                                                                                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                             NOT FOR PUBLICATION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
