U.S. v. Wells, 84-1864

• Decision Date: 26 June 1985
• Docket Number: No. 84-1864,84-1864
• Parties: UNITED STATES of America, Appellee, v. John Jacob WELLS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 12

766 F.2d 12

UNITED STATES of America, Appellee, v. John Jacob WELLS, Defendant, Appellant.

No. 84-1864.

United States Court of Appeals First Circuit.

Argued May 10, 1985.

Decided June 26, 1985.

Mark J. Kadish, Atlanta, Ga., with whom Rosalyn S. Kadish, Kadish & Kadish, P.C., Atlanta, Ga., Harrison T. Slaughter, Jr. and Harrison T. Slaughter, Jr., P.A., Orlando, Fla., were on brief for defendant, appellant.

F.M. Terison, Portland, Me., with whom Richard S. Cohen, U.S. Atty., William H. Browder, Asst. U.S. Atty., and Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., were on brief for appellee.

Before BOWNES, Circuit Judge, VAN DUSEN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

VAN DUSEN, Senior Circuit Judge.

Defendant, John Jacob Wells, was indicted for violating the federal bail-jumping statute, 18 U.S.C. Sec. 3150 (1982). ¹ The indictment resulted from defendants' failure to appear at the Federal Correctional Institution in Sandstone, Minnesota (FCI-Sandstone), to begin serving a five-year prison sentence. Following a jury trial in the United States District Court for the District of Maine, defendant was convicted of the bail-jumping offense and was given a three-year prison sentence to run consecutively to his existing five-year sentence.

Defendant filed a timely appeal to this court, contending that the evidence adduced against him at trial failed to establish a violation of section 3150. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982). We will affirm for the reasons stated in this opinion.

I. Factual History

On July 16, 1981, defendant Wells was sentenced to five years' imprisonment following his conviction for conspiracy to possess and distribute marijuana. At the sentencing proceeding, defendant sought permission from the district court to surrender voluntarily or "self-report" to the institution at which he was to serve his sentence. The district court granted the request and ordered defendant to report for service of his sentence at the institution designated by the Bureau of Prisons within thirty days of the date of sentencing or, if defendant appealed his conviction, within thirty days of the date of affirmance by the Court of Appeals for the First Circuit. Tr. at 12. Defendant then executed an appearance bond that day after the district court set bail pending appeal. The bond provided that defendant appear "at such ... places as a defendant may be required to appear in accordance with any and all other directions relating to the defendant's appearance in the above-entitled matter as may be given or issued by the magistrate or the United States District Court for the District of Maine." Tr. at 14.

Defendant's conviction for conspiracy to possess and distribute marijuana was affirmed by a judgment of this court filed on January 25, 1983. See United States v. Hensel, 699 F.2d 18 (1st Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983). This court's mandate of affirmance was issued on March 28, 1983. Following the affirmance, the Bureau of Prisons determined that defendant should serve his sentence at FCI-Sandstone. The Bureau set April 22, 1983, as the date for defendant to report to that institution, which date was twenty-five days after the mandate issued. On April 15, 1983, the United States Marshals Service in Savannah, Georgia, notified defendant of his obligation to surrender at FCI-Sandstone at noon on April 22. In addition, the United States Marshals Service in Portland, Maine, sent a letter to defendant's trial attorney informing him of the time and place for defendant to report.

Defendant did not report to FCI-Sandstone on April 22 or at any time thereafter. The toll records for defendant's telephone in Cobbtown, Georgia, indicate that at 9:55 a.m. on April 22, 1983, a collect call was billed to that number from the Atlanta, Georgia, airport. Later that day, at 11:51 p.m., another collect call was charged to defendant's telephone number from the Minneapolis, Minnesota, airport--an airport near FCI-Sandstone.

A warrant for the arrest of defendant on bail-jumping charges was then issued. On November 21, 1983, Wells was indicted for willfully failing to appear as required at FCI-Sandstone in violation of 18 U.S.C. Sec. 3150. Defendant was apprehended on January 9, 1984, in New Smyrna Beach, Florida. At the time of his arrest, he was carrying documents that identified him by the name of Claude Cantrell. He also drove a motor vehicle registered in the name of Claude Cantrell. Following a jury trial in the United States District Court for the District of Maine, defendant was convicted of violating section 3150 and was sentenced to three years' imprisonment.

II. "Court or Judicial Officer" under 18 U.S.C. Sec. 3150

Defendant Wells was convicted of violating 18 U.S.C. Sec. 3150, which reads in relevant part:

"Sec. 3150. Penalties for failure to appear

Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both, ...."

18 U.S.C. Sec. 3150 (1982) (repealed 1984, current version to be codified at 18 U.S.C. Sec. 3146).

The indictment alleged that defendant failed to appear as required at the Federal Correctional Institution at Sandstone, Minnesota. Defendant contends that FCI-Sandstone does not fit within the meaning of the phrase "court or judicial officer" in section 3150 and that, therefore, the district court erred in instructing the jury that failure to report to a United States prison falls within the purview of the statute. ²

In support of his contention, defendant relies principally on the Fifth Circuit's decision in United States v. Clark, 412 F.2d 885 (5th Cir.1969). The facts of that case are as follows. Clark was adjudged guilty in the district court following his entry of a guilty plea. The district court then ordered Clark released on his own recognizance while he awaited sentencing. Clark signed an appearance bond, which conditioned his release on not departing from a particular geographical area. The trial judge advised Clark of the potential penalties he might incur for violating the conditions of his bond. The court then apparently issued a directive that Clark report to a probation officer, who was preparing Clark's presentence report. The precise requirements of the court's directive (i.e., how often to report to the probation officer) and the consequences for failure to follow the directive, are uncertain. Nevertheless, Clark did report to the probation officer as ordered, but the officer gave him permission to leave about 45 minutes later upon the condition that he return the next morning at 8:00 a.m. Clark failed to report the next morning and, as a result, was convicted for bail-jumping under section 3150.

On appeal, the Fifth Circuit reversed Clark's conviction, holding that a probation officer is not a "court or judicial officer" within the meaning of section 3150. The court focused its analysis on the statutory language which defined "judicial officer" as "any person or court authorized ... to bail or otherwise release a person before trial or sentencing or pending appeal...." 412 F.2d at 889. ³ The court determined that probation officers do not have the power to set bail and conditions for release and that, therefore, they are not "judicial officers." 412 F.2d 889. This interpretation of the phrase "judicial officer" is correct. See United States v. Capen, 571 F.2d 374, 375-76 (7th Cir.1978). Nevertheless, the court's holding in Clark is not dispositive in the case at hand.

There is a substantial line of authority to support the proposition that a person's failure to report at a designated place and time to begin serving a prison sentence constitutes a violation of 18 U.S.C. Sec. 3150. The first such decision was United States v. West, 477 F.2d 1056 (4th Cir.1973) (per curiam ), in which the court affirmed the defendant's conviction under section 3150 for failure to report to a United States Marshal at a specified place and time to begin his prison sentence. The court reasoned that the marshal was a designated agent of the court for the limited purpose of taking the defendant into custody to begin serving his sentence. Id. at 1058. Although the marshal was not a "court or judicial officer" per se, the court ruled that failure to report to the marshal to begin serving a sentence should be treated the same under section 3150 as failure to report to the court to begin serving a sentence. The court believed that an unnecessary waste of judicial time and energy would result if every sentenced defendant were required to appear in a court to begin serving his sentence merely for the purpose of satisfying the literal requirements of section 3150. Id.

Subsequently, the Fifth Circuit--the court which had decided Clark--followed the holding in West with its decision in United States v. Logan, 505 F.2d 35 (5th Cir.1974). The court in Logan distinguished Clark on several factual grounds. First, it was uncertain whether the requirement that Clark report to a probation officer was made by a court, whereas the order directing Logan to report to a United States Marshal was issued by a court. Id. at 38-39. Secondly, the probation officer to whom Clark was ordered to report was implicitly granted some discretion by the district court to order Clark to make further appearances. This discretionary power to require appearances had not been granted to probation officers under the Bail Reform Act of 1966. By contrast, the court gave the...