United States v. Perry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4059
JOSEPH RICHARD PERRY, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4303
JOSEPH RICHARD PERRY, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge;
Albert V. Bryan, Jr., Senior District Judge.
(CR-99-41-A, CR-99-387-A)
Argued: May 10, 2001
Decided: June 21, 2001
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. PERRY
COUNSEL
ARGUED: Paul Peter Vangellow, PAUL P. VANGELLOW, P.C.,
Falls Church, Virginia, for Appellant. S. Brian Huseman, Special
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Helen F. Fahey, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this consolidated appeal, we consider two appeals brought by
Joseph Perry, Jr. (Perry). In the first appeal, Perry appeals from a
judgment entered by the district court following his conviction for
operating a motor vehicle while classified as an habitual offender, 18
U.S.C. § 13 (assimilating Va. Code Ann. § 46.2-357(B)(3)). In the
second appeal, Perry appeals from a judgment entered by the district
court following his convictions for failing to appear, 18 U.S.C.
§ 3146(a)(1), and criminal contempt, 18 U.S.C. § 401(3). For the rea-
sons stated below, we affirm the district court’s judgments.
I
On October 27, 1997, at approximately 8:00 p.m., Perry drove a
vehicle onto the premises of the Central Intelligence Agency (CIA)
in Langley, Virginia, using the main access road from Route 123.
Perry approached a mandatory stop, where there was a "speaker box,"
with a camera affixed. (J.A. 49). Perry used the speaker box and com-
municated with CIA Special Agent Todd Dunn (Agent Dunn).1 Perry
1
On the evening of October 27, 1997, Agent Dunn "was working the
main gate in a special protective officer status, monitoring traffic coming
into the agency and leaving the agency." (J.A. 44-45).
UNITED STATES v. PERRY 3
stated that he was lost and needed directions. Agent Dunn instructed
Perry to drive the vehicle to the end of the parking lot, where he
would be assisted. In response, Perry drove the vehicle to the end of
the parking lot.
When Agent Dunn approached the vehicle, he detected a "strong"
odor of alcohol emanating from the vehicle. (J.A. 50). Agent Dunn
asked Perry if he had been consuming alcohol, and Perry replied that
he had. Agent Dunn then asked Perry to exit the vehicle, and Perry
complied. Agent Dunn asked Perry to produce a valid driver’s license.
Perry did not produce a valid driver’s license, but instead produced
a Virginia identification card. Agent Dunn ran a computer check of
the Virginia identification card and found that Perry was operating the
vehicle under a suspended and revoked license and that Perry was an
habitual offender in the State of Virginia.
Because the CIA does not have the capability to conduct field
sobriety tests, Agent Dunn contacted the Fairfax County Police
Department. In approximately ten minutes, Fairfax County police
officer Keith Carrero (Officer Carrero) arrived at the scene. At the
scene, in plain view, Officer Carrero saw an open container of alcohol
inside the vehicle. At that time, Perry was arrested for drunkenness
in public.
On January 21, 1999, a federal grand jury sitting in the Eastern
District of Virginia returned a one-count indictment charging Perry
with operating a motor vehicle while classified as an habitual offender
in violation of 18 U.S.C. § 13 (assimilating Va. Code Ann. § 46.2-
357(B)(3)). At his arraignment on February 1, 1999, the district court
set Perry’s trial date for March 16, 1999, at 10:00 a.m., and remanded
him to the custody of the government.
Perry moved to suppress the open container of alcohol recovered
in the vehicle and the statement he made to Agent Dunn that he had
been consuming alcohol. After a hearing on February 26, 1999, the
district court denied the motion.
Following its ruling on Perry’s motion to suppress, the district
court modified Perry’s bond conditions to permit electronic monitor-
ing and home confinement at the residence of Perry’s third-party cus-
4 UNITED STATES v. PERRY
todian, Cindy Landau. Perry was formally placed on electronic
monitoring on March 2, 1999.
On March 5, 1999, between 8:00 and 8:30 a.m., Perry reported to
pretrial services officer Dan Voice (Officer Voice) at Officer Voice’s
office at the United States Courthouse in Alexandria. Perry was at the
courthouse that day to plead guilty to the operating a motor vehicle
while classified as an habitual offender charge pursuant to a plea
agreement. During the meeting, Officer Voice went over Perry’s bond
conditions to ensure that Perry was being compliant and asked Perry
to report to him after his (Perry’s) court appearance so arrangements
could be made for Landau to pick Perry up at the courthouse.
Perry appeared in court on the morning of March 5, 1999, but
decided not to plead guilty. After appearing in court, Perry went to
the pretrial services waiting area, but Officer Voice was not immedi-
ately available to meet with him. When Officer Voice went to the
waiting area to meet Perry, Perry was gone. Attempts to locate Perry
through Landau failed. When the district court was apprised of the sit-
uation, a bench warrant was issued for Perry’s arrest. On March 12,
1999, the district court ordered Landau to appear in court on March
19, 1999 to show cause why she should not be held in contempt of
the order appointing her third-party custodian.
Between 3:45 and 4:00 p.m. on March 15, 1999, agents of the
United States Marshal’s Service apprehended Perry at his parents’
house in Reidsville, North Carolina. At the time they apprehended
Perry, the marshals did not observe any luggage or packed bags and
did not find any train, bus, or plane tickets in the house or on Perry’s
person.
At the show cause hearing on March 19, 1999, the district court
indicated that a new trial date for Perry would be set once he was
returned to the Eastern District of Virginia. Perry was returned to the
Eastern District of Virginia on March 26, 1999. Following a bench
trial on October 6, 1999, Perry was convicted of the operating a motor
vehicle while classified as an habitual offender charge.2 On January
2
The evidence at trial showed that, on June 10, 1990, the Circuit Court
of Prince William County, Virginia declared Perry to be an habitual
UNITED STATES v. PERRY 5
7, 2000, the district court sentenced Perry to two years’ imprisonment
on the operating a motor vehicle while classified as an habitual
offender charge. On January 14, 2000, the district court entered its
judgment, and Perry noted a timely appeal.
Approximately three weeks after Perry was convicted of operating
a motor vehicle while classified as an habitual offender, a federal
grand jury sitting in the Eastern District of Virginia returned a two-
count indictment charging Perry with failing to appear, 18 U.S.C.
§ 3146(a)(1), and criminal contempt, 18 U.S.C. § 401(3). Following
a bench trial on January 10, 2000, the district court convicted Perry
of both charges. On March 31, 2000, the district court sentenced Perry
to twenty-one months’ imprisonment on the failure to appear charge
and a concurrent six-month sentence of imprisonment on the criminal
contempt charge. The district court also ordered that these sentences
run consecutive to any sentence currently being served or imposed.
The district court entered its judgment on March 31, 2000, and on
April 6, 2000, Perry noted a timely appeal.
II
Perry argues that the district court erred when it denied his motion
to suppress. We disagree.
The district court found that Perry’s encounter with Agent Dunn
was a consensual encounter that ripened into a Terry3 stop once Agent
Dunn smelled the odor of alcohol. The district court also found that
the stop was reasonable and that it lasted for a reasonable amount of
time. The district court further found that Agent Dunn, upon
approaching the vehicle and detecting a strong odor of alcohol, had
offender effective ten years from June 8, 1990. The entry of the Prince
William County Circuit Court’s order made it illegal for Perry to operate
a motor vehicle in the State of Virginia. Va. Code Ann. § 46.2-357(A).
The evidence also showed that Perry was twice found guilty of driving
after having been declared an habitual offender: first, by Fairfax County
District Court on January 23, 1995; and second, by Arlington County
Circuit Court on May 24, 1995. These adjudications opened the door for
a more severe punishment for a subsequent offense. Id. § 46.2-357(B)(3).
3
Terry v. Ohio, 392 U.S. 1 (1968).
6 UNITED STATES v. PERRY
probable cause to make an arrest. Finally, the district court deter-
mined that the open container of alcohol was found in plain view dur-
ing the course of the Terry stop.
We review the district court’s findings of fact on a motion to sup-
press under the clearly erroneous standard. United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). However, the district court’s legal
conclusions on a motion to suppress are reviewed de novo. Id.Perry argues that his presence on the CIA’s premises was by mis-
take, accident, or inadvertence and, therefore, his encounter with
Agent Dunn in the parking lot was nonconsensual. Because his
encounter with Agent Dunn was nonconsensual, Perry argues that the
district court should have analyzed this case under the jurisprudence
of administrative seizures. Perry also argues that Agent Dunn should
have given him directions over the speaker box, rather than directing
him to drive into the parking lot. The government argues that Agent
Dunn’s encounter with Perry in the parking lot was consensual and
that, after Agent Dunn detected the odor of alcohol, this fact permit-
ted a brief detention of Perry to determine whether he was driving
under the influence of alcohol.4
Although a person may not be seized without a reasonable suspi-
cion of criminal activity, the Fourth Amendment is not triggered by
a consensual encounter between a police officer and a private citizen.
United States v. Burton, 228 F.3d 524, 527 (4th Cir. 2000). Determin-
ing whether an encounter between a citizen and a police officer is a
Fourth Amendment seizure or a consensual encounter raising no con-
stitutional questions requires consideration of many different factors,
including "the threatening presence of several officers, the display of
a weapon by an officer, some physical touching of the person of the
4
Because the parties and the district court analyzed the encounter
between Agent Dunn and Perry under our consensual encoun-
ter/reasonable suspicion jurisprudence, we will assume, arguendo, that
the search in this case, which took place on the property of the CIA, is
governed by this precedent. In its brief, the government notes that it is
unnecessary for us to address the permissible scope of searches on CIA
property in view of the fact that the encounter between Agent Dunn and
Perry was purely consensual. Appellee’s Br. at 11 n.1.
UNITED STATES v. PERRY 7
citizen, or the use of language or tone of voice indicating that compli-
ance with the officer’s request might be compelled." United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
Agent Dunn’s conduct suggests that his initial encounter with Perry
in the parking lot was a consensual encounter. The encounter initially
involved only Perry’s request for assistance, which was followed by
Agent Dunn’s reasonable response that assistance would be provided
if Perry drove his vehicle to the end of the parking lot. When Agent
Dunn approached the vehicle, he did not display a weapon nor did he
touch Perry. Further, Agent Dunn did not detain or block the vehicle
in any way. Finally, there is no evidence that Agent Dunn used a
commanding or threatening manner or tone of voice. In short, Agent
Dunn’s initial encounter with Perry in the parking lot was a quintes-
sential consensual encounter.
A police officer may elevate a police-citizen encounter into an
investigatory detention only if the officer has a "reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot,’
even if the officer lacks probable cause." United States v. Sokolow,
490 U.S. 1, 7 (1989). Reasonable suspicion is something more than
an "inchoate and unparticularized suspicion or ‘hunch,’" Terry, 392
U.S. at 27, and it is the government’s burden to articulate facts suffi-
cient to support reasonable suspicion, Brown v. Texas, 443 U.S. 47,
52 (1979).
Once Agent Dunn detected the odor of alcohol, this fact supported
the investigatory detention of Perry for a reasonable period of time to
ascertain whether he was operating a vehicle under the influence of
alcohol. During the reasonable investigation into Perry’s sobriety that
ensued, Perry openly admitted to Agent Dunn that he had been con-
suming alcohol and, thereafter, the open container of alcohol was dis-
covered in plain view by Officer Carrero. We see no basis for the
suppression of this evidence. Accordingly, the district court did not
err when it refused to suppress Perry’s statement that he had been
consuming alcohol and the open container of alcohol recovered by
Officer Carrero.5
5
Perry also argues that the district court should have required the gov-
ernment to produce regulations regarding the treatment of unauthorized
persons on CIA property. We have reviewed this argument and find it to
be without merit.
8 UNITED STATES v. PERRY
III
Perry also argues that his conviction for operating a motor vehicle
while classified as an habitual offender must be set aside because "the
underlying habitual offender adjudication was void ab initio." Appel-
lant’s Br. at 16. According to Perry, the underlying habitual offender
adjudication was void ab initio because "there was no record notice
of the hearing with respect to the adjudication in 1990." (J.A. 37).
Under the authority of Mays v. Harris, 523 F.2d 1258 (4th Cir. 1975),
the district court rejected this argument.
In Mays, the petitioner had been convicted of operating a motor
vehicle while classified as an habitual offender. The district court
granted the petitioner’s habeas corpus petition because it found that
two of the four convictions underlying the petitioner’s habitual
offender status were invalid due to the lack of counsel. Id. at 1259.
On appeal, we reversed because "the sentence about which [the peti-
tioner] complains does not depend on the validity of the underlying
convictions." Id. In reaching this conclusion, we stated:
[The petitioner] can test his adjudication as an habitual
offender, but he cannot with impunity choose to ignore the
adjudication and resulting injunction for . . . in the fair
administration of justice no man can be judge in his own
case.
To permit one who has been adjudged an habitual offender
to disregard his status, however vulnerable, and later defend
any conviction for doing so by asserting the invalidity of his
underlying convictions is to allow him to judge his own
case. That he may not do.
Id. at 1259-60 (citation and internal quotation marks omitted).
Like Mays, Perry’s conviction for operating a motor vehicle while
classified as an habitual offender does not rest on the validity of his
conviction underlying his habitual offender status. Rather, his convic-
tion for operating a motor vehicle while classified as an habitual
offender rests on the fact that he operated a motor vehicle while under
UNITED STATES v. PERRY 9
a court order not to do so. That he plainly violated the 1990 order is
not in doubt. Thus, whether Perry challenges the underlying habitual
offender conviction or the habitual offender adjudication itself, Mays
prohibits him from disregarding his habitual offender status by assert-
ing the invalidity of his status. Id. Accordingly, the district court prop-
erly prevented Perry from attacking his habitual offender adjudication
in defense of the charge of operating a motor vehicle while classified
as an habitual offender.
IV
Perry raises several arguments attacking the sufficiency of the evi-
dence supporting his conviction for failing to appear, 18 U.S.C.
§ 3146(a)(1). In reviewing challenges to the sufficiency of the evi-
dence, we must determine whether there is substantial evidence, when
viewed in the light most favorable to the government, to support the
conviction. Glasser v. United States, 315 U.S. 60, 80 (1942). In deter-
mining whether the evidence in the record is substantial, this court
inquires whether there is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support defendant’s guilt.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
"[A]n appellate court’s reversal of a conviction on grounds of insuffi-
cient evidence should be ‘confined to cases where the prosecution’s
failure is clear.’" United States v. Jones, 735 F.2d 785, 791 (4th Cir.
1984) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)). In
bench trials, "the judge weighs the evidence, determines the credibil-
ity of the witnesses, and finds the facts[,]" and "may select among
conflicting inferences to be drawn from the testimony." United States
v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987). In evaluating the suffi-
ciency of the evidence, this court does not review the credibility of
the witnesses and assumes that the finder of fact resolved all contra-
dictions in the testimony in favor of the government. United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998).
To secure a conviction under 18 U.S.C. § 3146(a)(1), the govern-
ment must prove that the defendant: (1) was released on conditions;
(2) was required to appear before a court; and (3) knowingly failed
to appear. United States v. Smith, 548 F.2d 545, 548 (4th Cir. 1977)
(former 18 U.S.C. § 3150, predecessor to 18 U.S.C. § 3146); see also
10 UNITED STATES v. PERRY
United States v. Fisher, 137 F.3d 1158, 1162 (9th Cir. 1998); United
States v. Stewart, 104 F.3d 1377, 1385 (D.C. Cir. 1997).6
A
Perry argues that he was not "released" on conditions because he
was on home confinement and only permitted to attend court, consult
with counsel, and contact his pretrial services officer. According to
Perry, when he was placed on home confinement, he remained in con-
structive custody of the government. This argument is without merit.
Section 3146 provides that "[w]hoever, having been released under
this chapter knowingly" fails to appear is guilty of an offense. 18
U.S.C. § 3146(a)(1). Perry was released under 18 U.S.C. § 3142,
which is in the same chapter as 18 U.S.C. § 3146. Section 3142 pro-
vides that a defendant’s release may be subject to a number of condi-
tions, including—as was the case for Perry—that he be released to a
third-party custodian, 18 U.S.C. § 3142(c)(1)(B)(i); that his personal
associations and place of abode be restricted, 18 U.S.C.
§ 3142(c)(1)(B)(iv); and that he be required to report to the pretrial
services agency, 18 U.S.C. § 3142(c)(1)(B)(vi).
In this case, it is clear that Perry was "released" on conditions set
forth in 18 U.S.C. § 3142 and did not remain in the custody of the
government when he was placed on home confinement. Accordingly,
Perry’s argument that he was in constructive custody of the govern-
ment when he was placed on home confinement must be rejected.
6
Section 3146 provides in part that:
(a) Offense.—Whoever, having been released under this chap-
ter knowingly—
(1) fails to appear before a court as required by the condi-
tions of release; or
(2) fails to surrender for service of sentence pursuant to a
court order;
shall be punished as provided in subsection (b) of this section.
UNITED STATES v. PERRY 11
B
Perry also argues that, at the time he failed to appear for trial, he
was not "released" on conditions because a warrant for his arrest had
been issued on March 5, 1999. In support of his position, Perry relies
on United States v. Castaldo, 636 F.2d 1169 (9th Cir. 1980).
In Castaldo, the court considered the appeal of a defendant con-
victed of failing to appear under a predecessor of 18 U.S.C. § 3146,
former 18 U.S.C. § 3150. Castaldo, 636 F.2d at 1170. After the
defendant failed to appear at a bail revocation hearing, the district
court ordered his bail forfeited and issued a warrant for his arrest. Id.
The district court then ordered the defendant to appear at another
hearing, but the defendant failed to appear. Id. The defendant was
convicted of failing to appear for the second, rather than the first,
hearing. Id.
On appeal, the defendant argued that, once the district court issued
a warrant for his arrest and forfeited his bail, he was no longer
released within the meaning of the statute. Id. at 1171. The Castaldo
court agreed with the defendant’s argument, holding that when he
failed to appear for his second hearing he was a "fugitive," and, there-
fore, he could not be prosecuted for failing to appear. Id. at 1171-72.
We believe that Castaldo does not compel the conclusion that
Perry was no longer "released" after the district court issued a bench
warrant for his arrest on March 5, 1999. First, in Castaldo, when the
district court ordered the defendant to appear in court for the second
hearing, he had absconded and was already a fugitive. The Castaldo
court’s reversal of the failure to appear conviction recognized the
anomaly presented by such a situation: the defendant had already for-
feited his bail and exposed himself to criminal charges by missing his
first hearing, and the district court had already issued an arrest war-
rant based on his failure to appear. Id. at 1171. According to the Cas-
taldo court, it made no sense to invoke the failure to appear statute
again when the defendant missed subsequent court-ordered appear-
ances. Id. Indeed, the Ninth Circuit reads "Castaldo to hold under
§ 3150 that defendants who jump bail can be convicted for bail jump-
ing based only on their first failure to appear." United States v. Ellis,
241 F.3d 1096, 1101 (9th Cir. 2001). According to the court in Ellis,
12 UNITED STATES v. PERRY
under Castaldo, "the government cannot pile criminal charges upon
a fleeing defendant by repeatedly ordering appearances at hearings
and then prosecuting the repeated failures to appear." Ellis, 241 F.3d
at 1101.7 In this case, unlike Castaldo, Perry was convicted for his
first failure to appear in court, which was the March 16, 1999 trial.
Second, after Castaldo was decided, Congress clarified the proce-
dures for terminating release status. In 1984, Congress enacted 18
U.S.C. § 3148, which allows a judicial officer to "issue a warrant for
the arrest" of a released defendant to secure his presence for a release
revocation hearing.8 Thus, 18 U.S.C. § 3148 clearly contemplates that
7
The Ninth Circuit’s reading of Castaldo in Ellis resolves Castaldo’s
tension with the Seventh Circuit’s decision in Milhem v. United States,
834 F.2d 118 (7th Cir. 1987). In Milhem, the court held that the simple
issuance of an arrest warrant, without more, does not extinguish the
effect of the failure to appear statute. Id. at 122-23. In other words, a per-
son remains released even after a warrant for his arrest issues. The Sev-
enth Circuit specifically distinguished Castaldo on the ground that the
defendant’s bail in Castaldo was forfeited at the time the warrant for his
arrest was issued, whereas the defendant’s bail in Milhem was not. Id. at
121-22.
8
Section 3148 provides in relevant part:
A judicial officer may issue a warrant for the arrest of a person
charged with violating a condition of release, and the person
shall be brought before a judicial officer . . . for a proceeding in
accordance with this section. . . . The judicial officer shall enter
an order of revocation and detention if, after a hearing, the judi-
cial officer—
(1) finds that there is—
(A) probable cause to believe that the person has com-
mitted a Federal, State, or local crime while on release; or
(B) clear and convincing evidence that the person has
violated any other condition of release; and
(2) finds that—
(A) based on the factors set forth in section 3142(g) of
this title, there is no condition or combination of condi-
tions of release that will assure that the person will not
flee or pose a danger to the safety of any other person or
the community; or
(B) the person is unlikely to abide by any condition or
combination of conditions of release.
UNITED STATES v. PERRY 13
the issuance a warrant is an event distinct from the revocation of
release.
C
Perry also argues that, because his March 16, 1999 trial date was
continued prior to that date, he did not fail to appear for a court
appearance. This argument has no merit.
The district court did not continue Perry’s trial date. Rather, on
March 19, 1999, the district court indicated that a trial date would be
set when Perry was returned to the Eastern District of Virginia. Thus,
up until March 19, 1999, Perry’s scheduled trial remained March 16,
1999, and, thus, Perry failed to appear for trial on March 16, 1999.
In support of his argument, Perry relies on Fisher. In Fisher, Fisher
was convicted of, among other things, failing to appear in violation
of 18 U.S.C. § 3146(a)(1). Fisher, 137 F.3d at 1161. Fisher’s indict-
ment charged him with failing to appear "‘for pretrial motions and
trial’ from on or about May 31, 1995 until June 28, 1995." Id. at 1162.
When Fisher was released after his initial arrest, one of the conditions
of his release was that he "‘appear at all proceedings as required.’" Id.Fisher’s trial date was scheduled for May 31, 1995. Other conditions
of his release required him to maintain contact with pretrial services,
to submit to drug testing, and not to change his residence or employ-
ment without prior approval of a pretrial services officer. Id. Fisher
violated all three of the latter conditions and his pretrial services offi-
cer was unable to locate him. A warrant for his arrest was accordingly
issued on May 25, 1995. Id.In the meantime, however, on May 16, 1995, Fisher’s counsel
moved for a continuance because he needed more time to investigate
the case and prepare for a trial. The district court granted the motion
on May 22, 1995 and set a new trial date of June 27, 1995. Id.On June 8, 1995, the district court set a hearing on pretrial motions
for June 16, 1995. When Fisher did not appear at that hearing, the dis-
trict court vacated the June 27, 1995 trial date. Id.14 UNITED STATES v. PERRY
On appeal, the Ninth Circuit vacated Fisher’s 18 U.S.C.
§ 3146(a)(1) conviction. With respect to the May 31, 1995 trial date,
the court reasoned that Fisher could not be convicted of failing to
appear for trial "as required" on May 31, 1995 when the trial had been
continued on May 22, 1995. Id. With respect to the June 16, 1995 pre-
trial motions hearing, the court concluded that Fisher was not required
to appear because the district court’s minute order setting the June 16,
1995 hearing date did not require Fisher to attend. Id. at 1162-63.
With respect to the June 27, 1995 trial date, the court concluded that,
because the June 27, 1995 trial date had been vacated on June 16,
1995, there was to be no trial at which Fisher was required to appear.
Id. at 1163. In other words, the order vacating the trial date relieved
Fisher of a duty to appear on that date, "just as it relieved witnesses,
juries and attorneys from their duty to appear." Id.In our view, Fisher is not particularly relevant to this case. Unlike
Fisher, there was no postponement of the trial date prior to the date
of the scheduled trial. Rather, the March 16, 1999 trial date came and
went, and it was not until March 19, 1999 that the district court indi-
cated that a new trial date would be set once Perry was returned to
the Eastern District of Virginia. Thus, Perry was "required" to appear
at the March 16, 1999 trial.
D
Perry contends that the district court erred in determining that he
had not established the affirmative defense of "uncontrollable circum-
stances." Pursuant to 18 U.S.C. § 3146(c):
It is an affirmative defense to a prosecution under this sec-
tion that uncontrollable circumstances prevented the person
from appearing or surrendering, and that the person did not
contribute to the creation of such circumstances in reckless
disregard of the requirement to appear or surrender, and that
the person appeared or surrendered as soon as such circum-
stances ceased to exist.
18 U.S.C. § 3146(c). According to Perry, because he was in the cus-
tody of the United States Marshal’s Service on March 16, 1999, he
was unable to appear in court as required. As Perry’s argument goes,
UNITED STATES v. PERRY 15
his being in the custody of the United States Marshal’s Service was
a circumstance beyond his control and, therefore, constitutes an
uncontrollable circumstance within the meaning of 18 U.S.C.
§ 3146(c).
The term "uncontrollable circumstances" is not defined in the stat-
ute. The legislative history of 18 U.S.C. § 3146(c) reveals that "the
defense should apply where, for example, a person is recuperating
from a heart attack and to leave his bed would imperil his life, or,
after he had made careful plans for transportation to the court house,
his vehicle breaks down or unexpected weather conditions bring traf-
fic to a halt." S. Rep. No. 98-225 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3215.
In United States v. Springer, 51 F.3d 861 (9th Cir. 1995), the court
noted that the language of 18 U.S.C. § 3146(c), "on its face, exudes
a concern that something will actually prevent a person from surren-
dering." Springer, 51 F.3d at 866. According to the Springer court,
"‘uncontrollable’" is something "that cannot be managed, something
that is ungovernable," and the "very idea of ‘prevent’ is something
that forestalls, frustrates or deprives one of the power of acting." Id.We will assume, for the sake of argument, that Perry’s being in the
custody of the United States Marshal’s Service constitutes an uncon-
trollable circumstance. Such an assumption is of no help to Perry.
Section 3146(c) requires proof that the defendant did not contribute
to the creation of the uncontrollable circumstance "in reckless disre-
gard of the requirement to appear." 18 U.S.C. § 3146(c). However,
Perry’s flight did exactly that—he recklessly contributed to his failure
to appear in court when he traveled to North Carolina in violation of
the conditions of his release. Accordingly, the district court correctly
rejected Perry’s 18 U.S.C. § 3146(c) affirmative defense.
V
Finally, Perry argues that the district court erred in ordering that the
sentence imposed for his failure to appear conviction run consecutive
to the sentence imposed for operating a motor vehicle while classified
16 UNITED STATES v. PERRY
as an habitual offender. According to Perry, the district court should
have run the sentence on the failure to appear conviction concurrent
to the sentence imposed for operating a motor vehicle while classified
as an habitual offender.
We reject Perry’s argument. Section 3146(b)(2) states that a "term
of imprisonment imposed under this section shall be consecutive to
the sentence of imprisonment for any other offense." 18 U.S.C.
§ 3146(b)(2). In sentencing Perry on the failure to appear conviction,
the district court followed this explicit command. Accordingly, the
district court properly ordered that Perry’s twenty-one month sentence
for failing to appear run consecutive to his two-year sentence for
operating a motor vehicle while classified as an habitual offender.
VI
For the reasons stated herein, the judgments of the district court are
affirmed.
AFFIRMED