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| Ken Good |
Wayne Lozier, a licensed recovery agent — colloquially referred to as a "bounty hunter" — from Louisiana, found himself facing federal kidnapping charges after apprehending a defendant who had skipped court. Despite working under a lawful contract with a bail bondsman and with a valid warrant, Lozier's actions led to a 10-year prison sentence, until a December decision in U.S. v. Lozier in the U.S. Court of Appeals for the Eighth Circuit reversed the ruling and ordered a new trial.
This case raises pressing questions for attorneys giving advice about the risks surrounding fugitive recovery and the balance between state and federal authority in such cases. For instance, when a defendant flees the state over a misdemeanor charge and extradition is not possible, how can a surety fulfill its promise to the trial court to ensure that the defendant will appear?
Further, what is the risk that the state or the federal government may take the side of a defendant who willfully flees one jurisdiction, and pursue federal kidnapping charges against the recovery agent? Attorneys advising recovery agents will need to grapple with these thorny legal questions.
Lozier was hired to locate and return Rebecca Carman, who had been arrested in Louisiana and charged with two misdemeanor counts of assault-family violence. She was released on bonds totaling $10,000, but later failed to appear in court. After missing her court date, she traveled to Florida for drug treatment. Upon leaving rehab, she relocated to Missouri, where she stayed with a friend she met during treatment.
When Carman missed her court date, her bonds were forfeited and the trial court issued a warrant for her arrest. In response, her bondsman hired Lozier, a licensed recovery agent based in Gretna, Louisiana, to locate and ensure her return to court. Lozier owned and operated a business called "Bayou Boyz," and frequently worked alongside his colleague, Jody Sullivan.
Lozier and Sullivan tracked Carman from Florida to Missouri, where she had concealed her whereabouts from family and friends. Several months after she relocated to St. Peters, Missouri, they discovered her location. Lozier entered the house, found Carman in the basement and confirmed her identity before placing her in handcuffs. While her friend called 911, Lozier and Sullivan escorted Carman to their SUV and drove away.
Before leaving Missouri, concerns arose about the propriety of Lozier and Sullivan's actions. A police officer, after obtaining Lozier's phone number from the bail-bond company, contacted him directly and instructed him to either return Carman to St. Peters or drop her off at a designated local police station in Missouri.
Lozier, however, did not comply. Upon entering Mississippi, he and Sullivan began to have doubts regarding their actions and whether they acted properly since they were not licensed recovery agents under Missouri law. As a result, they delivered Carman to a Mississippi police station. She later returned to Louisiana, where she pled guilty to the pending charges.
The state of Missouri declined to file any charges against Lozier or Sullivan regarding Carman's recovery.
However, a federal grand jury for the U.S. District Court for the Eastern District of Missouri indicted them on two counts: federal kidnapping and conspiracy to kidnap. The charges were based on Title 18 of the U.S. Code, Section 1201(a), which states that to commit a federal offense of kidnapping, the actor must have acted unlawfully in seizing or carrying away another person. To be unlawful, the act must be deemed illegal and carried out without justification or excuse.
Before trial, Sullivan pled guilty and was sentenced to probation.
Lozier believed he acted properly. Therefore, his case proceeded to trial. At trial, Lozier presented evidence establishing that he was a licensed recovery agent in Louisiana and had been hired by a bail bondsman to locate and return Carman to court. He also offered into evidence the warrant issued by the Louisiana criminal court as part of his defense.
Before deliberations, the trial court rejected a portion of the jury instructions proposed by the parties and instead issued its own. The new instruction essentially stated that if the jury determined Lozier had not complied with Missouri law in recovering Carman, then his actions were unlawful. Lozier's attorneys objected on the grounds that the instruction invaded the province of the jury regarding a central fact of the case regarding justification or excuse. The court overruled the objections.
The jury held that Lozier violated Missouri law, finding him guilty under the federal kidnapping statute and of engaging in a conspiracy to kidnap Carman. Lozier was sentenced to 10 years in federal prison, a term shorter than the maximum sentence allowed by federal sentencing guidelines.
Lozier appealed, arguing that the trial court's instruction was improper because it created a conclusive presumption about whether his actions were unlawful. He contended that the instruction prevented the jury from making a factual finding regarding whether his detention of Carman was justified or excusable, despite his failure to comply with Missouri's law regulating surety recovery agents.
This appeal also raised concerns about whether U.S. Congress intended for violations of recovery — particularly in cases where fugitives fail to appear for court and flee to another state's jurisdiction — to be seen as violations of the federal kidnapping statute.
A key subtext of this case concerns situations such as this when a misdemeanor defendant flees to another state, where extradition is typically not pursued. How does the surety, who posted the bond to ensure the defendant's appearance for court, facilitate the return of the defendant and mitigate a bond forfeiture?
This case demonstrates the risks facing sureties attempting to recover fugitives when dealing with states that will not extradite defendants. As a result, sureties are left with either no avenue to fulfill the surety's obligation to the court or to attempt recovery based on legal violations that may be technical or very real. In this instance, those "technical" violations were declined by the state but led to federal kidnapping charges and a lengthy prison sentence.
On Dec. 5, the Eighth Circuit reversed the trial court's decision, finding that the trial court's jury instruction was improper. It ruled that, based on the evidence, a jury could have reasonably concluded that Lozier had the authority to seize, detain and transport Carman due to his relationship with her bondsman.
The court further stated that the jury could have found that Carman implicitly consented to Lozier's actions as part of her bond agreement, which could have justified or excused his conduct under the federal kidnapping statute. The court of appeals remanded the case for a new trial.
The Lozier case raises important questions about the role of recovery agents and the challenges they face when tracking down defendants who flee to other states. The purpose of bail is to give assurance to the trial court that the defendant will return to answer the charges and to ensure the defendant will not be a risk to public safety.
When a defendant fails to appear, the surety has a period of time to return the defendant to court. If the defendant is returned during that time, the surety is rewarded for getting the case back on track quickly. Many times, the surety is able to facilitate the return of the defendant because of the personal relationships developed while the defendant was reporting to them.
However, when the defendant actively absconds, there are potentially 49 other states with their own statutes that may govern recovery agents in their endeavors.
As such, attorneys advising recovery agents who must travel to other states must have a firm grasp of other jurisdictions' rules and the statutes governing the matter in order to properly educate clients about the risks involved. Attorneys will need to tailor their advice based on the specific issues facing recovery agents.
First, attorneys must advise recovery agents about the laws governing recovery in the state to which the defendant has fled.
Second, attorneys must assess and clarify for the recovery agent whether the warrant for the failure to appear is entered into the national database for verifying warrants.
If the warrant is not in the system, the attorney may need to reach out to the trial court or prosecutor from the issuing court to facilitate getting the warrant into the database system.
Attorneys should provide this counsel with an eye toward helping recovery agents make an educated evaluation regarding the risk of recovering the defendant and crossing state lines even if they have a valid warrant and a contract authorizing the actions of the recovery agent when the defendant has absconded to avoid the charges.
In these situations, recovery agents must be made aware of the risk of both state and federal charges.
With federal prosecutors in Missouri having announced their intention of retrying the case, Lozier's legal battle is far from over. The outcome may have significant implications for the future of bail enforcement and the limits of federal intervention in an industry often dramatized in fiction but fraught with real-world risks.
Ken W. Good is the founder of the Professional Bondsmen of Texas and The Good Law Firm.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
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