before trial, Elisea cut
his ankle bracelet and fled. Judge Lee signed a January 25,
2019, emergency order to revoke Elisea's bond and issued
a bench warrant for his arrest. (Order and Bench Warrant,
Dkt. Nos. 52, 53.) On February 14, the Government filed a
motion for a default judgment on Elisea's bond. On
February 15, the Government attempted to notify Foster of
this motion through an overnight FedEx shipment. (FedEx
label, Ex. A to Govt.'s Resp., Dkt. No. 68-1.) Foster had
changed addresses, however, and the shipment was returned.
(Id.) Foster did not receive actual notice of
Elisea's flight and of the Government's intention to
hold Foster liable for the bond until April 24, when the
Government filed its current Motion. Elisea remains a
Government now brings this Motion for Judgement of Default on
Bond against Foster in the amount of the surety, $50, 000.
must order bond forfeiture if the defendant breaches a bail
condition but may also set the forfeiture aside in whole or
in part if either “the surety later surrenders into
custody the person released on the surety's appearance
bond” or “it appears that justice does not
require bail forfeiture.” Fed. R. Crim. P.
46(f)(1)-(2). Setting aside the forfeiture in most cases is
inappropriate because it would undercut the purpose of bail
bonds, which is to insure the presence of the accused at
court. See United States v. Gutierrez, 771 F.2d
1001, 1004 (7th Cir. 1985). Accordingly, the Court must
usually require forfeiture when the defendant absconds and
remains at large, and only set aside forfeiture in rare
circumstances. Elisea remains at large, and Foster claims
that its investigation indicated that he is in Mexico; it
seems unlikely that Foster will be able to apprehend Elisea
and surrender him to the authorities. Thus, Foster argues
that it should avoid forfeiture because justice so requires.
Seventh Circuit provides a six-factor test to guide courts
when determining whether to set aside a bond forfeiture. The
factors are: “(1) the willfulness of the
defendant's breach of conditions; (2) the participation
of the sureties in apprehending the defendant; (3) the cost,
inconvenience and prejudice suffered by the government as a
result of the defendant's breach; (4) any explanation or
mitigating factors presented by the defendant;” (5)
whether the surety is a professional bondsman or one of
defendant's friends or family members; and (6) the
appropriateness of the amount of the bond.
Gutierrez, 771 F.2d at 1003-04 (internal citations
omitted). This test seems to presuppose a breach of a lesser
bond condition-for example, a defendant who used alcohol but
wasn't supposed to. But this test does not work very well
when the defendant violates the ultimate condition, which is
to be present for trial. When a defendant flees on the eve of
trial, the Government is obviously greatly prejudiced, and
the defendant's action was obviously willful. A defendant
who is a fugitive will not willingly appear in court to
present an explanation or mitigating factors. In that sort of
case, the Gutierrez test is not as relevant.
Recognizing this, the Seventh Circuit noted that in some
cases it is acceptable not to consult these factors.
See United States v. Torres, 807 F.3d 257,
265 (7th Cir. 2015) (“not unreasonable” where
defendant fled after ordered to surrender not to use the
Gutierrez test because the factors did not
“easily align”). However, other Seventh Circuit
precedent can guide the Court in deciding the outcome.
surety agreement is a contract, and a change in the terms of
release that increases the risk the surety agreed to entitles
the surety to revoke its commitment. United States v.
King, 349 F.3d 964, 966 (7th Cir. 2003). Because of
this, “a surety should be informed of any judicial
proceedings that potentially affect his or her
interests.” Torres, 807 at 265. A court may
discharge a surety's obligations if the surety is
uninformed of a material change to the terms of a
defendant's release and is unable to object.
King, 349 F.3d at 966-67.
material change is one that “significantly augments the
risk that the defendant will not appear when required.”
King, 349 F.3d at 967. If a material increase in
risk occurs to which the surety is unable to object and
“the incremental risk [comes] to pass” by the
defendant fleeing, the surety can be relieved of its
obligation. Id. In United States v. King,
349 F.3d 964 (7th Cir. 2003), the Seventh Circuit provided an
example analogous to the situation here, concerning a
hypothetical defendant authorized to travel to a conference
in New Orleans. The Seventh Circuit found that this travel
allowance was a material increase in risk, and:
if he had failed to return to Illinois, the realization of
that risk would have made it inappropriate to collect from
the sureties. Now suppose, however, that [the defendant]
did return and was again required to remain home
with electronic monitoring. If he sawed off the ankle
bracelet and bolted for parts unknown, the sureties would
remain liable-for that form of flight would ...