Lopez v. McCotter

• Decision Date: 17 May 1989
• Docket Number: No. 88-2185,88-2185
• Citation: 875 F.2d 273
• Parties: Alberto LOPEZ, Jr., Petitioner-Appellee, v. O.L. McCOTTER, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 273

875 F.2d 273

Alberto LOPEZ, Jr., Petitioner-Appellee, v. O.L. McCOTTER, Respondent-Appellant.

No. 88-2185.

United States Court of Appeals, Tenth Circuit.

May 17, 1989.

Charles H. Rennick, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., and Gail MacQuesten, Asst. Atty. Gen., on the brief), Santa Fe, N.M., for respondent-appellant.

Edward L. Hand of John F. Schaber, P.A., Deming, N.M., for petitioner-appellee.

Before LOGAN, SETH and ANDERSON, Circuit Judges.

SETH, Circuit Judge.

The Secretary of Corrections for the State of New Mexico, the respondent, appeals the district court's order granting petitioner Alberto Lopez's petition for writ of habeas corpus. Because Mr. Lopez was entitled to have the jury consider his defense of bail bondsman's privilege with respect to the charges against him for attempted aggravated burglary and aggravated assault on Antonio Ojinaga, we affirm the district court's grant of habeas corpus with respect to those charges. We reverse the district court's grant of habeas corpus insofar as it concerns Mr. Lopez's conviction for aggravated assault on Deputy Sheriff Henderson because the bail bondsman's privilege cannot serve as a defense to the offense of aggravated assault upon a peace officer.

Though the parties vigorously dispute the particulars of the events which gave rise to the incidents herein concerned, the basic outline of what happened is not in doubt. See generally State v. Lopez, 105 N.M. 538, 540-41, 734 P.2d 778, 780-81 (Ct.App.), cert. quashed, 105 N.M. 521, 734 P.2d 761. A bail bond company operated by Mr. Lopez, the petitioner, posted a bond to secure the release of Rudy Ojinaga, who had been arrested in El Paso, Texas for possession of marijuana and for driving while intoxicated. Because Mr. Ojinaga failed to satisfy the conditions of his release on bond, Mr. Lopez determined to retake him and commenced proceedings in El Paso County Court aimed at surrendering Mr. Ojinaga to the authorities in exchange for relief from the bond. The court issued a bench warrant for Mr. Ojinaga's arrest, directed to Texas peace officers, but this was not of particular significance as things turned out.

Mr. Lopez also sent an employee, George Sandoval, to Mr. Ojinaga's home in Central, New Mexico to physically retake Mr. Ojinaga. Mr. Sandoval went to the house of Mr. Ojinaga's parents in Central and told them of his purpose. The Ojinagas in turn telephoned a friend, Capt. Daniel Garcia, a Grant County undersheriff. When Capt. Garcia arrived, Mr. Sandoval informed him that he was a "bounty hunter" from El Paso, that he was seeking custody of Rudy Ojinaga, and he showed Capt. Garcia the Texas bench warrant for Rudy Ojinaga's arrest. Capt. Garcia asked Mr. Sandoval to return the following Tuesday, when Capt. Garcia would assist with Mr. Ojinaga's arrest if the district attorney's office determined that the Texas bench warrant was valid for that purpose. Mr. Sandoval returned to El Paso.

Things went awry a day or so later when Mr. Lopez and four of his men arrived at the Ojinaga house in Central. Mr. Lopez armed his men and had them surround the Ojinaga residence. Rudy Ojinaga's father, Antonio, answered the door when Mr. Lopez knocked. Mr. Lopez told him that he and his men intended to take custody of Rudy Ojinaga, by force if necessary. Antonio Ojinaga shut and locked the door; his wife phoned Capt. Garcia. At Mr. Lopez's direction, one of his men kicked in the door to the Ojinaga residence. Antonio Ojinaga brandished a knife. One of the bounty hunters pointed a shotgun or rifle at him, and told him to drop the knife. Observing other people inside, Mr. Lopez ordered his men not to enter the house.

With the bounty hunters and the Ojinagas at a standoff, Capt. Garcia arrived in an unmarked car. Mr. Lopez disarmed him. Capt. Garcia was in plain clothes but claimed at trial that a badge was pinned to his sport coat. Mr. Lopez denied seeing a badge. After Mr. Sandoval informed Mr. Lopez that Capt. Garcia was a peace officer, Mr. Lopez allowed Capt. Garcia to enter the Ojinaga house to retrieve Rudy Ojinaga and hand him over to the bounty hunters. Capt. Garcia instead called for support. Deputy Carl Henderson arrived first, but after an armed standoff, during which he stated his authority, he withdrew. When state policemen arrived, Lopez and his men surrendered.

Charges were filed against Mr. Lopez for aggravated assault on Capt. Garcia and Deputy Henderson, battery on Capt. Garcia, attempted aggravated burglary, and aggravated assault on Antonio Ojinaga. From the outset, Mr. Lopez relied on the common-law bail bondsman's privilege as his principal defense, arguing that his conduct was authorized by law and by private contract. Mr. Lopez twice moved for dismissal of the charges on this basis before trial. The trial court allowed Mr. Lopez to introduce evidence concerning the traditionally broad authority enjoyed by bondsmen and the procedures they customarily follow, including testimony by an El Paso County Attorney. However, the court denied Mr. Lopez's requested instructions on the bondsman's privilege to rearrest his principal, though the court did define "bail bond" for the jury. Twice during deliberations the jury requested instructions on the bail bondsman's privilege under the common law, and in particular whether a bail bondsman must have a "legal warrant in [his] possession to make an arrest." In both instances the trial court refused to instruct the jury. The jury ultimately found Mr. Lopez guilty of aggravated assault upon a peace officer for his actions toward Deputy Henderson, and of aggravated assault upon Antonio Ojinaga, of attempted burglary of the Ojinaga home, and of committing these crimes with the use of a firearm.

The trial court entered judgment against Mr. Lopez and the New Mexico Court of Appeals affirmed the convictions. The New Mexico courts construed the Uniform Criminal Extradition Act (UCEA), N.M.Stat.Ann. Sec. 31-4-1 (Repl.Pamp.1984), enacted in 1937, to apply to the acts of petitioner. Thus the holding in substance was that the common-law authority of bondsmen had been eliminated as to these circumstances and extradition was required. The holding also included a conclusion that N.M.Stat.Ann. Sec. 31-3-4(B) (Repl.Pamp.1984) which provided that bondsmen could arrest the principal and deliver him to the sheriff was not applicable by reason of the requirement that extradition be sought in these circumstances under the Uniform Act.

Mr. Lopez petitioned the United States District Court for habeas corpus relief. The magistrate to whom the matter was referred found that the trial court's erroneous refusal to recognize the bail bondsman's common-law arrest powers "denied Petitioner the opportunity to present possibly his strongest defense," and recommended that the petition be granted. The district court adopted the magistrate's findings and recommendation.

The state courts used the following section of the Uniform Act in reaching their conclusions that in substance the common law as to bondsmen had been eliminated as had the applicability of Sec. 31-3-4(B) under these circumstances:

"31-4-14. Arrest without a warrant.

"The arrest of a person may be lawfully made also by any peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section [31-4-13 NMSA 1978]; and thereafter his answer shall be heard as if he had been arrested on a warrant."

The Act provides this important provision in permissive terms that "any credible person" may petition a magistrate or judge for an arrest warrant for the apprehension of an individual alleged to have violated the terms of his bail. Id. Sec. 31-4-13.

At the time the incidents took place and now the New Mexico statute at N.M.Stat.Ann. Sec. 31-3-4(B) relating to bail bondsmen, but not limited to New Mexico bondsmen, provides:

"When a paid surety desires to be discharged from the obligation of its bond, it may arrest the accused and deliver him to the sheriff of the county in which the action against the accused is pending."

Under this provision, upon surrendering the accused to the sheriff, the surety is required to deliver to the sheriff a copy of the order admitting the accused to bail and a certified copy of the bail bond. Id. Sec. 31-3-4(C). The statute is not limited by its terms to sheriffs in New Mexico.

In an application of Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 and Devine v. New Mexico Department of Corrections, 866 F.2d 339 (10th Cir.), we conclude that the wording of the pertinent provisions of the Uniform Criminal Extradition Act was not so vague so as to give a "potential defendant" some notice by the vagueness that a question may arise, and perhaps it would be held to cover the "contemplated conduct." Instead the provisions are narrow and the coverage, in view of the particular statute as to bondsmen and the common law, gave no adequate notice to petitioner of the state court's construction.

Our inquiry in this case is not into what the law of New Mexico now is with respect to the recapture by a foreign bail bondsman of his principal in New Mexico. The New Mexico courts have spoken to this issue: henceforth, a foreign bondsman must comply with the UCEA in seeking the rearrest of his principal. State v. Lopez, 105 N.M. 538, 542-43, 734 P.2d 778, 782-83 (Ct.App.), cert. quashed, 105 N.M. 521, 734 P.2d 761. We must however determine whether the statutory construction announced in State v. Lopez was "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in...