Bail-listics Test

A trash company owner charged with “cleaning out [a] city's coffers [while] cleaning up the city's streets” can remain free pending his trial by posting far less bail than originally required, according to a ruling by a California appeals court. For more than 40 years, Hambarian family businesses have held waste collection and disposal contracts with the city of Orange, Calif. Most recently, one Hambarian company collected all locally generated solid waste and recyclable materials and delivered them to another of the family owned companies for processing. The contract with the city used the companies' costs to set the rates for collection and recycling services.

Jeffrey Hambarian now faces criminal charges for an alleged scheme to overcharge city residents and businesses by inflating the collection company's costs and underreporting the recycling firm's revenues. The charges are pegged to the scheme itself (grand theft) and the related attempt to hide the proceeds (money laundering and tax evasion).

Hambarian was arrested on these charges under a warrant that set bail at $5 million. After the lower court reduced the bail amount to $2.5 million but refused to lower it further, Hambarian argued that he had been subjected to “excessive bail.” Pending a full hearing on the issue, an appeals court reduced bail to $500,000 on the condition that Hambarian surrender his passport. He handed over his passport to the county prosecutor, posted the $500,000 and has been free ever since.

A follow-up hearing on the bail amount was deferred for nearly three years while the case made its way through the appeals process on the question of whether the case should be prosecuted by someone from outside the county. It seems the city had hired an outside accountant to audit the recycling company's revenues, and the district attorney took over supervision of the accountant who continued to be paid by the city. The state supreme court eventually ruled that the district attorney would not be replaced.

The prohibition against excessive bail is part of the U.S. Bill of Rights and the California Constitution. The appeals court examined the three factors that guide courts in setting the amount of bail: the accused's previous criminal record; the seriousness of the offense; and the risk of flight.

The appellate panel determined that mere allegations of dishonest behavior but no convictions did not amount to a criminal record. Additionally, it termed grand theft and the related charges “serious” but nonviolent crimes with no risk of repetition.

“Hambarian is not going to [make] any contracts with anybody to haul or recycle trash,” the court said, adding that the county's own bail schedule for grand theft is $10,000. Finally, the court found sufficient family and institutional ties within the county to minimize flight risk.

The appeals court directed the trial court to conduct a bail hearing “consistent with the views of this opinion,” and suggested that the parties could simply agree to leave the bail unchanged.

[In re Hambarian, No. G024659, Cal. App. Dist. 4, Oct. 17, 2002]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.