United States v. John Henry Bright, Jr. , 541 F.2d 471 ( 1976 )

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 serious crime. The deterrent effect of the statute does not turn on whether the district court orders a defendant to surrender in a courtroom instead of to a U. S. Marshal at a specific time and place.

Finally, Logan reflects a common sense approach. A different and hypertechnical approach would have either of two undesirable effects. First, if district courts wanted to impose the extra deterrent effect of section 3150, they would have to order defendants routinely to appear in the courtroom, in turn for a routine direction to surrender to a U. S. Marshal. Such a practice would result in an unnecessary additional burden on already overburdened district courts. Alternatively, if district courts wanted to avoid this waste of their time, they would simply increase the amount of bail to achieve the desired deterrent effect. This practice would be unfair to defendants who are not inclined to bail jump but who are unable to post sufficient additional security. Thus, we agree with the Fourth Circuit’s distinguished panel (Sobeloff and Boreman, Senior Circuit Judges, and Winter, Circuit Judge), which held in United States v. West, supra, that a U. S. Marshal is the designated agent of the district court in circumstances such as those in this case.

III. Whether Bright’s Failure to Surrender was “Willful.”

We next consider Bright’s contention that his conviction must be reversed because he did not receive due notice of the order to surrender and thus cannot be said to have “willfully” failed to appear. In considering this issue, we are bound by the teachings of Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704 (1942), which requires us to view the evidence in the light most favorable to the Government. See also United States v. Box, 530 F.2d 1258, 1263 (5th Cir. 1976); United States v. Arias-Diaz, 497 F.2d 165, 168 (5th Cir. 1974). We must decide whether the jury could reasonably, logically, and legally infer from the evidence presented that appellant was guilty of violating the statute beyond a reasonable doubt. Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166 (1954).⁵

While it is admitted that Bright did not have actual knowledge of the surrender order, actual knowledge is not required. As we stated in United States v. Cohen, 450 F.2d 1019, 1021 (5th Cir. 1971):

A defendant’s failure to appear because he purposefully engaged in a course of conduct designed to prevent him from receiving notice to appear can clearly be as “willful” as when he receives and deliberately ignores a notice to appear. See United States v. DePugh, 434 F.2d 548 (8th Cir. 1970) [cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328 (1971)]; United States v. Hall, 346 F.2d 875 (2nd Cir. 1965) [cert. denied, 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965)].

We now consider in some detail the evidence revealed by the record.

In appropriate circumstances courts are generally rather lenient in granting bail pending appeal, but it should be observed that a defendant who has been found guilty by a jury and sentenced is not necessarily entitled to bail pending appeal as a matter of law. See 18 U.S.C. § 3148. Here the defendant was granted bail pending appeal. At that time he made serious and unconditional covenants in a bail bond he filed in the United States District Court for the Southern District of Texas. He promised to make proper appearances in the United States Court of Appeals at New Orleans and in the United States District Court for the Southern or Northern Districts of Texas, and at such other places as he might be required to appear, in accordance with any and all orders and directions relating to his appearance in the above entitled matter or as might be given or issued by the United States Court of Appeals at New Orleans or any other United States District Court to which the defendant might be removed or the cause transferred. In addition he solemnly covenanted with the court not to depart the Southern or Northern Districts of Texas or any other United States District Court to which he might be removed or the cause transferred. He promised to abide by any judgment entered in the case and to surrender himself and to obey any order or direction in accordance with such judgment as the court imposing the same might prescribe. On his bail bond the defendant listed as his address the home of his mother in Dallas, Texas. That was the place to which any notices were to be sent in accordance with the appellant’s own directions.

In the month of October, in violation of every covenant of his bond, the defendant not only departed the jurisdiction of the district court in which he was convicted, he left the state of Texas and traveled extensively through several states, including New Mexico, Arizona, California, Michigan, Florida, Alabama and Georgia.⁶ In addition, he made an international trip to Canada.⁷ During the course of these travels the appellant and his wife registered under assumed names at various hotels and motels and rented houses and apartments.⁸ On occasions the appellant and his wife contacted her mother and his mother, but they never disclosed in any conversation their whereabouts.

At his jury trial on the marijuana charge the appellant was represented by two attorneys, one in Laredo and another in San Antonio. Subsequent to conviction he terminated the employment of his trial attorneys and employed Attorney Coil of Dallas, Texas to represent him. Mr. Coil’s office was in his home, so presumably he could be best reached there. The appellant and his wife had his phone number. The records of this court reveal, and Mr. Coil testified to the fact, that he received notice from this court when the appellant’s conviction was affirmed. As noted above, the clerk of this court sent Coil a copy of the appellate opinion with a letter dated November 20, 1974, advising him that judgment had been entered. In addition, Coil received a carbon copy of a letter dated December 12, 1974, from the Fifth Circuit clerk informing the District Court clerk of the affirmance of Bright’s conviction. Mr. Coil apparently did not advise his client that his conviction had been affirmed, perhaps because he did not know how to locate him. Although appellant’s wife testified that he called his attorney six or eight times, there is no evidence that he communicated with his counsel after Coil received notice of the Fifth Circuit opinion, nearly one month before Bright was ordered to surrender. There is some intimation that appellant and his wife expected Mrs. Bright’s mother to stay in touch with Mr. Coil with respect to the appeal. Mrs. Erwin, Mrs. Bright’s mother, testified that she did have the impression that she was to notify the Brights when they called her if the conviction was affirmed on appeal. However, she further testified that she never discussed the appeal with attorney Coil and that her contacts with him were minimal during the period involved, although she bought a home from him or through him in late 1974. It is appropriate to note at this point that both Mrs. Erwin and attorney Coil were the persons chosen by appellant Bright to keep him informed of the facts with respect to his duty and obligation to appear in response to any order issued by an appropriate court, yet neither he nor his wife ever disclosed their locations or phone numbers to Mrs. Erwin or Coil.

Finally, after their extensive travels, including a trip to Canada, Mr. Bright apparently came to rest in Georgia. There he rented an apartment and matriculated in a vocational school. In February, 1975, he was arrested on a stolen vehicle charge in the state of Georgia. He gave his jailor a false name, following the same pattern and practice in which he had indulged throughout his travels. Eventually he told the local sheriff that he “had jumped an appeal bond in Texas,” and it was only through a call from the sheriff that federal authorities learned of Bright’s whereabouts.

An additional important fact mitigates against the contention of appellant. After this court affirmed his marijuana conviction, the district judge ordered Bright to surrender to the marshal. In accordance with the address designated on his bail bond by appellant Bright, notice was sent to him at his mother’s home.⁹ Since appellant was not there and had left no forwarding address, the notice was returned to the clerk. No notice was sent to Coil by the district clerk, but as noted above, Coil had received notice of the appellate decision from the clerk of this court in both November and December, 1974.¹⁰ Notice to Coil of the order would have been useléss, as the record indicates that Coil could not contact appellant and that appellant did not contact him or Mrs. Erwin after notice was sent to Coil.

Considering all of the foregoing facts and circumstances and being bound by our holding in Cohen, supra, we conclude that the jury could reasonably, logically and legally infer that the appellant engaged in a course of conduct designed to prevent him from receiving notice to appear and that his failure to appear can be as clearly “willful” as though he actually received notice and deliberately ignored the notice to appear.¹¹ If such were not the law, an enterprising defendant, in spite of his solemn covenants and promises, could avoid the proscription of the statute by clever movements through this vast country and in other countries as well.

In conclusion, we hold that appellant was properly convicted of bail jumping, 18 U.S.C. § 3150. The district court in December, 1974, ordered him to surrender to a U. S. Marshal at a specific time and place. Since the appellant had been sentenced and the marshal simply had to take appellant into custody, a ministerial act, the marshal was acting as the designated agent of the court, and appellant’s failure to surrender as ordered constituted a failure to surrender to the court. In addition, the jury could properly find that appellant’s failure to surrender was willful, as there was sufficient evidence that he purposefully engaged in a course of conduct designed to prevent him from receiving notice.

Judgment AFFIRMED.

1 . 18 U.S.C. § 3150 provides in pertinent part: 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 the 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 .

2 . In Clark this court positively stated that Clark’s “failure to keep an appointment with a probation officer did not therefore constitute the kind of non-appearance which § 3150 of the Bail Reform Act was designed to discourage.” 412 F.2d at 891. In Logan we added:

The same could not be said about the failure to obey an order of the Court to report to the U. S. Marshal to begin service of sentence. A bail bond would be meaningless if the defendant could discharge all his obligations thereunder by making the necessary appearances down to the point of entering custody to begin service of his sentence. If the trial judge in this case had required the defendant to make the 750 mile trip from Houston to El Paso at his own expense to report to the court itself, he would have been promptly turned over to the U. S. Marshal. No confusion or havoc could possibly arise from the Court’s designation of the U. S. Marshal at Houston as its agent to receive the defendant under the circumstances. 505 F.2d at 39.

We perceive no conflict between Logan and Clark. Indeed, Clark preceded both West and Logan, whereas the court in Logan had the benefit of both Clark and West when it approved West and distinguished Clark.

3 . The Bail Reform Act of 1966, Public Law 89-465, 80 Stat. 216 (June 22, 1966), amended Chapter 207 of Title 18, United States Code, by replacing the former bail jumping statute (18 U.S.C. § 3146) with seven new sections numbered 3146 through 3152. See H.Rep.No.1541, 89th Cong., 2d Sess., 2 U.S.Code Congressional and Administrative News pp. 2293, 2295 (1966). The former bail jumping statute provided in part:

Whoever, having been admitted to bail for appearance before any United States commissioner or court of the United States, incurs a forfeiture of the bail and willfully fails to surrender himself within thirty days following the date of such forfeiture, shall, if the bail was given in connection with a charge of felony or pending appeal or given in connection with a charge of felony 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

It is clear from the Report of the Judiciary Committee to the House of Representatives that the purpose of the Bail Reform Act was

to assure that all persons, regardless of their financial status shall not needlessly be detained pending their appearance to answer charges, to testify, or pending appeal, when detention serves neither the ends of justice nor the public interest. H.Rep.No.1541, 89th Cong., 2d Sess., 2 U.S.Code Congressional and Administrative News pp. 2293, 2295 (1966).

After a thorough review of the history of the Act, the court in United States v. Wray, 369 F.Supp. 118, 124 (W.D.Mo.1973), although rul-' ing contrary to our holding in this case, con-eluded that “[i]t appears that Congress apparently did not contemplate the situation herein during the drafting and passage of the [Act].” This court has previously noted, in the context of other issues, that the dearth of legislative discussion on section 3150 leads to the conclusion that Congress did not intend to change the meaning of the bail jumping statute. See Brown v. United States, 410 F.2d 212, 216 (5th Cir. 1969). Indeed, if anything, Congress intended to make the statute’s application broader by deleting the requirement of a thirty day lapse between the failure to surrender and a criminal charge. We are unable to conclude that the 1966 change should dictate a different result where a defendant fails to surrender to a marshal after sentencing as ordered by the district court.

4 . Appellant cites our reference to a Justice Department memo in United States v. Clark, supra, 412 F.2d at 888 n.3. That memo, No. 484, September 8, 1966, in referring to section 3150, states:

The Act does not provide penalties for a violation short of failing to appear before a judicial officer or court as required. * * * For example, a person may be required to live at a specified address; however, if he lives elsewhere but appears as required before the judicial officer or court he is not ^subject to the penalties herein provided.

This Justice Department example merely serves to illustrate the distinction between violations of bond conditions which also constitute violations of court orders to appear and violations of bond conditions in general.

5 . Some of the opinions of this court suggest that the burden of proof requires that the Government prove the allegations of the indictment to the exclusion of every “reasonable hypothesis of innocence.” See, e. g., United States v. Box, 530 F.2d 1258, 1263 (5th Cir. 1976); United States v. Squella-Ávendano, 478 F.2d 433, 436 (5th Cir. 1973). In Holland the petitioner alleged error in the trial court’s refusal to instruct the jury that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. The Supreme Court rejected that contention, saying:

There is some support for this type of instruction in the lower court decisions, [citations omitted] but the better rule is, that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect, [citations omitted].

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more. 348 U.S. at 139-40, 75 S.Ct. at 137.

In United States v. Warner, 441 F.2d 821 (5th Cir. 1971), Judge Wisdom observed that the various formulations of “exclusions of hypotheses” involved merely verbalistic distinctions. He concluded that federal courts were agreed that whether “the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt.” Id. at 825.

6 . We do not.intimate that violating the terms of the bond constitutes a violation of the statute here involved. However, such a violation is a fact to be considered with other pertinent facts and circumstances in determining whether the defendant’s failure to appear was willful.

7 . Appellant argues that his attorney told him and his wife that their travels would not violate the bond as long as they “kept in touch.” However, the jury had before it the legible, four paragraph appearance bond signed by appellant, testimony that he had completed three years of college, and testimony that he told a Georgia sheriff that he had “jumped bond in Texas.” Whether appellant knowingly bail jumped is a typical jury question, and on this evidence the jury was entitled to find that appellant had intentionally and knowingly violated his bond conditions.

8 . On their trips north and west, appellant and his wife stayed in hotels and motels. During the last three months of their extended absence from Texas, the Brights stayed in the south. They rented an apartment in Tampa under the name of John Caddell, and they later rented a house in Tallahassee under the name of George Robert Caddell. They wound up living in Douglas County, Georgia. During their travels the Brights used as identification several Social Security cards and drivers licenses issued by various states in the names of John Robert Caddell, John Robert Caddell, Jr., Rae Parker Ray, and Carroll Wayne Morrison. The record contains no evidence that the Brights ever used their actual names during their entire absence from Texas.

9 . The appellant contends that the district court improperly admitted into evidence a photostatic copy of the front of the envelope containing the notice to appellant Bright sent to his mother’s home as requested by him, but which was returned to the court. There was a notation on the front of the envelope that appellant had left no forwarding address. He asserts this statement is hearsay and that the back of the envelope may have contained a different notation. We fail to see the importance of this contention because Bright was never at the place where he said he would be after he departed the jurisdiction of the court in October, sometime before his conviction was affirmed by the court in November. Furthermore, he did not even inform his own mother, whose address he had put on the bond as his own, of his whereabouts. The record amply demonstrates that he was never available to receive such notice at the place designated by him subsequent to his departure in October.

10 . While we do not approve the failure of the district court clerk to send notice to Mr. Coil, we do not attach sufficient importance to that fact to reverse his conviction in this case, especially in view of the fact that privately retained counsel of his choice actually received two different notices of the affirmance of his conviction and in further view of the evasive and elusive conduct of the appellant.

11 . We realize that the prosecution presented only circumstantial evidence in this case to prove that the defendant had willfully failed to appear. However, as noted in footnote 5, supra, Holland v. United States and United States v. Warner dictate that we apply the same standard in reviewing a jury verdict whether it is based on direct or circumstantial evidence.