* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. JAMES CARTER,

Defendant-Appellant. No. 96-3354 (D.C. No. 95-CR-10095-ALL)

(D. Kan.)

ORDER AND JUDGMENT *
Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant James Carter entered a conditional plea o f guilty to being an accessory after the fact to his son Tony Carter’s o ffense of failure to appear at trial. See 18 U.S.C. §§ 3, 3146(a). We exercise jurisdictionpursuant to 28 U.S.C. § 1291 and affirm. Tony Carter’s trial on various drug charges began o n August 29, 1995. He appeared during the first two days of trial, andalso on the morning of August 31, 1995. However, after the noon recess onthe afternoon of August 31, he did not return to the courtroom. Federal marsha lls 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 Greenvi lle, Texas on the afternoon of August 31. Defendant was charged with being an acc essory after the fact. The district court denied his motion to dismiss the ind ictment. 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 specif y the issue which he has reserved for appellate consideration. At the chang e of plea hearing, defendant1 Defendant’s counsel stated that there was a factual issue concerning

whether the judge ordered all parties to be back fo r the afternoon session on August 31. We address the merits of this factual d ispute infraat page four. -3- admitted the facts detailed by the prosecution, wit h 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 fai lure to appear or whether or not any of the assistance that my clientgave to his son was simply a violation of a bond condition which we submit would not be an offense against the United States but jus t a violation of the conditions of release. Supp. R. Vol. I, doc. 36, at 9. In his opening brief in this court, defendant claim ed that the indictment was defective because it did not detail whether the und erlying offense was his son’s failure to appear at trial, or his original drug cr ime. The government responded by arguing that the indictment, viewed as a whole, was sufficient. In his reply brief, defendant explained that he does not challen ge the language of the indictment. See Appellant’s Reply Br. at 4. If defendant challeng es neither the language of the indictment, nor the facts underlyin g 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-4-

“failure to appear” was merely a bond violation, no t 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 releas e stated that if defendant’s son did not appear he mightbe prosecuted for failure to appear, rather than h e would be prosecuted, this is irrelevant to the issue of w hether 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 cou ld “voluntarily” absent himself from trial, and that his son was not specifically o rdered 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 o ne 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 fo r the District of Kansas is AFFIRMED.

Entered for the Court
Bobby R. Baldock Circuit Judge