United States v. John Henry Bright, Jr., 541 F.2d 471

United States v. John Henry Bright, Jr.

541 F.2d 471

5th Cir.

1976

Check Treatment

*2 GEWIN, Before COLEMAN GOLD- BERG, Judges. Circuit GEWIN, Judge: Circuit Henry Bright, John Jr. appeals from his jury in a trial for jumping bail violation of 18 U.S.C. 3150.1 § con- cededly to comply failed with a lawful order to surrender himself to a United States begin Marshal serving arising sentence from an earlier argues, conviction. He however, that the statute apply does not marshal, failure to a alternatively, that he did not receive due notice of the order to Finding surrender. no contentions, merit in either of these we affirm.

I. The Background. Factual In May, appellant was convicted in the United States District Court for the provides pertinent part: release, and, addition, 1. 18 U.S.C. shall, § (1) if he charge was released in Whoever, connection with having pursuant been released felony, awaiting or while chapter, willfully sentence or fails to . appeal pending any shall, required, or certiorari after conviction court or officer as offense, $5,000 subject provisions be fined Federal not more than Rules Procedure, imprisoned years, or of Criminal incur forfeiture of not more than five any security given pledged which was both . sitting District Southern of Texas in Laredo surrender order to Bright at the address of marijuana. conspiring to distribute his mother that given he had on the bond. years sentenced him to five with a Since the order was sent mail, certified receipt requested, term three return special parole years, but re- and since the ap- pellant was not pending appeal pursuant address, leased him to 18 located at that order was returned to the 3148. On his bond clerk. *3 clerk’s office did not mail appellant listed as his address the Dallas of the order to Coil because his address address of his mother. One condition of the did not appear on the transmittal letter was that he would not from the bond leave the Instead, Fifth copies Circuit. of the Northern Districts order or Southern of Texas. were Bright’s mailed to trial attorneys, Shortly filing appeal, after Bright whom he had previously discharged but replaced trial attorneys his two with John who were still listed as attorneys of record Dallas, K. Coil of Texas. The Fifth Circuit in the district court. designated clerk Mr. Coil as attor- Bright failed to surrender as ordered. However, ney of record. neither Coil nor He was by arrested a county sheriff in Bright informed District Court clerk of Georgia 5,1975, on February on a charge of change. possessing a stolen motor vehicle. Subse- Appellant and the Government stipulated quently, a one-count federal indictment was at the trial below that and his wife returned charging him with violating the primarily were absent from Texas between bail-jumping statute, and he was convicted October, 1974, 5, February 1975. Dur- after four-day jury trial. ing period Brights to at traveled least seven states and Canada. In the II. Appellant’s Whether Failure to Surren- travels, Brights periodi- course of their der to a U. S. Marshal Constitutes Bail cally attorney contacted Coil and their re- Jumping. spective Brights mothers in Dallas. The Appellant argues that a marshal is during telephone testified that these calls neither a “court” “judicial nor a officer.” they inquired about' the appel- status of argues Government that a District appeal. However, appellant lant’s both the Court designate can a marshal agent as its consciously and his wife avoided informing for the defendant, surrender of a apparent anyone clerk, District Court the Fifth —the ly conceding that a marshal is “judi not a clerk, Coil, Circuit attorney appellant’s cial officer.” This concession logically fol mother, or his wife’s mother —of their lows from the “judicial definition of offi whereabouts. cer” in 18 3156(a)(1) as “any person panel A of this court affirmed the Laredo or court pursuant authorized to section 3041 20, 1974. United conviction on November title, of this or the Federal Rules of Crimi Bright, States v. (5th 504 F.2d 759 Cir. Procedure, nal to bail or otherwise release a 1974). Coil twice received notice that person before trial or sentencing or pending Bright’s-conviction affirmed, had been once appeal in a court States, of "the United 20, by 1974, a letter dated November from any judge Superior of the Court of the him, the Fifth clerk to Circuit and once District of Columbia . . . .” Since nei receipt copy of a carbon of a letter dated ther section 3041 nor the Federal Rules of 12, 1974, December from the Fifth Circuit Criminal Procedure empower a marshal to clerk to the District Court clerk. However, authorize bail or otherwise to per release a notify Brights, he did not whose where- son, this definition argument forecloses an 19, abouts he did not know. On December “judicial a marshal is a officer.” This Judge District Ben Connally C. en- conclusion accords with that of other courts directing Bright tered an order to surrender that have considered the issue. See United to the U. Marshal for the S. Southern Dis- Logan, States v. (5th 505 F.2d trict of Texas on West, 1974); December 1974. The United States v. 1056, 1057-58 District copy Court clerk mailed a 1973); (W.D.Mo. However, Clark, in United F.Supp. v. Wray, 1969), (5th Cir. we 1973). F.2d 885 reversed the defendant had mere- because literally correct Obviously, appellant probation ly failed to before offi- a “court” or is not a marshal arguing that preparation pre-sentencing cer for the of a go beyond this We must “judicial officer”. we report. Logan discussed numer- however, we because simple argument, unique. facts that make Clark For ous some circumstances have held example, it was not clear from the record a marshal is a viola- to surrender failure original obligation ap- whether Clark’s appear. See United order tion of a court pear arose a court order or from from The district court Logan, supra. bond; only conditions of violations of to five Logan sentenced punishable court orders are under section on June 1973. years’ imprisonment Moreover, Houston, Clark did lived in and child wife defendant’s Paso, probation required by officer as from El where Texas, 750 miles about *4 court, Upon appear was located. but he failed to for a later sentencing court allowed time appointment arranged that he be he had on his own request defendant’s for the care of his arrangements probation with the to make officer.2 him to remain permitted court family, the Logan think We controls first issue in 8, 1973, he at which time until June on bail approved language this case. There we begin to the court to report to back West, supra: from fur- The defendant service of his sentence. jumping The essence of the crime of bail to surren- that he be allowed requested ther appear ‘any is willful failure to before in Houston. The to the U. Marshal der S. judicial required.’ court or officer as As ordering him to request, granted court bond, a condition of defendant’s court designated at a to the marshal report ordered him to to the United After he failed to surren- place. time and specific begin Marshal at a time to ordered, indicted and Logan was der as serving his sentence. An unnecessary jumping under section convicted of bail judicial energy waste of time and would conviction, we said: affirming In 3150. require result if we were to each Marshal is Admittedly, a United States person position West’s officer”, as those judicial not a “court or discretionary the court itself. No action statutes; but terms are used in the above at all. 505 at involved F.2d 37. holding in United agree we with the case, West, in Logan In this as West, Cir., 477 F.2d already district court had sentenced the de- substan- (1973), that under circumstances fendant, and thus a courtroom here, appro- those it is tially the same as would been a useless waste of the desig- the Marshal as the priate to view time. It is true that court’s the district purpose for the agent of the Court nated Logan court in ordered surrender to a mar- taking a sentenced defendant into cus- of request. at 37. shal at the defendant’s -But our tody. 505 F.2d- positively judge required stated that in this case had In Clark this court defendant keep appointment trip a “failure with to make Clark’s to the 750 mile from Houston to El probation expense report not therefore constitute officer did Paso at his own to to the non-appearance itself, which 3150 of the promptly the kind of court he would have been discourage.” designed Act was to Bail Reform turned over to the U. S. Marshal. No confu- Logan we added: 412 F.2d at 891. possibly sion or havoc could arise from the designation Court’s of the U. S. Marshal at said about the failure The same could not be agent Houston as its to receive the defendant report obey to the an order of the Court to under begin circumstances. 505 F.2d at 39. service of sentence. U. S. Marshal perceive Logan meaningless We no conflict between if the A bond would be bail Indeed, preceded discharge obligations Clark. Clark both West and all his defendant could Logan, Logan making necessary appear- whereas the court had the thereunder custody ap- point entering it benefit of both Clark and West when ances down proved distinguished begin If the trial West and Clark. of his sentence. service lant’s failure to surrender to the U. Mar- Logan’s on S. was not based there decision as ordered constituted a shal “failure to request- he had meet a condition failure to ‘any appear before officer Rather, be- we affirmed his conviction ed. ” required.’ report custody as or- he “did not cause added). at 36. (Emphasis dered.” We Logan think that control- report custody failure to Defendant’s Legislative history ling, but correct. does case is the basis for in the instant ordered otherwise; ambig- at most it is suggest conviction, bringing Logan into thus holding barely expands the lit- uous.3 Our Moreover, opin- the Fourth Circuit’s play. section 3150. Bail reading jumping eral West, Logan, approved which we ion in narrow crime. Not all very remains nearly on the same a conviction affirmed give bond conditions rise to breaches of in this case. facts we face Only liability under the statute.4 criminal as ordered constitute bail established in this Circuit failures Logan has thus court, precisely and that conduct is what sentencing, jumping, after when a district by making intended to deter bail to surrender to U. S. a defendant orders sentence, jumping a serious crime. The deterrent begin serving Marshal designated court’s effect of statute does not turn on acts as marshal whether court orders a purpose taking limited district defend- agent for the custody. appel- Therefore ant to surrender courtroom instead of into appears Congress appar- Public Law 3. The Bail Reform Act eluded that “[i]t 22, 1966), 89-465, (June amended 80 Stat. 216 ently contemplate did not the situation herein *5 18, Code, by Chapter 207 of Title during drafting passage of the and [Act].” (18 replacing jumping the former bail statute noted, previously This court has in the context 3146) with seven new sections num- issues, legislative of other that the dearth of through H.Rep.No.1541, See bered 3146 3152. on 3150 leads to the conclu- discussion section Sess., Congressional Cong., 2 89th 2d U.S.Code change that did not intend to sion 2293, pp. Administrative News 2295 and jumping meaning of the bail statute. See jumping pro- (1966). The former bail statute States, 212, (5th v. United 410 F.2d 216 Brown part: vided in Indeed, 1969). anything, Congress if Cir. in- Whoever, having been admitted to bail for application tended to make the statute’s broad- any appearance United States com- by deleting requirement thirty day er aof States, the United in- missioner or court of lapse between the failure to surrender and a willfully curs a forfeiture of the bail and fails charge. criminal areWe unable to conclude thirty days within fol- to surrender himself change forfeiture, shall, 1966 should dictate a different lowing the date of such if the given charge result where a defendant fails to surrender a bail was in connection with a to felony appeal pending given sentencing by or in or connec- marshal after as ordered the dis- charge felony pending ap- tion with a peal fense, or trict court. or certiorari after conviction of of- Appellant cites our reference to a Justice De- $5,000 be fined not more than im- Clark, partment memo in United States v. su- prisoned years, not more than five or both memo, 484, pra, 412 F.2d at 888 n.3. That No. 8, 1966, 3150, September referring to section Report Judiciary It is clear from the of the states: Representatives to the House of Committee purpose that the of the Bail Reform Act was provide penalties The Act does not for a persons, regardless to assure all of their failing appear violation short of to before a needlessly financial status shall not be de- * * * judicial required. officer or court as pending tained their to answer example, person may required For be to charges, testify, pending appeal, when address; however, specified live at a if he justice detention serves neither the ends of required appears be- lives elsewhere but public H.Rep.No.1541, nor the interest. 89th he is not fore the officer or court Sess., Cong., Congressional 2d 2 U.S.Code ^subject penalties provided. herein 2293, pp. and Administrative News (1966). 2295 merely Department example This Justice serves to illustrate the distinction between vio- thorough history review of After Act, lations of bond conditions which also constitute Wray, the court in United States v. 369 appear 118, and viola- F.Supp. (W.D.Mo.1973), although violations of court orders to 124 rul-' case, contrary holding ing general. to our con- tions bond conditions in 476 time and because he specific Marshal at a did not

to a U. S. receive due notice of the order to surrender and thus place. cannot be said to have “willfully” failed appear. a common Finally, Logan reflects sense issue, considering this we are bound hypertechnical approach. A different teachings States, Glasser United 315 have either of two undesir- approach would 60, 80, 457, U.S. 62 86 S.Ct. L.Ed. 704 First, if district courts wanted able effects. (1942), requires which us to view the evi- effect of sec- impose the extra deterrent dence in the light most favorable to the 3150, they would have to order defend- tion Government. also See United States v. courtroom, appear in the routinely ants Box, (5th 530 F.2d 1976); 1263 Cir. a routine direction to surrender in turn for Arias-Diaz, United States v. practice Marshal. would to U. S. Such (5th 1974). We must decide wheth- unnecessary additional burden result in an jury er the reasonably, logically, could already overburdened district courts. on legally infer from the evidence presented Alternatively, if district courts wanted to appellant guilty of violating the time, they their avoid this waste of would beyond statute a reasonable doubt. Hol- simply increase the amount of bail States, land v. 121, 139-40, United 348 U.S. the desired deterrent effect. This achieve 127, 137, 75 S.Ct. (1954).5 L.Ed. practice would be unfair to defendants who jump are not inclined to bail but who are While it is admitted did not post security. unable to sufficient additional have actual knowledge of the surrender or- Thus, agree we with the Fourth Circuit’s der, actual knowledge required. is not As Boreman, panel (Sobeloff and distinguished we Cohen, stated in United States v. Winter, Judges, Circuit Circuit Senior 1971): F.2d Judge), which held in United A defendant’s failure because West, supra, that a U. S. Marshal is the he purposefully engaged in a course of designated agent of the district court conduct designed prevent him from circumstances such as those this case. receiving notice to clearly can as “willful” as when he receives and de III. Whether Failure to Surren- liberately ignores appear. a notice to See der was “Willful.” United v. DePugh, 434 F.2d 548 *6 (8th We next 1970) denied, consider conten 978, Cir. 401 U.S. [cert. tion that his conviction must be reversed 91 S.Ct. (1971)]; 28 L.Ed.2d 328 opinions suggest 5. Some of the of this court Admittedly, dence. circumstantial evidence proof requires that the burden of that the may point wholly in some cases to a incor- prove allegations Government the of the indict- equally rect result. Yet this is true of testi- every ment exclusion of “reasonable instances, jury monial evidence. In both is hypothesis See, g., of innocence.” e. United weigh asked to the chances that the evidence Box, (5th States v. Cir. correctly points guilt against possibili- the 1976); Squella-Ávendano, United States v. ty inaccuracy ambiguous or inference. In (5th 1973). F.2d Cir. In Holland the both, jury experience must use its with petitioner alleged error in the trial court’s re- people weighing probabili- and events in jury fusal to instruct where that jury beyond If ties. is convinced a rea- Government’s evidence is circumstantial it doubt, require sonable we can no more. 348 every must be such as to exclude reasonable 139-40, U.S. at 75 S.Ct. at 137. hypothesis guilt. other than that of The Su- Warner, In United States v. 441 F.2d 821 contention, preme rejected saying: Court 1971), Judge Wisdom observed that support type There is some for this of in- hypothe- various formulations of “exclusions of decisions, struction in the lower court [cita- merely ses” involved verbalistic distinctions. is, tions but the better rule omitted] agreed He concluded that federal courts were jury properly where the is instructed on the that whether “the doubt, evidence be direct or circum- standards for reasonable such an addi- stantial, guilt the matter of the defendant’s is on circumstantial evidence tional instruction incorrect, jury confusing for the omit- to decide and unless the court con- [citations jury necessarily cludes that the ted]. must have had respect in this evidence Circumstantial a reasonable doubt.” Id. at 825. intrinsically no different from testimonial evi- Hall, (2nd by any judgment abide 346 F.2d 875 entered in the case denied, obey 86 and to surrender himself and to 1965) any 382 U.S. [cert. order or direction in accordance with (1965)]. such 15 L.Ed.2d S.Ct. judgment imposing as the court the same evi- in some detail now consider We might prescribe. On his bail bond the de- by the record. revealed dence fendant listed as his address the home of his circumstances courts appropriate In Dallas, mother Texas. That was the granting lenient in bail generally rather are place to which any notices were to be sent but it should be observed appeal, pending appellant’s accordance with the own di- guilty who has been found a defendant rections. necessarily is not jury and sentenced by a October, In the month of in violation a matter pending appeal bail entitled to every bond, covenant of his the defend 3148. Here the of law. See 18 U.S.C. § only departed jurisdiction ant not appeal. granted pending was bail district court in convicted, which he was he uncondi time he made serious and At that left the state of Texas and traveled exten in a bail bond he filed tional covenants sively through states, several including for the District Court the United States Mexico, Arizona, California, Michigan, New promised District of Texas. He Southern Florida, Alabama and Georgia.6 In addi appearances in the United proper to make tion, he made an international trip to Canad at New Orleans Appeals Court of During a.7 the course of these travels the District Court for in the United States and appellant registered and his wife under as Northern Districts of Tex or Southern sumed names at various hotels and motels as, might be places at such other as he and apartments.8 and rented houses and On appear, any in accordance with required to appellant occasions the and his wife con relating to his and all orders and directions mother, tacted her and his they mother but in the above entitled matter or any never disclosed in conversation their might given or issued United whereabouts. Appeals at New Orleans or States Court District any other United States Court jury marijuana At his trial charge on the might or which the defendant be removed represented by appellant two attor- he sol the cause transferred. addition neys, one in Laredo another San emnly covenanted with the court not to Subsequent Antonio. to conviction he ter- Districts depart or Northern employment Southern minated the of his trial attor- Dallas, other United Dis neys employed Attorney of Texas Coil of might to which he be removed Texas to him. Mr. office represent trict Court Coil’s home, he promised presumably the cause transferred. He was in his so could be violating west, trips appellant the terms of 6. We do not.intimate 8. On their north and constitutes a violation of the statute bond stayed During his wife in hotels and motels. However, here involved. such a violation is a the last three months of their extended absence *7 pertinent fact to be considered with other facts Texas, Brights stayed from in the south. determining and circumstances in whether They Tampa apartment in under the rented an failure to willful. defendant’s was Caddell, they name of John and later rented a George house in Tallahassee under the name of argues attorney Appellant that his told him They up living wound in Robert Caddell. and his wife that their travels would not violate County, Georgia. During Douglas their travels long they “kept the bond as in touch.” Brights used as identification several Social However, jury legible, had before it the four by Security cards and drivers licenses issued paragraph appearance signed by appel- bond names of John Robert various states in the lant, testimony completed that he had three Caddell, Caddell, Jr., Rae Parker John Robert years college, testimony and that he told a Ray, Wayne and Morrison. The record Carroll Georgia “jumped sheriff that he in had bond Brights used contains no evidence that the ever appellant knowingly Texas.” Whether bail during their their entire absence actual names jumped typical jury question, is a and on this from Texas. jury ap- evidence the was entitled to find that intentionally pellant knowingly had and violat- ed his bond conditions. his appellant by appellant Bright keep and sons chosen him there. best reached The records of respect number. informed of the facts with phone had his to his wife reveal, and Mr. Coil testified duty obligation response and in this court fact, notice from this by court, he received appropriate that order issued an conviction was appellant’s yet court when neither he nor his wife ever disclosed above, the clerk of this As noted phone affirmed. their locations or numbers to Mrs. opin- appellate copy court sent Coil Erwin or Coil. 20, 1974, November with a letter dated

ion travels, Finally, after their extensive in- en- judgment had been advising him that Canada, cluding Bright Mr. trip appar- addition, received a carbon Coil tered. In Georgia. ently came to rest There he 12, 1974, dated December copy of a letter apartment rented an and matriculated in a informing clerk from the Fifth Circuit February, vocational school. he affirmance of clerk of the District Court charge was arrested on a stolen vehicle apparently Mr. Coil Bright’s conviction. Georgia. gave jailor the state of He client that his conviction not advise his did name, following pattern false the same affirmed, he perhaps because did had been practice indulged through- in which he had Although to locate him. not know how Eventually out his travels. he told the local he called his wife testified that appellant’s jumped appeal sheriff that he “had bond times, is no attorney eight six or there Texas,” only through and it was a call with his evidence that he communicated from the sheriff federal authorities notice of the counsel after Coil received Bright’s learned of whereabouts. opinion, nearly one month be- Fifth Circuit important An additional fact miti to surrender. Bright fore was ordered gates against appellant. the contention of appellant intimation that There is some marijuana After this court affirmed his Bright’s Mrs. mother to expected his wife conviction, judge Bright the district ordered respect with Mr. Coil with stay touch Erwin, to surrender to the marshal. In accordance appeal. Mrs. Mrs. mother, designated with the address on his bail bond did have the im- testified she appellant Bright, was sent to him Brights by pression notify that she was to appellant at his mother’s home.9 Since the conviction was they when called her if forwarding there no ad However, and had left appeal. she further affirmed on dress, the notice was to the clerk. returned appeal that she never discussed the testified by No notice was sent to Coil the district that her contacts attorney Coil and with clerk, above, but as noted Coil had received during period were minimal with him appellate notice of the decision from the involved, bought a home from although she clerk of this court in both November and through him in late 1974. It him or December, point that both 1974.10 Notice Coil to note at this appropriate useléss, attorney per- Coil were the order would have been as the record Mrs. Erwin and mother, appellant court did not even inform his own whose contends that the district 9. The own, put photo- improperly address he had the bond as his evidence a on admitted into amply envelope his whereabouts. The record demon- copy of the front of the contain- static strates that ing appellant he was never available to receive sent to his the notice to place designated by him, such him requested notice at which but mother’s home as subsequent departure in to his October. was a nota- to the court. There was returned envelope appellant tion on the front of forwarding approve He asserts this no address. 10. While we do not the failure of the had left Coil, hearsay the back of the district clerk to send notice to Mr. statement *8 may importance envelope nota- contained a different we do not attach sufficient to that case, importance espe- of this fact to reverse his conviction in this fail to see the tion. We cially Bright privately at the was never in view of the fact that retained contention because actually place be after he de- counsel of his choice received two dif- he said he would where October, jurisdiction parted of the court in ferent notices of the affirmance of his convic- the and in view of the and his conviction was affirmed tion further evasive sometime before Furthermore, appellant. by he elusive conduct of the the in November. court appel- could not indicates that Coil contact 3150.1 § U.S.C. Bright, who had been re- did him appellant lant and that not contact pending leased appeal anof earlier convic- to Coil. tion, or Mrs. Erwin after was sent failed to comply awith lawful order to surrender himself to a United States mar- Considering foregoing all of the Bright shal. argues, however, the being by facts and circumstances and bound applies only statute to failure to surrender Cohen, holding supra, our in we conclude court, to a not a marshal. Alternatively, that the and jury reasonably, logically could Bright argues that given he was not ade- appellant in legally engaged infer that quate notice of the order to surrender. designed prevent a course of conduct him myself Finding in agreement substantial receiving appear from notice to and that his contentions, with both I must dissent from appear clearly failure to can be as “willful” majority’s affirmance of Bright’s con- actually though as he received notice and viction. deliberately ignored appear.11 notice to law, If such enterprising were not I. defendant, spite in his solemn covenants promises, proscription and could avoid the 18 U.S.C. imposes a penalty § upon by through statute clever movements anyone who has been released pending trial this country vast in other countries as pending or appeal and “willfully who fails well. appear any judicial before court or offi- required”. cer as Here was ordered conclusion, In appellant we hold that was before a contends, marshal. He properly of bail jumping, convicted quite correctly, that a marshal is neither a U.S.C. 3150. The district court Decem- in § “judicial “court” nor a officer” under ber, 1974, him to surrender to a U. ordered statutory definition, majority specific place. Marshal S. at a time and agrees. content, The majority however, appellant Since the had been sentenced and ignore judicial the “court or officer” simply appellant marshal had to take act, requirement, custody, apparently into marshal because it a ministerial con- that Congress employed cludes acting designated agent as the words de- court, meaning enacting failure to void of in appellant’s phrase. as ordered constituted failure to surren- I do regard Because second-guessing addition, jury der to the court. could Congress my function, particularly when properly appellant’s find to sur- failure expand effect a criminal statute willful, render was as there was sufficient terms, its beyond plain I must dissent. I evidence that in a purposefully engaged he briefly sketch my analysis of the statute’s designed prevent course of him conduct terms. receiving

from notice. First, a “judicial marshal is not officer” Judgment AFFIRMED. within the meaning of the statute. “Judi- cial officer” is defined 18 U.S.C. GOLDBERG, Judge (dissenting). Circuit 3156(a)(1) “any or person § autho- Henry Bright, appeals pursuant title, John Jr. convic- his rized to section 3041 of this jumping Procedure, tion for bail violation of 18 or the Federal Rules of Criminal prosecution presented 11. We any shall, realize that required, court or officer as evidence in case to circumstantial this subject provisions of the Federal Rules prove willfully that the had failed to Procedure, of Criminal incur a forfeiture of However, appear. as noted in footnote su- any security given pledged which was or pra, Holland v. United and United release, and, addition, shall, (1) if he apply v. Warner stan- dictate we the same charge was released connection with [the] jury reviewing dard in it is verdict whether felony, awaiting or while sentence or based on direct or circumstantial evidence. pending appeal or after certiorari offense, $5,000 be fined not more than provides pertinent part: 1. 18 imprisoned years, than more five Whoever, having pursuant been released both willfully chapter, fails to *9 480 person arrangements family. a before release At the

to bail or otherwise de- in a sentencing pending appeal request, or fendant’s the trial or court ordered him to States, any judge and surrender to the court of the United States marshal United District of than Court of the rather return to the court. Superior of the Under . . A marshal not au- those circumstances that Columbia . we held the mar- agent or otherwise to release a shal was the court’s so that thorized to bail section majority applicable a mar- The concedes that 3150 was person.2 defendant’s fail- section “judicial appear. officer” within ure to shal is not a 3150, every court that has considered in United States v. hand, the other On the same conclusion. the issue has reached dark, (5th 1969) 412 F.2d 885 Cir. we over- 35, Logan, v. United 37 See States turned defendant’s conviction because he West, 1974); United (5th v. 477 Cir. had been ordered to before proba- a United (4th 1973); F.2d 1057-58 tion officer rather than a before court. Ad- (W.D. Wray, States v. F.Supp. 369 125 mittedly, other dark circumstances Mo.1973).3 might have called for reversal as well. It bring a government’s attempt

The was unclear from the record whether the there- statutory obligation marshal within terms Clark’s to appear before the pro- facially implausible fore rests on the notion bation officer arose a order, from court majori- is a “court.” appearance bond, that a marshal As the from the conditions of his is that ty acknowledges, easy answer or from condition imposed by proba- language See plain statute’s dictates tion officer. 412 at F.2d 886-87. Sec- conclusion, light contrary especially proscribes of only tion 3150 ap- failure to principle pear “any familiar criminal statutes before officer court or See, g., e. Unit- required,” (emphasis added), must be construed. strictly proper and the Bass, ed 336, 347-48, U.S. construction of that provision may be “as (1971). 30 L.Ed.2d 488 required by S.Ct. a court order.” On that view government’s failure establish that Unit- however, majority, upon seizes Clark had been aby ordered court to appear Logan, ed States 505 F.2d 35 the probation before at officer the time in 1974), upheld which conviction for failure question would have warranted reversal of being to marshal. After the conviction. court, ordered to surrender to the the de- requested fendant clear dark permission received It is from the opinion, how- ever, to travel 750 miles to Houston make was not the basis of provides may person 2. 18 that a applicable § U.S.C. 3146-3150,” definition to “sections be released merely through not to sections 3146 3149. See States, by any .justice judge or of the United 3156(a). § 18 U.S.C. by any magistrate, by any or “judicial 3. The officer” definition is identical chancellor, judge superior supreme of a respects predecessor. relevant to its See Act court, pleas, judge or first chief of common 22, 1966, 89-465, 3(a), of June Pub.L.No. § mayor city, justice peace, of a or other (formerly Stat. 216 codified as 18 magistrate, offender state where the 3152(1)). Congress may § a new enacted be . unre- found expand reenacting “judicial 46 does lated 3152 in § Fed.R.Crim.P. not list may persons release a part who officer” definition as I read no pending appeal. trial or significance into the reenactment because there “judicial That officer” is writ- definition legislative history indication no in the authority may ten in to bail terms of someone existing considered or aware position to its overall be attributable in the judicial constructions of the section. If I were statutory applies scheme. definition any significance, to accord the reenactment 3150 but to section also to sections 3146 however, my result would reinforced. As through “judicial which authorize a offi- text, indicated cases cited at the person impose cer” to and to condi- release time the definition was reenacted the unbroken however, cannot, tions of We excise release. judicial construction was that marshals were statutory section from the definition. “judicial officers.” clarity Congress With unmistakable made the *10 “as re- We never discussed the lels Clark in that there special decision. are no cir- Instead, provision. we focused on quired” cumstances to divert us from the explicit requirement, judicial provision “court or officer” statutory the that criminal penalties holding inap- that the statute was squarely be imposed only for failure to surrender to proba- a conduct because to Clark’s plicable a court. judicial officer not a “court or offi-

tion is Admittedly, Logan only not emphasized exam- 412 F.2d at 888-91. For cer.” See unique its setting factual but also contained we said that “Clark’s failure to ple, some broad language and cited United probation may a officer as ordered West, States v. (4th 477 F.2d 1056 Cir. constituted a breach a condition of 1973). Despite the of special absence cir- release, certainly did not constitute but cumstances, upheld West a for judicial before a court a failure to or report failure a to to Special marshal. cir- added). (emphasis at 891 officer.” 412 F.2d cumstances were present in Logan, how- to as an attempting In characterize Clark ever, any and discussion of the West situa- required” decision rather than “court “as tion purely was dictum. decision, judicial majority officer” Moreover, the majority’s result only not ignores language. And the simply Clark’s unduly expands Logan by ignoring Clark, not question was dictum but language but the wrong result is original as an mat- reversing the basis for Clark’s con- squarely ter. The result the legislative contravenes The Clark result establishes that viction. history, justified cannot be the majori- to whom are probation officers defendants ty’s policy irrelevant argument, and most invariably not ordered to surrender do be- importantly undermines salutary and agents come court so as come heretofore unquestioned principle majority section 3150. The does not within criminal statutes must strictly be construed. suggest there is inherent differ- I address each points of these in turn. probation and a ence between officer not marshal that would allow one but First, majority to ignore decision agent other be made court’s judicial “court or officer” requirement flies therefore purpose, and Clark indicates that in the legislative face history. The whom a ordered a marshal to is statutory language stands in marked con- all not in circumstances to surrender does trast previous bail jumping statute, agent By holding an of the court. become imposed which penalty upon anyone who always agent, that a marshal is court’s “willfully to surrender himself” faii[ed] majority in effect overrules Clark. within thirty days of the forfeiture of his bail but did not specify persons implausibility the surface Because of whom a “court”, required defendant was to holding is a that a marshal and surrender. See Aug. Act of requirement ch. because criminal 1, 68 Stat. 747 strictly, (formerly § I statutes be construed would read codified as 3146).4 Logan narrowly and take Clark its Because the at word. “court or judicial officer” language I would treat a marshal as a only “court” enacted as a specific compels depar- statute, when some unusual factor amendment to an earlier I regard do phrase from the statute’s not requirements. ture strict as inadvertent. Logan requested change In the defendant himself So clear a ain statute’s terminology permission hardly “ambiguous”, to surrender to a marshal is majority’s opin- order avoid 750 miles of ion to the unnecessary contrary notwithstanding. p. See contrast, paral- Specific travel. the case at 475 ante.5 changes bar in the lan- change 4. The occurred in 1966. change meaning. mean the statute’s only statute, Brown said that the amended like change explicated in States v. United 5. The predecessor, preclude its did not of a forfeiture 1969) Clark, (5th 412 F.2d 888 n. States, bond for breach of bond condition. Brown v. United Brown erroneously nothing judicial 1969). majority had to do with the cites “court requirement; proposition Brown did mention did for the officer” Brown provide pearance statutes a bet- before the court itself “un- guage of successive than such legislative necessary intent waste of time guide to and ener- ter gy”, as floor debates I manipulate prepared dispense sources would not be I can assume reports, requirement.8 with the The need to con- committee *11 what it said. judicial meant justify serve resources does not de- that parting salutary principle from the that up- cannot be result also majority’s strictly criminal statutes must be construed. policy argument the basis of held on If Congress impose desires to criminal pen- West, supra. from derived alties for failure to surrender to a United that “an unneces- The West court reasoned marshal, we require should it to use judicial energy time and of sary waste language explicit more than that of section that each require we were to result if would 3150. position appear before in West’s person view. accept I cannot this itself.” court Indeed, majority’s construction of this particular nearly statute is not so trouble- that I am not at all certain Initially, general approach some as its to appear interpreting before the person a requiring criminal unnecessary waste of statutes. That a criminal is “an statute’s court itself legislative energy”. occupy history “ambiguous” Courts a is deemed judicial time things position hardly justifies departure in our scheme of different from the stat- It is not unrealistic to plain do marshals. ute’s than terms. The principle that crimi- lay person might regard an suppose that nal statutes should be continually and con- differently surrender to a order to tinuously strictly construed must remain to a- marshal. an order to surrender than unquestioned. The majority does not at- arrogance. distinction is not born tempt to mount a frontal assault on that moral sanctions with represents The robe Instead, principle. majority announces governmental heights in our hierarchical uneasily somewhat that “holding barely its There are overt subtle dif- structure. expands the literal reading of section 3150.” gavel pistol.6 and a between ferences p. 475 ante. See suspects One that that Congress might well have concluded majority’s willingness “barely” expand obligation to surren- the seriousness this criminal statute by per- is colored its by manifested an order to der should be haps justifiable Bright’s disdain for con- court, that absent such a appear in expansions” duct. But “bare of criminal penalties criminal should not manifestation unlikely statutes are to be appealing so majority fails imposed.7 The to address be Today the run of cases. a statute is bent to possible justification for the “court or person jailed allow an evil to be repre- for judicial requirement.” officer conduct; hensible tomorrow the wounded fundamentally, principle may prove More even if it were dem- strict construction in- requirement ap- prevent injustice. onstrated that of an sufficient manifest I being requirement; that ordered to in court would and Brown did not and could purport have an effect to decide the issue now before the additional and should be re- quired prerequisite prosecution. court. important denigrate position 6. I do not result, my Under if courts desired to conserve Department’s a marshal holds in the Justice by ordering resources defendants to surrender and in our nation’s establishment enforcement marshals, they would remain free to do so. laws, its but a marshal is not transmuted or Acceptance my position would mean by transmogrified judge operation into 3150 sanction would not section may surrogate judge become a law. He or she comply available. with an Failure to order to by by filling fiat but not occasional our subject to a marshal would still statutory wholly meanings interstices with arrest, 3146(c), § see 18 U.S.C. lexicographer’s alien to the definitions. contempt and the sanction would remain avail- proper able in circumstances. See 18 U.S.C. by judges 7. That surrender orders are issued Clark, 401(3). supra, Cf. United States their seriousness to some extent. manifests F.2d at 891. concluded, however, Congress might well have undisclosed principle, apply supports the stat- address would adhere inference terms, purposely avoiding any that he was Bright’s clear and reverse con- ute’s obligation of his to surrender. viction. facts, however, with Consistent these is a

II. hypothesis reasonable of innocence. Bright had attorney been told his Coil that his ground attacking Bright’s second conviction was sure to be overturned and is that there was insufficient evi- that, rate, appeal pend- at would be that his failure to was “will- dence ing years. for between and 2 Further- ful”, IV2 requires.9 statute I am not as as the more, Coil told that if the conviction majority as the non- confident were appeal affirmed an would be taken to willful, and because the Supreme .the United States Court. There- mismanaged district court clerk’s grossly *12 fore, Bright might have believed that he office failed Bright to send notice of his subject would not become to an order to surrender, obligation to I would reverse during period question. ground well. conviction on this as Moreover, undisputed there was evidence correctly that al majority *13 in with this basic distinction mind proceeds Bright represented was was told that now ignore cannot the the forefront. I and in attorney by attorney an from Dallas. That Bright that relocat- hypothesis of innocence Coil, the Fifth was the clerk knew from as attorney’s in on his Georgia ed in reliance Armed with Circuit’s transmittal letter. be his earlier conviction would advice that Dallas, Coil was from knowledge the that reversed, any obliga- of expecting to learn his easily have determined clerk could through frequent his con- tion to surrender lawyer telephone book or address from attorney and relatives. tacts with his Nevertheless, ef- directory. made no she disagreement with the My fundamental order. notify fort to Coil of surrender however, not rest on whether majority, does notify The court clerk’s failure to district could hypothesis of innocence reason inexcusable, completely Coil was rejected jury. I find ably have been majority no it. suggests excuse for a more impor insufficient the evidence however, majority, regards The agree I respect. tant with court neglect insignificant, clerk’s egregious DePugh, 551 United States clerk pointing out that Fifth Circuit denied, (8th 1970), cert. 91 U.S. been notified that conviction had Coil (1971), 28 L.Ed.2d 328 that a S.Ct. majority’s reasoning affirmed. I find the interpretation of the statute “reasonable unacceptable. person pending A released contemplate that a defendant . would appeal given particu- must be notice of be reasonable notice as to re- given required. lar time when surrender The is quired appearance.” In the at case say Bright Fifth Circuit notice did that not government bar the did not establish that it all, required would be to at even Bright steps give reasonable to notice took if he should have known that a surrender obligation to of his surrender. order forthcoming, Bright would be could Indeed, evidence have undisputed plainly known when and where to surren- that to government established failed der.10 interpreted have said not be to surrender. Coil

10. What I should understated his fault in this indicating approval regard by conceding conduct. of Coil’s Coil he was “remiss” in sought allowing preoccupation have to determine whether a with other matters should Instead, prevent properly attending had to order been issued. Coil him from to his representation nothing; Bright. he testified that he “assumed” of did Coil’s misfeasance not, however, Bright neglect. were does excuse he would be notified if ordered the clerk’s tion I find to be a 3150 convictions. requirement pro- The The statute notice prosecution to a scribes “willful” failures precedent appear, condition The formality. Court the evidence on not a mere willfulness will be is more v, supra, DePugh, government when intimated reliable has taken all United States requirement steps give the statute reasonable notice. such a that without proscrip- The unconstitutional. would be provides The case at bar an illustration. required” is not “as tion of failure If Coil had been of notified the order to court, vague, said the be- unconstitutionally appear, there possi- would have been two giving reasonable notice makes cause the First, bilities. word of the might order “required.” it clear when Bright, have reached possibility the ma- Slater, in Moreover, jority discounts but cannot exclude on the 1975) notice we read a F.2d Upon receiving basis of this record. notice requirement failure-to-appear into similar Bright might surrendered, thus avert- com- “principles on the basis statute ing the section 3150 prosecution, or he ma- fairness.” 524 F.2d at mon surrendered, might not have in which case attempt deal with the jority makes no the inference that his action was willful Slater decision. Second, strong.11 would be word of the requirement might essen- order Bright. Even if notice not have reached the statute from constitutional that event it would clear tial save be that Bright attack, placed beyond notice; to assume that I think it reasonable himself the reach of aspect for reasonable notice to intended the willfulness issue would given. practice speculation under sec- not be left jury’s be uniform as it view; every Therefore, was in the tion 3150 accords with that actual case. whether did or not reported notice, case in which the defendant would have received obligation knowledge of his the willfulness not have actual evidence would be more reli- surrender, particular time able and the of erroneous risk required given substantially to would when surrender was reduced. *14 attorney. The failure in the defendant’s The be in every same will true section notice provide case at bar to reasonable 3150 prosecution where willfulness is an appears totally unprecedented. to be issue. The evidence of will willfulness be circumstantial; arguments upon possibility In to based addition of erroneous statutory con- will inescapable. constitutional overtones and be I would not struction, compelling there rea- upon jury specu- is another tolerate convictions based requirement speculation to into séc- son read notice lation when the could mini- The notice giving simple mailing tion 3150. reasonable mized so step notice sec- possibility attorney.12 will reduce of erroneous the defendant’s The majority present requires The statute notice to sur- willfulness order issue a much differ- light. render, merely disposition ent notice of appeal pending which defendant had been majority apparently my 12. reasoning finds released. persuasive, necessary for it finds it to assert Coil of “[n]otice [surrender] order government argues that even if Coil had Upon receiving would have been useless.” no- notified, Bright been would not have learned of might tice of such an order Coil have contacted upon until after the which he order date Bright’s mother, mother wife Jan’s appear. was slated to The record neither con- Brights Mrs. Erwin. The record indicates the Bright firms nor contradicts this assertion. did mothers, frequently contacted their and al- during period ques- telephone Coil though the record does not indicate the dates of may telephoned tion but have his mother or his contacts, certainly these it does not exclude the mother, might whom have wife’s Coil re- possibility they occurred after the surren- layed any obligation to word of surrender. At proof der order. The burden of should of course rest with the on this issue any rate, even if would have learned of government, date, question part the order after the his reac- because the notice of the will- voluntary appearance issue, tion at that time—either fulness government’s which is element of the continued refusal surrender —would now criminal case. not have re- Bright would speculates enough to notice; confident it is

ceived fact. rather than upon speculation

convict be certain we cannot this record

On however, Bright, reached

would not unnecessary unwilling to run I am conviction. of erroneous

risk was fa- Bright’s conviction summary, he was ordered because defective

tally than to a rather a marshal statute, and be- by required give him failed government

cause to sur- obligation notice of

reasonable I dissent.

render. CLAYTON,

James Edward

Petitioner-Appellant, Jr., ESTELLE, Director Texas

W. J. Corrections,

Department of

Respondent-Appellee.

No. 76-1271

Summary Calendar.* Appeals, Court of

Fifth Circuit. 29, 1976.

Oct. *15 Berwick, Austin, (Court-ap-

Brian E. Tex. petitioner-appellant. pointed), for Clayton, pro se. James Edward Hill, Gen., M. Atty. L. David Ken- John Gen., Dibrell, dall, Jr., Atty. Joe B. 1st Asst. Sullivan, Gen., Jr., Attys. Asst. En- Dunklin Div., Austin, Tex., respon- forcement dent-appellee.

* Enterprises, Inc. v. 18, Cir.; see Isbell Rule Part I. notes Bright steps any took to learn of obli- not have actual knowl though Bright did gation frequently to surrender. He tele- knowledge required. is not edge, actual mother, phoned his his wife’s mother and See, Cohen, v. 450 F.2d g., e. attorney Although Bright Coil. did not 1019, 1021 (5th 1971). recog- Cir. As Cohen talk to Coil between the time the original nized, conviction was affirmed and the time of the appear failure because A defendant’s arrest, jumping Bright might bail reason- a course purposefully engaged he has ably have concluded that developments designed prevent conduct him from of in the case would come to the attention of appear clearly can receiving notice to his mother or his Bright wife’s mother. de as “willful” as when he receives and provided his own mother’s address on the liberately ignores appear. a notice to See bond; she failed to learn of the surrender DePugh, United 434 F.2d 548 order because the notice was returned denied, 1970) U.S. [cert. being undelivered rather than delivered to (1971)]; 28 L.Ed.2d 328 91 S.Ct. addition, Bright’s her. wife’s mother Hall, (2nd United 346 F.2d 875 frequent Coil, was in contact with from denied, 1965) U.S. [cert. whom she recently purchased house, had a (1965)]. 15 L.Ed.2d 161 S.Ct. Bright might have concluded that Coil majority approvingly at 1021. The any developments would relate to her in the gives passage cites this from Cohen but case. The record is unclear Bright whether requirement attention to the insufficient either contacted his own mother or his “purposefully” engage a defendant wife’s mother between the time he was “designed prevent him from re- conduct ordered to surrender and the time of his ceiving notice.” Bright’s arrest. failure to disclose his Geor- address, gia upon In the case at bar there is some evidence which the majority places holding' reliance, a so much support might in the record that would have been based on Bright and his wife the fact that purposeful leaving of evasion. Texas was a violation extensively. They left Texas and traveled bond conditions and accordingly sub- jected arrest, finally Georgia, they came to rest in where him to as he knew. See 18 Bright 3146(c). enrolled in voca- Bright’s rented a house and conduct might Bright provide “designed” school. did not his have been prevent tional his arrest attorney violating conditions, to his or to his Texas address bond not “de- Bright’s apparent signed” intention to prevent relatives. him receiving from no- indefinitely appear. of Texas at an tice to While remain outside I do not condone supra. 9. See note conduct, provide notice. At a minimum I not convinced it reasonable am Bright’s notice to attorney the defendant’s is re- standard. the Cohen comes within quired. was Bright’s attorney Here Coil question a close facts it On these given to surrender notice order reasonably jury whether could sufficiently because Coil’s address was not Bright’s failure to concluded accord with the district court accessible to Certainly, Bright the fact was willful. Instead, clerk’s the district convenience. by leaving Texas is not violated his bond Bright’s office sent clerk’s a standing support find- alone sufficient trial no attorneys, longer represented who Bright’s Although viola- ing willfulness. Bright the clerk should have known. is to be bond con- tion of the condition had court clerk Coil written district demned, not a of section it is violation shortly beginning representation after acknowledges majority but then fact the Bright. letter the record concerned between the ignores. There is distinction was appeal, clearly indicated Coil on a bond and failure to violation of condition Bright’s attorney, and Coil’s address. listed The sanctions are court. Moreover, let- the Fifth Circuit transmittal components trans- different and Bright’s attorney. In ad- ter listed Coil Bright was gressions are identical. dition, re- notice to when the being jumper, not a charged with bail undelivered, a clerk tele- deputy turned breaker, my analysis bond covenant attorneys and phoned one of trial