EDNY Judge Denies Government's Motion to Forfeit Bail Where Defendant Appeared as Required but Violated Condition Relating to Witness Contact

It is rare for the government to seek bail forfeiture for an event other than the defendant's failure to appear, but as an EDNY Magistrate Judge points out in United States v. Stathakis, 2007 WL 3124703 (E.D.N.Y. October 24, 2007), the majority of courts that have addressed the issue "have concluded that forfeiture of the bail bond under Rule 46(f) is an appropriate sanction for the violation of any condition of release, whether that condition relates to the defendant's appearing in court or not" (emphasis added).

Forfeiture is not a foregone conclusion, however.  As the Stathakis court notes, a court may apply several factors in deciding whether a forfeiture should be set aside "in whole or in part," including whether the defendant's breach of the bond was willful; the cost, inconvenience and prejudice suffered by the government as a result of the breach; any explanation or mitigating factors submitted by the defendant; whether the surety has assisted in the apprehension of the defendant; whether the surety is a professional, friend or member of the defendant's family; and, where the party moving for relief from forfeiture is the surety, the appropriateness of the amount of the bond.  In addition, where, as here, "the government materially increased the surety's risk without notice to and consent of the surety," the surety can be relieved of its obligations under the bond.

In Stathakis, the government moved for forfeiture of the defendant's $5 million bond, co-signed and secured by $3.5 million in property posted by a business friend.  The defendant's bail had been revoked because he had violated an express condition not to speak to any witnesses or potential witnesses.  The contact condition had been added at a court hearing subsequent to the bail hearing.  The defendant had always appeared in court as required. The friend, who had co-signed the bond and whose favor was now turning into a very costly one, argued pro se that the government's motion should be denied, primarily because he (the friend) never had notice of the condition prohibiting any contact with witnesses.

Agreeing with the surety, the judge denied the government's motion and granted the surety's motion to set aside the forfeiture under Rule 46(f)(2)(B).  Applying the factors outlined above, the court found most persuasive the fact that the surety, a friend and not a professional bondsman, was not familiar with the conditions set forth on the back of the bond form (which expressly included a directive not to intimidate or tamper with a witness), nor was he aware that contacting witnesses would be considered a violation sufficient to result in forfeiture of the bond.  "Mere contact with witnesses, unless explicitly made a condition at the time of the bail hearing, is not a crime in itself and therefore, contrary to the government's posture, cannot be inferred from the standard language of the Bond." Moreover, although the defendant was expressly advised at a subsequent hearing that contact with any witnesses was prohibited, the surety had not received notice of, nor been apprised of, that court hearing, where this new condition was added.  As such, he did not consent to it, and therefore relief from the obligations on the bond was appropriate.

Although all ended happily for the surety in this case, it is a reminder of just what an immense act of faith and loyalty is encompassed in a surety's signature on the bond.  Moreover, it is an act fewer and fewer will be willing to perform if the government seeks bail forfeiture for reasons other than a defendant's failure to appear.