Professional Bail Bonds, Inc. v. State

CHARLES E. MOYLAN, Jr., Judge, retired, specially assigned. The bail bondsman is not without some coincidental interest in a forfeiture, but he must not be allowed to exaggerate that interest. The forfeiture of collateral remains, at its root, a matter between the State and the defendant, not a matter between the State and the bail bondsman. The forfeiture of a bond is not a punishment of the bail bondsman.

It is no more than a continuing incentive to have him find the defendant and return him to the jurisdiction of the court. .... Pantazes v. State, 153 Md.App. 23, 40 , 153 Md.App. 23 , 834 A.2d 975 (2003) The defendant in this case was Santos Amoldo Izaguirre. He is not a party to this appeal. The bail bondsman is.

It is the appellant, Professional Bail Bonds, Inc. The State is the appellee. What Pantazes tells us about the relationship among those three parties is an overarching truth that needs periodic restatement. ²²⁹ The Bond Is Forfeited On April 4, 2007, the Grand Jury for Howard County filed an indictment against the defendant, charging him with the felony of a third-degree sex offense. The Circuit Court for Howard County allowed the defendant to remain free pending his trial on the condition that he post bail in the amount of $85,000 to guarantee his appearance for trial. At that point, of course, the defendant had the option of posting the $35,000 collateral in any number of ways.

He himself could have deposited $85,000 with the clerk of the court. He could have had a family member or a friend act as his surety and post the $35,000 collateral on his behalf. He could, as is frequently the modern practice, have contracted with a professional bail bond company, for the required fee, to post the bond on his behalf. In Wiegand v. State, 112 Md.App. 516, 523 , 685 A.2d 880 (1996), Judge Wilner (specially assigned) described the range of options for posting bail.

The requirement of bail bonds, secured by collateral or the undertaking of a surety, is a vital part of our core commitment to avoid, whenever possible, the pre-trial detention of accused persons. Whether the accused himself, his family or friends, or a paid surety secures a bail bond, it is the credible threat of a real pecuniary loss that tends to assure the defendant’s appearance in court; at least that is the assumption that necessarily underlies the use of secured bonds as an alternative to detention. (Emphasis supplied). In order to arrange for bail, the defendant engaged the services of the appellant, Professional Bail Bonds, Inc., which posted the bond in the amount of $35,000.

On the scheduled trial date of October 23, 2007, however, the defendant failed to appear. Judge Lenore R. Gelfman issued a warrant for the defendant’s arrest. The appearance for trial of the defendant, for which the bond had been the guaranty, not having occurred, Judge Gelfman accordingly also ordered the bond to be forfeited, pursuant to Maryland Rule of Procedure 4-217(i)(l), which provides: ²³⁰ (i) Forfeiture of bond.—(1) On defendant’s failure to appear—Issuance of warrant.—If a defendant fails to appear as required, the court shall order forfeiture of the bail bond and issuance of a warrant for the defendant’s arrest. The clerk shall promptly notify any surety on the defendant’s bond, and the State’s Attorney, of the forfeiture of the bond and the issuance of the warrant.

(Emphasis supplied). Petition to Strike Out Forfeiture Before an order of forfeiture is finally entered as a judgment in favor of the pertinent governmental entity, the defendant or the defendant’s surety has a grace period of 90 days (which may be extended to 180 days) within which to avoid most of the adverse consequences of the forfeiture by actually producing the defendant for trial. Section 4-217(i)(3) provides: (3) Satisfaction of forfeiture.—Within 90 days from the date the defendant fails to appear, which time the court may extend to 180 days upon good cause shown, a surety shall satisfy any order of forfeiture, either by producing the defendant in court or by paying the penalty sum of the bond. If the defendant is produced within such time by the State, the court shall require the surety to pay the expenses of the State in producing the defendant and shall treat the order of forfeiture [as] satisfied with respect to the remainder of the penalty sum.

(Emphasis supplied). Immediately following the failure of the defendant to appear and the consequent bond forfeiture of October 23, 2007, the appellant engaged the services of Jack Kessel, who is described as a “fugitive recovery-bounty hunter.” The bounty hunter located the defendant in his native Honduras. The bounty hunter traveled to Honduras and spoke with the defendant personally. The defendant, however, made it painfully clear to the bounty hunter that he had no intention of returning to the United States for trial.

The bounty hunter ²³¹ then did nothing more than to report back his essential failure to the appellant. 1 ²³² On December 17, 2007, the appellant filed its initial Petition to Strike Forfeiture. The possible striking out of a forfeiture is controlled by Rule 4-217(i)(2), which provides: (2) Striking out forfeiture for cause.—If the defendant or surety can show reasonable grounds for the defendant’s failure to appear, notwithstanding Rule 2-535, the court shall (A) strike out the forfeiture in whole or in part; and (B) set aside any judgment entered thereof pursuant to subsection (4)(A) of this section, and (C) order the remission in whole or in part of the penalty sum paid pursuant to subsection (3) of this section. (Emphasis supplied). After one insignificant procedural short-circuit, the appellant filed an Amended Motion to Strike Forfeiture on March ²³³ 26, 2008.

On April 18, 2008, Judge Gelfman conducted a hearing on the motion and heard argument from counsel. On April 21, 2008, she filed a Memorandum and Order denying the appellant’s motion to strike the forfeiture. It is from that denial that the present appeal has been taken. The Function of Posting Collateral In contending that Judge Gelfman abused her discretion in refusing to strike the forfeiture, the appellant relies primarily on the facts 1) that it had located the defendant in Honduras but 2) that the United States does not have an extradition treaty with Honduras.

The appellant’s position is that it has done everything it is legally permitted to do to return the defendant to Maryland. That may be true, but it has nothing to do with the striking of the forfeiture. The bail bond company is not being rewarded for its good faith efforts nor is it being punished for its failure. The appellant is but the agent of the defendant.

It is the defendant whose malefaction brought about a forfeiture of the defendant’s bond. The defendant’s original sin remains unredeemed. The appellant, as we strove to point out in Pantazes , presumes too much significance for the relatively peripheral role it plays. The hardest thing for it to grasp is that the case is not really about the bail bondsman at all.

The very concept of professional bail bond is only a latter-day wrinkle of a far more basic phenomenon that predates by centuries the first appearance of the first bail bondsman. Two competing and very legitimate social interests are in conflict. On the one hand, there is a strong social interest in not subjecting to undue pretrial detention accused persons who are still presumed to be innocent. On the other hand, there is also a strong social interest in guaranteeing that defendants show up for trial and, if convicted, for sentencing.

Among the ways devised to accommodate these competing interests is the requirement that a defendant post collateral to guarantee his appearance in court. If the defendant fails to appear, the collateral is forfeited. The amount of the collateral is theoretically fixed at the point where the risk of losing ²³⁴ money or property is equal to or greater than the risk of suffering an adverse verdict. As Maryland Rule 4-217(b), “Definitions,” now recognizes, the “bail bond” is the “written obligation of a defendant” to appear in court as required, lest he lose his bond or collateral.

Subsection (b)(1) defines “bail bond.” “Bail bond” means a written obligation of a defendant, ivith or without a surety or collateral security, conditioned on the appearance of the defendant as required and providing for the payment of a penalty sum according to its terms. (Emphasis supplied). The defendant himself, of course, could always post his own collateral, or someone else could post the collateral on his behalf. In Pantazes v. State, 153 Md.App. 23, 39 , 834 A.2d 975 (2003), this Court traced the historic. evolution of posting collateral.

Over the course of time, the practice developed that collateral might be posted for a defendant by a relative or friend or other accommodation surety. That such accommodation sureties might be uncompensated is recognized by subsection (b)(6). “Surety ” means a person other than the defendant who, by executing a bail bond, guarantees the appearance of the defendant and includes an uncompensated or accommodation surety. (Emphasis supplied). As the practice of posting collateral to guarantee one’s appearance further developed, defendants arranged to procure professional insurers, or bail bondsman, to post collateral for them for a price.

Subsection (b)(7) recognizes the phenomenon. “Surety insurer” means any person in the business of becoming, either directly or through an authorized agent, a surety on a bail bond for compensation.... ²³⁵ In any of its manifestations, it is still the defendant who has, directly or indirectly, put up collateral to guarantee his appearance. (Emphasis supplied). In Pantazes , this Court stressed that the focus should be primarily on the behavior of the defendant and not on the behavior of the surety. At the most basic level, the fate of the collateral depends upon the behavior of the defendant, not %vpon the behavior of any third person, be that third person an accommodation surety or a professional “surety insurer. ” Although, to be sure, subsections (i) and (j) provide some procedural protections for both accommodation sureties and professional bail bondsmen, the primary focus remains at all times fixed on the defendant The critical act that triggers forfeiture is the behavior of the defendant in failing to appear in court when required.

The focus is not on the behavior of the surety or on the behavior of the State as it may affect the surety. 153 Md.App. at 40 , 834 A.2d 975 (emphasis supplied). The Obligation of the Bail Bondsman In contending that it was entitled to a striking of the forfeiture, the appellant is very slippery with its use of language. It labels its primary argument that it deserved to have the forfeiture stricken as an assertion that it had “fulfilled its obligation to locate Defendant, who was in Honduras.” That is simply not true. The appellant’s obligation was not to locate the defendant.

Nor was it to make a good faith effort to bring the defendant back to Maryland. Its obligation was to produce the defendant at the Howard County Courthouse to stand trial and nothing less than that. See Allegheny Mutual Insurance Co. v. State, 50 Md.App. 169, 173 , 436 A.2d 515 (1981) (“The surety is placed, by the statute, in the position of knowing that once he finds a defendant who has fled, the surety may recover his loss by surrendering the ²³⁶ defendant in court.’’) (emphasis supplied). That obligation was never fulfilled.

It was certainly not the appellant’s obligation to provide the State with information as to the defendant’s whereabouts, because it was not the State’s job to go and get the defendant, by extradition or otherwise. It was the appellant’s exclusive obligation to produce him in court, by whatever means it found necessary. It was a matter of sublime unconcern to the State where the defendant was located. That was the appellant’s problem.

As long as the appellant produced the defendant, the State could not have cared less whether he had been located and brought back from Towson or from Timbuktu. As to the essential nature of the appellant’s obligation, Chief Judge Orth spelled it out specifically in Irwin v. State, 17 Md.App. 518, 524 , 802 A.2d 688 (1973): The purpose of the bond or security is to secure a trial, its object being to combine the administration of justice with the convenience of a person accused, but not proved, to be guilty. If the accused does not appear the bail may be forfeited, not as a punishment to the surety or to enrich the Treasury of the State, bid as an incentive to have the accused return or be returned to the jurisdiction of the court. (Emphasis supplied).

In Allegheny Mutual Casualty Co. v. State, 35 Md.App. 55, 57 , 368 A.2d 1032 (1977), Chief Judge Gilbert also stressed that the bottom line obligation is to produce the defendant in court for trial. A bond provides substantially that the defendant and the surety are jointly and severally bound to pay the State a sum of money if the defendant fails to “well and truly make his appearance before” the court and to answer to the charges. (Emphasis supplied). “Reasonable Grounds” For What? The appellant asserts repeatedly that Rule 4-217(i) permits the judge to exercise discretion in that regard “if there are ²³⁷ ‘reasonable grounds.’ ” Reasonable grounds for what?

Once again, the language is treacherous. The phrase “reasonable grounds” is simply left floating in Limbo without being grounded to any precise predicate. Notwithstanding the use of the disembodied phrase, we are not dealing with “reasonable grounds” why the appellant was unable to get the defendant back to Maryland. As a valid reason for striking a forfeiture, the predicate for “reasonable grounds” has nothing to do with the behavior of the bail bondsman but is exclusively grounded in the behavior of the defendant: “If the defendant or surety can show REASONABLE GROUNDS FOR THE DEFENDANT’S FAILURE TO APPEAR . . .” (Emphasis supplied).

Rule 4-217(i)(2). In this case, the appellant made no such showing. He did not even attempt to make such a showing. He may have shown reasonable grounds for something else, but a showing of something else is immaterial.

All that matters is that the appellant did not show reasonable grounds why Santos Amoldo Izaguirre did not show up at the Howard County Courthouse on October 23, 2007—or at any time thereafter. The absence of an extradition treaty, of course, is not a reasonable ground for why the defendant did not appear for trial in Ellieott City on the scheduled trial day. Before the defendant fled the state, extradition was beside the point. It did not require an extradition treaty for him to stay put.

Even after he fled to Honduras, moreover, the absence of an extradition treaty was not a good reason for why the defendant declined to do what he was obliged to do. The defendant did not need an extradition treaty to return to Maryland. There was nothing to prevent him from coming back voluntarily. All he needed was an airline ticket or a bus ticket.

There were obvious reasons why the defendant did not appear for trial, but they are not, in the eyes of the law, reasonable. The defendant very successfully fled the state and fled the country before he could be brought to book for his alleged crime. Once in the asylum of his native Honduras, he deliberately, and perhaps even wisely, chose not to venture out, although he was free at any time to do so. To travel back ²³⁸ to Ellicott City to stand trial would, no doubt, have been an inconvenience.

It would, moreover, have been expensive, for the cost of a lawyer alone if for nothing else. The most unassailable reason for avoiding a trial, of course, is that one might be found guilty and imprisoned. None of those reasons, however, would qualify for Rule 4-217(i)(2)’s “reasonable grounds for the defendant’s failure to appear.” Our discussion of the immateriality of the appellant’s “reasonable grounds” argument in this case parallels our analysis of an indistinguishable argument made by a similarly situated bail bondsman in Pantazes v. State, 153 Md.App. at 41 , 834 A.2d 975 . In the entire discussion of the possible striking of a forfeiture, however, the exclusive predicate of the phrase “reasonable grounds” is, as the statute and the rule expressly declare, the “defendant’s failure to appear. ” The “reasonable grounds” defense has nothing to do with the “good faith” efforts of the surety to locate the defendant or with the purported obstacles placed in the path of that effort by any errors or lapses on the part of the judicial system.

In this case, the appellant did not at any time even make an offer to “show reasonable grounds for the defendant’s failure to appear. ” All he attempted to show was a reason why he had been unable to locate the defendant, and that, we repeat, is not a legally cognizable reason for striking a forfeiture. The only question that matters is, ‘Why isn’t the defendant here?” The question, Why haven’t you been able to locate him?” is immaterial. The law’s exclusive concern is with the defendant, not the defendant’s surety. It is this primary focus that the appellant has missed.

(Emphasis supplied). See also Allegheny Mutual Casualty Co. v. State, 35 Md.App. 55, 59 , 368 A.2d 1032 (1977) (“We observe that the record is completely devoid of a showing as to ‘reasonable grounds for ... the nonappearance’ of the defendants who have been admitted to bail.”). Chief Judge Bell’s opinion for the Court of Appeals in Wiegand v. State, 363 Md. 186, 196-97 , 768 A.2d 43 (2001), ²³⁹ reaffirmed that the only pertinent predicate for the phrase “reasonable grounds for” is the non-appearance of the defendant in court. Significantly, the focus is on the defendant’s no7ia,ppearance and the validity of any 'reasons /or that nonappearance, rather than on the bondsman or issues affecting the bondsman’s assessment of the risk of posting bond.

In the case sub judice, at the time of the proceedings under review, the defendant had 7iot appeared and, thus, did not, a7id could not have, provided “reasonable grounds” for her nonappearance. Nor has the appellant offered any explanation for the nonappearance. (Emphasis supplied). When Is the Power to Strike a Forfeiture To Be “Liberally Construed”?

The appellant cites Irwin v. State, 17 Md.App. at 524 , 302 A.2d 688 , for the proposition that “the discretionary power of the court to strike out a forfeiture is to be liberally construed.” Devoid of any limiting context, that is strong rhetoric. In Irwin v. State, however, the rhetoric had a context. In that case, the defendant Irwin himself posted his own cash bond of $1,000. When he failed to appear for trial in Cumberland on October 14, 1971, his cash bond was forfeited and a fugitive warrant was issued for his arrest.

Following an arrest, trial, and conviction in a federal court in Pittsburgh, Pennsylvania, Irwin was returned to Cumberland on an interstate detainer to stand trial on May 22, 1972. It was only after his return to Maryland for trial that Irwin moved to have the forfeiture of his bond stricken. When asked to provide a reasonable ground for his non-appearance on October 14, 1971, he explained that he had been in jail in Pittsburgh. That was the context and those were the circumstances in which this Court stated, 17 Md.App. at 524 , 302 A.2d 688 , that “the discretionary power of the court to strike out a forfeiture is to be liberally construed.” In the present case, by contrast, the defendant has never been returned to Maryland so that the primary purpose of the ²⁴⁰ bond could be ultimately achieved.

In the present case, by way of further contrast, the defendant was not in jail in Honduras (nor in the hospital nor in the graveyard). He simply chose not to return to Maryland, although he was free and able to do so at any time. Irwin v. State had taken the phrase “liberally construed” from Allegheny Mutual Casualty Co. v. State, 234 Md. 278, 282 , 199 A.2d 201 (1964). In that case, the two defendants were residents of New York City.

They were each free on a $50,000 bail bond. Because of what turned out to be understandable confusion, they were not present for their scheduled court appearance in Baltimore City on Friday, September 15, 1961. Their bonds were accordingly forfeited. When contacted in New York, however, both defendants voluntarily and immediately returned to Baltimore, where they surrendered themselves to the Central Police Station on Sunday, September 17.

They were in court and entered pleas of guilty on Monday, September 18. The bondsman moved for the forfeitures to be stricken. It was in those compellingly extenuating circumstances that the Court of Appeals urged a liberal construction of the rule permitting the striking of a forfeiture. While the discretionary power of the court is conditioned upon a showing by the defendant of reasonable grounds of his nonappearance, we believe the Legislature intended that this condition should be liberally construed so as not to do harm to a basic purpose which underlies the granting of bail, that is, to insure the presence of an accused party.

Such a construction is required, we think, when the purpose of the bond is fulfilled within a reasonable time and ivhen there has been little or no prejudice to the State. 234 Md. at 282-83 , 199 A.2d 201 (emphasis supplied). The Court of Appeals further explained that under circumstances where the bail bondsman has successfully effected the return of a defendant for trial, a refusal to strike a forfeiture would negate any incentive the bondsman would otherwise have to make sure that the fugitive defendant was found and returned to the court for trial. ²⁴¹ It is obvious that if the conditions stated in Sec. 33(b) were not liberally construed in favor of striking forfeitures, in proper cases, the sureties on a bail bond would have no reason to pursue the defendant and return him to the jurisdiction of the Court, after a forfeiture for nonappearance had been entered. As stated in 8 Arn.Jur.2d, Bail and Recognizance, Sec. 169, p. 875: “Remission of the forfeiture on the defendant’s surrender is intended to provide the bail ivith an incentive for securing the arrest of the defendant. If no part of the penalty of the bond could be remitted, there would be no Inducement to the bail to have the defendant arrested and brought to justice. ” 234 Md. at 284 , 199 A.2d 201 (emphasis supplied).

In its opinion, the Court of Appeals quoted with approval from an opinion of Chief Justice Marshall while sitting as a circuit judge in Virginia in the case of United States v. Feely, 25 Fed. Cas. 1055, 1057 (1813): If the accused has, under circumstances which show that there was no design to evade the