Unpublished Disposition, 874 F.2d 817 (9th Cir. 1987)

MEMORANDUM^* 

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. § 3146(a) (2).

* Calero was sentenced to ten years in prison under 18 U.S.C. § 3146. Section 3146 became effective on October 12, 1984, increasing the maximum sentence for bail jumping from five years, under 18 U.S.C. § 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 

II

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.

III

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.

IV

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.

V

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 

VI

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.

AFFIRMED.