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Is this a Due Process violation

Ossining, NY |

Mr. P is indicted in State Court (N. Carolina), and released on bail. His sister signs the bail bond. He then leaves the country to visit his family, and enters into a plea deal with the DA involving no jail time. He flies in two days before the court appearance, but the federal government refuses entry (citing the State indictment), and returns him back to his home country. DA dismisses the indictment with leave to renew. The bail bond is forfeited, so his sister is stuck with paying $35,000 because the federal government would not let him come into the country.
In sum, his sister are being penalized for no fault of hers. Isn't this a Due Process violation? Have there been any cases on this issue?

Attorney Answers 3

Posted

You should speak to an immigration or civil rights lawyer.
OR, sue for the $35,000 and see if the attorney can establish the warrant was not the fault of the defendant!

Joseph A. Lo Piccolo, Esq.
Immediate Past President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)
Jlopiccolo@hbclaw.net

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.

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Posted

This is actually a very interesting scenario that you presented, but I have some difficulty with it. If the case was dismissed why was the bail forfeited? I have had instances where clients had active warrants and they weren't permitted reentry (u till I had the warrant vacated) but an indictment alone preventing entry is something I never came across. If there were no travel restrictions prohibiting Mr. P from traveling and sister can prove that he tried to get back to court when he was supposed to she may have a good claim to get the bail back or reinstated. I couldn't tell you off hand if there have been any other cases such as this.

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Posted

The first question is whether the conditions of bail allowed for travel outside of the country. If not, then that would be a legitimate basis for forfeiture. If so, then the failure to return may be excusable and the money should not have been forfeited. You will need a lawyer to sort this out. Given the economic loss, you should certainly hire someone to fight this.

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