FILED
NOT FOR PUBLICATION
NOV 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10221
Plaintiff / Appellee, D.C. No. 2:15-CR-00191-JAM-1
v.
MEMORANDUM*
CESAR CABALLERO,
Defendant / Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted August 15, 2017
San Francisco, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,**
District Judge.
On April 26, 2016, Cesar Caballero was convicted by a jury of failure to
surrender, in violation of 18 U.S.C. § 3146(a)(2). Caballero timely appealed on the
basis that the district court erred in failing to instruct the jury that an element of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
charged offense is that the defendant “be released from custody under the Bail
Reform Act.” We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742, and we AFFIRM Caballero’s conviction.
We review the formulation or wording of jury instructions for abuse of
discretion, but review de novo alleged misstatements of law. Peralta v. Dillard,
744 F.3d 1076, 1082 (9th Cir. 2014) (en banc) (citing cases). “The relevant
inquiry is whether the instructions as a whole are misleading or inadequate to guide
the jury’s deliberation.” United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir.
2010) (internal quotations and citations omitted). But jury instructions, “even if
imperfect, are not a basis for overturning a conviction absent a showing that they
prejudiced the defendant.” United States v. Christensen, 828 F.3d 763, 786 (9th
Cir. 2016). Thus, the omission of an element from a jury instruction is subject to
harmless error analysis. United States v. Jimenez-Borja, 378 F.3d 853, 858 (9th
Cir. 2004) (citing Neder v. United States, 527 U.S. 1, 10 (1999)).
1. Under either abuse of discretion review or de novo review, see Peralta, 744
F.3d at 1082, we find that the jury instructions as a whole were not misleading or
inadequate to guide the jury’s deliberation. See Hofus, 598 F.3d at 1174. In June
2015, Caballero was re-sentenced for mail obstruction convictions, and he was
ordered to self-surrender on September 8, 2015. It is undisputed that Caballero
Page 2 of 8
failed to self-surrender on September 8, and he was subsequently charged with one
count of failure to surrender. Prior to trial, Caballero filed proposed jury
instructions, requesting that the court add an element to Model Jury Instruction
8.195 that would require the jury to find that defendant was “released from custody
under the Bail Reform Act” to be criminally liable for failure to surrender. The
district court declined to add this element, finding that Caballero had been released
as a matter of law and noting that the instruction contemplates only four elements.
Thus, the jury was instructed using Instruction 8.195 as written, which
includes the following elements, none of which are disputed on appeal: (1) the
defendant was sentenced to a term of imprisonment; (2) the defendant was ordered
to surrender for service of the sentence on [date]; (3) the defendant knew of the
order to surrender; and (4) the defendant intentionally failed to surrender as
ordered. However, Caballero argues that, because the language in 18 U.S.C. §
3146(a) – that a defendant be released under the Bail Reform Act – is common to
both § 3146(a)(1) failure to appear offenses and § 3146(a)(2) failure to surrender
offenses, the jury should have been instructed that an element of failure to
surrender is that defendant be “released from custody under the Bail Reform Act”
since this element is explicitly an element of a failure to appear charge. Compare
Ninth Circuit Committee on Model Criminal Jury Instructions, Manual of Model
Page 3 of 8
Criminal Jury Instructions for the District Courts of the Ninth Circuit (2010 ed.),
Instruction 8.194 (Failure to Appear), with Instruction 8.195 (Failure to Surrender);
see also Weaver v. United States, 37 F.3d 1411, 1412–13 (9th Cir. 1994) (noting
that, to establish failure to appear under § 3146, the government must prove, inter
alia, that the defendant “was released pursuant to th[e] statute”) (citing United
States v. McGill, 604 F.2d 1252, 1254 (9th Cir. 1979)).
We disagree. The element of “release under the statute” is not necessary for
§ 3146(a)(2) offenses because, as this Court has previously noted, there is only one
statutory authority under which a district judge can release a defendant from
custody: the Bail Reform Act. See United States v. Burns, 667 F.2d 781, 783 (9th
Cir. 1982) (stating that “there is no other statutory authority [other than the Bail
Reform Act] for the release of convicted persons” in federal court). Here, the
district court properly found that Caballero, as a matter of law, had been “released
under the Bail Reform Act,” and thus it was neither inadequate nor misleading to
omit Caballero’s requested additional element to the failure to surrender
instruction. See McGill, 604 F.2d at 1254 (explaining that, although whether a
defendant was released pursuant to the Bail Reform Act may involve both law and
fact issues, “the authority by which a judge released a defendant and whether the
court complied with statutory procedures are primarily questions of law”).
Page 4 of 8
The record shows that Caballero was issued a Notice to Appear on the
original mail obstruction charges, which informed him of his arraignment on
February 28, 2011. The Notice to Appear placed Caballero “in custody,” which is
why – when he was arraigned – the judge was tasked with deciding, under the Bail
Reform Act, whether to place him on pre-trial release or detain him. See United
States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985) (“Release pending trial is
governed by the [Bail Reform Act, which] mandates release of a person facing trial
under the least restrictive condition or combination of conditions that will
reasonably assure the appearance of the person as required.” (internal citations
omitted)). Here, the record shows that the arraignment judge, acting pursuant to
the Bail Reform Act, “released” Caballero on his own recognizance, stating such
release was subject to certain conditions and subject to consequences if Caballero
failed to appear for his judicial proceedings.
We have previously stated that “‘[i]t is the fact and timing of notice [of
release], not its form, that matters.’” United States v. Night, 29 F.3d 479, 481 (9th
Cir. 1994) (quoting United States v. Feldhacker, 849 F.2d 293, 299 (8th Cir.
1988)). Thus, contrary to Caballero’s arguments on appeal, regardless of whether
a written release order was issued pursuant to 18 U.S.C. § 3142(h), the record
undisputedly demonstrates that Caballero was, at least orally, properly put on
Page 5 of 8
notice at the arraignment of his release on his own recognizance under the Bail
Reform Act. See Burns, 667 F.2d at 783 (affirming that the district court’s “action
in allowing [the defendant] to leave on the same terms as under the summons and
to return on the date set by the court, was a release on personal recognizance under
the [Bail Reform Act],” even if the terms of such release “were less well defined
than they could have been”). Further, the record shows that Caballero was clearly
“released” under the Bail Reform Act for the entire pendency of his judicial
proceedings, from the time of his initial arraignment on the mail obstruction
charges, through his appeal of those convictions and his re-sentencing, and up until
his self-surrender date, regardless of whether he was or was not “re-released” at his
various appearances. See McGill, 604 F.2d at 1255 (rejecting defendant’s
argument that his release was not pursuant to the Bail Reform Act because “the
court did not repeatedly tell him he was continued on bond and did not amend the
original order of release each time”).
In fact, the record shows that, where Caballero requested several extensions
of the self-surrender date after his re-sentencing, Caballero explicitly and implicitly
indicated that these requests were made pursuant to the provisions of the Bail
Reform Act. Accordingly, we find it is undisputed both that Caballero was
released pursuant to the Bail Reform Act, and that Caballero understood he was so
Page 6 of 8
“released.” For these reasons, reviewing the failure to surrender instruction under
either an abuse of discretion standard or de novo review, it was not misleading or
inadequate for the district judge to (1) find that Caballero had been “released under
the Bail Reform Act” as a matter of law, and thus, (2) exclude this element from
the instruction. The failure to surrender instruction provided to the jury here
“fairly and adequately cover[ed] the issues presented [and] correctly state[d] the
law.” See Dang v. Cross, 422 F.3d 800, 804 (9th Cir. 2005) (internal quotations
and citation omitted).
2. Even if it was error to instruct the jury using Instruction 8.195 without the
element that the defendant “be released under the Bail Reform Act,” the error was
harmless and not prejudicial to Caballero. See Jimenez-Borja, 378 F.3d at 858
(citing Neder, 527 U.S. at 10). Harmless error occurs where, upon reviewing the
entire record, a court can “conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error.” Neder, 527 U.S. at 19. Here, because
it is undisputed on appeal that (1) Caballero was re-sentenced to a term of
imprisonment, (2) Caballero was ordered to surrender for service of his new
sentence on September 8, 2015, (3) Caballero knew of the order to surrender, and
(4) Caballero intentionally failed to surrender as ordered on September 8, we can
conclude beyond a reasonable doubt that the jury’s verdict would have been the
Page 7 of 8
same, even if the element that Caballero was “released under the Bail Reform Act”
had been included. See id.
Further, we have previously stated that, “in most cases, the question whether
a release was pursuant to the [Bail Reform Act] will be one on which the trial
judge should instruct the jury as a matter of law.” McGill, 604 F.2d at 1254. The
McGill case dealt with a failure to appear jury instruction. There, we held that
there was no reversible error in instructing the jury as a matter of law that the
defendant had been released because, “[a]lthough technically the trial judge might
have segregated the factual and legal underpinnings of this element, and permitted
the jury to consider the question . . . there was no evidence or legal theory that
could exculpate [the defendant] on the factual components of the first element.”
Id. Thus, for similar reasons, we find here too that it was harmless error to not
instruct the jury that “release under the Bail Reform Act” was an element of failure
to surrender because there is no evidence or legal theory on the record that could
exculpate Caballero on the issue of “release.”
AFFIRMED.
Page 8 of 8
United States v. Caballero, No. 16-10221
FILED
NOV 6 2017
O’SCANNLAIN, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I join in Part 2 of the court’s memorandum and in the judgment. I cannot
join Part 1, which concludes that, in a criminal prosecution for violation of 18
U.S.C. § 3146(a)(2), the jury need not be instructed to find that the defendant was
released from custody under the Bail Reform Act.
A defendant cannot be convicted under § 3146(a)(1) (failure to appear) or
§ 3146(a)(2) (failure to surrender) unless he was “released under” the Bail Reform
Act. Id. § 3146(a). We have held that the government must indeed prove such
element in a § 3146(a)(1) prosecution. See United States v. Weaver, 37 F.3d 1411,
1412–13 (9th Cir. 1994). The court’s memorandum concludes, however, that such
element “is not necessary for § 3146(a)(2) offenses because . . . there is only one
statutory authority under which a district judge can release a defendant from
custody: the Bail Reform Act.” Mem. at 4 (citing United States v. Burns, 667 F.2d
781, 783 (9th Cir. 1982)). That may be true. But there remain other ways that a
defendant prosecuted for failure to surrender might have been free of the court’s
custody without having been formally released by the court at all. For example, as
Burns itself suggested, the defendant might have absconded from custody and
become a fugitive prior to the order compelling him to surrender at the specified
date. See Burns, 667 F.2d at 782; United States v. Castaldo, 636 F.2d 1169, 1171
(9th Cir. 1980). Or the defendant might never have been taken into custody in the
first place. See United States v. Bodiford, 753 F,2d 380, 382 (5th Cir. 1982). A
defendant in either scenario would not fall within the parameters of § 3146. See
Bodiford, 753 F.2d at 382; Burns, 667 F.2d at 782.
Admittedly, these scenarios seem rare. But that fact, and the fact that the
Bail Reform Act is the only authority under which the court may release a
defendant, simply suggests that it may be rather easy to prove that the defendant
indeed was released under the Bail Reform Act. Namely, where the government
proves that the defendant was taken into the court’s custody and then was released
formally by the court, this element will presumably be satisfied. But this does not
mean the element will always be satisfied; there remain ways that a defendant
prosecuted for failure to surrender under § 3146(a)(2) could fall outside the scope
of that law. Thus, as with § 3146(a)(1) prosecutions, we should not relieve the
government of its burden to prove this element in a § 3146(a)(2) case. I cannot
join the memorandum’s conclusion otherwise.
Nevertheless, I do agree that the failure to require the jury instruction in this
case was harmless, because the record clearly demonstrates that Caballero was
formally released from the court’s custody under the Bail Reform Act.
I therefore concur in the judgment.
U.S. v. Caballero, Case No. 16-10221 FILED
Rawlinson, Circuit Judge, concurring:
NOV 6 2017
MOLLY C. DWYER, CLERK
I concur in the result. U.S. COURT OF APPEALS