United States v. DePugh, 20192.

• Decision Date: 21 December 1970
• Docket Number: No. 20192.,20192.
• Citation: 434 F.2d 548
• Parties: UNITED STATES of America, Appellee, v. Robert Bolivar DePUGH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

434 F.2d 548 (1970)

UNITED STATES of America, Appellee, v. Robert Bolivar DePUGH, Appellant.

No. 20192.

United States Court of Appeals, Eighth Circuit.

November 25, 1970.

Rehearing Denied and Rehearing Denied December 21, 1970.

Robert G. Duncan, Kansas City, Mo., for appellant. Calvin K. Hamilton, First Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT and BRIGHT, Circuit Judges, and NEVILLE, District Judge.

Rehearing Denied En Banc and Rehearing Denied December 21, 1970.

VAN OOSTERHOUT, Circuit Judge.

This is a timely appeal in forma pauperis by defendant Robert Bolivar DePugh from final judgment of conviction on an indictment charging bail jumping in violation of 18 U.S.C.A. § 3150. Defendant was found guilty by a jury and sentenced to four years imprisonment.

On November 14, 1966, defendant was found guilty by a jury on each of three counts of an indictment. Sentences were imposed on January 17, 1967. Defendant pending appeal was released on a $5,000 appeal bond. Upon appeal, we reversed the conviction on Counts I and III with direction that such counts be dismissed and reversed the conviction on Count II with remand for a new trial on that count. The facts are fully set out in our opinion, DePugh v. United States, 8 Cir., 401 F.2d 346, filed September 30, 1968.

Upon remand, the trial court on November 15, 1968, held a hearing on a motion by the government to set Count II for retrial. Mr. Gilwee, who had represented the defendant in a prior litigation, appeared. Defendant did not appear. An order was entered on that date setting Count II for retrial on December 3, 1968, at 9:30 a. m. A copy of the order was sent by certified mail to defendant at his last known address as given in the appeal bond — Norborne, Missouri. The letter containing the order was received and receipted for by Ramona DePugh, defendant's wife, on November 19, 1968.

Attorney Gilwee as a witness testified that he attempted to notify the defendant of the trial setting. He had no personal information as to defendant's whereabouts. He talked by telephone to defendant's wife but was unable to obtain the defendant's address. He requested the wife to notify defendant and to tell him to get in contact with him, but no contact was made.

When the case was reached for trial pursuant to the assignment on December 3, 1968, the defendant did not appear. Mr. Gilwee appeared and stated that he was unable to locate the defendant. Defendant had not been seen since February 1968. It was reported that he had disappeared and went underground (about February 1968). He was not found until July 12, 1969, when he was arrested by the FBI in New Mexico where he was using an assumed name. Defendant had charges pending against him in the state of Washington. He had previously been convicted in the Western District of Missouri for violating 15 U.S.C.A. § 902(e) and had been sentenced to one year's imprisonment. His conviction on this charge was affirmed April 15, 1968. See DePugh v. United States, 8 Cir., 393 F.2d 367.

Mr. Horsfall, who knew defendant while he was in New Mexico, testified that he heard a conversation on or about October 10, 1968, between DePugh and Peyson concerning which he testified as follows:

"A Well, the discussion was about the cases that were against Mr. DePugh and Mr. Peyson here in Kansas City. And Mr. DePugh told Mr. Peyson that two of the charges had been dropped, and that Mr. Peyson would have a pretty good chance of beating the third charge. And he asked him if — asked Mr. Peyson — Mr. DePugh asked Mr. Peyson if he wanted to go back, and Mr. Peyson said no. And it was also discussed at that time that Mr. DePugh —

Q (By Mr. Hamilton) By `discussed\', who said what?

A Well, Mr. DePugh said that he couldn\'t come back at that time because he had a one-year prison sentence to serve if he did."

The appeal bond upon which defendant was released is conditioned upon defendant's appearance in the District Court and the Court of Appeals "in accordance with all orders and directions of said courts relating to the appearance of the appellant in the case of United States v. Robert Bolivar DePugh, No. 22263, and the appeal therefrom." The court in fixing the bond stated the bond is only for the limited purpose of assuring appearance when required.

The points relied upon for reversal are:

I. Eighteen U.S.C.A. § 3150 is so vague and indefinite as to fail to establish sufficient standards of guilt in violation of the Sixth Amendment and the requirements of due process of law.

II. The evidence is insufficient to support a conviction as there is no evidence the court complied with the notice provision of 18 U.S.C.A. § 3150.

III. The indictment is fatally defective in failing to allege the bond had been forfeited.

IV. The court erred in instructing that proof of actual notice to the defendant of the trial date was not an essential element of the offense.

V. The court erred in making comments on the evidence prejudicial to the defendant.

We hold each of such contentions lacks merit for the reasons hereinafter stated. We affirm the conviction.

I.

Eighteen U.S.C.A. § 3150 and related sections are part of the Bail Reform Act of 1966, enacted June 22, 1966, and effective ninety days after enactment. The Act, which changes preexisting law with respect to bail, became effective ninety days after enactment which was only a few months before the defendant posted his appeal bond, on January 24, 1967. Section 3150 reads:

"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, * * *."

We consider § 3150 to be sufficiently definite to meet constitutional requirements. The term "judicial officer" is defined by § 3152. Rule 43, Fed. R.Crim.P., requires a personal presence of the defendant at each stage of the criminal proceeding from arraignment to sentence. Section 3150 in plain language requires a person released on bail to appear before the court when required. Any possible ambiguity of the "when required" provision for appearance is cured by the provision that the failure to appear must be willful.

In Screws v. United States, 325 U.S. 91, 101-102, 65 S.Ct. 1031, 1035-1036, 89 L.Ed. 1495, the Court states:

"The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. The constitutional vice in such a statute is the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning. See United States v. L Cohen Grocery Co., 255 U.S. 81, 41 S. Ct. 298, 65 L.Ed. 516, supra. But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law."

A reasonable interpretation of the statute would contemplate that a defendant on bail be given reasonable notice as to any required court appearance. The government did all that it possibly could to give such notice. Had defendant not chosen to go into hiding for a prolonged period, he would have received such notice. Similarly, if he had kept his attorneys or the court advised as to his whereabouts, he would have received the notice. Defendant at the time that he gave the appearance bond knew that he would have to surrender to serve his sentence if his conviction was affirmed, and he also knew that in event a new trial was ordered he would have to appear for trial. Defendant by willfully becoming a fugitive from justice is in no position to complain about not personally receiving notice of the date of the trial.

II.

Defendant contends that § 3150 applies only to persons released "pursuant to this chapter." The reference is to Chapter 207, 18 U.S.C.A., which contains the Bail Reform Act of 1966 of which § 3150 is a part. Defendant argues that at the time of the issuance of the appeal bond neither the trial court, the prosecutor nor defense attorney was aware of the recently enacted Bail Reform Act and that the court in fixing the bond did not act pursuant to the new Bail Reform Act in that it did not follow the provisions of § 3146 providing that consideration be given to release of a defendant on his personal recognizance and to the imposition of minimum conditions necessary to secure defendant's appearance.

There is nothing in the record to indicate that the court was not aware of the provisions of the Bail Reform Act. In any event, the order for release on bail was in conformity with § 3148 which deals with release after conviction. If defendant's release was in fact secured under Rule 46, Fed.R.Crim.P., the result would be the same as the rule is a substantial restatement of 18 U.S.C.A. § 3141. See United States v. Luis, 5 Cir., 418 F.2d 439.

Defendant makes the further contention that he cannot be prosecuted under § 3150 because of the provisions of § 3146(c) reading:

"A judicial officer authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation."

It is agreed that the defendant was not...