The issue in these ten consolidated cases is whether a bondsman's bond liability should be discharged when a defendant who has been deported by Immigration and Customs Enforcement ("I.C.E.") fails to appear in court for trial. The Circuit Court for Baltimore County, based on the information contained in the defendants' Initial Appearance documents, determined that the posted bail bond is properly forfeited when the bail bondsmen knows, or should know, that a defendant is subject to deportation and, as a result, the defendant is deported and fails to appear for trial.
In 2010 and 2011, in separate cases, the defendants
After the bonds were posted, but before the defendants were released from the detention center, the defendants were taken into federal custody by I.C.E. The defendants subsequently failed to appear for trial, as a result of which the trial court
A hearing on seven of the amended petitions
Although the Circuit Court agreed that a defendant's deportation was not guaranteed whenever there is a detainer, Judge Norman denied the amended petitions. He found that, given the information contained in the Initial Appearance documents, the appellant knew, or should have known, that the defendants were subject to deportation when it posted their bonds. He also disagreed with the appellant's interpretation of Professional Bail Bonds, stating:
The appellant timely noted appeals in all of these cases to the Court of Special Appeals. That court, pursuant to Md.
The three remaining appeals were heard by Judge Brobst on June 15, 2012.
A bail bond is "a written obligation of a defendant, with 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." Maryland Rule 4-217(b)(2). Its nature and relation to the State was discussed in Wiegand v. State, 363 Md. 186, 768 A.2d 43 (2001):
363 Md. at 197-98, 768 A.2d at 49.
The effect of the defendant not appearing as required is the forfeiture of the bail bond. That is prescribed by Rule 4-217(i), based on Maryland Code (2001, 2008 Repl.Vol., 2011 Cum.Supp.) § 5-208(b) of the Criminal Procedure Article,
While Rule 4-217(i)(1) requires the forfeiture of the bail bond upon the non-appearance of the defendant, the decision to strike the forfeiture, once entered, is discretionary with the court, "to be liberally construed," conditioned upon a showing by the defendant of reasonable grounds for the defendant's nonappearance. Wiegand v. State, 363 Md. at 194, 768 A.2d at 47 (citing Allegheny Mut. Cas. Co. v. State, 234 Md. 278, 282-284, 199 A.2d 201, 203 (1964)). The burden of demonstrating "reasonable grounds" lies with the surety who seeks to strike a bond forfeiture. Allegheny Mut. Cas. Co. v. State, 234 Md. at 282, 199 A.2d at 203. We have interpreted the term "reasonable grounds" in the context of the court's exercise of discretion:
Id. at 285-86, 199 A.2d at 205-06.
We have identified and recognized three ways in which the obligation of the surety on a bail bond may be discharged: by the act of God, act of the obligee,
Id. This is also the view of the matter taken by the Supreme Court of the United States. In Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 369-70, 21 L.Ed. 287, 289-90 (1872), which we cited in Tyler, that Court stated:
(Footnotes omitted). The Court made clear that "the law which renders the performance impossible, and therefore excuses failure, must be a law operative in the State where the obligation was assumed, and obligatory in its effect upon her authorities." Id. at 371, 21 L.Ed. at 290.
The appellant argues that deportation is the reason that the defendants failed to appear, and that their being deported is an act of law. The appellant consequently believes that the Circuit Court erroneously denied its amended petitions to strike. The appellant reasons that it has satisfied the requirements of Maryland Rule 4-217(i)(2) by showing that an act of law, deportation, was responsible for the defendants' failure to appear as required, and an act of law is a reasonable ground for a bail bond forfeiture to be stricken.
Moreover, the appellant submits that it would be inequitable to permit the State to retain the bond posted for a deported defendant when it was on notice that the defendant was subject to an I.C.E. detainer and could have sought his or her retention for the purpose of prosecution. In that regard, the appellant notes that:
The appellant concludes from this that the State, unlike a bondsman, had the opportunity to delay the deportation so that the defendants could stand trial. Thus, the appellant argues, it would be inequitable to permit the State to retain the bond amount where it knew the defendant was subject to deportation, and had the opportunity to, at least, delay the deportation itself.
The State, of course, does not agree and offers two arguments in support of the rulings of the Circuit Court. It argues, first, as the lower court found, that the
The State's second argument challenges the ripeness of the appellant's case and the sufficiency of the evidence to entitle the appellant to relief. It argues that the appellant failed to present any evidence in any of the cases that demonstrated that the defendants had exhausted their administrative remedies to delay deportation and, in any event, that there was no evidence "that the defendant[s] left the country involuntarily, that the State played any role in effectuating the deportation of the defendant[s], or that the defendant[s were] unable to return to this country temporarily for trial." Significant to the State's latter argument are Professional Bail Bonds, Inc. v. State, 185 Md.App. 226, 968 A.2d 1136 (2009), and Fred W. Frank Bail Bondsman, Inc. v. State, 99 Md.App. 227, 636 A.2d 484 (1994), in which the Court of Special Appeals effectively held that a forfeited bond should not be stricken if the defendant voluntarily flees the jurisdiction. It argues that these cases stand for the proposition that "Maryland has repeatedly rejected the suggestion that the impossibility of retrieving a defendant from a foreign country can constitute reasonable grounds for the defendant's failure to appear in court."
In Professional Bail Bonds, the appellant, a bail bonds company, posted a $35,000 bond on behalf of the defendant who was charged with a felony third degree sexual offense. 185 Md.App. at 229-30, 968 A.2d. at 1137-38. The bond was forfeited when the defendant failed to appear in court. Id. Although the appellant eventually located the defendant in Honduras, the defendant refused to return in order to stand trial, and the United States did not have an extradition treaty with Honduras. Id. at 230-31, 968 A.2d. at 1138-39 The appellant argued that the trial court abused its discretion in refusing to strike the forfeiture when it was presented with uncontroverted evidence that (1) the surety had located the defendant in Honduras, but that (2) the defendant could not be extradited to Howard County because the United States does not have an extradition treaty with Honduras. Id. at 233, 968 A.2d. at 1140. In rejecting the surety's argument that those facts established "reasonable grounds" for the defendant's failure to appear, the Court of Special Appeals explained:
The second case involved two immigrants charged with narcotics offenses in Wicomico County. Fred W. Frank, 99 Md. App. at 228, 636 A.2d at 485. The appellant posted a bond of $100,000 on behalf of each defendant. Id. at 229, 636 A.2d at 485. Shortly before trial, both defendants fled to Haiti, a country that did not share an extradition agreement with the United States. Id. The bonds were subsequently forfeited, and the defendants refused to return to Maryland for trial. Id. The surety argued that it was "impossible" to have the defendants present for trial due to the lack of an extradition agreement. Id. at 230, 636 A.2d at 486. Like its decision in Professional Bail Bonds, the Court of Special Appeals rejected that argument. It stated:
Id. at 232, 636 A.2d at 486. It relied on State v. Ohayon, 12 Ohio App.3d 162, 467 N.E.2d 908 (1983), a case with virtually identical facts: the defendant, on bail, fled to Israel and the United States did not press Israel for the defendant's extradition when he refused to return voluntarily. Id. at 909. The Ohio appellate court rejected the surety's argument for striking the forfeiture, holding:
Id. at 911-12.
To the State, that the defendants were deported is a difference without significance. As it sees it, these cases are identical to Fred W. Frank and Professional Bail Bonds because "each defendant in this case made the decision to reside in the United States illegally and thus subject himself to deportation upon arrest." The State concludes, therefore, that the defendants' actions in this case were voluntary, just as were the defendants' actions in Fred W. Frank and Professional Bail Bonds.
We do not agree. Md. Rule 4-217(i)(2) makes clear the focus of the decision to strike the forfeiture of a bail bond is the action of the defendant. In Wiegand v. State, referring to Md. Rule 4-217(i)(2), we stated:
363 Md. at 196-97, 768 A.2d at 48. The Court of Special Appeals in Pantazes v.
(Emphasis in original).
Unlike the defendants in Fred W. Frank and Professional Bail Bonds, the defendants here did not voluntarily leave the country or deliberately evade prosecution. Rather, although each of them, except one, had an I.C.E. detainer filed against him or had confessed to being in the country illegally, all of the defendants remained in government custody, even after bond was posted until they were deported in accordance with federal law. They, therefore, could not, and did not, leave the country of their own volition. As such, we conclude that Fred W. Frank and Professional Bail Bonds are inapposite.
Deportation is similar to extradition, which both this Court, Tyler, 206 Md. at 138-39, 110 A.2d at 532, and the Supreme Court, Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 369, 21 L.Ed. 287, 288 (1873), have recognized as an act of law. Both acts are intervening events, triggered by one government taking custody from another government of an individual and removing that individual to the taking government's jurisdiction. The principal difference between deportation and interstate extradition is that interstate extradition is directed by state law,
As noted above, the State also argues that the appellant failed to demonstrate that it and/or the defendants fully pursued
We again disagree. At the outset, we note that this was not the basis for the Circuit Court decisions; neither of the Circuit Court judges relied on the failure to pursue potential administrative remedies for their respective judgments. Whether the defendant could have requested a delay is not responsive to the issue in this case of whether the act of deportation constituted reasonable grounds pursuant to Rule 4-217(i)(2). Acts that qualify as "reasonable grounds" are, as Professional Bail Bonds and Fred W. Frank make clear, intervening events, which are the products of an act of the obligee, of god, or of law. In this case, even had the defendants and/or surety unsuccessfully pursued an administrative remedy to delay or otherwise prevent deportation, the question would still remain whether the defendants' deportation qualified as an act of law, and thus was a "reasonable ground" for the defendants' failure to appear in court. Adopting the State's view, which requires a surety to ensure that each defendant has exhausted all possible administrative ends, shifts the focus in the "reasonable grounds" analysis from the acts of the defendant to the acts of the surety, an improper focus under our precedents. See Wiegand v. State, 363 Md. 186, 196-97, 768 A.2d 43, 48 (2001) (observing that the application of Rule 4-217(1)-(2) is triggered by the acts of the defendant). As noted above, the act of deportation is an act of law and constitutes reasonable grounds under Rule 4-217(i)(2).
We are also not persuaded by the State's argument that the appellant failed to present evidence that the defendants were deported. While it is true that the deportation documentation provided by I.C.E. and attached to the amended petitions to strike are not supported by affidavits, no party, including the Circuit Court judges, questioned whether the defendants were in fact deported. Neither of the judges cited it as the basis for their respective decisions. Indeed, the record itself contains ample documentation from I.C.E. stating, in some form, that the defendants were deported.
The State also argues that allowing a bond company such as the appellant to have a forfeited bond stricken under the facts and circumstances of this case would permit inequitable bail practices because it would allow the bondsman to avoid risk when it posts a bond for a defendant who has a detainer filed against him, or who the bondsman otherwise knows has entered the country illegally. As noted above, the State maintains that bail bond companies should not be permitted to disavow responsibility for a bond when the company already knows that the defendant may be subject to deportation. We understand, and within the bounds of the law, share the State's concern that striking the forfeited bond would allow bondsmen to post bail for individuals whom the bondsman already knows are at risk of being deported.
For the foregoing reasons, we reverse the decisions of the Circuit Court of Baltimore County.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY BALTIMORE COUNTY.
In Michigan v. Doran, the Supreme Court explained that under this provision interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of the extradition clause of the United States Constitution, which requires that a fugitive from justice found in another state be delivered to the state from which he or she fled on demand of that state's executive authority. 439 U.S. 282, 287, 99 S.Ct. 530, 534, 58 L.Ed.2d 521, 526 (1978) (citing Biddinger v. Commissioner of Police, 245 U.S. 128, 132-33, 38 S.Ct. 41, 42, 62 L.Ed. 193, 197-98 (1971); Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161, 163 (1906)).
