Opinion
00 Cr. 1251 (RWS)
February 8, 2001
MEMO OPINION
Defendant Hector Penaranda ("Penaranda") applied for an order directing that he has complied with the bail conditions imposed by the Honorable Michael Dolinger, Magistrate Judge, or for amendment of his bail conditions. A conference was held regarding this issue on February 1, 2001.
At a bail hearing on November 22, 2000, Judge Dolinger imposed the following release conditions on Penaranda: a $250,000 personal recognizance bond co-signed by his wife, three of his sons, and two other financially responsible persons; strict pretrial supervision with home detention and electronic monitoring; drug testing and treatment as needed; surrender of travel documents; travel limits to include the Southern and Eastern Districts of New York; and defendant to account to Pretrial Services for all income.
These conditions were consistent with the recommendation of the United States Pretrial Services office, which views Penaranda as a risk for non-appearance due to the fact that he has tested positive for cocaine and has some family ties in Miami, Florida (his father and four siblings).
Penaranda's wife and three sons have co-signed the bond. However, although Penaranda located four other individuals willing to sign the bond, the government has rejected these individuals on the grounds that they are of insufficient means to constitute "financially responsible persons," and that they lack sufficient moral suasion over Penaranda.
The four individuals offered as financially responsible co-signers are: Erika Burgos ("Ms. Burgos"), Sandra Martimez ("Ms. Martimez"), Anthony Martimez ("Mr. Martimez"), and Alice Penaranda ("Ms. Penaranda"). Counsel for Penaranda represents that Ms. Burgos, who is Penaranda's step-daughter, has worked as an assistant supervisor at a rental agency for four years and earns $23,140 per year; that Ms. Martimez, who is Penaranda's wife's daughter-in-law, has worked as a school aide for 12 years and makes between $15-16,000 per year; that Mr. Martimez, who is Penaranda's wife's son, has worked for a bakery goods service for five years and makes approximately $14,800 a year; and that Ms. Penaranda, who is Penaranda's daughter-in-law, has worked for three years with the Hudson County Division of Social Services in Jersey City and makes approximately $18,200 a year.
The government has also submitted information regarding these individuals' incomes. See Letter from Helen V. Cantwell to the Court of 2/6/01. According to the government's information, the salaries of Ms. Burgos, Mr. Martimez, and Ms. Penaranda are lower than the figures set forth here. However, even accepting the representations of Penaranda's counsel, the result herein does not change.
Penaranda contends that these individuals are "financially responsible" and, therefore, that he has satisfied the conditions of his bail. The government contends that, given these individuals' low incomes, they cannot be considered financially responsible for a $250,000 bond. Neither party has provided authorities concerning the issue of what "financially responsible" means. In a case similar to this one, however, the Honorable Charles S. Haight took this "phrase . . . to mean an ability to pay the amount specified in the bond if [the defendant] fails to appear at trial." United States v. Gotay, 609 F. Supp. 156, 156 (S.D.N.Y. 1985). This is a logical definition. Under this definition, the co-signers offered by Penaranda do not qualify due to their low incomes, even though they do have steady employment histories. Therefore, Penaranda has not satisfied the financial conditions of his bail.
No mention has been made by any of the parties regarding the possibility of posting property as security.
As noted above, the government has also taken the position that none of the potential co-signers have sufficient moral suasion over Penaranda, and the government has made certain representations regarding this issue based on interviews with these individuals. See Cantwell Letter. Based on these representations, the government's concern appears to have support. However, it is not necessary to make findings regarding this issue because of the conclusion that these individuals do not satisfy the requirement of "financially responsible" co-signers.
Penaranda argues, however, that under the United States Code a person who is eligible for bail cannot be kept incarcerated because he fails to meet a financial condition of that bail. The provision to which Penaranda refers is 18 U.S.C. § 3142(c)(2), which states:
The judicial officer may not impose a financial condition that results in the pretrial detention of the person.18 U.S.C. § 1342(c)(2).
This provision, which was enacted as part of the Bail Reform Act of 1984, as amended in 1986, appears straightforward enough. In fact, however, it raises interpretive difficulties because, read out of context, and taking Penaranda's argument "to its logical extreme, [this provision] would require the release of any defendant sufficiently indigent, and whose family and friends are sufficiently indigent, to prevent them from posting any financial security to assure the defendant's appearance at trial." Gotay, 609 F. Supp. at 157.
The Second Circuit has not yet interpreted the meaning of § 3142(c) where a defendant is unable to meet the financial conditions of his bail. See United States v. Badalamenti, 810 F.2d 17, 18 (2d Cir. 1987) (remanding, in case where defendant had not met financial conditions of bond, but challenged pretrial detention on other, constitutional grounds, for determination by district court as to whether there had been a violation of § 3142(c)). However, those courts which have done so have concluded that in light of the statutory scheme of which § 3142(c) is part, as well as the legislative history of the Bail Reform Act, this provision cannot mean that a defendant without means to meet the financial conditions of his bail must therefore be released. See, e.g., United States v. Mantecon-Zayas, 949 F.2d 548, 549-50 (1st Cir. 1991); United States v. McConnell, 842 F.2d 105, 108 (5th Cir. 1988);Gotay, 609 F. Supp. at 157.
The subsequent history of this case does not further illuminate this issue.
These courts have concluded that § 3142(c) was intended to prevent the "sub rosa use of money bond" to detain defendants automatically and without proper evidentiary support. See Mantecon-Zayas, 949 F.2d at 550;McConnell, 842 F.2d at 108-09. Thus, where a defendant cannot meet the financial conditions of his bail, then the court should consider whether that particular financial condition is a necessary part of the bail conditions to provide reasonable assurance of the defendant's appearance, and set forth written findings of fact and legal conclusions regarding the issue. See Mantecon-Zayas, 949 F.2d at 550; McConnell, 842 F.2d at 109-10. The basis for this holding is that, under § 3142(e), pretrial detention may be ordered where no condition or combinations of conditions can "reasonably assure" the defendant's presence, and provided the court makes written findings of fact and reasons for the detention.See 18 U.S.C. § 3142(e) and (i); Mantecon-Zayas, 949 F.2d at 550;McConnell, 842 F.2d at 110. The legislative history also supports this result. See S. Rep. No. 225, 98th Cong.2d Sess. 16, reprinted in 1984 U.S. Code Cong. Admin. News 3182, 3199 (if defendant is unable to satisfy bond "the judicial officer may reconsider the amount of the bond," and if court concludes the initial amount is "reasonable and necessary," then "[t]his is the very finding which, under section 3142(e), is the basis for an order of detention, and therefore the judge may proceed with a detention hearing [pursuant to § 3142(e)].").
Penaranda objects that he is being kept in custody simply by virtue of the fact that he is "a poor man," and that this is contrary to fundamental fairness. See Letter from Michael A. Young to the Court of 2/2/01. Undoubtedly, the case at bar raises difficult questions regarding the viability of economic coercion as a means of assuring a defendant's appearance at trial where the defendant and his family and friends are of limited means. However, there is also little doubt that this tool is an important part of the statutory scheme regarding pretrial detention and bail.
The bond requirement will be modified in an effort to better calibrate this requirement to the situation, while at the same time providing the necessary assurance of Penaranda's appearance, as follows: a $100,000 personal recognizance bond, co-signed by Penaranda's wife and three sons, with $25,000 in cash or a cash equivalent as security. In the event Penaranda is able to locate two financially responsible persons to co-sign the bond, their co-signing may be substituted for the $25,000 cash/cash equivalent requirement.
Further findings and conclusions are not required at this juncture, as Penaranda may be able to meet these modified conditions.
It is so ordered.