United States District Court, S.D. Texas, Galveston Division
C. HANKS JR. UNITED STATES DISTRICT JUDGE.
before the Court is the Government's motion to pay the
defendant's special assessments with money posted by the
defendant's wife as security for an appearance bond. For
the reasons given below, the motion is
Dennis Patrick Meehan Hughes was indicted on June 30, 2015
for one count each of receipt of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(2)(B) and
2252A(b)(1); access with intent to view child pornography in
violation of 18 U.S.C. | §§ 2252A(a)(5)(B) and
2252A(b)(2); and possession of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2)
(Dkt. 16). He entered a guilty plea on all counts on March
22, 2016, and his punishment included an 84-month prison
term; a 10-year term of supervised release; and $5, 300.00 in
special assessments (Dkt. 78).
issue in this motion is $5, 000.00 that Hughes's wife
posted as security for an appearance bond for him (Dkt. 83 at
p. 1). The Government seeks to use that money to help satisfy
the $5, 300.00 special assessment (Dkt. 83 at p. 1). Hughes
opposes the Government's motion and requests that the
Court return the $5, 000.00 to his wife (Dkt. 84 at p. 1).
THE STANDARD GOVERNING THE PAYMENT OF FINES WITH BOND
parties agree that the Government's motion is governed by
28 U.S.C. § 2044, which in its entirety reads:
On motion of the United States attorney, the court shall
order any money belonging to and deposited by or on behalf of
the defendant with the court for the purposes of a criminal
appearance bail bond (trial or appeal) to be held and paid
over to the United States attorney to be applied to the
payment of any assessment, fine, restitution, or penalty
imposed upon the defendant. The court shall not release any
money deposited for bond purposes after a plea or a verdict
of the defendant's guilt has been entered and before
sentencing except upon a showing that an assessment, fine,
restitution or penalty cannot be imposed for the offense the
defendant committed or that the defendant would suffer an
undue hardship. This section shall not apply to any third
party surety. 28 U.S.C. § 2044.
is little authority regarding this statute, and none that is
binding on this Court; but the Court agrees with the Eastern
District of Louisiana's holding that demonstrating the
applicability of Section 2044 requires two showings: (1) that
the money was deposited by the defendant or on the
defendant's behalf; and (2) that the money belongs to the
defendant. United States v. Harris, No. 95-180, 1996
WL 291200, at *1 (E.D. La. May 29, 1996). The Court further
agrees with the Southern District of Florida's
well-reasoned holding that the Government bears the burden of
showing, by a preponderance of the evidence, that the second
prong is satisfied-i.e. that the funds in
question belonged to the defendant and were not deposited by
a third-party surety. United States v.
Gonzalez, No. ll-CR-80211, 2013 WL 654918, at *3-4 (S.D.
Fla. Feb. 21, 2013).
only evidence in the record with regard to who owns the $5,
000.00 is an "Affidavit of Ownership of Security for
Appearance Bond" sworn out by Hughes's wife averring
that she is the owner of the funds (Dkt. 8-2). The Government
has not presented any evidence; its arguments are purely
legal. The Government contends that the Court must presume
that the funds are community property under Texas law unless
Hughes proves by clear and convincing evidence that they are
his wife's separate property (Dkt. 85 at p. 3).
See TEX. Fam. Code §§ 3.001-3.003. The
Government cites no federal caselaw to support this position,
and the only Fifth Circuit case the Court could find casts
doubt on it.
United States v. Jones, 607 F.2d 687 (5th Cir.
1979), a pre-Section-2044 case, the defendant's wife
posted a cash bond for the defendant's release pending
trial. The Western District of Texas required that the bond
be used for partial payment of the defendant's criminal
fine, even though there was no violation of the
defendant's bail terms. Id. at 687. The Fifth
Circuit reversed the district court's order and remanded
the case for a determination of whether the bail funds should
be returned to the defendant's wife or the
defendant's attorney, to whom the wife had executed an
assignment of the funds. Id. at 688-89. Critically,
if the assignment to the attorney was invalid, the funds
would be returned to the defendant's wife, not the
defendant,  as "[t]he cash bond was posted by
[the defendant's wife], not the defendant, and there was
nothing before the court to indicate that it was the
defendant's money." Id. Such is the case
here. Hughes's wife not only posted the security funds
but swore that she alone was the owner of the money at issue
(Dkt. 8-2), and the Government has not presented any evidence
to counter her affidavit of ownership.
Court understands the logic of the government's position,
but it does not consider the Texas Family Code's
community property presumption determinative. The materially
identical Jones case makes no mention of Texas
community property law and, in fact, cautions against
employing any presumption that a cash bond deposited on
behalf of a defendant belongs to that defendant. Id.
at 688. In any event, Hughes's wife has presented
unrebutted evidence of sole ownership of the $5, 000.00.
Under these circumstances, the Government cannot rest on a
presumption drawn from the Texas Family Code. The Government
has not carried its evidentiary burden. Its motion (Dkt. 83)
ORDERED that the United States government RETURN the bail
money posted by Claire Hughes in the amount of $5, 000.00 on
behalf of Dennis ...