Supreme Judicial Court (April 11, 2011)

In a situation where the surety is seeking to recover bail money that was posted and later forfeited due to a defendant's failure to appear, "an act of the government of the United States," in G.L. c. 276, § 70, 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.

The defendant is a citizen of the Dominican Republic. While living in the United States illegally, he was charged with drug offenses. While being held on bail on the drug charges, the United States Department of Immigration and Customs Enforcement (ICE) issued a notice to appear to the defendant. "The defendant confirmed on a written response form that he had received the notice to appear. He also checked off two boxes on the form, the first indicating, "I request a hearing before an immigration judge," and the second stating, "I admit that I am in the United States illegally, and I don't consider myself to be in any danger if I return to my country. I will denounce my right to a tribunal before an immigration judge. I want to return to my country, and I understand that I ... might be detained during that time before I leave."" Approximately seven months later, the defendant's $10,000 bail on the drug cases was posted by the appellant. At the time he posted bail, the appellant was aware of the ICE detainer and the defendant's response indicating he wished to return to the Dominican Republic. Once the bail was posted, the defendant was taken into the custody of ICE and held waiting deportation. At a subsequent court proceeding, the defendant's bail was forfeited and a default warrant issued.

The appellant surety filed a motion to return the bail under G.L. c. 276, § 70, arguing that an act of the government of the United States prevented the defendant from appearing at his court date. After a hearing, the judge found that the appellant surety had assumed the risk and denied his motion to return the bail. The appellant filed an appeal from the judge's order and the Supreme Judicial Court transferred the case on its own motion.

G.L. c. 276, § 70:
"If, by the act of God, of the government of the United States, of any state or by sentence of law, bail are unable without their fault to surrender their principal, they shall, upon motion before final judgment on scire facias, be exonerated and discharged by the court, with or without costs as the court deems equitable."

Accordingly, G.L. c. 276, § 70 entitles a surety to the return of posted bail if two conditions are met: (1) one of the four circumstances or events listed in the first clause of the section has occurred; and (2) the surety is "without ... fault."

An act of the government of the United States:
The appellant surety argues that the defendant was not able to appear in the Superior Court when required because of an action of the United States government within the meaning of § 70 - being in custody awaiting deportation proceedings. The Court interpreted § 70 in light of decisions discussing common-law principles that predated the enactment of § 70. The earlier cases reveal that, "for a governmental act to qualify as a reason for the exoneration of a surety, the act must have been beyond the control of the defendant (principal) himself; it could not be an act that the principal volunteered to perform." The Court found that in this case, the appellant failed to show that the defendant's failure to appear on his criminal charges was compelled by the government and therefore is not entitled to exoneration of bail under G.L. c. 276, § 70. The Court affirmed the lower court's denial of the appellant surety's motion for the return of bail.

Without the surety's fault:
Because the appellant surety failed to show that the defendant's absence was caused by an act of the government, the Court did not need to decide the second prong of without the surety's fault. However, the Court did say, "[i]t is not the case that just because a defendant in a criminal case is a noncitizen and a potential for deportation therefore exists, a surety assumes the risk of that defendant's nonappearance on account of deportation, and will never be entitled to exoneration and recovery of funds that the surety may have posted as bail if the defendant is indeed deported before the final resolution of the criminal case. Every case must be decided on its specific facts."