Commonwealth v. Bautista
Massachusetts Supreme Judicial Court
April 11, 2011
459 Mass. 306
Bail, Surety.
Ernest Solomon appeals an order of bail forfeiture after the United States Department of Immigration and Customs Enforcement took the defendant in the case into custody. The Supreme Judicial Court concluded that Solomon could not prove that an act of the United States government caused the defendant’s default. Therefore, the exception to the rule regarding the forfeiture of bail because noted in G.L.c. 276 § 70 did not apply. Furthermore, the Court rejected the defendant’s argument that order of the bail forfeiture was improper because the court ordered the forfeiture instead of the Commonwealth requesting it.
Facts
A grand jury indicted the defendant, a citizen of the Dominican Republic, with various drug-related crimes. On June 19, 2008, the United States Department of Immigration and Customs Enforcement (“ICE”) sent the defendant a notice to appear. The defendant was required to appear to explain why he should not be removed from the United States since he was in the US beyond the date he had been authorized to remain in the country. On June 20, 2008, the defendant confirmed on a form that he had received the notice to appear and checked off two boxes. One box indicated that the defendant requested a hearing before an immigration judge. The other box indicated that the defendant admitted that he was in the country illegally, it was not dangerous for him to return to his country, he would relinquish his right to a hearing, and he would return to his country.
On June 27, 2008 and September 15, 2008, the defendant was arraigned and his bail was set at $10,000 cash for each case.
In January 2009, a judge reduced the defendant’s bail to $5,000 for each case on the condition that the defendant surrenders his passport. Ernest Solomon, the appellant in this case, posted the cash bail and signed a form acknowledging that he would be liable for the amount specified in the conditions of the release if the defendant failed to appear in and abide by all orders of the court. Once Solomon posted bail and the house of corrections released the defendant, ICE took the defendant into its custody where the defendant awaited deportation.
One week later, Solomon filed a motion to have the bail returned. The hearing on the motion was reserved for March 2nd, the trial date for the defendant. On March 2, 2009, Solomon and the defendant’s attorney appeared in court, but the defendant did not. At a later hearing, the judge ordered the defendant’s bail to be forfeited and later found the defendant to be in default nunc pro tunc to March 2, 2009. In issuing his written findings, the judge found that $8,000 of the cash bail was Solomon’s. The judge also found that Solomon knew at the time he posted the bail that the defendant had acknowledged on the ICE form that he was in the country illegally, had waived a hearing, and intended to return to the Dominican Republic. The judge concluded that Solomon should have known about the defendant’s surrender to ICE. The judge also noted that the defendant’s default was his own fault and suggested that the defendant likely intended to avoid prosecution for the drug crimes by returning to the Dominican Republic. Lastly, the judge concluded that Solomon had not proved that the interests of justice would be served by remitting the bail. Therefore, the judge denied Solomon’s motion. Solomon appealed and the Supreme Judicial Court transferred the case to itself.
Return of the Bail Money
On appeal, Solomon argued that because of an act of the government of the United States, he was not able to surrender the defendant; therefore, per G.L.c. 276 § 70, the court should discharge Solomon from his obligation and return the cash bail. Solomon’s argument is an exception to the general rule that sureties are forfeited when the defendant fails to appear. G.L.c. 276 § 71.
After reviewing the history of bail in Massachusetts, the Court considered whether Solomon was entitled to recover the bail money. Per §70, Solomon needed to prove that an act of the government of the United States caused the defendant’s default and that Solomon was without fault. G.L.c. 276 § 70. The Court concluded that an act of United States government does not include removal from the United States when the defendant volunteered to be removed, but only includes acts that force the removal of the defendant. Consequently, the Court did not find that Solomon had presented sufficient evidence to prove that an act of the United States government compelled the defendant’s failure to appear in court. The notice to appear only initiated the charges against the defendant; there was no way of knowing if ICE took custody of the defendant because of the boxes he checked on the form that he returned to ICE.
Although the Court did not decide whether Solomon was without fault, the Court noted that the trial court made an erroneous finding that Solomon assumed the risk that ICE would deport the defendant because he knew the defendant’s immigration status and that there was a chance he could be deported. There could potentially be some cases where the defendant is not a citizen and there is a chance that ICE may deport him, but the surety could be entitled to a return of the bail money.
Improper Order of Bail Forfeiture
Solomon also argued that the order of bail forfeiture was not proper because the Commonwealth did not make a motion for the bail to be forfeited per Commonwealth v. Stuyvesant Ins. Co., 366 Mass. 611 (1975), and G.L.c. 276 § 74. The Court found that this is one method for bail forfeiture, but a court could also order the forfeiture of the bail on its own per G.L.c. 276 § 80. Therefore, the judge’s bail forfeiture order was proper.
- Prepared by JM
