Unreported / Non-Citable
Background
Jason Cardiff was released on bond in a federal prosecution in the Central District of California. Lilia Murphy and Brian Kennedy, nonprofessional sureties, signed affidavits of surety. Cardiff did not return, and the district court entered a judgment of bond forfeiture on a bond totaling $530,000. Cardiff and the sureties moved to set aside the forfeiture under Federal Rule of Criminal Procedure 46(f)(2), which allows a court to set aside a forfeiture in whole or in part if it appears that justice does not require it. The district court denied the motions.
Cardiff and the sureties appealed, and the Ninth Circuit consolidated Nos. 25-3616 and 25-3781. They argued that the word “appears” in the rule calls for a lower burden of proof. The government separately asked the court to dismiss Cardiff's appeal under the fugitive disentitlement doctrine. The defendants also filed motions to strike and for leave to file supplemental briefing. The panel decided the case on the briefs, without oral argument.
The Court’s Holding
The Ninth Circuit affirmed. Reviewing for abuse of discretion, it rejected the argument that “appears” lowers the burden of proof and said instead that the district court has wide discretion over whether to grant relief from forfeiture. The panel applied the six nonexhaustive Amwest factors: willfulness, the sureties' role in apprehending the defendant, cost and prejudice to the government, mitigating factors, whether the sureties are professionals, and the appropriateness of the bond amount.
On each factor the panel found the district court's determinations reasonable. Cardiff's failure to return was willful: he first said he had no physical or mental health issues and had taken at least twenty flights since his arrest, but later asserted that health conditions predating the charges prevented him from flying. The sureties had limited ability to apprehend him from a foreign country, so that factor was neutral or entitled to relatively little weight. The government's cost, inconvenience and prejudice were high because it would have to extradite Cardiff and because witness memories fade. The mitigating factors were unpersuasive in light of Cardiff's conduct. The sureties, though not professionals, knew the risks they undertook when they signed their affidavits.
On the amount, the panel explained that a bond functions like liquidated damages and must be reasonable when set. It read the district court's remark that “the bond is the bond” as explaining that the amount depends on factors known when set, not on the merits of pending motions. The panel declined to dismiss Cardiff's appeal under fugitive disentitlement, because its decision would be enforceable and would not substantially further deterrence or efficiency. It denied the motions to strike and for supplemental briefing, and held that the Justice Department attorney was authorized to appear without written authorization.
Key Takeaways
- The word “appears” in Rule 46(f)(2) does not lower the burden of proof; the district court has wide discretion over whether justice requires setting aside a forfeiture.
- A defendant's inconsistent accounts of his health, including a prior statement of no health issues and many flights after arrest, can support a finding that failure to return was willful.
- A surety's limited ability to apprehend a defendant who is in a foreign country may make that factor neutral or of little weight.
- Nonprofessional sureties who knew the risks when they signed affidavits of surety are not entitled to relief on that basis alone.
- A bond is judged like liquidated damages, by its reasonableness when set, and does not depend on the merits of pending motions.
Why It Matters
This unpublished memorandum shows the Ninth Circuit's deferential review of bail forfeiture rulings and rejects a burden-of-proof reading of Rule 46(f)(2). It confirms that a district court may deny relief even to nonprofessional sureties when the defendant's absence is willful and the government faces extradition and fading evidence.
The disposition is not precedent except as allowed by Ninth Circuit Rule 36-3. The $530,000 forfeiture judgment stands. The court did not address whether Cardiff will be returned or any later efforts to recover or reduce the amount.