874 F2d 817 United States v. Calero
874 F.2d 817
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Humberto CALERO, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 13, 1989.
Decided May 4, 1989.
Before HUG, K.K. HALL and O'SCANNLAIN, Circuit Judges.
Humberto Calero appeals his judgment of conviction for bail jumping, by failing to surrender for service of his sentence imposed for importation of cocaine and possession with intent to distribute cocaine, in violation of 18 U.S.C. Sec. 3146(a)(2).
* Calero was sentenced to ten years in prison under 18 U.S.C. Sec. 3146. Section 3146 became effective on October 12, 1984, increasing the maximum sentence for bail jumping from five years, under 18 U.S.C. Sec. 3150, to ten years.
Calero first contends that the application of the increased penalties contained in section 3146 violated the ex post facto clause. Whether the sentence imposed was "illegal" is a question of law reviewed de novo. See United States v. Calabrese, 825 F.2d 1342, 1345-46 (9th Cir.1987).
In the present case, we find no ex post facto application of section 3146. The federal crime of bail jumping was not committed until December 5, 1984, more than one month after section 3146 became effective, when Calero failed to surrender himself for service of sentence. Furthermore, the act of bail jumping continued until Calero was arrested on March 24, 1987, almost two and one-half years after the enactment of section 3146. See Leyvas v. United States, 371 F.2d 714, 717 (9th Cir.1967) ("[A] statute increasing a penalty with respect to a [crime] which commenced prior to, but was continued beyond the effective date of such statute, is not ex post facto as to that crime.").
Because the application of section 3146 to Calero's case was not erroneous, the ten-year sentence was, therefore, not "illegal". The fact that the court inadvertently cited the former statute and penalty in the order of November 21, 1984, in no way alters the fact that section 3146 was appropriately applied. The warning is not a condition precedent or an essential element of the offense. See United States v. DePugh, 434 F.2d 548, 553 (8th Cir.1970), cert. denied, 401 U.S. 978 (1971). In any event, Calero has provided no evidence of prejudicial or detrimental reliance arising from the court's order since he, in fact, never received actual notice of the court's order.1
Calero contends that the increase in penalties in section 3146 constitutes a breach in the bail bond obligation, thus rendering the bail forfeiture by the district court unenforceable. An action involving the enforcement of a bond forfeiture, which is essentially a contract among the government and the defendant and his surety, is a civil action, not a criminal prosecution. United States v. Abernathy, 757 F.2d 1012, 1014 (9th Cir.), cert. denied, 474 U.S. 854 (1985) (citing United States v. Plechner, 577 F.2d 596, 597 (9th Cir.1978)). Thus, the filing of an appeal on a bail forfeiture issue is governed by Fed.R.App.P. 4(a), which states that if the United States is a party, the notice of appeal must be filed by any party within 60 days after entry of judgment. Plechner, 577 F.2d at 597.
In the present case, the Declaration and Judgment Forfeiting Bail was filed on May 10, 1985. However, Calero's notice of appeal was not filed until August 2, 1987. Therefore, Calero's appeal on this claim is untimely and we lack jurisdiction.
Calero contends he was deprived of effective assistance of counsel. Claims of ineffective assistance that raise factual questions are best resolved in a habeas corpus proceeding, not on direct appeal. United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir.1988); United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988). Consequently, we do not decide this question.
Calero, for the first time on appeal, contends that the jury instruction on intent was improper in that the jury could have inferred guilt absent the required proof of specific intent.2 We apply the plain error standard of review. See Morris, 827 F.2d at 1350.
The instruction given by the district court, however, did no more than describe a permissive inference and could not have been understood by a reasonable juror as stating a binding presumption of criminal intent. See United States v. Johnson, 735 F.2d 373, 374 (9th Cir.1984); United States v. Ross, 626 F.2d 77, 79-80 (9th Cir.1980). The instruction was taken from I Devitt & Blackmar, Federal Jury Practice and Instruction Sec. 14.13 (3d ed. 1977), and has been approved by the Ninth Circuit and other federal circuit courts. See Ross, 626 F.2d at 80 (citing 3rd, 5th, 6th, 10th circuit authority). Therefore, the jury instruction was not erroneous.
Calero claims that the evidence of intent was insufficient to support his conviction. In assessing the sufficiency of the evidence, our inquiry is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, 109 S.Ct. 264 (1988); Calabrese, 825 F.2d at 1348. Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction. United States v. Talbert, 710 F.2d 528, 530 (9th Cir.1983) (per curiam), cert. denied, 464 U.S. 1052 (1984).
In viewing the evidence presented to the district court3 in the light most favorable to the government, we conclude that there was clearly sufficient evidence of intent from which a jury could infer that Calero acted knowingly and willfully in failing to surrender himself as ordered by the district court. See DePugh, 434 F.2d at 553-54. Therefore, Calero's claim lacks merit.4
The motions panel referred to the merits panel the question whether monetary sanctions are appropriate for failure to file a timely response to the Order to Show Cause regarding Calero's counsel's failure to file an opening brief. Since October 1987, this court has granted Calero's counsel's numerous motions for extension of time to file an opening brief. When Calero's counsel finally filed the brief in October 1988, one year later, it was deficient. In addition, in October 1988, prior to the filing of the opening brief, this court filed an Order to Show Cause why Calero's counsel failed to timely file the opening brief. Calero's counsel again failed to timely respond to this Order to Show Cause. In light of Calero's counsel's actions in the prosecution of this appeal, we direct Calero's counsel to pay $250.00 to the Clerk of Court.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
Calero also contends that the imposition of a 10-year sentence pursuant to section 3146 violated his rights under the ninth and tenth amendments. Because Calero did not specifically raise these constitutional arguments before the district court, we use the plain error standard of review. United States v. Hutson, 843 F.2d 1232, 1238 (9th Cir.1988). A plain error is a "highly prejudicial error affecting substantial rights." Id. at 1238; United States v. Morris, 827 F.2d 1348, 1350 (9th Cir.1987), cert. denied, 108 S.Ct. 726 (1988). Calero has utterly failed to assert any substantive rights under these amendments that have been violated causing sufficient prejudice to the proceedings in question. Nor has he demonstrated that the government has transgressed the limitations of its enumerated powers in violation of the tenth amendment. This claim, therefore, lacks merit
The judge provided the following instruction on intent:
And finally, with respect to proof of intent, intent ordinarily may not be proved directly, because there's no way of fathoming or scrutinizing the operations of the human mind. But you may infer the defendant's intent from the surrounding circumstances. And so you may consider any statement made and done or omitted by the defendant, and all other facts and circumstances in evidence that indicate his state of mind.
You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of an act knowingly done or knowingly ommitted [sic]. As I have said, it's entirely up to you to decide what facts to find from the evidence.
The evidence included the following: (1) Calero's attorneys were unable to contact him following the issuance of the district court's order to surrender; (2) Calero was absent from the jurisdiction for more than two years; (3) Calero admitted he knew it was improper to leave the jurisdiction but admitted to returning to Colombia, contrary to the terms of his bail; (4) at the time he gave his appearance bond, Calero knew he would have to surrender to serve sentence on conviction if it was affirmed or, in the event a new trial was ordered, that he would have to appear for trial; (5) Calero admitted he was aware that his sureties were going to lose $100,000.00 as a result of his departure; (6) Calero admitted he did not surrender himself as he had promised to do in his sworn affidavit to the court of appeals; (7) Calero admitted he owned and procured all of the false identification papers in the name of Hector Pacheco Ramos, including a driver's license, a California Identification card, a Social Security card, a birth certificate from the Commonwealth of Puerto Rico, and a certified verification of a birth certificate from the Commonwealth of Puerto Rico; (8) Calero admitted he owned and procured a Mexican birth certificate in the name of Alberto Auguilar Gomez; (9) Calero had all of these false identification papers on his person at the time of his arrest; (10) Calero had $5,088.88 in U.S. currency on him at the time of his arrest; (11) Calero registered into the Dunfey Hotel in San Mateo under the alias Pedro Gomez; (12) When Calero was arrested, he identified himself as Hector Pacheco; (13) When he was subsequently processed and fingerprinted, he signed his fingerprint card as Hector Pacheco; and (14) Calero did not admit to his true name until the time of arraignment
There is one additional issue before this court. Fed.R.Evid. 404(b) states that evidence of prior acts is not admissible to show bad character, but is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or lack of mistake or accident. United States v. Sarault, 840 F.2d 1479, 1485 (9th Cir.1988). Relying on rule 404(b), Calero contends that the admission of evidence of the $5,000 cash in his possession at the time of his arrest amounted to a prior bad act in light of the prosecution's alleged assertions to the jury that the agents were investigating currency violations. However, there is no evidence in the record of any reference to or argument about any currency violations or its investigation. Therefore, there is no support for Calero's 404(b) claim and it lacks merit
We note that Calero also erroneously contends that the district court erred by admitting evidence of a money-counting machine. The record does not indicate that evidence of a money-counting machine was introduced at trial.