### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 1 4

- 1 538

U NITED S TATES OF A M ERICA , P laintiff

- Appell ee ,

v.

I GNACIO T ORRES , Defendant

.

A PPEAL OF : I GN ACIO T ORRES , S R

. and
N OEMI L ORENZANA

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division

. No. 1: 11

- CR

- 604

- 1

— Harry D. Leinenweber , J udge

.

____________________
A RGUED A PRIL 9, 2015

— D ECEMBER 2, 2015

____________________

Before F LAUM , R IPPLE , and W ILLIAMS , Circuit Judges

. W ILLIAMS , Circuit Judge

. Ignacio Torres was indicted for possession with intent to distribute 500 grams or more of c ocaine. He was released on bond, and his parent s secured the bond with a house they owned. Torres violated a condition2 No. 14

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of his release, and the district court revoked his bond . At the bond revocation hearing, t he district court judge stated that Torres should surrender “today.” Torres and his atto rney left the courtroom and went into the hallway . Torres’ s cou nsel reentered the courtroom to clarify exactly when Torres needed to surrender. When Torres’s counsel returned to the hallway, Torres was gone. Efforts to return Torres to custody have not bee n successful. As a result, the district court d eclare d the bond forfeited. So Torres’s parents lost their house. Because it was not unreasonable for the district court to find that justice required bond forfeiture with Torres still at large, we affirm the district court’s order of default jud gment on the forfeiture agreement.

I. BACKGROUND
On October 6, 2011, Ignacio Torres (“Torres”) was indic ted for possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1)

. Torre s was released on February 23, 2012
, on a $200,000 bond secured by real property owned by his parents, Noemi Lorenzana and Igna cio Torres
, Sr. (“Sureties ”)

. In connection with the bond, Sureties signed a forfeiture

a greement. Sureties agreed that “ $200,000 of their equitable interest in [their] ... real property may be forfeited to the United States of America, should ... Torres fail to appear as required by the court or otherwise violate any condition of the [district court’s] order of release.” The dis trict court’s o rder of release ordered “that the defendant be released on the condition that: [Torres] promises to appear in court as r equired and surrender to serve any sentence imposed

. ” It also set forth the following additional conditions of release:No. 14

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[1] the def endant must not violate any federal, stat e or local law while on release.
[2] the defendant is placed in the custody of Noemi L orenzana

... who agrees (a) to supervise the defen dant in accordance with all of the conditions of r elease, (b) to use every effort to assure the defen dant’s appearance at all scheduled court proceedings,: and (c) to notify the court immediately if the d efendant violates any conditions of release or disa ppears ; [3] the defendant must post with the court

... [a] forfe iture agreement and quick [sic] claim deed;
[4] the defendant must avoid all contact, directly or ind irectly, with any person who is or may become a vi ctim or potential witness in t he investigation or pros ecution; [5] the defendant must refrain from use or unlawful po ssession of a narco tic drug or other controlled su bstance. Any testing may be used with random fr equency

... . The conditions also required Torres to wear an elec tronic ankle monitor, although , at Torres’s request, the court later removed this condition

. Torres plead ed guilty on June 27, 2013
, but t he district
court continued the issue of acceptance of the plea so that Torr e s could remain out on bond until his sentencing. The same day, U.S. Pretrial Services Officer James Wheatley co ntacted Lorenzan a to inform her that Torres tested positive for marijuana and cocaine. At no time did Sureties ask to cancel or withdraw from the bond. On November 11, 2013, the government filed an eme rgency motion to revoke bond after a witness in the case i nformed the government that he had contact with Torres . The4 No. 14

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next day, the district court held a hearing on the motion. Sureties claim they did not receive notice of this court pr oceeding, though the government argues Sureties had to have known about the proceeding because Torres lived with L orenzana

. The district court granted the g overnmen t’s motion to detain Torres and revoked his bond. The dist rict court i nformed Torres that surrender “should be today.” Torres, d efense counsel, and a Pretrial Services Officer left the cour troom together. Counsel and the Pretrial Services Officer re

entered the courtroom to get clarificati on on the exact time Torres had to surrender to the U.S. Marshals. By the ti me

cou nsel and the Pretrial Services O fficer left the courtroom, Torres was gone. The district court issued a bench warrant. Torres apparently remains at large. Two days after Torres fled
, the government moved for a declaration of bond forfeiture. The government refiled the motion on December 10, 2013. Torres and Sureties fil ed their response on December 16, 2013
, requesting that the court e xonerate , i.e., release them from responsibility for
, the bond and set aside the forfeiture . The district court set a hearing on the motion for February 18, 2014. On the date of the hea ring , the district court entered an order granting the gover nment’s motion and declaring forfeiture of the bond

. It found that Torres : breached the condition of his pretrial release by: (1) using unlawful narcotic drugs in or around June 2013; (2) ha ving conta ct with a potential witness against him on or about November 10, 2013; (3) by violating 18 U.S.C. § 1073, which prohibits flight to avoid custody or co nfinement after conviction for a felony; and (4) by violating federal law by ignoring a court order to su rrender to the U.S. Marshals on November 12, 2013.No. 14

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The district court also found that S ureties had notice of any material changes in the release conditions an d did not object to any changes
, received notice of court proceedings
, and entered into a forfeiture agreement with the government. The district court refused Sureties’ request to set aside the forfeiture, finding the interests of justice did not justify such
an action. On February 26, 2014, the district court entered an order of default judgme nt on the forfeiture agreement. Sur eties , represented by the same counsel as Torres, now ap peal

. II. ANALYSIS

Sureties argue that the district court erred by refusing to set aside the bond forfeiture because (1) bond was revoked before Torres ’s flig ht
, and (2) Sureties were not given notice of material changes in the conditions of Torres ’s release

. We review a decision d enying a request to set aside bond forfe iture for abuse of discretion. United States v. Santiago , 826 F.2d 499, 505 (7th Cir. 1987). “[A]n abuse of discretion occurs only when no reasonable person could take the view adopted by the trial court.” Id. (citing Lynch v. City of Mil waukee , 747 F.2d 423, 426 (7th Cir. 1984) )

. Factual findings are reviewed for clear error. United States v. Bak er , 227 F.3d 955, 967 (7th Cir. 2000). S ureties bear the burden of proving that the forfeiture should be set aside

. United States v. Foster , 417 F.2d 1254, 1256 (7th Cir. 1969).

“The court must declare the bail forfeited if a condition of the bond is breac hed.” Fed. R. Crim. P. 46(f)(1). Neverth eless, the court may set aside bail forfeiture if “the surety later surrenders into custody the person released on the surety’s appearance bond” or “it appears that justice does not require bail forfeiture.” Fed. R. Crim. P. 46(f)(2). Unless a district
court exercises its discretion to set aside the bail forfeiture
,6 No. 14

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the district court must enter a default judgment on the go vernment’s motion . Fed. R. Crim. P. 46(f )(3) (A) . Once jud gment is entered, the court also has the discretion to remit the judgment in whole or p art. Fed. R. Crim. P. 46(f)(4).

The Federal Rules of Criminal Procedure also describe when the district court must exonerate the surety and release the bond . “The court must exonerate the surety and release any bail when a bond condition has been satisfied or when the court has set aside or remitted the forfeiture. The court must exonerate a surety ... who timely surrenders the d efendant into custody.” Id. at 46(g).

A. Torres Was on Bond at Time of his Flight.

S ureties argue that their property should not be forfeited because bond had b een revoked before Torres ’s fli ght. Sur eties claim “[o]nce a bond is revoked, a surety’s obligation to ensure the continued good behavior of the individual r eleased from custody is at an end” because the contract b etween Sureties and the gov ernment has terminated. In a footnote, the government responds to the crux of Torres’ s argument by stating that “[b]ond conditions remain in effect until the defendant surrenders.” We agree with the gover nment that r evocation of a bond does not automatically te rminate a surety’s liability

. Although a bond proceeding occurs as part of a criminal case, it is collateral to the criminal case and civil in nature. See United States v. Santiago , 826 F.2d 499, 502 (7th Cir. 1987). A bond agreement is a civil contract between the gover nment and the surety on behalf of a criminal defendant. Id. The government and the surety agree that if the government releases the defendant from custody, “the surety will un de r-No. 14

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take that the [defendant] will appear personally at any spec ified time and place to answer.” United States v. Davis , 202 F.2d 621, 625 (7th Cir. 1953). So, t he purpose of the bond agreement and its forfeiture provisions are to ensure that the defendant will attend every required court appearance and submit to a sentence if found guilty. Stack v. Boyle , 342 U.S. 1,
4

– 5 (1951)

. In essence, the defendant is delivered to the cu stody of the surety, whose responsibility is to ensure the d efendant’s actions com ply with the terms of his release. See Taylor v. Taintor , 83 U.S. 366 , 371 (1872) (“When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original i mprisonment. ” ) . If the defendant fails to appear at the proper time and place or violates a condition of release , “the surety becomes the absolute debtor of the Uni ted States for” the bond amount. Davis , 202 F.2d at 625.

T he Forfeiture Agreement executed by Sureties incorp orated the dist rict court’ s order outlining the conditions of r elease. As a result, and in accordance with the common law principles of bail, Sureties agreed to ensure that Torres would “ appear in court as required and surrender to serve any sentence imposed

. “ They also agreed that if “ Torres fail [ e d ] to appear as required by the Court or otherwise vi olate [d] any condition of the Court’s order of release
, ” “$200,000 of their equitable interest in the ... real property, may be forfeited to the United States of Amer ica.”

Sureti es’ argument has some logical appeal. If the district court revoke d bond, naturally, one could conclude that the
action terminate d any agreement in connection with the bond. This analysis would lead to a rule that when a district court orders t he defendant to surrender, bond is terminated.8 No. 14

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However, this rule misses the point of the bond agreement. The government re leased Torres from custody to Sureties because S uret ies as sured the govern ment that they would
return Torres to custody. Since the pu rpose of the agreement was to ensure that Torres returned to custody, it follows that the bond would not end until Torres was back in custody. The district court’s revocation order merely compelled Torres to return to custody, as opposed to a voluntary su rren der or Sureties bringing him in. The revoca tion order did not end the bond

. R ather
, it set the procedure for how to r eturn Torres to custody. This conclusion is supported by the Federal Rules of Criminal Procedure. A court is not required to exonerate the surety until “a bond condition has been satisfied” or until a surety “timely surrenders the defendant into custody.” Fed. R. Crim. P. 46(g). The most relevant general bond condition was that Torres “promise[d] to app ear in court as required and surrender to any sentence imposed

. ” This did not occur. Torres failed to appear in court and surrender himself as o rdered by the district court. Therefore , the bond condition was not satisfied
, and it was still in effect . Furth er, Sureties did not surrender Torres to custody after the district court revoked the bond , so i t was still in force. As a result, the court was not required to exonerate Sureties. T he mere order of revocation does not terminate a bond. It is the defendant ’s return to custody pursuant to that order that terminates the bond. See id. Therefore, a s ure ty’s liabilit y does not cease u ntil the defendant is taken into custody after a district court ’s bond revocation or der. And since Torres was still on bond
, Sureties were liable when Torres fled. Of course, returning a defendant to custody is not the o n-No. 14

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ly way a surety’s liability terminates. Rule 46(g) also requires a court to exonerate a surety and its bond : (1) when a bond condition has been satisfied, (2) when the court has set aside or remitted the forfeiture, or (3) when the surety deposits cash in the amount of the bond

. Lastly, Sureties contend that United States v. Milhelm , 834 F.2d 118 (7th Cir. 1987) and United States v. Casta ldo , 636 F.2d 1169 (9t h Cir. 1980) compel a different result. But we find neither case helpful. In Milhelm
, w e held that an arrest wa rrant without more does not terminate bail obligations. 834 F.2d at 123. W e explicitly avoided “the difficult issue of when bail obligations do t erminate after a violation.” Id. at 122

– 23.

In Castaldo , the defendant appealed his conviction purs uant to the now

- defunct bail jumping statute. Like Torres, J oseph Castaldo appeared at his bond revocation hearing. 636 F.2d at 1170. At the beginning of the hearing , which took place on April 30, 1979 , Castaldo asked for a continuance to substitute new counsel. The court denied the request, but continued the remainder of the hearing until the end of the court calendar. Id. Castaldo fai led to appear when the case was recalled. Id. Unable to locate Castaldo, the court forfei ted the bail and issued an arrest warrant. Id. T he district court scheduled another hearing in the case for July 31, 1979 , and Castaldo did not appear at the hearing. Id. Castaldo was r ecaptured in October 1979 and indicted for having failed to appear at the July hearing. Id. The Ninth Circuit held that a defendant who had been released on bail, whose bail had been forfeited, and who had an arrest warrant issued for his arrest cannot be convicted of bail jumping based on his fai lure to appear at a hearing scheduled after the forfeiture of10 No. 14

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bail. Id. at 1171

– 72. Relevant to this case, the Ninth Circuit seems to find that because the bail had been forfeited, Castaldo was no longer released pursuant to bail. Id. This makes sense. Forfeiture ended the bond agreement just as returning the defendant to custody would. See Fed. R. Crim. P. 46(g). Even under Castaldo , Sureties’ argu ment fails b ecause the district court here had not forfeited his bond at the time he fl ed . S o , Torres was still “on bond

. ” In any event, b ecause the Ninth Circuit had to determine whether bond was still in effect after it had been forfeited, and our case deals with whether bond was in effect between revoc ation and fo rfeiture, Castaldo does not help Sureties

. B. District Court Did Not Clearly Err by Finding Sur eties Had Notice of All Material Changes in Release Conditions

. Although Sureties state there were three material chan ges to the circumstan ces of defendant’s release

— removal of el ectronic monitoring, Torres ’s guilty plea, and bond revoc ation

— they only argue that they failed to receive notice of the bond revocation. They cannot claim lack of notice with r espect to the other two material changes becau se the record contains evidence from which one can infer that they had
notice. Suretie s ’ primary argument is that the bond revoc ation wa s a material change in the conditions of Torres’s r elease of which they should have had advanced notice b ecause “[i]mmin ent detention (as opposed to possible dete ntion at some indeterminate future point) obviously gives rise to a greater risk of flight.” We assume, without deciding
, that bond revocation is a condition of release. But see United States v. DiCaro , 852 F.2d 259, 265 (7th Cir. 1988) (stating that bond revocation is aNo. 14

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sanction for violating condition of release). We hold, howe ver, that Sureties were not entitled to notice that the district court revoked the bond because it was not a material change i n the bond that increased their risk. Therefore, Sure ties ’ p osition is without merit. When a material change is proposed to a condition of bond
, a surety is entitled to notice, an opportunity to be heard, and a n opportunity to revoke his or her commitment s if the judge alters the release conditions over the surety’s o bjections

. United States v. King , 349 F.3d 965, 966 (7th Cir. 2003)

. Material changes “ to a bond made without the co nsent or knowledge of the surety may render the obligation unenforceable.” I d. (citing Reese v. United States , 76 U

. S. 13, 21 (1869) )

. A material change is a modification to the bond that “significantly augments the risk that the defendant will not appear when required.” Id. at 967 (citing United States v. Gambino , 17 F.3d 572 (2d Cir. 1994) ) ; see also State v. Ocampo

Navarro , 93 P.3d 745, 2004 WL 1609122 at *4 (Kan. Ct. App. July 16, 2004) (per curiam) ( unpublished ) (“A modification to a bond agreement is considered material when nonco mpliance with the new obligation could result in the revoc ation of a defendant ’ s bond.”) . The increased risk must be di fferent than the original risk the sureties assumed when pos ting bond for a defendant. King , 349 F.3d at 968.

T his bond revocation is not a material change in the bond, so notice was n o t necessary

. See id. at 967. Sureties agreed to ensure Torres’s appearance as ordered by the di strict court until he surrendered to serve any sentence i mposed. That the bond might be revoked was a risk that Sur eties undertook when they initially agreed to the bond . The scheduled hearing and even the revocation itself did not put12 No. 14

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any new conditions on Torres. For these reasons , the revoc ation of the bond was not a material modifica tion that i ncreased the Sureties risk and entitled them to notice

. Also, we note that while Sureties argue that the risk of imminent detention created by the bond revocation was di fferent from the original risk Sureties assumed
, Sureties had already agreed to assume the risk associated with imminent detention. C ontrary to Suretie s ’ contentions, before the rev ocation hearing, Torres ’s future detention was not a “possible detention at some indetermi nate future point.” Torres plea ded guilty on June 27 , 2013. The charge that Torres pleaded to carries a mandatory minimum sentence of fi ve years’ imprisonment. The district court continu ed a cceptance of the plea to allow Torres to remain on bond until his sentencing. Sureties do not dispute their knowledge of his guilty plea
, and they knew Torres would serve time

. Again, t hey shoulder the burden of proving facts that su pport their argument that the bond should not be forfeited

. S ee Foster , 417 F.2d at 1256

. By continuing to guarantee the bond aft er Torres’s guilty plea, Sureties assumed the risk for Torres in light of imminent de tention. Th e district court did not clearly err in finding the Sureties had notice of all mat erial changes.
To be clear, we do not hold that Sureties were not ent itled to notice of the hearing. Indeed, a surety should be i nformed of any judicial proceedings that pote ntially affect his or her interests. See King , 349 F.3d at 967. Here, the district court determined that Sure ties had notice of the hearing. This finding was not clearly erroneous in light of the fact that Torres’s attorney , who was present at the hearing, re pre sented both Torres and Sureties. Torres , who also a p-No. 14

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peared at the hearing, lived with Lorenzana. There is no ev idence on the record that Sureties did not receive notice of the hearing. Sureties carry the burden to establish this fact. See Foster , 417 F.2d at 1256. Therefore, the court did not clea rly error by finding that Sureties had notice of the hearing.

C. District Court Did Not Abuse its Discretion by R efusing to Set Aside the Bond Forfeiture

. Because Torres was on bond when he fled, and because the district court did not err in finding that Sureties had n otice of material changes, the district court did not abuse its discretion by refusing to set aside the bond forfeiture. The court may set aside a bail forfeiture if it appears that justice does not require bail forfeiture. Fed R. Crim. P. 46(f)(2)(B). “In most cases, the setting aside of a forfeiture

... while the defendant is still at large would undermine the purpose of bail bonds, i.e., to insure the presence of the accused.” United States v. Gu tierrez , 771 F.2d 1001, 1004 (7th Cir. 1985). Here, Torres is apparently still at large. So, in light of Torres ’s co ntinued flight and the circumstances discussed above, it was not unreasonable for the district court to refuse to set aside bond forfeiture.

Gutierrez outlines a six

- factor test for district courts to consider when deciding whether to set aside a bond forfe iture: “(1) the willfulness of defendant’s breach of conditions; (2) the participation of the sureties in apprehending the d efendant; (3) t he cost, inconvenience and prejudice suffered by the government as a result of the defendant’s breach; [] ( 4 ) any explanation of mitigating factors presented by the defendant [or surety];” (5) whether the surety is a profe ssional bondsman or one of defenda nt’s friends or family members; and (6) the appropriate ness of the amount of the14 No. 14

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bond

. Id. at 1003

– 04 (internal citations omitted)

. The unique factors presented by this case do not easily align with the Gutierrez factors, s o the district court’s failure to consider these factors is not unreasonable. The district court handled this tough case well. We sympathize with Sureties, but Torres ’s continued flight weighs heavily in favor of forfe iture and a finding that the district court did not err. Like us, the d istrict court seemed sympathetic to Sureties, having suggested that forfeiture would not have been necessary if Torres were in custody at the time the district court entered the forfeiture judgment, which was three months after Torres fled. Nonetheless, d i strict courts should fully consi der the Gutierrez factors before ordering bond forfeiture . This will ensure that district court s balance the appropriate fa ctors in exercising its discretion and aid appellate review.

We note that the district court’s failure to remand Torres to custody immediately does trouble us since Sureties were not present to object to continuing their obligation until the time and date of surrender set by the district court. This i ssue could have been avoided if Torres had been taken into custody at the conclusion of the hearing. W e sugg est that district courts consider requesting a representative from the U.S. Marshals Service to be present in the courtroom for bond revocation hearings , if resour ces permit. The situation here may have been avoided had someone been available to take Torres into custody at the time the district court r evoked the bond. While the lack of U.S. Mar shal presence a rguably led to Torres’s flight, Sureties cannot avoid thei r co ntrac tual duties because of it.

III. CONCLUSION The ju dgment of the district court is AFFIRMED.