                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 7 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-3354
                                                 (D.C. No. 95-CR-10095-ALL)
    JAMES CARTER,                                          (D. Kan.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before TACHA, MCKAY, and BALDOCK, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant James Carter entered a conditional plea of guilty to being an

accessory after the fact to his son Tony Carter’s offense of failure to appear at

trial. See 18 U.S.C. §§ 3, 3146(a). We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

      Tony Carter’s trial on various drug charges began on August 29, 1995.

He appeared during the first two days of trial, and also on the morning of

August 31, 1995. However, after the noon recess on the afternoon of August 31,

he did not return to the courtroom. Federal marshalls determined that both

defendant and Tony Carter were missing. Defendant was apprehended by the

marshalls; he admitted that he knew his son was on trial and that he had assisted

in his absence from court by driving him to Greenville, Texas on the afternoon of

August 31. Defendant was charged with being an accessory after the fact. The

district court denied his motion to dismiss the indictment. He entered into a

conditional plea of guilty, reserving his right to appeal the denial of his motion to

dismiss the indictment. See Fed. R. Crim. P. 11(a)(2).

      Defendant’s conditional guilty plea does not specify the issue which he has

reserved for appellate consideration. At the change of plea hearing, defendant




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admitted the facts detailed by the prosecution, with one caveat. 1 His attorney then

described the reserved issue as follows:

      [W]hether or not my client aided and assisted in a crime or an
      offense against the United States, that being a failure to appear or
      whether or not any of the assistance that my client gave to his son
      was simply a violation of a bond condition which we submit would
      not be an offense against the United States but just a violation of the
      conditions of release.

Supp. R. Vol. I, doc. 36, at 9.

      In his opening brief in this court, defendant claimed that the indictment was

defective because it did not detail whether the underlying offense was his son’s

failure to appear at trial, or his original drug crime. The government responded

by arguing that the indictment, viewed as a whole, was sufficient. In his reply

brief, defendant explained that he does not challenge the language of the

indictment. See Appellant’s Reply Br. at 4. If defendant challenges neither the

language of the indictment, nor the facts underlying his guilty plea, he has no

basis on which to bring this appeal.

      Moreover, even assuming defendant has not conceded his entire appeal, his

arguments on the merits cannot succeed. Defendant’s argument that his son’s




1
     Defendant’s counsel stated that there was a factual issue concerning
whether the judge ordered all parties to be back for the afternoon session on
August 31. We address the merits of this factual dispute infra at page four.

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“failure to appear” was merely a bond violation, not a crime, is frivolous. See

18 U.S.C. § 3146(a) (describing offense of “failure to appear”). Although the

district court’s order setting conditions of release stated that if defendant’s son

did not appear he might be prosecuted for failure to appear, rather than he would

be prosecuted, this is irrelevant to the issue of whether failure to appear was a

crime. In light of the promise to appear contained in the order setting conditions

for release, defendant’s arguments that his son could “voluntarily” absent himself

from trial, and that his son was not specifically ordered to appear on the afternoon

of August 31, also lack merit. Finally, defendant’s argument that failure to

appear is a continuing criminal offense, to which one cannot be an accessory after

the fact, was not raised in the district court, and we decline to consider it here.

See Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1228 (10th Cir. 1996).

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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