Failure to Appear

18 U.S.C. § 3146 - Failure to Appear for Court Proceedings

The federal crime of failure to appear (FTA), defined under 18 U.S. Code 3146, is often related to bail jumping, which occurs when a defendant fails to appear after being released.

18 U.S.C. § 3146 - Failure to Appear for Court Proceedings
it's a separate federal crime to fail to appear for a court proceeding after being released.

Suppose the judge released you from custody after being charged or convicted of a federal offense. In that case, the court has trusted you to appear as scheduled. Thus, when you fail to appear, you have broken that trust, violated federal law, and could face additional charges.

18 U.S.C. 3146 is the federal statute that criminalizes failing to appear before a court as required. If you are released pending trial or appeal and don't appear in court later, you could face penalties under this law. Further, this law applies to witnesses and others who defy court orders to appear before judicial proceedings.

A failure to appear can interrupt the federal criminal justice system and is a waste of court resources. In most cases, defendants are attempting to evade prosecution. This federal statute allows the courts to enforce orders to appear and hold violators accountable.

In other words, you must show up at the next court date if you were charged with a federal offense pending trial or were already convicted and ordered to appear later for a sentencing hearing. If you willfully fail to appear, your situation will worsen, and could face harsh consequences.

Failure to Appear – Quick Facts

Let's review some basic quick facts about 18 U.S.C. 3146, the federal law related to failing to appear for a court proceeding:

  • This law applies to defendants on pre-trial release pending trial or who fail to surrender when their sentence is set to begin.
  • If you posted a bond as a condition of pretrial release, the FTA will forfeit that bond. You might even forfeit the bond if not charged with FTA.
  • Any jail sentence for FTA does not run concurrently with the sentence, meaning you will spend additional time in jail.
  • This law does not apply to someone ignoring a subpoena to testify, a misdemeanor offense under 18 U.S.C. 401.
  • Honest errors are not typically considered a violation of this law.
  • Unpunished flagrant violations are considered undermining the justice system.

What Does the Federal Law Say?

As noted, this federal statute covers the possible penalties you could incur if you fail to appear for a federal court proceeding.

18 U.S. Code 3146 penalty for failure to appear says, “(a) Offense. 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.”

Section 3146 is listed under 18 U.S. Code Chapter 207, Release and Detention Pending Judicial Proceedings. It applies to anyone released pending trial, sentencing, appeal, or surrendering for service of sentence who knowingly fails to appear as ordered.

This law applies to anyone subpoenaed as a witness in criminal proceedings but could be charged under another federal law. This law makes it a separate federal crime for not appearing in court when legally obligated to appear.

What Are the Elements of the Crime?

To obtain a conviction, prosecutors must prove all the elements of the crime below:

  • You were released pending trial or appeal, sentencing, or surrender for serving a sentence;
  • You were ordered to appear before a court or judicial officer as a condition of release;
  • You failed to appear as ordered;
  • The failure to appear was willful, not accidental.

The court determines whether the failure to appear was “willful” based on the circumstances.  Suppose a defendant can't be contacted, flees the jurisdiction, or deliberately misses court dates. In that case, it would easily qualify as a knowing and willful act. Honest mistakes will not be considered a violation.

What Are the Penalties for 18 U.S.C. 3146?

Section 3146 (b) punishment is a list of penalties that will vary depending on the underlying reason. It says, “(A) If the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction for:” 

  • An offense punishable by death, life imprisonment, or a term of 15 years or more, a fine or imprisonment for not more than ten years, or both;
  • An offense punishable by imprisonment for a term of five years or more, a fine or imprisonment for not more than five years, or both;
  • Any other felony, a fine or imprisonment for not more than two years;
  • A misdemeanor, a fine, or imprisonment for not more than one year;
  • If the person was released for appearance as a material witness, a fine or imprisonment for not more than one year or both;
  • A term of imprisonment imposed under this law shall be consecutive to the sentence in prison for any other offense;
  • if you were released from custody on bond and failed to appear, you may forfeit the bond amount, even if not charged with FTA.

What Are the Related Federal Laws?

18 U.S. Code Chapter 207 release and detention pending judicial proceedings have numerous federal laws that are related to 18 U.S.C. 3146 failure to appear, such as 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. 1350 - Applicability to a case removed from a state court;
  • 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 Defenses for FTA?

Suppose you were charged with failure to appear. In that case, our federal criminal defense attorneys can use several strategies to possibly get the case reduced or dismissed, as discussed below.

Defenses for Failure to Appear for Court Proceedings
Contact our firm for a free case consultation.

Maybe there was a lack of notice, and you did not know you were scheduled to appear in court. Recall that to be convicted, the prosecutor must prove you knowingly failed to appear for your trial date or sentence.

Maybe we can show it was an honest mistake or that you misunderstood. Perhaps we can show evidence that you were unaware of your appearance obligation.

Maybe we can argue that you had an emergency. The law allows an affirmative defense when uncontrollable circumstances prevent you from appearing. Perhaps we can make an incapacity argument that you were physically or mentally unable to comply with the order.

If any of these defenses raise a reasonable doubt about whether the violation was “knowing,” then you have a chance of being acquitted for violating Section 3146 but could still face the consequences for the underlying case. Contact our federal criminal defense law firm for a free case evaluation. The Hedding Law Firm has offices in Los Angeles, California.

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