US v. Vaccaro, CR-R-84-46-ECR.

• Decision Date: 08 August 1989
• Docket Number: No. CR-R-84-46-ECR.,CR-R-84-46-ECR.
• Parties: UNITED STATES of America, Plaintiff, v. John Joseph VACCARO, Defendant.
• Court: U.S. District Court — District of Nevada

719 F. Supp. 1510

UNITED STATES of America, Plaintiff, v. John Joseph VACCARO, Defendant.

No. CR-R-84-46-ECR.

United States District Court, D. Nevada.

April 4, 1989.

Opinion on Motion for Reconsideration August 8, 1989.

William Maddox, U.S. Atty., Reno, Nev., for plaintiff.

H. Dale Murphy, Reno, Nev., and Stephen B. Krimel, San Diego, Cal., for defendant.

ORDER

EDWARD C. REED, Jr., Chief Judge.

This is an appeal from a report and recommendation filed by Magistrate Phyllis Halsey Atkins on August 15, 1988, (document # 775), wherein she declared a forfeiture of two bonds posted on behalf of defendant John Joseph Vaccaro. Because we find that the proper procedures were not followed at Vaccaro's bail forfeiture hearing, and insufficient evidence to support forfeiture of Bond # 2, we remand this cause to the Magistrate for further hearing, consistent with this order.

FACTUAL BACKGROUND

Defendant John Joseph Vaccaro was indicted by a federal grand jury in the District of Nevada for a variety of crimes related to interstate racketeering. On June 30, 1984, Vaccaro made an initial appearance before United States Magistrate Philip M. Pro in Las Vegas, Nevada, (document # 29). On July 5, 1984, Bernadine D'Anna of Rusty's Bail Bonds (Rusty's) posted a $100,000 corporate surety bond for Vaccaro (Bond # 1). The underwriter on the bond was Allied Fidelity Insurance Company (Allied). See Document # 29. Magistrate Pro issued a separate Order Specifying Methods and Conditions of Release (document # 29). This order, signed by Vaccaro, contained a condition that "the defendant shall not violate any local, state, or federal laws or regulations."

On March 28, 1985, the jury returned a guilty verdict on seventeen counts against Vaccaro (document # 385). See United States v. Vaccaro, 602 F.Supp. 1132 (D.Nev.1985). This Court continued Vaccaro's conditions of release as they had been previously set (documents # 400 and 401).

On June 6, 1985, this Court imposed sentence on Vaccaro and increased his bond pending appeal to $350,000 cash or corporate surety, incorporating the previously posted $100,000 bond (document # 490). On June 11, 1985, Joe Andre of Sparks Bail Bonds (Sparks) posted a $250,000 corporate surety bond (Bond # 2). The bond underwriter on Bond # 2 was Classified Insurance Corporation (Classified) (document # 502). This Court issued a separate Order Specifying Methods and Conditions of Release (document # 503). This order contained a condition that the defendant "shall not commit a Federal, State, or local crime while on release." The Ninth Circuit affirmed Vaccaro's conviction in United States v. Vaccaro, 816 F.2d 443 (9th Cir. 1987), cert. denied, 484 U.S. 914, 108 S.Ct. 262, 98 L.Ed.2d 220 (1987).

On May 21, 1987, the Special Grand Jury for the United States District Court, Central District of California, returned indictment No. CR-87-439 against, inter alia, John Joseph Vaccaro (document # 662, Exhibit A) (California Indictment). The indictment charges Vaccaro with conspiracy, extortion, distribution of cocaine, and RICO violations. Some of these violations allegedly occurred between August, 1984, and August, 1985, while Vaccaro was released on bond during the pendency of his federal criminal case here in Nevada.

On May 27, 1987, the United States moved to revoke the conditions of Vaccaro's release and to forfeit his bail (document # 662). Magistrate Atkins ordered that a warrant be issued for Vaccaro's arrest (document # 663). A hearing was held before Magistrate Atkins on October 5 and 6, 1987, at the request of bond underwriters Classified and Bell¹ (document # 667). Because Vaccaro conceded the issue on revocation of his release, the sole issue for determination at the hearing was the forfeiture of Vaccaro's bond (see Transcript of Hearing, page 6, lines 19-20).

At the hearing, over the objection of Vaccaro's counsel, hearsay evidence was taken on the issue of whether Vaccaro had breached a condition of his release. Relying on Fed.R.Evid. 1101(d)(3) for the proposition that the rules of evidence do not apply to "proceedings involving bail," (document # 775, page 13, line 21), the Magistrate permitted hearsay testimony from FBI Special Agent John Jones regarding alleged criminal conduct of Vaccaro between August, 1984, and August, 1985. Specifically, Special Agent Jones testified regarding acts alleged in count sixteen of the California indictment, wherein Vaccaro is charged with distribution of cocaine on or about August 5, 1985. (See California Indictment, Exhibit A to document # 662). Based on this testimony, and the California indictment, the Magistrate found "probable cause to believe that Vaccaro violated federal laws while he was released on bond" (document # 775, page 5, lines 3-4).

She further noted her knowledge of Vaccaro's subsequent guilty plea to count six of the California indictment (document # 775, page 16, lines 3-13; page 16, line 26 and page 17, lines 1-12). Count six alleged extortion between August, 1984, and August, 1985. The Magistrate concluded that all this evidence was sufficient to find probable cause to believe that Vaccaro had violated the "break no laws" condition of his bond during the period of his release. She ordered forfeiture of the bonds on that basis (document # 775, pages 16-17). She further denied any remission of the bond, finding that it "would not be in the interest of justice" (document # 775, page 26, lines 6-7).

Defendant Vaccaro filed his objections to the Magistrate's report (document # 777), as did sureties Classified and Bell (document # 779). Vaccaro objects to the Magistrate's findings that 1) a "break no laws" provision was a condition of his release; 2) that Fed.R.Crim.P. 46(e) governs a bail forfeiture, rather than the provisions of the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq.; 3) that Vaccaro was not entitled to a trial by jury on the issue of forfeiture; 4) that the Rules of Evidence do not apply to a bail forfeiture hearing; 5) that the government need show breach of condition by probable cause, not by a preponderance of the evidence; 6) that Vaccaro's plea of guilty was for conduct taking place between August, 1984, and August, 1985. Further, Vaccaro argues that ex parte contact between the government and Magistrate Atkins regarding Vaccaro's guilty plea should disqualify Magistrate Atkins from any further hearings necessary in this case.

Bell and Classified join in Vaccaro's objections. They further object to the Magistrate's findings that 1) the issuing bail agents had real or apparent authority to bind the corporate sureties to something beyond an "appearance bond;" and 2) the terminology of the bonds supports forfeiture for a breach of condition.

STANDARD OF REVIEW

According to 28 U.S.C. § 636(a)(1) and Local Rule 11(c)(I)(B)(3), we review de novo the Magistrate's recommendation to forfeit the bond of defendant John Vaccaro. The order of forfeiture being dispositive and not merely a pretrial matter, the appropriate standard of review is de novo, and not the clearly erroneous or contrary to law standard.

DISCUSSION

A. Rule 46(e) and the Bail Reform Act

All defendants contend that the provisions of the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., should control this bail forfeiture proceeding. They argue that Fed.R.Crim.P. 46(e) was superceded by the 1984 amendments to the Bail Reform Act, and that forfeiture of bond is no longer a permissible sanction for violating a condition of release. We disagree.

Rule 46(e)(1) provides: "If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail." Subsections (2) and (4) go on to empower district courts with discretion in setting aside or remission of a forfeiture. We believe that the Bail Reform Act was never intended to supplant remedies available pursuant to Rule 46. This holding is consistent with other decisions.

For example, in Brown v. United States, 410 F.2d 212, 215-17 (5th Cir.1969), cert. denied, 396 U.S. 932, 90 S.Ct. 272, 24 L.Ed.2d 230 (1969), the Fifth Circuit iterated its conclusion that there is no conflict between the provisions of the Bail Reform Act and Rule 46(e). Rather, the two are "complimentary and form a unified system in dealing with pretrial release." Brown, 410 F.2d at 216. See also United States v. Castaldo, 636 F.2d 1169, 1171 (9th Cir. 1980). The Bail Reform Act only authorizes forfeiture of bond for breach of appearance related conditions. It further provides other heavy penalties for the most serious breach — nonappearance. See 18 U.S.C. § 3146. The Bail Reform Act is silent with respect to penalties for nonappearance related breaches. But in Rule 46(e), Congress maintained forfeiture of bond as a penalty for breach of any condition of release. Therefore, under Rule 46(e), forfeiture of bond is an appropriate sanction for violation of a condition of release, whether the condition is appearance or nonappearance related.²

Because we hold that Rule 46(e), and not the provisions of the Bail Reform Act, controls a bail forfeiture proceedings, it is irrelevant that the Bail Reform Act does not authorize forfeiture for a nonappearance-related breach. Further, that the first bond was issued before the effective date of the 1984 revisions to the Act is likewise without import.

B. Procedural Entitlements

1. Hearing

There appears to be no uniform rule among federal courts regarding a defendant's right to a hearing to determine whether a condition of bond has been breached. Most instances of breach relate to a defendant's failure to appear for court proceedings; in that case, the breach is generally apparent, and forfeiture issues usually center on compliance with other procedural requirements. See, e.g., United States v. Minor, 846 F.2d 1184 (9th Cir. 1988) (trial court ordered forfeiture of appeal bond upon defendant's failure to appear; trial court did not err in remitting only $65,000 of defendant...