Opinion
CR-12-00210-001-PHX-GMS
07-11-2022
United States of America, Plaintiff, v. Artur Mosheev, Defendant.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
The government indicted Defendant on one count of being an alien unlawfully in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(5)(A). Doc. 5. As part of conditions for his release pending trial, the Court ordered Defendant: to appear at all proceedings as required; to not travel outside the State of Arizona without the Court's permission; to report to Pretrial Services as directed; and to maintain weekly contact with counsel. Doc. 13. The Court set trial for June 19, 2012. Doc. 32. On the eve of the final pretrial conference, defense counsel moved to vacate pending proceedings because counsel was “of the current belief that Mr. Mosheev is not in the jurisdiction and will not appear at tomorrow's hearings.” Doc. 40. The Court vacated the trial date and issued a bench warrant. Doc. 42. On February 18, 2022, the government moved to declare Defendant's $5,000.00 cash bond forfeited, which the Court granted. Docs. 55, 57. The government now moves for default judgment and execution on the cash bond. Doc. 58. The Court held a hearing on the motion, which the government attended. Doc. 61. Though the Court sent the Surety on the bond notice of the hearing, neither the Surety nor defense counsel attended. Docs. 60, 61.
“The principal purpose of a bail bond is to ensure the accused's appearance at the appointed time.” United States v. Gifford, 423 F.Supp.3d 819, 823 (C.D. Cal. 2019) (citation omitted). Under Federal Rule of Criminal Procedure 46(f)(1), “[t]he court must declare the bail forfeited if a condition of the bond is breached,” thereby making forfeiture mandatory if a defendant not only fails to appear in court but if the defendant breaches other release conditions as well. United States v, Nguyen, 279 F.3d 1112, 1115 (9th Cir. 2002); United States v. Gladding, No. 1:09-cr-00265-OWW-SMS, 2010 WL 3075653, at *2 (E.D. Cal. Aug. 5, 2010) (citing United States v. Vaccaro, 51 F.3d 189, 192 (9th Cir. 1995), report and recommendation adopted, No. 1:09-CR-00265, 2010 WL 3618631 (E.D. Cal. Sept. 13, 2010).
“If it does not set aside a bail forfeiture, the court must, upon the government's motion, enter a default judgment.” Fed. R. Crim. P. 46(f)(3)(A). The Court may set aside the forfeiture or remit all or part of the bond if “it appears that justice does not require bail forfeiture.” Fed. R. Crim. P. 46(f)(2)(B), 46(f)(4). But the party seeking relief from forfeiture bears the burden of establishing grounds for the Court to do so. United States v. Magallon, No. 1:17-cr-0232-DAD-BAM, 2022 WL 59627, at *5 (E.D. Cal. Jan. 6, 2022) (citation omitted). The Court has “wide discretion” to determine whether to grant relief from forfeiture. Unites States v. Stanley, 601 F.2d 380, 382 (9th Cir. 1979); Nguyen, 279 F.3d at 1115-16 (listening factors for District Courts to consider when weighing whether to set aside the forfeiture or remit the bond).
As the government stated at the hearing, Defendant has absconded and is no longer believed to be within the United States's jurisdiction. The government has no further information on Defendant's status. The Court declared the bond forfeited because Defendant breached multiple release conditions. Doc. 57. No one appeared at the hearing to argue the Court should set aside the forfeiture or remit the bond. Doc. 61. Accordingly, there are no grounds preventing the Court from entering a default judgment. See Magallon, 2022 WL 59627, at *5; Fed. R. Crim. P. 46(f)(3)(A). The Court recommends the government's motion be granted.
IT IS RECOMMENDED the government's motion for default judgment and execution on cash bond (doc. 58) be GRANTED.
IT IS FURTHER RECOMMENDED the Court issue an Order granting a default judgment against the Surety in the amount of $5,000.00, forfeiting the $5,000.00 cash bond, and ordering that the United States take judgment in the amount of $5,000.00, plus accrued interest.
IT IS FURTHER RECOMMENDED the Court direct the Clerk of the Court to release the cash bond to the United States to satisfy the judgment against the Surety Suzana Blumental.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1). Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation.