United States of America, Plaintiff-appellee, v. Gregory S. Brebner, Defendant,andamerican Bankers Insurance Company of Florida, Surety, Realparty in Interest, Claimant-appellant, 114 F.3d 1196 (9th Cir. 1997)

MEMORANDUM^** 

American Bankers Insurance Company of Florida (American Bankers) appeals the district court's grant of bail forfeiture and default judgment for the United States, and denial of its motion for exoneration or to set aside the forfeiture or remit the bond. We affirm.

After being indicted on various cocaine distribution charges, Gregory S. Brebner was ordered released by the district court subject to certain conditions. Brebner was prohibited from the use or possession of controlled substances and subjected to regular urinalysis, and he was required to post a $35,000 corporate surety bond contingent on satisfaction of the district court's conditions, which American Bankers provided. Brebner conditionally pled guilty on multiple counts, was sentenced, and was ordered released pending appeal. The previous conditions of release were incorporated in the order of release pending appeal and a requirement of random urinalysis was added. After two of Brebner's urinalysis tests were positive for the presence of cocaine and Brebner admitted to cocaine use at a hearing, the district court revoked the order of release. The district court later granted the United States' motion for declaration of bail forfeiture based on Brebner's violation of a condition of his release.

The language of the bail bond contract supports the district court's holding that the bond covered the period of Brebner's release pending appeal. The district court correctly found that this was a "continuing bond" issued for the criminal case against Brebner which did not conclude until he began serving his sentence. See United States v. Gonware, 415 F.2d 82, 84 (9th Cir. 1969). In denying the surety's motion under Federal Rule of Criminal Procedure 46(e) to either set aside or remit the bond, the district court did not abuse its discretion. The district court did not err in declaring bail forfeiture for breach of a condition other than nonappearance by the criminal defendant. United States v. Vaccaro, 51 F.3d 189, 191-92 (9th Cir. 1995); see also Fed. R. Crim. P. 46(e).

AFFIRMED.