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United States v. John Gambino, Also Known as "Giovanni", Joseph Gambino, Also Known as "Guiseppe", Vittoria Gambino and Tommy Gambino, Sureties-Appellants
Citations: 17 F.3d 572; 1994 U.S. App. LEXIS 3508Docket: 987
Court: Court of Appeals for the Second Circuit; February 23, 1994; Federal Appellate Court
Vittoria Gambino and Tommy Gambino appeal a decision from the Southern District of New York requiring them to forfeit a $2,000,000 bond related to John Gambino's release. The bond, signed by Vittoria and Tommy, was secured by their real estate and conditioned on strict monitoring and compliance measures. On January 4, 1993, the court granted the government's motion for forfeiture after John Gambino violated his bail conditions by fleeing justice, leading to his arrest on September 17, 1992. The appellants argue that the removal of John Gambino's electronic monitoring device relieved them of their obligations, and they also claim the court abused its discretion by denying their motion for partial remission of the forfeiture. The court rejected both arguments, affirming the forfeiture order, determining that the appellants remained liable despite the removal of the monitoring system. A surety remains obligated on a bond despite modifications to bail conditions unless the government's actions materially increase the surety's risk without notice or consent. Circumstantial evidence can infer notice and consent. In this case, the removal of an electronic monitoring bracelet did not materially increase the risk of flight, as the monitoring system was ineffective due to frequent "black-out" periods. Consequently, the court determined that the surety was not relieved of its obligations. Additionally, the appellants' motion for partial remission of a $2,000,000 judgment was denied. Under Federal Rule of Criminal Procedure 46(e), the burden to establish grounds for remission lies with the challenging party. The court must weigh various factors, including the willfulness of the bond breach, government prejudice, any mitigating explanations, the surety's assistance in apprehension, and the nature of the surety. The court found these factors favored forfeiture, emphasizing the deterrence value in significant narcotics and racketeering cases. The court did not abuse its discretion in denying the remission request. Therefore, the court's decisions regarding both the bond obligations and the denial of remission were affirmed.