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Failure to Appear

Title 18 U.S. Code § 3146 - Federal Failure to Appear

If you're either charged with a federal crime or have been convicted of one and if you've been released from custody pending your trial or your sentence, the federal government is placing a great deal of trust in you to appear in court when you're summoned.

Failing to appear (FTA) constitutes a breach of that trust, and it's a violation of federal law in itself and may result in additional criminal charges.

Title 18 U.S.C. 3146 covers the possible penalties you could incur if you fail to appear. Depending on the underlying crime, you could face anywhere from one year to up to ten years in prison in addition to any sentence you receive for the crime itself.

Federal Failure to Appear - Title 18 U.S. Code § 3146

Simply put, you must show up at your next court date if you are charged with a federal crime and released pending trial or while waiting to begin a sentence.  Failing to appear in federal court will only make the situation worse.

18 U.S.C. 3146 says, “Whoever, having been released under this chapter, knowingly (1) fails to appear before a court as required by the conditions of release; or (2) fails to surrender for service of sentence pursuant to a court order; shall be punished as provided in subsection (b) of this section.”

Subsection (b) lays out the penalties, which will vary depending on the severity of the underlying charge someone is on pretrial release. For example, if the underlying charge is punishable by up to 15 years in prison, an FTA charge can be punishable by up to 10 years in federal prison and a fine.

If punishable by a prison term of up to five years, an FTA carries up to five years and a fine. If the underlying offense is any other felony, an FTA carries up to two years and a fine.

An FTA carries up to one year and a fine if it's a misdemeanor. If the person was released for appearance as a material witness, an FTA carries up to one year in federal prison and a fine. Let's review this topic in more detail below.

What Constitutes Failure to Appear?

18 U.S.C. 3146 applies explicitly to defendants on pre-trial release pending an upcoming trial or who have been released from custody while awaiting their sentence to begin.

It does not apply to others who may fail to appear in court (for example, ignoring a subpoena to testify, which is a misdemeanor under 18 U.S.C. 401.

Specifically, you can be charged with an FTA under 18 U.S.C. 3146 if either of the following is true:

  • You are on pre-trial release, and you fail to appear in court under the conditions of that release; or
  • You have been convicted of a federal crime, and you fail to surrender yourself when your sentence is set to begin.

Notably, any jail sentence for an FTA does not run concurrently with, meaning at the same time, as the sentence. In other words, you will spend additional jail time aside from your conviction.

Also, suppose you posted a bond as a condition of your pretrial release. In that case, FTA will essentially forfeit that bond.  Further, you might forfeit the bond if you do not show up for court, even if not formally charged with an FTA.

What Are Some Examples?

EXAMPLE 1: Harry is charged with federal insurance fraud under 18 U.S.C. 1033. He is given pre-trial release after posting bond, but he tries to flee the country instead of showing up for his trial date. As a result, Harry can be charged with an FTA in addition to his current charges.

Penalties for Federal Failure to Appear

EXAMPLE 2: Gina has been convicted of attempting to use someone else's passport to leave the country as defined under 18 U.S.C. 1544 misuse of a passport.

Her sentence is scheduled to begin a month after her trial, and she is released to get her affairs in order. However, Gina fails to show up on the date and time her sentence is scheduled to begin. As a result, Gina can be charged with an FTA and may have to serve additional time in prison.

EXAMPLE 3: Prosecutors serve Johnny with a federal subpoena to testify as a witness in court against an organized crime lord. However, Johnny is afraid of retribution against his family if he testifies, so he doesn't show up in court.

Johnny would not be charged with FTA because he was not charged with or convicted of a federal crime; however, he may be charged with criminal contempt for ignoring the subpoena.

What Are the Related Statutes?

18 U.S. Code Chapter 207 release and detention pending judicial proceedings have several federal statutes that are related to 18 U.S.C. 3146 failure to appear, including the following:

  • 18 U.S.C. 1341 - Release and detention authority generally;
  • 18 U.S.C. 1342 - Release or detention of a defendant pending trial;
  • 18 U.S.C. 1343 - Release or detention pending sentence or appeal;
  • 18 U.S.C. 1344 - Release or detention of a material witness;
  • 18 U.S.C. 1345 - Review and appeal of a release or detention order;
  • 18 U.S.C. 1347 - Penalty for an offense committed while on release;
  • 18 U.S.C. 1348 - Sanctions for violation of a release condition;
  • 18 U.S.C. 1349 - Surrender of an offender by a surety;
  • 18 U.S.C. 1351 - Refund of forfeited bail;
  • 18 U.S.C. 1352 - Establishment of pretrial services;
  • 18 U.S.C. 1353 - Organization and administration of pretrial services;
  • 18 U.S.C. 1354 - Functions and powers relating to pretrial services;
  • 18 U.S.C. 1355 - Annual reports;
  • 18 U.S.C. 1356 – Definitions.

What Are the Penalties for Failure to Appear?

If you're convicted of an FTA, you'll likely be fined and handed an additional prison sentence. As noted, the length of the sentence depends on the underlying charge for which you failed to appear:

  • For federal misdemeanor offenses, or if you had been released to appear as a material witness and failed to appear: the penalty is up to 1 additional year in prison.
  • For general felony offenses: the penalty is up to 2 additional years in prison.
  • For offenses punishable by prison terms of 5 years or more: the penalty is up to 5 additional years in prison.
  • For offenses punishable by prison terms of 15 years or more: the penalty is up to 10 additional years in prison.

Note that if you are convicted of an FTA, the additional sentence is consecutive to your existing sentence, not concurrent.

In other words, you can't serve both sentences at once. If you fail to appear and are so sentenced, you'll start serving your FTA sentence immediately after completing your initial sentence.

In addition, if you were released from custody on bond and failed to appear, you may forfeit the bond amount, even if you don't end up formally charged with FTA.

What Are the Defenses for FTA? 

While failure to appear is a serious crime, there are legitimate defenses that a good federal criminal defense attorney can employ that can either get the FTA dismissed or get your sentence reduced. The common defenses against FTA are discussed below.

Perhaps we can argue that you didn't realize you were supposed to appear. To be convicted of an FTA, you must knowingly fail to appear for your trial date or sentence.

Defenses for Federal Failure to Appear

If your attorney can provide evidence that you were unaware of your obligation to appear or made an honest mistake regarding date/time, etc., you may have dropped the FTA charge.

Perhaps we can argue that you had an emergency. 18 U.S.C. 3146 allows an affirmative defense in cases where "uncontrollable circumstances prevented the person from appearing or surrendering."

As long as you did not contribute to the circumstances that precluded the emergency, and as long as you make arrangements to appear as soon as the circumstances are resolved, you may be able to avoid the penalties of an FTA.

Suppose you did not appear for a court hearing or report to serve a sentence. In that case, you should contact us for advice on how to move forward. We offer an initial case review via phone or contact form. Eisner Gorin LLP is based in Los Angeles, California.

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