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October 19, 1989


Jan E. DuBois, United States District Judge.

The opinion of the court was delivered by: DUBOIS



 I find Elwood Williard guilty as charged under an Indictment of one count of failure to surrender for service of sentence pursuant to a court order in violation of the Bail Reform Act, 18 U.S.C. § 3146(a)(2).


 On February 17, 1987, Williard was indicted by a Federal Grand Jury in Criminal Action No. 87-00083 on charges related to misapplication of bank funds, and a bench warrant was issued. He was arraigned on February 25, 1987, and was admitted to bail by executing a bond in the amount of $ 25,000.00 the following day. On July 22, 1987, at the conclusion of trial, the jury returned a verdict of guilty on three counts, and bail was continued.

 On September 25, 1987, Williard was sentenced to serve two concurrent three year sentences of confinement, followed by a five year term of probation. During the probation period he was prohibited from engaging in any solely owned business ventures.

 At the sentencing hearing, after sentence was imposed, defense counsel asked that Williard be released on bail pursuant to 18 U.S.C. § 3143(a) *fn1" pending execution of sentence on the grounds that it was unlikely that Williard would flee and that he did not pose a danger to the community. To support this argument, counsel stated that Williard had been released on bail following his arrest and had never failed to appear and that Williard was not a violent person. The government did not object and offered no rebuttal evidence. The sentencing judge then expressly found that there was no risk of flight although he made no express findings about danger to the community.

 The defense also requested that Williard be released pursuant to 18 U.S.C. § 3143(b) *fn2" pending appeal, and the government opposed. There followed an argument on the question of whether an appeal by Williard would raise a substantial question of law or fact likely to result in reversal or a new trial. At the conclusion of that argument, the trial judge stated, "I will grant the government's motion and revoke bail. I will give the defendant two weeks to wind up his affairs. He will report to prison in two weeks . . . . I will suspend execution of this sentence until then . . ." (Sentencing Transcript of 9/25/88 at 45). The judge then ordered the defendant to report to a place of confinement, to be determined, on October 9, 1987, at 12:00 noon.

 After the sentencing, Williard was brought to the United States Marshal's Office for processing for his voluntary surrender. At that time he was asked for two telephone numbers where he could be reached while he was free on bail so that the Marshal's Office could inform him of the designated institution at which he was to surrender. One of the numbers which he provided was his home telephone number; the other was that of his wife's place of employment.

 On October 7, 1987, an assistant marshal, Michael Mazelt, attempted to reach Williard at the telephone numbers he had supplied. There was no answer at Williard's home number. At the other number, a woman who identified herself as Williard's wife answered and stated that the defendant was not there. The assistant marshal informed her that Williard was to turn himself in at the Allenwood Federal Prison Camp on October 9, 1987, and asked her to so advise him. Despite this, no one named Elwood Williard was admitted to Allenwood Federal Prison Camp on October 9, 1987, or thereafter.

  On June 14, 1988, Williard was indicted under 18 U.S.C. § 3146(a)(2) *fn3" for his failure to report for service of sentence after having been released on personal recognizance. A bench warrant for his arrest was issued, and he was apprehended at his home on June 15, 1988.

 The non-jury trial in this case began on December 7, 1988. At the close of the Government's case the defendant filed a Motion for Judgment of Acquittal under Fed.R.Crim.P. 29(a). The Motion was based on the theory that Williard had not been released from custody under Chapter 207 of 18 U.S.C. (18 U.S.C. § 3141 et seq.) and that he therefore was a fugitive at the time he was to report, not a bail jumper who could be prosecuted under § 3146(a)(2).

 On December 7, 1988, immediately after the Motion for Judgment of Acquittal was filed, the trial was recessed until December 14, 1988, to allow the Government time to respond to the Motion. The trial resumed on December 14th, with an argument on the Motion. The motion was denied, the defense introduced no evidence, and the ...

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