United States v. Figuerola

PER CURIAM Opinion: Dissent by Judge BRUNETTI. PER CURIAM: The sureties on defendant Alfonso Figue-rola’s bail bond appeal the grant of the government’s motion for judgment on default. We reverse and remand for further proceedings. I. Figuerola was indicted and arrested for money laundering. A magistrate judge set bail at $150,000 in the form of a fully secured bond. Shortly thereafter, the United States Attorney and Figuerola’s lawyer stipulated to a $150,000 bond secured by the signatures of Figuerola’s wife of four months, her sister, and four of her friends, and by the home of two of these friends.1 The magistrate judge approved the stipulation without comment, although she had previously rejected similar provisions as inadequate. The six sureties signed forfeiture agreements pledging to pay the total of $150,000 severally as well as jointly; the two who had agreed to do so deposited with the district court a deed of trust conveying their home to the government. Figuerola abided by the conditions of his release for about four months until confronted by an agent with information that he had been charged previously with a drug offense under an alias. Figuerola disappeared the same day and remains at large. The government moved for judgment on default against Figuerola and the sureties in the amount of the bond. The district court granted the motion. The sureties appeal. II. The sureties contend the bond was not enforceable because they did not understand the terms of the contract. We remand for a hearing on this issue. A bail bond is a contract between the government, the defendant, and his sureties, and is governed by general contract principles. See United States v. Toro, 981 F.2d 1045, 1047 (9th Cir.1992). One of these principles is that “the unilateral mistake of one party is grounds for relief where the other party ‘knew of or has reason to know1 of the mistake.” Libby, McNeil & Libby v. United Steelworkers, 809 F.2d 1432, 1434 (9th Cir.1987); see also Restatement of the Law of Contracts 2d § 153 (1981). The sureties point to various circumstances known to the government that suggest the sureties did not understand the obligation they undertook under the bond. The court acknowledged that the sureties, recent immigrants from Argentina and Peru, were primarily Spanish speakers and that even “the spokesperson for the group would have been more comfortable in the Spanish language.” Counsel for the defendant informed the court the sureties had no counsel and were unfamiliar with American legal processes or bail procedures. The forms signed by the sureties, though approved by government counsel, contained many obvious deficiencies. One surety signed a form clearly intended for the defendant, concluding “I acknowledge that I am the defendant in this case and that I am aware of the conditions of release.” Despite the statutory requirement that each surety have sufficient assets to pay the amount of [504] the bond,2 none of the forms signed by the sureties reflected that any of the sureties did.3 The defendant’s wife stated her net worth to be $10,000, while the couple who pledged their home stated their net worth to be $30,000 — apparently the joint equity in their home. The other three sureties signed blank affidavit forms containing none of the required financial information. These three sureties did disclose their annual incomes on a separate form, but this information provided further evidence they could not meet an obligation of $150,000: one reported an annual income below the poverty line ($3600), another slightly above ($14,400), and the last an annual income of $36,000. We have encouraged judicial officers “to be alert to the problems such sureties may have in comprehending the risks they assume and to the difficulties some may have in understanding proceedings conducted in English.” United States v. Frias-Ramirez, 670 F.2d 849, 852 (9th Cir.1982). Although the bond system is primarily aimed at serving society’s interest in securing the appearance of criminal suspects, the justice system should ensure at least minimal fairness to individual sureties, who are frequently family members or friends and may undertake heavy financial responsibility without sufficient understanding. Cf. United States v. Minor, 846 F.2d 1184, 1190 (9th Cir.1988) (stating that one factor in determining whether to set aside all or part of a forfeiture is “whether the sureties were professionals or defendant’s friends and family members”). Unfortunately, in this case, despite the magistrate judge’s misgivings about the arrangement (she had rejected largely similar terms at the initial bail hearing), she did not speak with the sureties or insist on adequate documentation before approving the stipulated bail agreement. At the forfeiture hearing, the sureties indicated they had been mistaken as to their obligation under the bond and offered to testify regarding their lack of understanding. The court declined to hear the testimony because of the press of its calendar, and because “[tjhey’ve been given two chances before[:] the last hearing and today.” But the court had continued the first hearing because the sureties had no counsel and declined to hear the witnesses at the second hearing even though advised that four of the sureties were in the courtroom and available to testify. Rejection of the offer was error. The sureties’ representation to the court that they had not understood their obligations under the bond, supported by the sureties’ language problem, them ignorance of the law, the many deficiencies in the bond documents, the failure to provide required information reflecting the sureties’ ability to pay, the gross disparity between the sureties’ revealed income and assets and the obligation they assumed, and the failure to inform them of the risks, justified further inquiry to determine whether the sureties were entitled to relief because of unilateral mistake. Vacated and remanded for further proceedings. Footnotes [1] The stipulation also abandoned the magistrate’s earlier condition that the court would hold a Nebbia hearing before approving the bond agreement. See United States v. Nebbia, 357 F.2d 303 (2d Cir.1966). Figuerola was apparently a confidential informant, and the sureties suggest the omission of a Nebbia hearing and acceleration of the bond process by stipulation reflected the government's greater desire for Figuerola’s [504] rapid return to the street than for assuring that the sureties were able to pay the bond. [2] Each surety must "have a net worth which shall have sufficient unencumbered value to pay the amount of the bail bond.” 18 U.S.C. § 3142(c)(1)(B)(xii). To demonstrate compliance with this requirement, each prospective surety must "provide the court with information regarding the value of the assets and liabilities of the surety ... and the nature and extent of encumbrances against the surety’s property.” Id. "No bond shall be approved unless the surety thereon appears to be qualified." Fed.R.Crim.P. 46(d). [3] The sureties contend that the failure to justify as required by Rule 46(d) and the other deficiencies in the bond documents were sufficient without more to render the bond agreement void. The government responds that "[s]ince Rule 46(d) was designed to protect the government [the sureties] cannot avail themselves of the magistrate's failure to follow its mandate.” United States v. Skipper, 633 F.2d 1177, 1180 (5th Cir.1981). This circuit has not yet considered the issue, and we need not do so now.