Monday, February 11, 2002
Ninth Circuit Orders Lawyer to Forfeit Bail Posted for Brother-in-Law
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Newport Beach lawyer who pledged her home as collateral for her brother-in-law/client’s bail bond must forfeit the bond as a result of his failure to appear for remand, the Ninth U.S. Circuit Court of Appeals ruled Friday.
A divided panel affirmed U.S. District Judge Alicemarie Stottler’s order that the entire $100,000 bail pledged by Thu-Truc (Tracy) Nguyen and another family member be forfeited.
Judge M. Margaret McKeown said Nguyen was complicit in Vinh Huu Nguyen’s failure to surrender, while dissenting Judge Andrew Kleinfeld said the lawyer was being excessively punished for having “served her client better than herself.”
Vinh Huu Nguyen was convicted in Stottler’s Orange County courtroom of 11 counts of loan fraud. He was sentenced to 30 months in prison but released on $100,000 bond with Tracy Nguyen and Khanh Bui, the defendant’s brother-in-law, as sureties.
Bui pledged a house that he owned but did not live in as collateral, Tracy Nguyen—who was not representing her brother-in-law at the time—pledged her home.
On appeal, the Ninth Circuit affirmed the conviction but remanded for resentencing. Stottler again sentenced Nguyen to 30 months but agreed to delay his incarceration.
Nguyen did not surrender as ordered. Tracy Nguyen, acting as counsel, delivered a declaration to the U.S. Marshal’s Office saying her brother-in-law could not surrender because of medical problems. After a prosecutor contacted the defendant’s physician, who said that Nguyen was scheduled for minor surgery later that week and would be able to surrender within three days afterwards, the judge agreed to hold a bench warrant until then.
Evidence taken at the forfeiture hearing showed that the defendant did not have the surgery as scheduled, but went to another doctor and scheduled the operation for a later date. His sister-in-law sought to delay the surrender again, both on medical grounds and in anticipation of the filing of a habeas corpus petition.
The judge extended the deadline several times but Nguyen failed to report on the final deadline date and a warrant was issued. Nguyen was arrested at work three weeks after the warrant was issued.
In denying the sureties’ request to set aside the forfeiture, in whole or in part, Stottler noted that Tracy Nguyen not only did nothing to aid in the apprehension, she assisted in the evasion.
McKeown, writing for the Ninth Circuit, said the district judge acted within her discretion.
The appellate jurist rejected Nguyen’s argument that her failure to assist in the apprehension of the defendant—a significant factor in bail forfeiture cases under Ninth Circuit precedent—was excused by the fact that she was also Vinh Huu Nguyen’s attorney.
“To the extent she placed herself in a position of conflict, the circumstance was one of her own making. She agreed to represent Nguyen knowing that his failure to surrender could result in forfeiture of the bond that she had pledged. She cannot escape her obligations as a surety simply by wrapping herself in the cloak of his attorney.”
Judge Ferdinand F. Fernandez joined in McKeown’s opinion.
Kleinfeld, however, argued that there should have been a partial remission of forfeiture. The fact that Vinh Huu Nguyen was at large for a short time, and was picked up with minimal cost to the government, should have been given greater weight, the judge said.
The district judge should also have given greater consideration to the hardship forfeiture will have on the sureties and their families, he said.
The dissenting jurist argued:
“They are not the criminals in this case. It is tragic when people post bail for a family member in trouble, only to be ruined for their kindness when their kin jumps bail. Today’s decision may affect a lot of common situations, as when people’s children are arrested for drug crimes or their husbands or wives for drunk driving, embezzlement, or tax offenses. If bail is set high enough to catch an international fugitive, but all that happens is that the criminal fails to show up (the majority opinion says Nguyen ‘essentially thumbed his nose’ but to me it looks more like panic about going to jail than insouciance) and is easily and locally caught, there is no good reason to forfeit so large an amount.”
Attorneys on appeal were Roger S. Hanson for the sureties and Assistant U.S. Attorney Jean Rosenbluth for the government.
Copyright 2002, Metropolitan News Company