U.S. v. Bright, 75-2992

• Decision Date: 27 October 1976
• Docket Number: No. 75-2992,75-2992
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Henry BRIGHT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 471

541 F.2d 471

UNITED STATES of America, Plaintiff-Appellee, v. John Henry BRIGHT, Jr., Defendant-Appellant.

No. 75-2992.

United States Court of Appeals Fifth Circuit.

Oct. 27, 1976.

Roland E. Dahlin, II, Federal Public Defender, Mike DeGeurin, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.

GEWIN, Circuit Judge:

John Henry Bright, Jr. appeals from his conviction in a jury trial for bail jumping in violation of 18 U.S.C. § 3150. ¹ Bright concededly failed to comply with a lawful order to surrender himself to a United States Marshal to begin serving a sentence arising from an earlier conviction. He argues, however, that the statute does not apply to a failure to surrender to a marshal, and alternatively, that he did not receive due notice of the order to surrender. Finding no merit in either of these contentions, we affirm.

I. The Factual Background.

In May, 1974, appellant was convicted in the United States District Court for the Southern District of Texas sitting in Laredo of conspiring to distribute marijuana. The court sentenced him to five years with a special parole term of three years, but released him pending appeal pursuant to 18 U.S.C. § 3148. On his appearance bond appellant listed as his address the Dallas address of his mother. One condition of the bond was that he would not leave the Northern or Southern Districts of Texas.

Shortly after filing the appeal, Bright replaced his two trial attorneys with John K. Coil of Dallas, Texas. The Fifth Circuit clerk designated Mr. Coil as Bright's attorney of record. However, neither Coil nor Bright informed the District Court clerk of this change.

Appellant and the Government stipulated at the trial below that Bright and his wife were primarily absent from Texas between October, 1974, and February 5, 1975. During that period the Brights traveled to at least seven states and Canada. In the course of their travels, the Brights periodically contacted attorney Coil and their respective mothers in Dallas. The Brights testified that during these telephone calls they inquired about the status of appellant's appeal. However, both the appellant and his wife consciously avoided informing anyone the District Court clerk, the Fifth Circuit clerk, attorney Coil, appellant's mother, or his wife's mother of their whereabouts.

A panel of this court affirmed the Laredo conviction on November 20, 1974. United States v. Bright, 504 F.2d 759 (5th Cir. 1974). Coil twice received notice that Bright's conviction had been affirmed, once by a letter dated November 20, 1974, from the Fifth Circuit clerk to him, and once by receipt of a carbon copy of a letter dated December 12, 1974, from the Fifth Circuit clerk to the District Court clerk. However, he did not notify the Brights, whose whereabouts he did not know. On December 19, 1974, District Judge Ben C. Connally entered an order directing Bright to surrender to the U. S. Marshal for the Southern District of Texas on December 27, 1974. The District Court clerk mailed a copy of the surrender order to Bright at the address of his mother that he had given on the bond. Since the order was sent by certified mail, return receipt requested, and since the appellant was not located at that address, the order was returned to the clerk. The clerk's office did not mail notice of the order to Coil because his address did not appear on the transmittal letter from the Fifth Circuit. Instead, copies of the order were mailed to Bright's trial attorneys, whom he had previously discharged but who were still listed as attorneys of record in the district court.

Bright failed to surrender as ordered. He was arrested by a county sheriff in Georgia on February 5, 1975, on a charge of possessing a stolen motor vehicle. Subsequently, a one-count federal indictment was returned charging him with violating the bail-jumping statute, and he was convicted after a four-day jury trial.

II. Whether Appellant's Failure to Surrender to a U. S. Marshal Constitutes Bail Jumping.

Appellant argues that a marshal is neither a "court" nor a "judicial officer." The Government argues that a District Court can designate a marshal as its agent for the surrender of a defendant, apparently conceding that a marshal is not a "judicial officer." This concession logically follows from the definition of "judicial officer" in 18 U.S.C. § 3156(a)(1) as "any person or court authorized pursuant to section 3041 of this title, or the Federal Rules of Criminal Procedure, to bail or otherwise release a person before trial or sentencing or pending appeal in a court of the United States, and any judge of the Superior Court of the District of Columbia . . . ." Since neither section 3041 nor the Federal Rules of Criminal Procedure empower a marshal to authorize bail or otherwise to release a person, this definition forecloses an argument that a marshal is a "judicial officer." This conclusion accords with that of other courts that have considered the issue. See United States v. Logan, 505 F.2d 35, 37 (5th Cir. 1974); United States v. West, 477 F.2d 1056, 1057-58 (4th Cir. 1973); United States v. Wray, 369 F.Supp. 118, 125 (W.D.Mo.1973).

Obviously, appellant is literally correct in arguing that a marshal is not a "court" or "judicial officer". We must go beyond this simple argument, however, because we have held that in some circumstances a failure to surrender to a marshal is a violation of a court order to appear. See United States v. Logan, supra. The district court in Logan sentenced the defendant to five years' imprisonment on June 1, 1973. The defendant's wife and child lived in Houston, Texas, about 750 miles from El Paso, where the sentencing court was located. Upon defendant's request that he be allowed time to make arrangements for the care of his family, the court permitted him to remain on bail until June 8, 1973, at which time he was to report back to the court to begin service of his sentence. The defendant further requested that he be allowed to surrender to the U. S. Marshal in Houston. The court granted that request, ordering him to surrender to the marshal at a designated time and place. After he failed to surrender as ordered, Logan was indicted and convicted of bail jumping under section 3150. In affirming the conviction, we said:

Admittedly, a United States Marshal is not a "court or judicial officer", as those terms are used in the above statutes; but we agree with the holding in United States v. West, 4 Cir., 477 F.2d 1056 (1973), that under circumstances substantially the same as those here, it is appropriate to view the Marshal as the designated agent of the Court for the purpose of taking a sentenced defendant into custody. 505 F.2d at 37.

However, in United States v. Clark, 412 F.2d 885 (5th Cir. 1969), we reversed a conviction because the defendant had merely failed to appear before a probation officer for the preparation of a pre-sentencing report. In Logan we discussed the numerous facts that make Clark unique. For example, it was not clear from the record whether Clark's original obligation to appear arose from a court order or from the conditions of the bond; only violations of court orders are punishable under section 3150. Moreover, Clark did appear before the probation officer as required by the court, but he failed to appear for a later appointment he had arranged on his own with the probation officer. ²

We think Logan controls the first issue in this case. There we approved this language from United States v. West, supra :

The essence of the crime of bail jumping is willful failure to appear before 'any court or judicial officer as required.' As a condition of defendant's bond, the court ordered him to report to the United States Marshal at a specific time to begin serving his sentence. An unnecessary waste of judicial time and energy would result if we were to require that each person in West's position appear before the court itself. No discretionary action is involved at all. 505 F.2d at 37.

In this case, as in Logan and West, the district court had already sentenced the defendant, and thus a courtroom appearance would have been a useless waste of the court's time. It is true that the district court in Logan ordered surrender to a marshal at the defendant's request. But our decision there was not based on Logan's failure to meet a condition he had requested. Rather, we affirmed his conviction because he "did not report to custody as ordered." (Emphasis added). 505 F.2d at 36. Defendant's failure to report to custody as ordered in the instant case is the basis for his conviction, thus bringing Logan into play. Moreover, the Fourth Circuit's opinion in West, which we approved in Logan, affirmed a conviction on nearly the same facts we face in this case.

Logan has thus established in this Circuit that when a district court, after sentencing, orders a defendant to surrender to a U. S. Marshal to begin serving a sentence, the marshal acts as the court's designated agent for the limited purpose of taking the defendant into custody. Therefore appellant's failure to surrender to the U. S. Marshal as ordered constituted a "failure to appear before 'any court or judicial officer as required.' "

We think that Logan is not only controlling, but correct. Legislative history does not suggest otherwise; at most it is ambiguous. ³ Our holding barely expands the literal reading of section 3150. Bail jumping remains a very narrow crime. Not all breaches of bond conditions give rise to criminal liability under the statute. ⁴ Only failures to appear as ordered constitute bail jumping, and that conduct is precisely what Congress intended to deter by making bail jumping a...