U.S. FEDERAL COURT
U.S. v. Humberto Laura-Cota, 262 F. Supp.2d 1118 (S.D. Cal. 2003) set aside forfeiture of the bond because the Government increased the surety's risk by deporting the defendant.
In United States v. King, 349 F.3d 964 (7th Cir. 2003) the trial court, over the government's objection, permitted the defendant to travel to Nigeria despite the fact that he had shown what the court calls a propensity for flight. However, he in fact returned to New York and then skipped. The Seventh Circuit's decision contains excellent language on exoneration of the surety by an unconsented to increase in the risk assumed, including "That a material change in risk can discharge the surety's obligation is a staple of suretyship law; the principle is not limited to criminal cases." The court holds, however, that the increased risk from letting the defendant travel to Nigeria did not discharge the surety because the defendant in fact returned to the United States before fleeing. In effect, the court looks at whether the surety was actually harmed by the action which increased its risk. If it was not actually harmed, it is not discharged. The Seventh Circuit, however, clearly states that if the surety had been harmed, i.e., Mr. King had stayed in Nigeria, the surety would have been discharged.
United States v. Garza, 2005 WL 673325 (5th Cir. March 23, 2005) held that bail agents did not have standing to appeal denial of their motion to remit the bond forfeiture. The agents did not present any evidence that they paid the forfeiture or had a contractual obligation to indemnify the surety company. The court specifically found that the corporate surety paid the forfeiture and that the motion was filed allegedly in the capacity of sureties not in a representative capacity on behalf of the corporate surety. [Not published].