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United States v. Elisea

United States District Court, N.D. Illinois, Eastern Division

December 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HIMER ALBERTO ELISEA, Defendant.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber Judge.

         The 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 Government's Motion.

         I. BACKGROUND

         In 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).

         On two 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.

         The 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 fugitive.

         The Government now brings this Motion for Judgement of Default on Bond against Foster in the amount of the surety, $50, 000.

         II. DISCUSSION

         A. Legal Standard

         A court 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.

         The 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.

         A 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.

         A 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 ...

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