made please the court my name is bogan lee and i represent revocation the district court did not immediately require him to be taken into custody by the marshals and mr torres was able to flee this building and ultimately the jurisdiction the district court subsequently forfeited the home principles and the defendant's plight in this case unquestionably happened after the order was entered revoking the bot judge line or wherever explicitly said he's entering judgment which means he's revoking the bond because once judg was in her final had to be revoked and once the bond was revoked there was no further agreement the contract or to the surety is in terms of forfeiture was terminated and it is a mistake of law to then enforce that contract based on an action that unquestionably took place after the revocation happened of course you don't have any case law the specific cases that not all i have is basic contract principles as i think reasonable people understand  i don't understand and i think there was some examples we gave some examples in the reply brief for example if it was a some particular bank was going to protect this armored car a shipment of money until it gets to some place it's gets to the place after it gets the place the bank isn't responsible for what happens next and judge wind will revoke the man's bond at that point the contract is terminated and i think what the government basically wants this  forfeiture agreement to make up for for an error made by the district court in not having the marshals in the room to take the guy in the custody i think as a practical matter the problem was that the marshals weren't right in there at the time and didn't get it and then whoever your surety was is not on the hook for it i mean that i mean when i look at something sure i understand the policy concern that and that could arise there but the bottom line is we conflict principles for the surety of the country principles have to be whenever you're going to revoke a bond as a district court have the marshal in there to take the person into custody or say if they're going to let themselves surrender out your vine is going to continue until you do sell surrender and then it will be revoked that just didn't happen here the government in one of the things the government attempted to do was to suggest that there were other bases for the forfeiture and they say that a failed drug test was one that occurred five months prior there was a failed drug test now the problem that primarily is this at the time the district court didn't find that's a violation at all in fact well through counsel which is me mr torres acknowledge that a report of a positive result come had been issued by pretrial services there was no due process hearing where anyone allowed him to either challenge that report or the methods used or do anything in the reason there was no such hearing is because no one moved to revoke and no one found a violation and we can't now say that without a due process hearing on this point this is the basis for the forfeiture it cannot be the same is true with the issue with respect to the contact with the witness the whole hearing that led to deadline we were entering the judgment of the bond being revoked happened because there was an incident where a cooperating witness said that he had contact with mr torrens there was a disagreement this is mr before judge lane which you can and judge why where were all the only said decided we don't need to do that there won't be a hearing because what i've done here is i've simply withheld the judgment to allow him to remain on bond i'm not going to do that anymore i don't have to i that was a basically i was giving him a break i'm not going to do that anymore i'm going to enter judgment in entering judgment in this this isn't our calyx case that in three of judgment trigger immediate revocation of mom and that's why the monitors rebo judge lining webber did not only hear e he didn't find a fact about the make a fact finding it's a that was a violation some contact with a witness he basically said i don't even have to bother i'm going to do it this way find his revoked so mr is again did not get a due process hearing on the question of whether or not this really happened the credibility of his witnesses or is never a determined versus the informant because no witnesses were called because no one ever found a violation on that basis so let me ask you this so what if we have a situation probation officer goes in u s attorney's office goes into the court says they want to revoke your friend that is not there because i don't know he's just not there as lawyers try to get him there he's not there case but there was no contact made to tell him there's a moment there is a hearing to rebook and so there's no indication the sureties even had knowledge of the revocation hearing was happening if they did and they had known that was going to be they could have come to court and they could have said we do not want to serve a surety anymore under these circumstances but they didn't get out that opportunity and the government wants to assume all they must have known because mr torres jr should have told them but that's not what it sense it says they were going they had would get a notice appearances and they didn't get it from the court and they didn't get it from the pretrial services office and they didn't get it from mr torres jr apparently but in it because they were there and they had been another proceedings but they weren't there then today and ultimately after that when the judge decides he's going to issue a warrant when it's unclear whether torrey jr is really going to come back and turn himself in or not as it was will be today is i guess that the language that was used it wasn't clear whether he's in violation wasn't they weren't told at that point that they could come in and have some opportunity to try to find him or do anything that in get notice of that proceed either so i don't think they can be held accountable due to a lack of notice and more importantly because the only real reason that the four which are happens in judge  very forthright and up front about this when he when we came in on after we disputed this when he said well ninety nine percent of the time if the defendants in the court there is no forfeiture and but he's not here and that's why we're going to have to do this and that's why the home is forfeited but that act in this case and this is a unique case i think the parade of horribles the government is concerned about it is just it's sort of a tempest in a teapot in the sense that this is a very unusual circumstance where you happen to get a revocation and it's not clear he's going to be taken into custody and then he's he's left at large and he runs away that that's a very unusual set of circumstances and i think in forcing contract principles and the specific language the agreement please the court matthew madden on behalf of united states this court should affirm the district court because it was not an abuse of discretion to refuse to set aside that forfeiture order first the four for to meet the order of revocation was not immediately operative in this case because the court gave the defendant time to surrender to law enforcement and until he surrendered the conditions of bond were still in place now the defense the defense position here is that the word revocation some magic word which immediately extinguishes the conditions of release but that is not the case the defense defense attorney to judge lionel never judge when do we need him to surrender he used the term surrender for a reason defense attorneys and defendants prefer surrender as opposed to immediate custody and arrest because the immediate custody means handcuffs and you're walking out of the courtroom that way to the side of the prisoner elevator trip to lock up on the twenty fourth floor surrender to something entirely different surrender is the defense has the opportunity for the defendant to turn himself into law enforcement on a specified date or a specified time regardless of whether or not marshals were in just line with his courtroom that day the defense attorney would have asked for him to surrender because surrender allows him that extra time to say goodbye to his family and turn self and on his own terms later on that day and the reason surrender is so important in this case is because when a defense when a judge allows a defendant to surrender in these types of circumstances the conditions of bond remain in place the most analogous circumstance the defense attorney given a number of analogies in his brief but really the most analogous circumstance here is when something happens very regularly in the lower courts on this in this building it's one defendant on bond goes up for sentencing and he is sentenced the judge at the end of that let's say there's a sense of imprisonment imposed of say five years the judge then gives him a surrender did the surrender date might be thirty days it might be forty five days and what that means is the defendant is obligated to turn himself in to either the n c c or some of your a prison facility  evidence for example that his parents were actually there that day even though there were family members there but we don't know who they were exactly but what we have here is here's the circumstantial evidence that we have one key here is that it was one of the appellant's she had a dual role here she was not just a surety she was a surety and she was the third party custodian so as a third party custodian she had obligations under the bond agreement she was in court and the judge one where went over the bond route with her and she signed it that day her job was to make sure the defendant showed up for the court proceedings to make sure the defendant complied with the conditions of release and to advise the court in pretrial services if there were any violations so what we have there is this surety who's also a third party custodian and now a third party custodian jesus mother and they're living together and then pretrial services officer testified that  hearing and said give all these specific dates when he was in contact with miss laurens on a keeping her prized of the proceedings letting her know what's going on asking if she had any questions if there were any violations but he didn't have any discussion about those is at large undermines the purpose of the bond and gutierrez also sets forth factors that the district court has to weigh when deciding whether to set aside for future and there are six factors and i don't think judge mine and whatever made any series of professional bondsman there one of the defendants friends or family members the appropriateness of the buy there were no findings using that test it's true it's true that there were no funds used in that test the defense didn't didn't go through those factors and we didn't either but in this case of course what we have is the quintessential violation of bond is when the defendant fail to surrender and he flees and i don't recall the case but i think there's some sort of case law that says of course that is the heart of why we have b conditions so that the defense appears and excuse me so that the defendant appears in court as directed and surrenders to serve a sentence and so here we've we've got that type of situation that is that is probably the most serious fun condition that if that when that is violated it's as joseline were said ninety nine percent of time that's that's what you're talking about when you're going to when you're going to forfeit when you're going to forfeit the bond when someone violence like that and so on the i'd like to just briefly point out something out on that on the surrender issue surrender versus cross to the something that mr mr brumley mentioned and something i noted from his of page six the reply the defense that the court allowed the defendant to tupper temporarily be at liberty without the security provided by his bond conditions and i noted that because that is such an absurd construction distortion of judge that day so which i just remember that this is the context the government is in there that day saying that these bond conditions are not enough the defendant threatened one of our witnesses and not just any witness the witness  why torres was in federal court was because of this one person and he threatened and it's true that we didn't have a full flown hear him before so you can have you can proceed by proffer at a hearing which is what we did rather than call witnesses and the defense also made a number of concessions  fair for just one webber to rely on concessions of missions made by the defense in writing that the hearing and at that hearing the defense admitted that they exchanged words and that of course is a violation when he's not allowed to have any y got noticed they they would have that option right they would have they would have to show they would have that option your honor but i think what one thing that i think makes no sense about the defense position here is that the reason for notices as you said to give them the ability to object and what one of the things the defense was talking about that they would have objected to was this judge one of over sensual aoun him to surrender because what would have happened if there were two options he could have or them to go out that way with the marshals and truthfully then we wouldn't be here of course or allow them to surrender and that's what we are here because that's how we got away so that's that's where they would have had to have objected for it to make any difference they would have had to have said we object to you allowing our son to surrender you should be the other option was he should be put in handcuffs and led away there is no way his parents would have said we object your honor we object you allowing our son to surrender because that increases that increases the chances that he's going to run away but so you're saying that they can say here aren't like this finding we don't want to be surety anymore they could have yes they would have had that opportunity but what i'm saying is there's no way as a practical matter that they ever would have made that objection just ran in the case where the surrender is put off for thirty or forty five days and there's no indication because that time had not expired that there was going to be a flee during that custody immediately because that would be changing the agreement between all parties i see that my time has expired if there aren't any other questions i would have that's why you've taken that position that it would be re open the sure you do it unless the security no longer had confidence in the defendant i mean it could be a situation where they just didn't have confidence and they regret a bully but they didn't want to be on the hook for their house being taken away correct if most three other the two things i want to reply to the first has to do with a situation where you have a sentencing that mr mann was discussing and then the defense lawyer to remain on bond so he can surrender here's what doesn't happen in that sentencing the judge doesn't say your bond is revoked there's never revocation that defended walks in because he's not in custody and he's on bond and at the end they say conditions of bond the stand so he can surrender so the difference here is revocation when the says the bond is revoked that is a different a total defense and that's what happened that's why that is irrelevant the other thing with respect to the sureties is they do need to have known as we can't presume that just because she's his mother that her house is on the line and she's not going to take a different position when she hears the government's evidence the government's claiming that he had an argument with this guy that he's not supposed to be talking to was a detailed claim about a violent dispute between these people if she heard that in a revocation hearing she very well might have said well i know he's going to have to go in because of the eventually going to do some time on this i just don't want to put the house at risk in more she has should have that opportunity she should have that right and we can't presume that she knew that the pretrial services officer explicitly we have evidence did