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United States v. Lopez-Orfield

United States District Court, W.D. Virginia, Abingdon Division

June 6, 2016

UNITED STATES OF AMERICA, Plaintiff
v.
GINA RENEE LOPEZ-ORFIELD, Defendant.

          By: James P. Jones United States District Judge Kevin L. Jayne, Special Assistant United States Attorney, Abingdon, Virginia, for United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge

         The defendant’s unsecured appearance bond amount was forfeited when she failed to report for service of her prison sentence. She now objects to the magistrate judge’s denial of her motion seeking to remit a portion of the amount forfeited. The government argues that the magistrate judge correctly denied that motion in order to deter future similar conduct. For the following reasons, I will overrule the defendant’s objection.

         I.

         The defendant, Gina Renee Lopez-Orfield, was charged in this court with participation in a drug trafficking conspiracy. On May 2, 2015, she executed an unsecured appearance bond in the amount of $10, 000. The terms of her release provided that the bail could be forfeited if, in the event of her conviction, she failed to surrender for service of any imprisonment imposed.

         The defendant ultimately pleaded guilty and on February 9, 2016, she was sentenced to a term of imprisonment. She was allowed to remain free until March 29, 2016, at which time she was to report to the Federal Prison Camp at Alderson, West Virginia, to begin service of her sentence. The defendant failed to report as required, and a warrant was issued for her arrest on that same day. She was ultimately arrested on April 4, 2016, when officers found her hiding in the shower of a residence located at Mountain City, Tennessee. At that time she had changed her physical appearance, presumably in an effort to avoid capture.

         The magistrate judge held a bond revocation hearing on April 5, 2016, at which time the defendant’s bond was revoked and the bail forfeited.

         On April 6, 2016, the defendant’s attorney filed a Motion to Partially Remit Bond Forfeiture. That motion requested that only $8, 000 of the bail amount be forfeited, because it had been estimated that the Marshals Service spent no more than $8, 000 to apprehend the defendant after she had failed to surrender for her sentence.

         On April 11, 2016, the magistrate judge issued an Order denying the defendant’s motion. That same day, the defendant’s attorney filed a Motion for Reconsideration, which the magistrate judge denied on May 12, 2016. The defendant thereafter filed the present objection to the magistrate judge’s Order of May 12. That objection has been fully briefed by the parties and is ripe for decision.

         II.

         The Federal Rules of Criminal Procedure provide that I must review objections to nondispositive orders of the magistrate judge using a "clearly erroneous" standard, while objections to dispositive orders should be reviewed de novo. Fed. R. Crim. P. 59(a), (b)(3). The Fourth Circuit has not determined which standard should be applied when reviewing a magistrate’s refusal to remit a bail forfeiture. At least one circuit has held that such orders are dispositive, United States v. Plechner, 577 F.2d 596, 598 (9th Cir. 1978); United States v. Ritte, 558 F.2d 926, 927 (9th Cir. 1977), and that precedent has been followed by at least one judge of this district. United States v. Mustafa, No. 7:12-CR-32-002, 2013 WL 5873284, at *6 n.1 (W.D. Va. Oct. 30, 2013) (Ballou, J.). It is not necessary for me to make a determination of the correct standard, since even under the de novo standard, the objection should be overruled.

         The Federal Rules of Criminal Procedure provide that "[t]he court must declare the bail forfeited if a condition of the bond is breached." Fed. R. Crim. P. 46(f)(1). However, "[t]he court may set aside in whole or in part a bail forfeiture upon any condition the court may impose if . . . it appears that justice does not require bail forfeiture." Fed. R. Crim. P. 46(f)(2)(B). It is within my sound discretion to determine whether remission is appropriate. United States v. Am. Bankers Ins. Co. of Fla., No. 89-6818, 1991 WL 157280, at *3 (4th Cir. 1991) (unpublished).

         The defendant plainly violated the conditions of her bond by failing to self-report for service of her sentence. Thus, the question I must answer is whether justice requires the entire bail amount to be forfeited.

         The defendant argues that because she is indigent, and her financial status will only be worsened by her lengthy incarceration, that it would be unjust to require forfeiture of the entire $10, 000 bail when the government’s costs associated with her violation amounted to only $8, 000. She further contends that because she was separately prosecuted for her failure to report, that sanctioning her by a full forfeiture would amount to double jeopardy. The government argues that it is ...


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