Summary
The Massachusetts Supreme Judicial Court held that a bail surety was not entitled to exoneration or return of cash bail under G. L. c. 276, § 70, after the defendant failed to appear and was allegedly taken into federal immigration custody. The court concluded that the surety failed to prove that the defendant’s absence resulted from a compelled act of the United States government rather than a voluntary choice to pursue deportation. The court also held that the Superior Court could order forfeiture of the bail without a motion by the Commonwealth.
Topics
Practice areas
Questions Presented
- Whether G. L. c. 276, § 70 entitled Solomon to exoneration as surety and return of the cash bail because Bautista allegedly became unavailable through an act of the United States government.
- Whether the government-act provision of § 70 applies when the principal's removal was voluntary rather than compelled.
- Whether the Superior Court could order bail forfeiture without a motion by the Commonwealth.
Holdings
- A surety is entitled to exoneration under § 70 based on an act of the United States government only when the governmental act compels the principal's removal and is beyond the principal's control; the provision does not include removal brought about because the principal volunteered to go.
- Solomon did not meet his burden of proving that a compelled governmental removal prevented Bautista from appearing in court.
- The Superior Court may order forfeiture of deposited bail on its own after the defendant's default; a motion by the Commonwealth is not the exclusive means of obtaining a forfeiture order.
Key quotations
“We interpret § 70 in accord with these decisions, concluding that “an act of the government of the United States” is limited to an act that compels the removal of the defendant, and does not include a removal brought about because the defendant volunteered to go.” (459 Mass. at 315)
“From Solomon’s perspective, at best the record presents an unanswered question whether the defendant’s absence was compelled; unanswered questions do not satisfy the burden of proof.” (459 Mass. at 316)
“It is equally clear, however, that none of the provisions cited by Solomon preclude a court from ordering forfeiture of bail on its own.” (459 Mass. at 317)
Factual background
Bautista, a Dominican Republic citizen charged with drug offenses, was subject to immigration proceedings after receiving a notice to appear stating that he was unlawfully present and had elected to return to the Dominican Republic while waiving an immigration hearing. Solomon posted $10,000 in cash bail for Bautista, despite knowing of the immigration matter. Bautista did not appear at a scheduled Superior Court hearing, and Solomon and Bautista's attorney represented that Bautista had been taken into Immigration and Customs Enforcement custody and transferred or deported, but they provided no documentation or affidavits establishing that removal was compelled.
Procedural history
Solomon posted $10,000 in cash bail for Bautista in two Superior Court criminal cases. Bautista failed to appear for a scheduled trial-assignment hearing after allegedly being taken into immigration custody and possibly deported. The Superior Court forfeited the bail, defaulted Bautista nunc pro tunc, and denied Solomon's motion for return of the bail. The Supreme Judicial Court affirmed.