GOVERNMENT'S MOTION PURSUANT TO FED. R. CRIM. P. 46(f) FOR ORDER DECLARING BOND REVOKED AND FORFEITED

DEBORAH BARNES, Magistrate Judge.

I. INTRODUCTION

Pursuant to Fed. R. Crim. P. 46(f), the United States of America, by and through its undersigned attorneys, hereby requests that the Court declare the unsecured appearance bonds for defendants Yaniv Gohar and Orel Gohar revoked, and the amounts of $100,000 and $50,000, respectively, forfeited.

II. BACKGROUND

On December 8, 2017, defendants Yaniv and Orel Gohar were arrested pursuant to criminal complaint charging conducting an illegal gambling business.1 Later that clay, Yaniv Gohar was ordered detained, and Orel Gohar was ordered released on $50,000 unsecured bond with certain conditions, including, inter alia, that he appear on time at all proceedings as required, participate in location monitoring, and remain inside his residence at night. On December 21, 2017, Yaniv Gohar was ordered released following a motion for bail review. ECF No. 34. This release was premised on a $100,000 unsecured bond, to be secured within two weeks by $200,000 in real property. ECF No. 34, 41. Like Orel Gohar, Yaniv Gohar agreed to appear on time at all proceedings as required and not commit any violations of federal, state, or local law while on release. ECF No. 39.

On January 3, 2018, Yaniv Gohar failed to appear for a detention hearing on a pretrial release violation petition after firing his attorney by text message that clay. That same day, pretrial services informed the FBI that Orel Gohar had not returned to his residence by curfew hours and was unreachable. He subsequently failed to appear for his scheduled court appearance on January 8, 2018. Bench warrants were issued for both defendants' arrest. They were subsequently charged by complaint and superseding indictment with failure to appear, in violation of 18 U.S.C. § 3146(a)(1). ECF No. 94.

III. VENUE

The government may move for an order of forfeiture in the district where the failure to appear occurred. See United States v. Abernathy, 757 F.2d 1012, 1015 (9th Cir. 1985). The defendants failed to appear in the Eastern District of California. Accordingly, venue in this district is proper.

IV. ARGUMENT

The defendants' failure to appear as ordered must result in the forfeiture of their bonds. "The law on bail forfeiture is neither complex nor voluminous." United States v. Nguyen, 279 F.3d 1112, 1115 (9th Cir. 2002). Federal Rule of Criminal Procedure 46(f)(1) provides that a Court "must declare the bail forfeited if a condition of the bond is breached." Fed. R. Crim. P. 46(f)(1); see 18 U.S.C. § 3146(d). "The forfeiture is thus mandatory." Nguyen, 279 F.3d at 1115. In this case, as described above, one of the conditions of both defendants' bonds was to appear as directed for court appearances. They failed to abide by that condition by failing to appear on January 3 and 8, 2018, as charged in the superseding indictment. Accordingly, pursuant to Fed. R. Crim. P. 46(f)(1) and 18 U.S.C. § 3146(d), an order declaring Yaniv Gohar's $100,000 bond and Orel Gohar's 550,000 bond forfeited is appropriate.

Pursuant to Fed. R. Crim. P. 46(f)(3)(B), a surety irrevocably appoints the district clerk as its agent for service of process. Rule 46(f)(3)(C) provides that the government must serve any motion on the district clerk, and the district clerk must promptly mail a copy to the surety at its last known address. Accordingly, the government requests that the clerk be directed to serve a copy of this motion and the proposed order on the sureties at any last known addresses.2

Following a declaration of forfeiture, the Court may enter a default judgment against the persons obligated under the bond, or set aside the forfeiture order in whole or in part. See Fed. R. Crim. P. 46(f)(2)-(3). Given that the defendants are international fugitives without separate sureties (i.e., they signed their own unsecured appearance bonds), the government will likely move for entry of default judgment against Yaniv Gohar for $100,000 and Orel Gohar for $50,000 following declaration of forfeiture. However, the government will move separately for such relief.

V. CONCLUSION

For the foregoing reasons, the United States requests that the Court sign the accompanying proposed Order declaring that the bonds are forfeited.

ORDER

WHEREAS, the defendants Yaniv Gohar and Orel Gohar were released from custody in this case on $100,000 and $50,000 appearance bonds, respectively; and

WHEREAS, the defendants were released on conditions that they make all future appearances required in this case; and

WHEREAS, the defendants failed to appear as ordered on January 3 and 8, 2018, in violation of the conditions of their release;

Based on the foregoing, and for good cause shown, IT IS HEREBY ORDERED that:

Pursuant to Title 18, United States Code, Section 3146(d) and Rule 46(f)(1) of the Federal Rules of Criminal Procedure, the appearance bonds in this case of $100,000 as to Yaniv Gohar and $50,000 as to Orel Gohar are ordered FORFEITED.

IT IS SO ORDERED.