Fred W. Frank, Bail Bondsman, Inc. v. State

In Fred W. Frank, Bail Bondsman, Inc. v. State, 99 Md. App. 227, 636 A.2d 484 (1994), two non-citizen immigrants had been charged with drug offenses in Wicomico County. Through a professional bondsman, each posted a corporate bond of $ 100,000. Two weeks prior to the scheduled trial date, the bondsman learned that the two had fled to Haiti, a country with which the United States did not at that time have an extradition treaty. When the defendants failed to appear for trial, the judge ordered that the bonds be forfeited. In a diligent effort to locate the defendants, the bondsman traveled to Haiti on two occasions. When he located them in Haiti, they "refused to return voluntarily to the United States." Id. at 229. The bondsman then sought to have them extradited but was unsuccessful because "the United States and Haiti had no diplomatic relations" at that time. Id. at 229-30. The bondsman there, just as does the appellant here, argued that the absence of an extradition treaty made it "impossible" for him to produce the defendants. The Court rejected the very pertinence of such an argument. "We reject appellant's contention that the circuit court should have stricken forfeiture of the bonds because it was impossible to produce the defendants. The purpose of a bail bond system is to insure that the party accused is present at trial." Id. at 231. Judge Wenner expounded upon the inefficacy of an argument based on impossibility under circumstances wherein the surety has expressly assumed just such a risk. "We note that in the typical contract case, the promisor may not rely on the defense of "impossibility" as an excuse for non-performance if the promisor assumed the risk." Id. at 232. The bail bondsman's good faith effort, moreover, does not excuse the failure. Indeed, a striking of the forfeiture would affirmatively undermine both the purpose and the effective operation of the bail forfeiture system. "We acknowledge appellant's efforts to return the defendants to the United States for trial, but point out that if the circuit court had stricken forfeiture of the bonds it would not only have undermined the system, but as appellee points out, appellant would have no incentive to continue to seek extradition of the defendants upon restoration of diplomatic relations between the United States and Haiti." Id. at 231.