United States v. Cesar Caballero

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 Weaver v. United States, 37 F.3d…