United States v. Rebecca Parrett , 486 F. App'x 544 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0701n.06
No. 10-4550 FILED
UNITED STATES COURT OF APPEALS
Jun 29, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
) ON APPEAL FROM THE UNITED
REBECCA S. PARRETT, ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
Defendant )
) OPINION
GARCIA BAIL BONDS )
)
Appellant. )
Before: BATCHELDER, Chief Judge; NORRIS and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Garcia Bail Bonds, as surety on an appearance bond
for Rebecca Parrett, appeals a declaration of bond forfeiture. After the district court denied Garcia’s
Motion to Set Aside the Forfeiture Declaration, Garcia filed motions requesting the court to alter or
amend the judgment and later to modify the judgment. The district court denied these motions and
the accompanying requests for a hearing. For the following reasons, we AFFIRM the district court’s
judgment.
I. BACKGROUND
On May 19, 2006, Rebecca S. Parrett was indicted, along with several co-defendants, in the
Southern District of Ohio and charged with nine counts alleging wire fraud, securities fraud, money
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United States v. Parrett
laundering, and conspiracy. Three days later, Parrett was arrested in her home state of Arizona
where her bond was set at $100,000. On May 23, 2006, Garcia Bail Bonds executed a surety bond
for $100,000 that guaranteed Parrett’s appearance before the federal district court “and at such other
places as the defendant may be required to appear.” The bond states it “is a continuing bond
(including any proceeding on appeal or review) which shall continue until such time as the
undersigned are exonerated.” The district court in Arizona imposed conditions on Parrett’s release
which included a travel restriction to travel only within and between Arizona, Ohio, and California,
but did not require house arrest or electronic monitoring.
On March 13, 2008, Parrett and her co-defendants were found guilty on all counts by a jury
in the Southern District of Ohio. Immediately following discharge of the jury, the district court
considered the Government’s motion for the defendants to be incarcerated pending sentencing. The
court heard argument and proof from the prosecution and the defendants regarding whether any
defendant, including Parrett, was a flight risk. The court found that “there are circumstances which
point to clear and convincing evidence that these defendants do not pose a flight risk.” However,
the court ordered “an additional prophylactic step toward ensuring that the temptation to flee does
not overcome their good judgment” in the form of electronic monitoring and house arrest. Parrett
was ordered to contact the U.S. Pretrial Services Office on March 14, 2008, but did not do so.
Almost two weeks later, Parrett still had not reported to Pretrial Services or been fitted with
an electronic monitoring device. Therefore, on March 28, 2008, Pretrial Services petitioned the court
to issue a warrant for Parrett’s arrest, which the court did the same day upon finding Parrett had
violated the conditions of her release. On January 14, 2009, the court issued a Declaration of Bond
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Forfeiture. Garcia asserts receipt of the bond forfeiture declaration was the first time it had been
notified of Parrett’s conviction, her release pending sentencing, the modification of the conditions
of her release, and her failure to comply with those conditions. On January 28, Garcia filed a Motion
to Set Aside Bond Forfeiture, arguing that it should be released from the bond due to its lack of
notice of Parrett’s conviction and lack of agreement to bond modification that materially increased
its risk without notice or consent. On March 26, the district court denied Garcia’s motion and
request for a hearing finding that the risk assumed by Garcia had not been materially increased by
the conviction and bond modification.
On April 4, pursuant to Federal Rule of Civil Procedure 59(e), Garcia moved to alter or
amend the judgment based substantially on its prior arguments. On April 24, before the court
responded to Garcia’s most recent motion, Garcia filed a notice of appeal of the March 26, 2009
order. In an order dated October 14, 2010, this Court dismissed Garcia’s appeal, finding we lacked
jurisdiction because Garcia’s Rule 59(e) motion was still pending in the district court. That October
the U.S. Marshal Service located and apprehended Parrett in Mexico. On November 4, Garcia filed
a Motion to Modify Bond Forfeiture and Request for Hearing alleging that “circumstances have
changed since the original filing of the bond forfeiture.” On December 1, the district court denied
all Garcia’s motions. Garcia timely appealed.
II. DISCUSSION
A. Denial of a Motion to Set Aside Bond Forfeiture
1. Standard of Review
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This Court generally reviews a district court’s denial of motions to alter or amend a judgment
for abuse of discretion. Ventas, Inc. v. HCP, Inc., 647 F.3d 291, 328 (6th Cir. 2011). However, in
reviewing a district court’s decision to deny a request to set aside a bond forfeiture or denying
remission after judgment, the standard of review is whether the district court’s actions were
“arbitrary and capricious.” United States v. Casey, 671 F.2d 975, 976 (6th Cir. 1982); see also
United States v. Scott, Nos. 93-5375, 93-6340, 1994 WL 399543, at *2 (6th Cir. July 29, 1994).
2. Release from Bond Obligations
Federal Rule of Criminal Procedure 46(f)(2) gives a court the power to set aside in whole or
in part a bond forfeiture where “the surety later surrenders into custody the person released on the
surety’s appearance bond” or “it appears that justice does not require” forfeiture. A court may
consider a variety of factors in exercising its discretion whether to remit a bond forfeiture, including:
the willfulness of the defendant’s conduct in failing to appear; mitigating circumstances; whether
the surety played any role in apprehending the defendant; the cost, inconvenience, or prejudice to
the government; and whether the surety was a professional bondsman as opposed to a friend or a
relative. Scott, 1994 WL 399543, at * 2 (citation omitted). It is undisputed that Garcia did not
apprehend Parrett. Instead, Garcia argues that justice does not require forfeiture and advances
several arguments in support of this position.
Garcia first argues that it was never notified of Parrett’s conviction, which substantially
increased the risk of her flight. This Court has recognized that in certain circumstances “a material
increase in risk discharges a surety.” Casey, 671 F.2d at 977 (transferring bond to a superseding
indictment that added additional charges to original serious violations did not significant increase
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the likelihood that the defendant would jump bail). However, as properly found by the district court,
Garcia already assumed the risk that Parrett would be found guilty on some or all charges and be
released on bail when it executed a “continuing bond” that expressly extended to appearances at
“any proceeding on appeal or review.”
Garcia next argues that the risk of Parrett’s flight materially increased when the district court
modified her bond conditions to require electronic monitoring and house arrest. The original
conditions of the bond permitted Parrett to travel freely between Ohio, Arizona, and California
without electronic monitoring. The court stated that the added conditions subjected defendants to
“the highest level of monitoring that is available under the law” and were “an additional prophylactic
step toward ensuring that the temptation to flee does not overcome their good judgment.” Increased
monitoring and more restrictive travel allowances make it more difficult for defendants to abscond,
not easier. It was not arbitrary or capricious for the court to determine that because the bond
modification did not materially increase Garcia’s risk, lack of notice of and consent to that
modification did not require remission of the bond forfeiture.
Because one consideration in determining whether to set aside a forfeiture is whether the
surety assisted in the apprehension of the defendant, Garcia argues the Government’s failure to
timely notify it of Parrett’s disappearance inhibited it from securing her appearance and operates
against forfeiture. Even if we assume the Government’s or a court’s failure to notify a surety of a
principal’s failure to appear could release a surety from the bond obligations, such result does not
follow here. Garcia allegedly did not realize Parrett had absconded until almost ten months had
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passed, but Parrett was not apprehended in Mexico for another twenty-one months. Garcia has not
argued that it assisted in any way in the search during that time and, thus, its argument fails.
Garcia also argues that justice does not require forfeiture because the district court erred in
releasing Parrett on bond after her conviction. After a person is found guilty, there is a presumption
for detention pending sentencing unless the district court finds by clear and convincing evidence that
the person is not likely to flee and does not pose a danger to the community. 18 U.S.C. § 3143(a).
The defendant bears the burden of rebutting the presumption of detention. Fed. R. Crim. P. 46(c).
Garcia argues the district court erroneously placed this burden on the Government.1 A review of the
transcript reveals that the Government, Parrett’s counsel, and at times the court referred to whether
there is clear and convincing evidence that the defendants would be flight risks, rather than evidence
that they would not be flight risks, as required by statute. However, the district court recognized this
potential uncertainty and clarified the proper standard:
One thing, I want it to be clear for the record, that under Section 3143 it is not
the government’s burden to demonstrate by a clear and convincing evidence that
these defendants do not pose a risk of flight or a threat to the community. The statute
carries a presumption in favor of detention.
It’s the defendant’s burden to establish by clear and convincing evidence that
they will either not likely flee nor pose a threat. Well, you’ve made arguments along
those lines and pointed to what you believe are factors that would constitute clear and
convincing evidence. I just wanted the record to be clear that Mr. Squires was not
1
Garcia also argues that there was no presentation on the issue of risk of harm. Although
Garcia correctly points out that the district court did not press the defendants for such evidence, the
Government had already conceded that the defendants were not threats to their respective
communities. Further, Parrett’s counsel did present evidence that she had no prior criminal history,
and the court ultimately found the defendants were not threats to their communities.
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burdened with the responsibility of demonstrating that there was clear and convincing
evidence that these gentlemen and this lady would flee.
The court held: “This Court, however, believes that for the many circumstances cited with respect
to each of these defendants, that there is not clear and—that there is clear and convincing evidence
that they do not pose a flight risk.” Although there may have been some uncertainty earlier in the
hearing, the court clarified the burden and ultimately applied the proper standard.
Finally, Garcia argues that remission is necessary because the Government presented no
evidence regarding the costs and expenses it incurred that would justify forfeiture of the $100,000
bond. The Government did not provide the court with an accounting, although it did state that it
expended a great deal of time and resources locating and arresting Parrett. The United
States Marshals Service lead the apprehension efforts and devoted an enormous
amount of time in their dedicated search for Parrett. Resources were spent on court
approved investigative techniques, most significantly a wiretap, subpoenas and
interviewing witnesses across the country.
The Government conducted an international search for Parrett that lasted two years and seven
months. Although evidence of the actual cost to the Government would be helpful, we cannot say
that the district court acted arbitrarily and capriciously based on this one factor.
B. Denial of a Hearing on Garcia’s Motions
1. Standard of Review
The standard of review for a district court’s denial of a hearing regarding a bond forfeiture
has not been established in the Sixth Circuit. However, other circuits review the denial under an
abuse-of-discretion standard. See, e.g., United States v. Martinez, 151 F.3d 68, 74 (2d Cir. 1998);
United States v. Santiago, 826 F.2d 499, 505 (7th Cir. 1987).
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2. Denial of Garcia’s Motions for a Hearing
A district court is not required to hold an evidentiary hearing and may properly deny the
motion when the affidavits submitted by the parties sufficiently set forth the relevant facts. United
States v. Gutierrez, 771 F.2d 1001, 1004 (7th Cir. 1985). The district court denied Garcia’s motions
for a hearing based on its finding that the briefs and affidavits set forth all the relevant facts for the
resolution of the motion.
Garcia argues that a hearing was necessary to determine whether Garcia was provided
sufficient notice of the changes in Parrett’s case. Because we affirm the district court’s holding that
there was no materially increased risk which would entitle Garcia to notice, the district court did not
abuse its discretion in refusing to hold a hearing on this basis. Garcia also argues it would press at
a hearing its allegation that it would not have agreed to continue the bond with the new conditions
after her conviction. However, Garcia signed a continuing bond and had already agreed to continue
the bond after Parrett’s conviction. The additional conditions on her release only reduced any risk
to Garcia. Therefore, even if the district court accepted Garcia’s allegations as true, they were
irrelevant. See Martinez, 151 F.3d at 74 (finding no abuse of discretion to deny a hearing where
sureties’ arguments, even if true, were irrelevant to bond forfeiture).
Finally, Garcia argues a hearing was necessary in order for the court to “learn of the new
information” which Garcia referenced: “Surety has received information that the Defendant in this
case has been located, and circumstances have changed since the original filing of the bond
forfeiture.” Garcia did not provide any further information about what change in circumstances
would support remission of forfeiture besides Parrett’s capture. “Moving parties are exhorted to
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state with clarity the basis for their Rule 59(e) motions.” Intera Corp. v. Henderson, 428 F.3d 605,
621 (6th Cir. 2005). It was not an abuse of discretion for the district court to read Garcia’s motion
as relying only on Parrett’s capture. Garcia’s affidavits submitted with its motions only allege its
failure to be notified and its unwillingness to continue the bond, it never alleges that it assisted in
the search for Parrett. Garcia provided no other new information that suggested the need for a
hearing. Therefore, the district court did not abuse its discretion in deciding Garcia’s motions
without a hearing.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment denying Garcia’s
Motion to Alter or Amend Judgement and Motion to Modify Bond Forfeiture and Request for
Hearing.
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