United States v. Clark

• Decision Date: 23 May 1969
• Docket Number: No. 26641 Summary Calendar.,26641 Summary Calendar.
• Citation: 412 F.2d 885
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Lynn CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

412 F.2d 885 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Michael Lynn CLARK, Defendant-Appellant.

No. 26641 Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 23, 1969.

Clarence R. Scales, Jackson, Miss., for defendant-appellant.

Robert E. Hauberg, U. S. Atty, Jackson, Miss., E. Donald Strange, Asst. U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

Pursuant to new Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See, Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I.

Appellant, Michael Lynn Clark, appeals to this court from a conviction for bail jumping under 18 U.S.C.A. § 3150 (Supp., 1969).¹ We reverse because we find that the conduct for which Clark was convicted was not an indictable offense under § 3150.

The circumstances leading up to Clark's conviction are as follows. On May 24, 1967, appellant pleaded guilty in a United States district court to the offense of interstate transportation of a stolen motor vehicle. 18 U.S.C.A. § 2312. The court adjudged appellant guilty and deferred sentence to await receipt of a presentence report, but no fixed date was set for sentencing. The United States Attorney then notified the court that the appellant was being held in jail in lieu of $750.00 bond and the court decided to continue the bond at that figure. It agreed, however, to release appellant on his own recognizance. Appellant signed the appearance bond which conditioned his release on not departing from Hinds or Rankin County, Mississippi, and the judge advised him of the penalties he might incur for violating the conditions of his bond, 18 U.S.C.A. § 3146(c). Thereafter the court apparently directed appellant to report to Charles Raggio, the probation officer, for completion of the presentence report. The record does not reflect whether this directive was made a condition of release or whether it was included in the written appearance bond that appellant signed.² The record is also unclear as to the terms upon which Clark was to report to the probation officer, whether for one day only, or until the presentence report was complete, or on such terms as the probation officer might thereafter impose.

Appellant did report to Mr. Raggio as directed. Approximately 45 minutes later, however, he requested permission to go to the home of his grandparents. The probation officer granted his request upon condition that Clark return to the probation office the following morning at 8:00 a. m., to help him complete the presentence report. Appellant failed to appear in Mr. Raggio's office as promised and later that same day a warrant was issued for his arrest. He was taken into custody on June 7, 1967 and sentence was imposed for transportation of a stolen motor vehicle on July 24, 1967. At that time appellant was 19 years old and a first offender. He received a maximum sentence of five years imprisonment.

In March of 1968, while appellant was serving his sentence in the federal penitentiary at Lewisburg, Pennsylvania, a federal grand jury indicted appellant for bail jumping. The indictment charged a violation of 18 U.S.C.A. § 3150, the enforcement provision of the Bail Reform Act, and alleged a willful failure to appear before a United States probation officer as required by a condition of his bail bond. Appellant was brought to trial on August 12, 1968, and a jury found him guilty as charged. The judge sentenced him to another maximum sentence of five years, such sentence to run consecutively with the five year sentence he was already serving.

On this appeal appellant alleges two grounds for reversal. He claims that the government failed to prove a prima facie case on the crime alleged in the indictment because 1) his failure to appear before the probation officer was not a violation of his appearance bond (apparently because the bond made no mention of such a condition), and 2) his failure to appear before the probation officer was not willful. Appellant also observes that at no time did appellant violate the travel restrictions set forth in his appearance bond.

We find it unnecessary to consider these specifications of error because we find that the indictment against Clark did not state a criminal offense. Although this point was not brought to the attention of the district court, or argued in appellant's brief, the failure of the indictment, and of the evidence which followed it, to disclose a violation of 18 U.S.C.A. § 3150, constitutes plain error within the meaning of F.R.Crim.P. 52 (b) and warrants reversal by a reviewing court. See, Chappell v. United States, 9 Cir. 1959, 270 F.2d 274, 276.

18 U.S.C.A. § 3150 under which appellant was convicted provides in pertinent part as follows:

"Whoever, having been released pursuant to this chapter, wilfully fails to appear before any court or judicial officer as required, shall, * * * 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 $5000 or imprisoned not more than five years, or both * * *."

It should be noted that the statute by its terms imposes penalties only for the willful failure to appear before any "court or judicial officer,"³ and Clark was both indicted and convicted for failure to report to a probation officer. Throughout appellant's trial, the government attempted to show that a probation officer was a "judicial officer" within the meaning of the statute. The trial court adopted this theory as an accurate statement of the law in its charge to the jury:

"Now Section 3150 of Title 18, United States Code, provides this: Whoever having been released pursuant to this chapter wilfully fails to appear before any Court or judicial officer, and Mr. Raggio is a judicial officer, he is an officer of this Court, he is an agent and representative of this Court and he was on this occasion, 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 if he was released in connection with a charge of a felony or while awaiting sentence and pending appeal or certiorari after conviction of an offense shall be punished and so forth and I don\'t need to read that because the jury is not concerned with what the punishment is.

I don\'t know what the punishment is. That\'s the reason I get these presentence reports and that is what I was trying to do in this case. Anyway that is the law, members of the jury, and its up to you to decide as to whether or not on or about May 25, 1967, if this defendant did or did not appear before Mr. Raggio on that morning to let Mr. Raggio complete his pre-sentence report which he was trying to make for this Court and that is just all there is to it and there is no room for any sympathy of any kind, there is no extenuating circumstances of any kind, you are just confronted with the question in this case of deciding under your oaths and that\'s not a light thing, members of the jury, but deciding on your oaths as to whether or not this man did or did not do just what I have said. If he did do that its your sworn duty under your oaths regardless of any feeling or any kind of impulse that you may have to want to be gentle with this fellow or turn him a loose or give him something else that congress didn\'t give him or forgive him for what congress said he should be punished for it would be your duty under those circumstances to say that he is guilty. On the other hand, if you don\'t believe those things then it would be your sworn duty to say he is not guilty. That\'s all it is."

Appellant did not object to the court's instructions to the jury on the ground that a probation officer was not a judicial officer within the meaning of the statute. But it is well-established that a court's instructions cannot "increase the effect of the statute." Wilkerson v. United States, 7 Cir. 1930, 41 F.2d 654, 656, cert. denied, 282 U.S. 894, 51 S.Ct. 179, 75 L.Ed. 788. If in fact a probation officer is not a judicial officer within the meaning of 18 U.S. C.A. § 3150, then the indictment against Clark was defective, Chappell v. United States, supra, and the effect of the court's erroneous instruction would be to authorize the jury to convict appellant for an act that was not a crime.

The government argues in its brief that a probation officer is a court assistant or judicial officer because he is appointed by the court, 18 U.S.C.A. § 3654, and because he must perform such duties as the court may direct. 18 U.S. C.A. § 3655. Nowhere in its brief, however, does the government make mention of 18 U.S.C.A. § 3152 which expressly defines the term "judicial officer" as that term was intended to be used in the Bail Reform Act. The statutory definition is as follows:

"As used in sections 3146-3150 of this chapter —

(1) The term `judicial officer\' means, unless otherwise indicated, 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 District of Columbia Court of General Sessions * * *."

Reference to § 3041 of title 18 and to the Rules of Criminal Procedure reveals no mention of a probation officer in connection with the authority "to bail or otherwise release a person before trial or sentencing or pending appeal * *." The sections of the United States Code relied on by the government cannot remedy this deficiency. They may indicate that a probation officer is an arm of...