## District of Columbia Court of Appeals

No. 14
- CM
- 1209 STERLING P. EVANS, Appellant,

v. CMD
- 5913
- 14

UNITED STATES, Appellee.

On Appeal from the Superior Court of the District of Columbia

Criminal Division
BEFORE: T HOMPSON , E ASTERLY , and M C L EESE , Associate Judge s.
J U D G M E N T
This case came to be heard on the trans cript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment of conviction is r eversed, and the case is remanded for the trial court to consider anew, in light of this opinion and all of the evidence presented at trial, whether appellant’s failure to appear was willful.
For the Court:

Dated: March 17, 2016. Opinion by Associate Judge Phyllis D. Thompson. MAR 17 2016Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14

- CM

- 1209
S TERLING P. E VANS , A PPELLANT ,

V

. U NITED S TATES , A PPELLEE

. Appeal from the Superior Court of the District of Columbia ( CMD

- 5913

- 14 ) (Hon. Patricia A. Broderick , Trial Judge) (Argued September 22 , 2015 Decided March 17, 2016 ) Nigel A. Barrella for appellant. Seth M. Gilmore , Assistant United States Attorney , with whom Ronald C. Machen Jr. , United States Attorney at the time the brief was filed , and Elizabeth Trosman, Elizabeth H. Danello , and Laura Crane , Assistant United States Attorneys , w ere on the brief, for appellee. Before T HOMPSON , E ASTERLY , and M C L EESE , Associate Judges

.

T HOMPSON , Associate Judge : After a bench trial, appellant Sterling Evans
was convicted of a Bail Reform Act (“BRA”) violation for “ willfully fail [ing] to 3/17 /162

appear ” 1 at a scheduled April 2, 2014, status hearing in his marijuana

- possession

case. Testifying on his own behalf at the BRA trial, appellant told the court that he failed to appear on April 2 , 2014, because he thought he was scheduled to appear two days later, i.e., on April 4, 2014. In finding appellant guilty of the charged
BRA violation , the trial judge, relying on this court’s opinion in Trice v. United
States , 525 A.2d 176 (D.C. 1 987), reason ed that appellant had a “responsibility to check and make sure that he ha[d] the right date

. ”

In this appeal , appellant asks us to resolve this question: Where a defendant
in a BRA case defends on the ground that he failed to appear because he did not correctly remember the date of his scheduled court appearance, is a trial judge entitled to infer, solely from the fact that the defendant did not double check the scheduled date, that his failure to appear on that date was willful, and thus a
violation of the BRA? We answer that question i n the negative. 2 Because the trial

1 D.C. Code § 23

- 1327 (a) (2012 Repl.) (prescribing penalties for “[w] hoever

. . . willfully fails to appear before any court or judicial officer as required ”).

2 The parties more generally dispute the proper interpretation of the term

“ willfully ” under the BRA statute. The government argues that a BRA violation is a general

- intent crime and requires only proof that the defendant intended not to be in court on the date at issue, even if the defendant had forgotten about the court date and did not inten d to fail to appear as ordered. Conversely, appellant argues (continued...)3

judge in this case re lied on just such an inference to find appellant guilty, we reverse the judgment of conviction. However, because we are presented with an evidentiary record that we judge to be “ sufficient to support a finding of guilt but insufficient on the precise grounds

. . . rel ied upon by the trial court [ , ] ” Foster v.
United States , 699 A.2d 1113, 1115

- 16 (D.C. 1997) , and that “ does not clearly reveal the trial court’s views with respect to [ all of the ] evidence [that] bear [s] upon the issue of willfulness [ , ] ” id. at 1115 n.4 , we remand for the trial court to consider anew, in light of all the evidence , whether appellant’s failure to appear
was willful

.

I. Background

(...continued) that the government was required to prove that he knew that he was required to appear on the date at issu e and intentionally decided not to appear on that date. We do not at this juncture attempt to fully resolve that dispute. Rather, we simply (1) hold that the failure to double

- check a court date does not by itself establish willfulness and (2) remand for further proceedings in the trial court, including for the trial court to make additional findings about appellant’s mental state and to render a verdict in light of those findings and the applicable law. Cf. Elonis v. United States , 135 S. Ct. 2001, 2012

- 13 (2015) (remand ing for further proceedings after holding that negligence d oes not suffice to support a conviction under the federal threats statute , without deciding whether recklessness w ould suffice).4

Appellant was arrested on August 6, 20 1 3, on a charge of possession of marijuana and was awaiting disposition of his case. On December 2, 2013, he signed a notice to return that required him to appear in court on April 2, 2014 , at
9:30 a.m., f

or a diversion status hearing. When he failed to appear in court on that
date , a bench warrant was issued, and he was arrested the same day

.

On October 7, 2014, the court (the Honorable Patricia A. Broderick )
conducted a bench trial on the charged BRA violation. The government’s evidence
included the notice to appear signed by appellant, a copy of the bench warran t issued in response to his failure to appear on April 2 , and the testimony of the Metropolitan Police Department o fficer who had arrested him for possession of marijuana. Appellant testified in his own defense. He acknowledged that he signed, was given a copy of, and (he was “quite sure”) had heard read to him the
notice

- to

- return obligating him to return to court on April 2

. H e further testified , however, that he “believe[d]” he “had to come back on [April] 4 th .” He testified that he did not “know where [he] got April the 4 th from.” He also told the court
that he had been evicted from where he was living, saying , “ [M] y finances were
exhausted and

. . . when I was not even there, [the people] threw out m y clothing,

my paperwor k and I knew that I had to come in April. But , to my knowledge, I thought that it was the 4 th .” Appellant further explained, “I knew that it was in5

April. But, to my knowledge, what I can recollect is because during that time, I
ha d a problem with drinking and stuff of that nature. My memory was lapsing.”

On cross

- examination, appellant acknowledged that he had a “number of [ c ] ourt dates,” including, on the day of trial in the instant matter, a “probation
show” cause matter in courtroom 120 and a “BA” (presumably, “BRA” ) matter in
courtroom 117. He further a greed that “it is important to keep track of . . . [c] ourt
dates.” He also acknowledged that he did not call Pretrial Services or his attorney to “inquire as to the date i n April [ , ] ” and remarked that he “should have” called his
attorney. He agreed that there was not h ing “keeping [him] from checking to find
out when the date was [

. ] ”

In closing argument, the prosecutor argued that appellant’s explanations for why he did not appear on April 2 w ere “not sufficient under the law.” The
prosecutor emphasized appellant’s testimony that he took “no efforts to familiarize himself with the date that he needed to be here” and “did not contact anyone to find out the appropriate dat e [

. ]” The prosecutor also cited the absence of evidence that, had appellant not been arrested on the bench warrant on April 2 , he would
have come to court on April 4

. In addition, t he prosecutor emphasized the6

evidence that appellant was “not a new comer [sic] to the criminal justice system”
who could “hide behind the shie l d of . . . confusion.”

Defense counsel emphasized in closing that appellant did not testify that he “just forgot” the date he was to return, but testified instead that he thought the d ate

was on April 4

. Counsel stressed that appellant was arrested on the bench warrant “at some point after the bench warrant lodged but before he was supposed to appear in his mind.” W illfulness was not proven , counsel argued, because appellant was not given “the opportunity to show up on the date that he thought that he was going to show up[,] which was two days later[,] since he was immediately arrested[.]” Appellant’s failure to appear, counsel said , was “the
result of a mi stake on his part.” Counsel acknowledged that appellant had “picked up a number of different cases in very short order and they were all active at the
same time.”

Judge Broderick found that the facts were “ undisputed ” and agreed with
defense counsel that the case was a “close call.” She articulated the issue as ,

“ [W] hen you sign a notice and you know the date and you do not willfully check and make sure that you got the right date, is that willful?” She reasoned that under7

Trice and Raymond v. United St ates , 396 A.2d 975 (D.C. 1979), 3 it is the defendant’s “responsibility to check and make sure that he has the right date

. ” Because the undisputed evidence was that appellant did not check, Judge
Broderick found him guilty of willfully failing to appear

. This appeal followed.

Appellant argues that the trial court mis applied the willfulness standard of the BRA and misinterpreted Trice as imposing a “general ‘responsibility to check and make sure that [one] has the right date’” tha t applies even when a defendant is operating under the belief that he knows the correct date. He contends that his failure to appear as the result of a “mistake o f fact” entitled him to reversal of his conviction and entry of a judgment of acquittal. In t he alternative, he ask s us to remand the case to the trial court to reweigh the evidence and reach a new verdict, “considering the correct legal standard.”

II. Analysis

3 In Raymond , we held that it was “not unreasonable” for the trial court to rule that Raymond, having received notice “ by the continuance slip

. . . of the requirement to appear [,]” “ could not justifiably rely ” on the failure of the Bail Agency to provide additional notices of his appearance da te. 396 A.2d at 978.8

We begin our analysis by addressing whether, in Trice , this court imposed a general duty to double check the date of a scheduled court appearance to avoid BRA liability. Defendant Trice defended his failure to appear on the ground that
he was unaware he was to be in court on th e day in question , despite having sign ed
a release form advising him of the da te he was to appear

. 525 A.2d at 179

- 80

. He explained that he “ routinely received notices in the mail from the Pretrial Services Agency telling him when and where to appear in court [ , ] ” id. at 177, but t hat

“ neither his attorney nor anyone from the Pretr ia l Services Agency called him or mailed him a notice regarding his next scheduled court appearance [,] ” i d. at 178.
He further testified that “ he could not remember what had happened ” to the form
that tol d him when he was due back in court, and he “ admitted that he did not contact the Pretrial Services Agency until ” after he was due in court to inform th at

a gency of the problems he was having with receiving mail and to find out when he

was to return to court

. Id. This court held that the fact that Trice had not receive d a secondary notification from the Pretrial Services Agency, as he had on several previous oc casions , “ was not a legally acceptable excuse for his failure to appear. ”
Id. at 180 . We sa id that it was Trice’s “ responsibility to appear in court when
instructed to do so ” ; that “[i]f he could not remember the date that was on the form, it was up to him to contact the Agency immediately ” ; and that “[h] is failure to do
so cannot excuse his vio lation of the statute. ” Id

.9

We agree with appellant that Trice did not impose a general duty to “contact the Agency” or the court , or a general duty to double check the scheduled date of a court appearance. Trice had such a duty because he did not purport to know what
date he was due in court and also ha d mislaid the form that told him the date (and
because , given his problems with receiving mail, he could not rely on receiving a
notice from the Pretrial Services A gency). The opinion in Trice did n ot answer the question of whether a defendant who believes he remembers the date he is due back in court must nevertheless double check that date, with the court, or counsel, or the pretrial services agency, lest his failure to appear on the correct date b e deemed willful. Thus, in this case, Trice did not co m pe l the trial judge , even if she credited appellant’s testimony that he misremembered his due date as April 4, to
convict him of a BRA violation upon the undisputed evidence that he failed to
double c heck the date

. 4

4 If the trial judge did not credit appellant’s testimony about misremembering the date of his scheduled court appearance, she was permitted to infer (in the absence of other credited rebuttal evidence) that his failure to appear wa s willful. See D .C. Code § 23

- 1327 (b) ( provid ing that “[a] ny failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is wi l ful” ); Trice , 525 A.2d at 182 (“[I] f the jury rejects [the defense evidence] , the statutory inference remains in the case and provides a sufficient basis for a verdict of guilty. ”); Raymond , 396 A.2d at 976

- 77 (explaining that § 23

- 1327 (b) is properly construed as incorporating a permissive rather than a mandatory infere nce of willfulness from failure to appear, and noting that (continued...)10

As Trice recognized, “ T o establish willfulness in a [BRA] case,
. . . the
government must prove

. . . that the defendant ’ s failure to appear in court when requested was knowing, intentional, and deliberate, rather than inadvertent or
accidental. ” 525 A.2d at 181 ; see also Bolan v. United States , 587 A.2d 458, 460 (D.C. 1991) (per curiam) (same)

. 5 Without more (and without having been

(...continued) “a lthough the wording of [the statute] may be read to imply that the inference of willfulness is mandatory,

. . . in practice, the trier of fact has merely been permitted and not required to infer willfulness” ). Appellant contends that Judge Broderick, who remarked that the evidence was “undisputed[,]” did credit his testimony about misremembering the date, even though she did not say so explicitly. The government asserts that Judge Broderick made no such credibility determination, but simply ruled that, either way, appellant had a duty to double check the date he was due back in court. Appellant may have the better of the argument, since Judge Broderick might not have considered the case a “close call” had she discredited appellant’s testimony. But cf. Williams v. United States , 576 A.2d 1339, 1343 n.7 (D.C. 1990) (“ The court’ s only direct reference to appellant ’ s testimony was this statement: ‘ The fact that he just overslept does not excuse his actions. ’ We take the statement to mean the court either believed or assumed the truth of appellant ’ s testimony that he overslept. ”). In any event, on remand, the trial judge will have an opportunity to state explicitly whether she credits appellant’s t estimony in whole or part.

5 The prosecutor argued to the trial court that appellant had the intent required for a BRA conviction “because he had no intent to be there on the 2 nd .” We can agree that appellant’s failure to appear on April 2 was intentio nal in that sense, but whether it was deliberate is a different question, “ else both [terms] would not be used conjunctively. ” United States v. Ill inois C ent . R. R. , 303 U.S. 239, 243 (1938) (internal quotation marks omitted); see also Jenkins v. United St ates , 415 A.2d 545 , 547 (D.C. 1980) (holding that where there was testimony that “certain words had been said to appellant which could have given rise to a good faith and reasonable belief that his case had been dismissed [ , ] ” that story, “if (continued...)11

discredited) , the evidence that appellant failed to appear because he
misremembered the date le ft ope n the possibility that his failure to appear was
inadvertent or accidental rather than willful. 6

That said, there was more in this case. F or example, appellant acknowledged that he “had a problem with drinking” and that his “memory was lapsing

. ” The evidence of appellant’s drinking problem , if credited by the court, is
evidence that the trial court may ( or may not ) believe warrants an inference that he voluntarily impaired his ability to comply with the order to return to court on April

(...continued) believed by the jury, would constitute a valid defense to a charge of ‘willfully’ failing to appear” ). We note that the Supreme Court gave a helpful definition of “willfully” in Illinois Central : the term “ means purposely or obstinately and is designed to describe t he attitude of [one] , who, having a free will or choice, either intentionally disregards ” a legal requirement “ or is plainly indifferent to it []. . . .” 303 U.S. at 243 ; see also Patton v. United States , 326 A.2d 818, 820 (D.C. 1974) (explaining that I lli nois Central ’s discussion of the meaning of “willfully” as used in a regulatory statute “ guides our construction of the word ‘ willfully ’” in D.C. Code § 23

- 1327 (a) ).

6 Cf. Foster , 699 A.2d at 1116 (“ Assuming arguendo that the trial court credited the t estimony of Mr. Foster . . . , the record does not reveal a factual basis sufficient to support the theory of guilt set forth by the trial court as the underpinning of the conclusion that Mr. Foster ’ s failure to appear was deliberate and intentional, not inadvertent or accidental. ”).12

2. 7 Th e e vidence of appellant’s chronic or re curring memory problems also was
evidence that, if credited by the trial judge , might be deemed relevant to the court’s assessment of whether appellant’s failure to appear was willful. 8 As another example, appellant testified that he “had so much stuff going on” while his underlying mariju ana
- p ossession case was pending, including financial difficulties
and housing challenges

— circumstances that the trial court , if it credits appellant’s

7 Cf. In re Warner , 905 A.2d 233, 239 (D.C. 2006) (holding, in case involving a conviction for criminal contempt for failure to comply with a court order to pay child support, that willfulness could be shown by “ voluntary im pairment of the ability t o comply with the court order”); Cooper v. United States , 680 A.2d 1370, 1372 (D.C. 1996) (per curiam) (holding that the trial court did not err in rejecting defendant’s argument that “ her drug use supported her defense of mistake[ ,]” i.e., that her failure to appear could not be deemed willful because her drug use “ caused her to be confused about her obligation to return to court ” ); 18 U.S.C. § 3146 (c) (federal bail

- jumping statute providing in pertinent part that “[i]t is an aff

irmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing

. . . , and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appea r” ) (emphasis added).

8 Cf. Foster , 699 A.2d at 1115 . In Foster , this court held that a finding of willfulness could not rest solely on a decision by Foster, who was employed as a bus driver, to drive the employer’s bus to Montreal two days before his scheduled court date, because even though “there was a possibility that events would arise which would delay a return, [the ] trip was a source of needed income [.]” Id

. We implied, however, that a finding of willfulness might be warranted if the testimony had shown that “ delays were a normal event

. ” Id

. If the trial judge construes appellant’s testimony about memory lapses to mean that they were a “normal event” for him, then, upon crediting that testimony, the court might infer, from appellant’s failure to verify what he remembered , that he willfully disregarded the order to return to court on April 2. See Smith v. United States , 583 A.2d 975 , 979 (D.C. 1990) (“[A] defendant undoubtedly has an obligation to act diligently with respect to returning as required for a further court proceeding [.] ” ).13

testimony, may also deem rele vant on the issue of willfulness. We note in addition
that the trial judge did not indicate whether she agreed with defense counsel that
the fact that April 4 had not yet passed by the time of appellant’s arrest on the
bench warrant

— April 4 being the da te when appellant claimed he thought he was scheduled to appear

— weighed against an inference of willfulness.

The following observation that we made in Williams , a criminal

- contempt case, is equally applicable here: “ In order to find appellant ’s [failure to appear on April 2] willful beyond a reasonable doubt,

. . . the court should have either discredited appellant ’ s testimony explicitly or credited some or all of appellant ’ s testimony while pointing to specific acts or omissions justifying a fin ding of
willfulness [.]” 576 A.2d at 134 4

. Because the trial court did not do that, we
conclude that a remand is in order.14

I II
. Conclusion

For the foregoing reasons, we re verse the judgment of conviction and
remand for the trial court to consider anew , in light of this opinion and all of the evidence presented at trial , whether appellant’s failure to appear was willful.

So ordered.