United States v. Schmidt, 2004 DSD 23

UNITED STATES OF AMERICA,

Plaintiff,

VERNON R. SCHMIDT, JR.,

a/k/a Sonny Bob Schmidt,

Defendant.

[2004 DSD 23]

United States District Court

District of South Dakota— Central Division

CR. 04-30087

REPORT AND RECOMMENDATION

FOR DISPOSITION OF DEFENDANT’S

MOTION TO DISMISS

Edward G. Albright, Federal Public Defender's Office, Pierre, SD

Attorney for Defendant

Randolph J. Seiler, US Attorney's Office, Pierre, SD

Attorney for Plaintiff

Date Filed Nov 2, 2004

Mark A. Moreno, United States Magistrate Judge

[¶1] Defendant, Vernon R. Schmidt, Jr., a/k/a Sonny Bob Schmidt, has filed a Motion and supporting Memorandum, Docket Nos. 16, 17, seeking a dismissal of the case on the ground and for the reason that the Indictment fails to state a criminal offense. Specifically, Defendant claims that he did not violate 18 USC §3146(a)(1) when he failed to report to the United States Marshal’s Service in Sioux Falls, as required by his pre-trial release Order, following his termination from a substance abuse treatment program. He maintains that the Marshal’s Service is not a “court”, within the meaning of §3146(a)(1), and that criminal statutes, like the one pertaining to bail-jumping, must be strictly construed in his favor.

[¶2] Plaintiff, United States of America (Government), has filed a written Response, opposing the Motion. Docket No. 21. The Government, citing United States v. Harris, 544 F2d 947 (8th Cir. 1976), argues that the statute was complied with and that the United States Marshal’s Service was simply the designated agent of this Court for the limited purpose of taking Defendant into custody.

[¶3] Because Defendant’s Motion is a dispositive one, this Court is only able to address the same on a report and recommendation basis. In accordance with 28 USC §636(b)(1), the Court does now make and enter this Report and Recommendation for disposition of Defendant’s dismissal Motion.

[¶4] Defendant was indicted on April 22, 2004, and charged with three counts of assaulting a federal officer and assault with a dangerous weapon in violation of 18 USC §§111 and 113(a). On August 19, 2004, he was released by this Court to attend substance abuse treatment at the InterTribal Treatment Center in Omaha, Nebraska. The release Order contained the following provision:

ORDERED that in the event Defendant fails or refuses to comply with the rules and regulations of the InterTribal Treatment Center and/or the conditions set forth herein and is released from the facility for one or more violations of rules or conditions, he shall forthwith surrender himself to the United States Marshal's Service in Sioux Falls, South Dakota, and shall remain detained in the custody of the Marshal's Service (at an appropriate detention facility) pending the holding of a further hearing on his release status.

[¶5] On or about September 8, 2004, Defendant was discharged from the InterTribal facility for noncompliance with the facility’s rules and regulations and is alleged to have failed to report to the United States Marshal’s Service in Sioux Falls as required by his release Order. The next day, the United States Probation Office requested a warrant for Defendant’s arrest because of his failure to report to the Marshal’s Service as ordered. Subsequently, an Order for an arrest warrant was entered, directing that upon Defendant’s arrest, he be detained pending the holding of a pre-trial release revocation hearing or “until further order of a judicial officer of this District.”

[¶6] Defendant was arrested on September 16, 2004. A temporary detention order was entered four days later. On September 23, 2004, Defendant was separately indicted for failure to appear under §3146(a)(1). The Indictment alleges that:

On or about 8th (sic) day of September, 2004, in the District of South Dakota, the Defendant, Vernon R. Schmidt, Jr., a/k/a Sonny Bob Schmidt, having been charged with a violation of 18 USC §111, a felony, and having been released pursuant to Chapter 207 of Title 18 of the United States Code, in connection with the aforementioned criminal charge, for appearance before the Honorable Mark A. Moreno, United States Magistrate Judge, for a hearing on his release status as set forth in an order authorizing release for substance abuse treatment to the InterTribal Treatment Center, filed with the Clerk of the United States District Court, on or about August 23, 2004, in Case No. CR. 04-30034, entitled United States of America v. Vernon R. Schmidt, Jr., did knowingly and willfully fail to appear as required, in violation of 18 USC §3146(a)(1).

II.

[¶7] Section 3146(a)(1) provides:

Whoever, having been released under this chapter [18 USC §3141, et. seq.] knowingly –

(1)fails to appear before a court as required by the conditions of release;

shall be punished as provided in subsection (b) of this section.

(Emphasis added). Subsection (b) prescribes a maximum punishment of not more than five years and a fine if the alleged failure to appear was in connection with an offense that carried a prison term of five years or more, as Defendant faced at the time of his release.

[¶8] To convict Defendant under §3146(a)(1), the Government must prove that:

1. He had been released on bail pending trial;

2. He was required to appear before a court; and

3. He knowingly failed to appear.

See United States v. Colon-Osorio, 10 F3d 41, 45 (1st Cir. 1993), cert. denied, 512 US 1239 (1994).

[¶9] Neither 18 USC §3141, et. seq. nor the Federal Rules of Criminal Procedure, see Fed. R. Crim. P. 46, authorize the United States Marshal’s Service to grant bail or release a criminal defendant on conditions pending trial. Defendant is therefore correct that the Marshal’s Service is not a “court” under §3146(a)(1). Inasmuch as the Marshal’s Service is not a “court”, failure to appear before it, as ordered by this Court, does not violate §3146(a)(1).

[¶10] The legislative history of the 1984 Bail Reform Act supports the Court’s conclusion. The 1984 Act replaced 18 USC §3150 with a new bail-jumping statute that criminalized the knowing failure to appear before a court as required by the conditions of release. This broader language, however, did not encompass the failure to surrender to the United States Marshal’s Service as a condition of pre-trial release. In its Report on the 1984 Act, the Senate explicitly rebuffed the Harris line of cases and stated that it intended for the word “court” to be strictly construed:

After requiring that the offender has been released pursuant to the provisions of this chapter, subsection (a)(1) goes on to require that the released person failed to appear before a “court” as required by the conditions of his release. The word “court” is intended to include the presiding judicial officer, and is intended to include any person authorized pursuant to §3141 and the Federal Rules of Criminal Procedure to grant bail or otherwise release a person charged with or convicted of a crime or who is a material witness. It is not intended to cover such lesser court officials as probation officers, marshals, bail agency personnel and the like. The holding in United States v. Clark [412 F2d 885 (5th Cir. 1968)] that a probation officer is not a judicial officer so that a failure to appear before him as required by the court is not bail jumping is specifically endorsed, and §3146 should be interpreted to reach the same results. Bail jumping is an offense intended to apply to actual court appearances before judges or magistrates and not to other court personnel, with the sole exception of a failure to surrender for service of sentence, as covered in subsection (a)(2).

S.Rep. No. 98-225 at 32-33, reprinted in 1984 USCCAN 3182, 3215-16. In doing so, the Senate cited, with approval, to United States v Wray, 369 FSupp 118 (W.D. Mo. 1973){fn {fn1} }, while at the same time recognizing that contrary authority existed, see United States v. Bright, 541 F2d 471 (5th Cir. 1976), cert. denied, 430 US 935 (1977); United States v. West, 477 F2d 1056 (4th Cir. 1973). Id. at 31, reprinted in 1984 USCCAN 3182, 3214, n. 108.

[¶11] Although the Harris court expressly rejected the holding in Wray, see 544 F2d at 949-50, Congress appears to have intended that a defendant actually fail to appear before a court, as required, in order to be prosecuted for bail-jumping under §3146(a)(1). Harris and its progeny, see United States v. Ducharme, 193 F3d 559 (2d Cir. 1999), cert. denied, 528 US 1144 (2000); United States v. Wells, 766 F2d 12 (1st Cir. 1985); United States v. Burleson, 638 F2d 237 (10th Cir. 1981), all construed §3146(a)(1)’s predecessor, §3150, and are factually and/or legally inapposite. In short, the 1984 Act changed what is now required to charge and convict a pre-trial releasee of failure to appear.

[¶12] It accordingly follows that Defendant’s failure to surrender himself to the United States Marshal’s Service, as this Court directed him to, did not amount to a failure to appear “before a court” so as to give rise to an indictable offense. Defendant’s transgression, if proven, may be punishable as a contempt of court, see 18 USC §401(3), but it is not a violation of §3146(a)(1).

III.

[¶13] Based on the foregoing, it is hereby

[¶14] RECOMMENDED that Defendant’s Motion to Dismiss, for failure to state an offense, be granted and the Indictment dismissed without prejudice.

[Top]