U.S. v. McGill, 79-1099

• Decision Date: 24 September 1979
• Docket Number: No. 79-1099,79-1099
• Citation: 604 F.2d 1252
• Parties: UNITED STATES of America, Appellee, v. Joseph Jackson McGILL, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1252

604 F.2d 1252

UNITED STATES of America, Appellee, v. Joseph Jackson McGILL, Appellant.

No. 79-1099.

United States Court of Appeals Ninth Circuit.

Sept. 24, 1979.

Stephen W. Peterson, Asst. U.S. Atty. (on the brief), Michael H. Walsh, U.S. Atty., Stephen W. Peterson, Asst. U.S. Atty. (argued), San Diego, Cal., for appellee.

George W. Hunt, San Diego, Cal., for appellant.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN and TANG, Circuit Judges, and LYDICK ^*, District Judge.

GOODWIN, Circuit Judge:

Joseph Jackson McGill appeals a judgment, after a jury trial, convicting him of bail jumping. In 1975 he was indicted by a federal grand jury for violating the Controlled Substance Act, 21 U.S.C. §§ 841(a)(1), 846. He was arrested, arraigned before a magistrate, and released on bond. McGill's trial was conducted under a superseding indictment charging statutory violations similar to those originally charged. The court ordered him to appear for sentencing. He did not appear. The court declared his bond forfeited, and issued warrants for his arrest. Three years later, McGill was arrested in Mississippi, using another name.

McGill contends that the trial court erred in several particulars. His primary argument is that the court erred in taking from the jury an essential element of the crime. He also challenges certain instructions to the jury. Finally, he asserts that the trial court improperly commented on the evidence. We find no reversible error.

The five elements of the offense of bail jumping under 18 U.S.C. § 3150 are that the defendant (1) was released pursuant to the Bail Reform Act of 1966 (18 U.S.C. § 3146); (2) was required to appear in court; (3) was aware of this required appearance; (4) failed to appear as required; and (5) was willful in his or her failure to appear.

McGill's motion for acquittal, and his theory that the trial judge erroneously precluded jury consideration of a key issue, focus on the first element listed above. He argues that he should have been acquitted because the prosecution failed to prove that he was free pursuant to 18 U.S.C. § 3146 when he failed to appear. According to McGill, his scheduled appearance in court on sentencing day was only in connection with the superseding indictment on which he had been convicted, and not in connection with the first indictment. Because he asserts that his bond related only to the first indictment, and not to the superseding indictment, McGill says that his release was not a release pursuant to the Bail Reform Act but was some other, unspecified form of release. Alternatively, he asserts that the jury, and not the judge, should have decided whether his release was pursuant to the Act.

A criminal defendant is entitled to trial by jury and proof beyond a reasonable doubt of every element of the offense charged. Nonetheless, the trial judge rules on questions of law, and it is the judge's duty to instruct the jury in a criminal case on the applicable law.

Whether a defendant was released pursuant to the Bail Reform Act of 1966 may involve issues both of law and of fact. The factual component of the offense can include such questions as whether the defendant was the same person as the one released at the prior proceeding, or whether the defendant was released, i. e., allowed to leave government custody by consent rather than by escape. On the other hand, the authority by which a judge released a defendant and whether the court complied with statutory procedures are primarily questions of law.

In rare cases, there may be some factual subquestions underlying the question of the original bail-setting judge's authority whether the defendant had been charged and advised of his rights and duties might be crucial; or whether the offense was one for which bail was categorically precluded, for example. But, in most cases, the question whether a release was pursuant to the Act will be one on which the trial judge should instruct the jury as a matter of law.

In the case before us, the trial judge instructed the jury that McGill was released pursuant to 18 U.S.C. § 3146. Although technically the trial judge might have segregated the factual and legal underpinnings of this element, and permitted the jury to consider the question, there was no reversible error in the instruction given. Even if the judge had outlined each factual question for the jury's consideration, there was no evidence or legal theory that could exculpate McGill on the factual components of the first element. Therefore, any error in failing to present the question to the jury, would have been harmless. No reasonable jury could have done anything but find against McGill on the factual part of the first element. Accordingly, any error in the allocation of decisionmaking in this case was harmless beyond a reasonable doubt under the standard of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See United States v. Valdez 594 F.2d 725, 729 (9th Cir. 1979); United States v. Kostoff, 585 F.2d 378, 380 (9th Cir. 1978).

Since we find no...