United States v. Pereida

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 21, 2003

Charles R. Fulbruge III No. 02-41314 & 02-41321 Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

ANDY PEREIDA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (C-97-CR-224-1 & C-97-CR-289-1)

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit

Judges.

PER CURIAM:*

Andy Pereida appeals the revocation of his supervised release

and the forfeiture of his appearance bonds. Primarily at issue is

whether the district court properly forfeited those bonds to the

mothers of Pereida’s children. The forfeiture is VACATED; the

remainder of the judgments is AFFIRMED; and these cases are

REMANDED.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I.

In 1998, Pereida pleaded guilty in one case to possession with

intent to distribute crack cocaine, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(C); in a second case, he was convicted by a jury

of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) & 924(a)(2). Pereida was sentenced to two

concurrent 57-month prison terms, followed by three years of

supervised release.

Pereida was released in January 2002. That April, he was

arrested for reckless driving and his vehicle impounded; during the

inventory search, a bulletproof vest (body armor) was found in the

trunk. At a subsequent revocation hearing, Garza, Pereida’s uncle,

testified that: the bulletproof vest was his; Pereida borrowed

Garza’s vehicle and Garza did not want the vest in his vehicle

while Pereida drove; and, therefore, Garza placed it in the trunk

of Pereida’s automobile but forgot to remove it. Contradicting

Garza’s testimony, Pereida’s ex-wife, Wilburn, testified that

Pereida had bragged to her about owning the vest.

At the time of the revocation hearing, Pereida was in the

process of divorcing his wife, Mirna Pereida. She is the mother of

two of his children and was expecting a third. According to the

separation agreement, Pereida was to pay $1,000 a month in child

support. From March through June 2002, Pereida had not done so;

Mirna Pereida sued in family court and recovered those payments.

2 Pereida paid his July support on 18 or 19 July (it was due the

first of the month). At the time of the revocation hearing in late

August and early September 2002, he had paid only $700 of the

$1,000 August payment and was late on his September payment.

Pereida also paid child support to Wilburn, the mother of

another of his children. He was obligated to pay $300 per month,

together with $29,000 plus interest for prenatal care. At the time

of the revocation hearing, he had not paid for the prenatal care.

Upon Pereida’s mother’s death, he received an annuity yielding

$1,200 a month. In May 2002, several months before the revocation

hearing, Pereida converted the annuity for approximately $152,000.

(He will receive another lump sum distribution of $652,000 in 2004

and a final distribution of approximately $1 million.) That same

day, he purchased a new automobile for $56,990 from a dealership in

San Antonio. (Pereida gave the dealership a check for $67,948 to

pay for both the new vehicle and the negative equity on the vehicle

he was trading in.) Under the terms of his supervised release, he

was prohibited from traveling to San Antonio; he instructed the

sales manager to tell whomever called that the new vehicle had been

delivered to Corpus Christi. The sales manager did so when

Pereida’s probation officer called.

In early June 2002, a police officer stopped at a party at

Pereida’s residence because it appeared minors were consuming

alcohol. Pereida informed the officer he was on parole. The

3 officer asked whether Pereida was allowed to drink alcohol on

parole and whether he was doing so. Pereida answered no to both

questions. Although Pereida was required to inform his probation

officer of police questioning within 72 hours, Pereida did not do

so.

On 27 June (for cocaine conviction) and 1 July 2002 (for

felon-in-possession conviction), the Government filed petitions to

revoke Pereida’s supervised release. It alleged Pereida: (1)

violated Texas Penal Code § 46.041 (felon in possession of body

armor); (2) failed to truthfully answer his probation officer

regarding police questioning in May and June; (3) failed to pay

child support for January through June 2002; and (4) failed to

notify the probation officer within 72 hours of police questioning.

At Pereida’s initial appearance on 2 July 2002, the magistrate

judge ordered him to post a $50,000 appearance bond in each case.

On Pereida’s motion, the magistrate judge reduced each bond to

$25,000. In doing so, the magistrate judge wrote on the order:

“Bail set at $25,000.00 cash, with electronic monitoring and curfew

set by Probation. Confirm payment of all child support”. United

States v. Pereida, No. C-97-CR-224 (S.D. Tex. 10 July 2002); United

States v. Pereida, No. C-97-CR-289 (S.D. Tex. 10 July 2002).

Pereida executed two cash appearance bonds on 12 July. They

did not include language regarding the “confirm payment of all

4 child support” term written in the earlier order. In pertinent

part, each bond states:

If the defendant appears as ordered or notified and otherwise obeys and performs the foregoing conditions of this bond, then this bond is to be void, but if the defendant fails to obey or perform any of these conditions,* [*Any violation of law shall constitute a violation of conditions of release] payment of the amount of this bond shall be due forthwith.

On 16 July, the magistrate judge signed an order setting

conditions of release in both cases; Pereida also signed them.

They included: “Defendant is to submit confirmation of resolution

of all child support matters”.

On 13 August, the district court granted an order assigning

$25,000 of the appearance bond to Pereida’s attorney. On 21

August, the revocation hearing began. The court vacated the bond

assignment and stated it would assign the money to Pereida’s wife

and former wife because he was late paying his August child

support. Pereida was also remanded to custody. The hearing was

continued until September.

When the hearing resumed, the district court ruled that

Pereida had violated the supervised release terms for each

conviction, as alleged by the Government. The court also found

that Pereida traveled to San Antonio without permission and urged

the car dealer and his uncle (Garza) to lie.

5 The district court revoked Pereida’s supervised release and

sentenced him to 22 months in prison in each case, to run

consecutively, followed by 14-months supervised release. It also

ordered the two appearance bonds forfeited to Pereida’s wife and

former wife: $40,000 to Mirna Pereida; $10,000 to Wilburn.

Defense counsel objected to the forfeiture, contending the court

did not have authority to order it because Pereida made all his

appearances. (Earlier in the proceeding, however, Pereida had

consented to the allocation of $40,000 to Mirna Pereida.) Judgment

was entered in both cases on 2 October 2002.

II.

Pereida appeals the revocation, sentences, and forfeiture. He

contends: (1) he was denied a fair and impartial revocation

hearing; (2) the evidence was insufficient to support the

revocation; (3) he was unlawfully sentenced; (4) he did not violate

the purported child support bond condition; (5) the bond forfeiture

was excessive and should have been set aside; and (6) the court

lacked authority to assign the bond money to Mirna Pereida and

Wilburn because the money can only be paid to the United States

Attorney only on the Government’s motion.

A.

The district court ordered Pereida’s bond forfeited because he

failed to timely pay $300 of his $1,000 August child support to

Mirna Pereida, failed to timely pay the September payment, and

6 failed to reimburse Wilburn $29,000 for prenatal care. Pereida

contends: he did not violate the bond condition; and ordering the

money forfeited was improper. An order of bond forfeiture is

reviewed for arbitrariness or capriciousness. United States v.

Parr, 594 F.2d 440, 443-44 (5th Cir. 1979).

Although bond forfeiture may be ordered for violations other

than non-appearance, the terms of the bond are strictly construed.

United States v. Terrell, 983 F.2d 653, 655 (5th Cir. 1993) (citing

Brown v. United States, 410 F.2d 212 (5th Cir.), cert. denied, 396

U.S. 932 (1969)). Restrictions or conditions not within the

express language of the standard appearance bond form should be

recited in its body or, if attached, should be expressly referred

to. United States v. Clark, 412 F.2d 885, 886 n.2 (5th Cir. 1969)

(citing United States v. Egan, 394 F.2d 262, 267 (2nd Cir.), cert.

denied, 393 U.S. 838 (1968)).

Although the order modifying the appearance bonds (signed

before the bonds) and the conditions of release (signed four days

after the bonds) contained terms requiring Pereida to confirm

paying child support, the bonds did not contain such a condition.

On the other hand, the bonds did contain a term requiring Pereida

to appear “in accordance with any and all orders and directions

relating to the defendant’s appearance....”

In Terrell, the appearance bond contained the same condition.

Our court concluded that this term integrated conditions of release

7 that related to defendant’s appearance. 983 F.2d at 655. The

conditions requiring defendant in Terrell to report weekly to the

pretrial service officer, stay within a certain geographic area,

and not possess controlled substances were held to relate to

defendant’s appearance and were, consequently, bond conditions for

which forfeiture was appropriate. Id. Our court reasoned that all

of these conditions either made it more likely defendant would

appear or less likely he would abscond. Id.

Obviously, unlike the conditions in Terrell, the condition of

release requiring Pereida to confirm child support payment does not

relate to his appearance. This confirmation condition does not

make it more likely that Pereida will appear, nor does it reduce

the costs of locating him if he fails to do so. Thus, it is not

integrated as a bond condition through the “orders ... relating to

appearance” language. Further, no other language within the

appearance bonds arguably incorporates the child support

confirmation condition. Therefore, the district court erred by

ordering the bonds forfeited. (Accordingly, we need not address

whether the district court erred by declaring the money forfeited

to Mirna Pereida and Wilburn and not the United States.)

B.

Concerning the revocation of supervised release, Pereida

contends: (1) he was denied due process; (2) the evidence was

insufficient; and (3) his sentences were illegal and plainly

8 unreasonable. In district court, Pereida did not object on any of

these grounds.

1.

Pereida contends his due process rights were violated because

the district court was biased, did not objectively evaluate the

evidence, put undue emphasis on the child support issue, and

interrupted his counsel during cross-examination. Pereida’s

failure to object results in this claim being reviewed only for

plain error. E.g., United States v. Ayers, 946 F.2d 1127, 1131

(5th Cir. 1991). For such error, there must be a clear and obvious

error affecting Pereida’s substantial rights; even then, we have

discretion whether to reverse and, generally, will not do so unless

that error also impugns the fairness, integrity or public

reputation of judicial proceedings. Id.

The record does not support Pereida’s contention that the

district court acted with bias or did not objectively evaluate the

evidence. There is no absolute confrontation right during a

revocation proceeding, United States v. Grandlund, 71 F.3d 507, 510

(5th Cir. 1995), cert. denied, 516 U.S. 1152 (1996); in any event,

his counsel was allowed to sufficiently cross-examine witnesses.

There is no clear or obvious error affecting Pereida’s substantial

rights.

9 2.

Next, Pereida contends the evidence was insufficient to

support finding he violated his supervised release conditions.

Where a defendant fails to object in district court to the

sufficiency of evidence, we review only to determine whether the

record is devoid of evidence supporting the judgment. E.g., United

States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002) (en banc),

cert. denied, 123 S. Ct. 1375 (2003).

The record is not devoid of such evidence. Pereida’s

probation officer testified that Pereida failed to truthfully

answer questions regarding police questioning during his party or

report such questioning. For the body armor violation: the

bulletproof vest was found in Pereida’s car; and his former wife

testified that he bragged about owning it. Finally, as for failing

to pay child support, it was shown Pereida: was sued by Mirna

Pereida to collect child support; was consistently late in making

payments; and had not paid September’s support at the time of the

revocation hearing.

3.

Finally, Pereida asserts his sentence was illegal or plainly

unreasonable because the aggregate of the consecutive 22-month

prison terms followed by 14 months of supervised release (58

months) is greater than the original 36-month term of supervised

release. Again, because Pereida failed to object in district

10 court, this issue is reviewed only for plain error. United States

v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).

Concerning this issue, a court can impose “a term of

imprisonment followed by a term of supervised release, so long as

the aggregate of these two terms is less than or equal to the

defendant’s original term of supervised release”. United States v.

Bewley, 227 F.3d 343, 344 (8th Cir. 1994) (quotation omitted); 18

U.S.C. § 3583(h) (when supervised release revoked, term of

imprisonment can be ordered, followed by supervised release term,

as long as aggregate does not exceed original term of supervised

release). A district court, however, has the authority to impose

consecutive sentences upon the revocation of concurrent terms of

supervised release. United States v. Gonzalez, 250 F.3d 923, 926

(5th Cir. 2001). Each consecutive sentence is for 22 months, plus

14-months supervised release. This totals 36 months for each

sentence, which does not exceed the original supervised release

term of 36 months. There is no error, let alone plain error.

III.

The forfeiture of the two appearance bonds is VACATED; the

REMANDED to district court for such further proceedings, consistent

with this opinion, as may be necessary.

VACATED IN PART; AFFIRMED IN PART; REMANDED