In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1538

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IGNACIO TORRES,

Defendant.

APPEAL OF: IGNACIO TORRES, SR. and

NOEMI LORENZANA

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11-CR-604-1 — Harry D. Leinenweber, Judge.

____________________

ARGUED APRIL 9, 2015 — DECEMBER 2, 2015

____________________

Before FLAUM, RIPPLE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Ignacio Torres was indicted for 

possession with intent to distribute 500 grams or more of cocaine. He was released on bond, and his parents secured the 

bond with a house they owned. Torres violated a condition 
2 No. 14-1538

of his release, and the district court revoked his bond. At the 

bond revocation hearing, the district court judge stated that 

Torres should surrender “today.” Torres and his attorney 

left the courtroom and went into the hallway. Torres’s counsel 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 been successful. As a result, the district court declared 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 judgment on the forfeiture agreement.

I. BACKGROUND

On October 6, 2011, Ignacio Torres (“Torres”) was indicted for possession with intent to distribute 500 grams or more 

of cocaine in violation of 21 U.S.C. § 841(a)(1). Torres was 

released on February 23, 2012, on a $200,000 bond secured 

by real property owned by his parents, Noemi Lorenzana 

and Ignacio Torres, Sr. (“Sureties”).

In connection with the bond, Sureties signed a forfeiture 

agreement. 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 district court’s order of release ordered “that the defendant be released on the 

condition that: [Torres] promises to appear in court as required and surrender to serve any sentence imposed.” It also 

set forth the following additional conditions of release:
No. 14-1538 3

[1] the defendant must not violate any federal, state or 

local law while on release.

[2] the defendant is placed in the custody of Noemi Lorenzana ... who agrees (a) to supervise the defendant in accordance with all of the conditions of release, (b) to use every effort to assure the defendant’s appearance at all scheduled court proceedings,: 

and (c) to notify the court immediately if the defendant violates any conditions of release or disappears;

[3] the defendant must post with the court ... [a] forfeiture agreement and quick [sic] claim deed;

[4] the defendant must avoid all contact, directly or indirectly, with any person who is or may become a victim or potential witness in the investigation or prosecution; 

[5] the defendant must refrain from use or unlawful possession of a narcotic drug or other controlled substance. Any testing may be used with random frequency ....

The conditions also required Torres to wear an electronic 

ankle monitor, although, at Torres’s request, the court later 

removed this condition.

Torres pleaded guilty on June 27, 2013, but the district 

court continued the issue of acceptance of the plea so that 

Torres could remain out on bond until his sentencing. The 

same day, U.S. Pretrial Services Officer James Wheatley contacted Lorenzana 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 emergency motion to revoke bond after a witness in the case informed the government that he had contact with Torres. The 
4 No. 14-1538

next day, the district court held a hearing on the motion. 

Sureties claim they did not receive notice of this court proceeding, though the government argues Sureties had to have 

known about the proceeding because Torres lived with Lorenzana. The district court granted the government’s motion 

to detain Torres and revoked his bond. The district court informed Torres that surrender “should be today.” Torres, defense counsel, and a Pretrial Services Officer left the courtroom together. Counsel and the Pretrial Services Officer reentered the courtroom to get clarification on the exact time 

Torres had to surrender to the U.S. Marshals. By the time 

counsel and the Pretrial Services Officer 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 filed their 

response on December 16, 2013, requesting that the court exonerate, 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 hearing, the district court entered an order granting the government’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) having contact 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 confinement after conviction for a felony; and (4) by violating 

federal law by ignoring a court order to surrender to the 

U.S. Marshals on November 12, 2013.
No. 14-1538 5

The district court also found that Sureties had notice of any 

material changes in the release conditions and 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 judgment on the forfeiture agreement. Sureties, represented by the same counsel as Torres, now appeal.

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 flight, and (2) Sureties were not given notice 

of material changes in the conditions of Torres’s release. We

review a decision denying a request to set aside bond forfeiture 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 Milwaukee, 747 F.2d 

423, 426 (7th Cir. 1984)). Factual findings are reviewed for 

clear error. United States v. Baker, 227 F.3d 955, 967 (7th Cir. 

2000). Sureties 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 breached.” Fed. R. Crim. P. 46(f)(1). Nevertheless, 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. 14-1538

the district court must enter a default judgment on the government’s motion. Fed. R. Crim. P. 46(f)(3)(A). Once judgment is entered, the court also has the discretion to remit the 

judgment in whole or part. 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 defendant into custody.” Id. at 46(g).

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

Sureties argue that their property should not be forfeited 

because bond had been revoked before Torres’s flight. Sureties claim “[o]nce a bond is revoked, a surety’s obligation to 

ensure the continued good behavior of the individual released from custody is at an end” because the contract between Sureties and the government 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 government that revocation of a bond does not automatically terminate 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 government 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 under-
No. 14-1538 7

take that the [defendant] will appear personally at any specified time and place to answer.” United States v. Davis, 202 

F.2d 621, 625 (7th Cir. 1953). So, the 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 custody of the surety, whose responsibility is to ensure the defendant’s actions comply 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 imprisonment.”). 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 United States for” the 

bond amount. Davis, 202 F.2d at 625.

The Forfeiture Agreement executed by Sureties incorporated the district court’s order outlining the conditions of release. 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[ed] to appear as required by the Court or otherwise violate[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 America.”

Sureties’ argument has some logical appeal. If the district 

court revoked bond, naturally, one could conclude that the 

action terminated any agreement in connection with the 

bond. This analysis would lead to a rule that when a district 

court orders the defendant to surrender, bond is terminated. 
8 No. 14-1538

However, this rule misses the point of the bond agreement. 

The government released Torres from custody to Sureties

because Sureties assured the government that they would

return Torres to custody. Since the purpose 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 surrender or Sureties bringing him in. The revocation order did 

not end the bond. Rather, it set the procedure for how to return 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 appear in court as required 

and surrender to any sentence imposed.” This did not occur.

Torres failed to appear in court and surrender himself as ordered by the district court. Therefore, the bond condition 

was not satisfied, and it was still in effect. Further, Sureties

did not surrender Torres to custody after the district court 

revoked the bond, so it was still in force. As a result, the 

court was not required to exonerate Sureties. The 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 surety’s liability does not cease until the defendant is taken into custody after a district court’s 

bond revocation order. And since Torres was still on bond, 

Sureties were liable when Torres fled.

Of course, returning a defendant to custody is not the on-
No. 14-1538 9

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. Castaldo, 636 F.2d 

1169 (9th Cir. 1980) compel a different result. But we find 

neither case helpful. In Milhelm, we held that an arrest warrant without more does not terminate bail obligations. 834 

F.2d at 123. We explicitly avoided “the difficult issue of 

when bail obligations do terminate after a violation.” Id. at 

122–23.

In Castaldo, the defendant appealed his conviction pursuant to the now-defunct bail jumping statute. Like Torres, Joseph 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 failed to appear when the case 

was recalled. Id. Unable to locate Castaldo, the court forfeited the bail and issued an arrest warrant. Id. The district court 

scheduled another hearing in the case for July 31, 1979, and 

Castaldo did not appear at the hearing. Id. Castaldo was recaptured 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 failure to appear at a hearing scheduled after the forfeiture of 
10 No. 14-1538

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’ argument fails because the district court here had not forfeited his bond at the 

time he fled. So, Torres was still “on bond.” In any event, because 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 revocation and forfeiture, Castaldo does not help Sureties.

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

Conditions.

Although Sureties state there were three material changes to the circumstances of defendant’s release—removal of 

electronic monitoring, Torres’s guilty plea, and bond revocation—they only argue that they failed to receive notice of the 

bond revocation. They cannot claim lack of notice with respect to the other two material changes because the record 

contains evidence from which one can infer that they had 

notice. Sureties’ primary argument is that the bond revocation was a material change in the conditions of Torres’s release of which they should have had advanced notice because “[i]mminent detention (as opposed to possible detention 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 a 
No. 14-1538 11

sanction for violating condition of release). We hold, however, that Sureties were not entitled to notice that the district 

court revoked the bond because it was not a material change 

in the bond that increased their risk. Therefore, Sureties’ position 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 an opportunity to revoke his or her commitments

if the judge alters the release conditions over the surety’s objections. United States v. King, 349 F.3d 965, 966 (7th Cir. 

2003). Material changes “to a bond made without the consent or knowledge of the surety may render the obligation 

unenforceable.” Id. (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. OcampoNavarro, 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 noncompliance with the new obligation could result in the revocation of a defendant’s bond.”). The increased risk must be different than the original risk the sureties assumed when posting bond for a defendant. King, 349 F.3d at 968. 

This bond revocation is not a material change in the 

bond, so notice was not necessary. See id. at 967. Sureties 

agreed to ensure Torres’s appearance as ordered by the district court until he surrendered to serve any sentence imposed. That the bond might be revoked was a risk that Sureties undertook when they initially agreed to the bond. The 

scheduled hearing and even the revocation itself did not put 
12 No. 14-1538

any new conditions on Torres. For these reasons, the revocation of the bond was not a material modification that increased 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 different from the original risk Sureties assumed, Sureties had 

already agreed to assume the risk associated with imminent 

detention. Contrary to Sureties’ contentions, before the revocation hearing, Torres’s future detention was not a “possible 

detention at some indeterminate future point.” Torres

pleaded guilty on June 27, 2013. The charge that Torres 

pleaded to carries a mandatory minimum sentence of five 

years’ imprisonment. The district court continued acceptance 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, they shoulder the burden of proving facts that support their argument that the bond should not be forfeited. 

See Foster, 417 F.2d at 1256. By continuing to guarantee the 

bond after Torres’s guilty plea, Sureties assumed the risk for 

Torres in light of imminent detention. The district court did 

not clearly err in finding the Sureties had notice of all material changes.

To be clear, we do not hold that Sureties were not entitled to notice of the hearing. Indeed, a surety should be informed of any judicial proceedings that potentially affect his 

or her interests. See King, 349 F.3d at 967. Here, the district 

court determined that Sureties 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, represented both Torres and Sureties. Torres, who also ap-
No. 14-1538 13

peared at the hearing, lived with Lorenzana. There is no evidence 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 clearly error by finding that Sureties had notice of the hearing. 

C. District Court Did Not Abuse its Discretion by Refusing 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 notice 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. Gutierrez, 771 F.2d 1001, 1004 (7th Cir. 1985). Here, 

Torres is apparently still at large. So, in light of Torres’s continued 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 forfeiture: “(1) the willfulness of defendant’s breach of conditions; 

(2) the participation of the sureties in apprehending the defendant; (3) the 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 professional bondsman or one of defendant’s friends or family 

members; and (6) the appropriateness of the amount of the 
14 No. 14-1538

bond. Id. at 1003–04 (internal citations omitted). The unique 

factors presented by this case do not easily align with the 

Gutierrez factors, so 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 forfeiture and a finding that the district court did not err. Like us, 

the district 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, district courts should fully consider the Gutierrez factors before ordering bond forfeiture. This 

will ensure that district courts balance the appropriate factors 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 issue could have been avoided if Torres had been taken into 

custody at the conclusion of the hearing. We suggest that 

district courts consider requesting a representative from the 

U.S. Marshals Service to be present in the courtroom for 

bond revocation hearings, if resources permit. The situation 

here may have been avoided had someone been available to 

take Torres into custody at the time the district court revoked the bond. While the lack of U.S. Marshal presence arguably led to Torres’s flight, Sureties cannot avoid their contractual duties because of it.

III. CONCLUSION

The judgment of the district court is AFFIRMED.