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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 18-CM-589

                         GEORGE LANIYAN, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                        Appeal from the Superior Court
                          of the District of Columbia
                                (CMD-1152-18)

                   (Hon. Frederick H. Weisberg, Trial Judge)

(Submitted November 26, 2019                          Decided May 14, 2020)

      Omar M. Bississo for appellant.

      Dan Honold, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, and Elizabeth Trosman,
Assistant United States Attorney, were on the brief, for appellee.

      Opinion for the court by Associate Judge GLICKMAN.

      Dissenting opinion by Associate Judge THOMPSON at page 15.

      Before GLICKMAN and THOMPSON, Associate Judges, and FERREN, Senior
Judge.
                                          2

       GLICKMAN, Associate Judge: George Laniyan appeals from his conviction of

a misdemeanor violation of the Bail Reform Act, 1 an offense also known as bail

jumping, arguing there was insufficient evidence to prove that his failure to appear

was willful. We disagree. But because we do not agree with “the precise grounds .

. . relied upon by the trial court[,]” we find it necessary to remand the record and

retain jurisdiction for the trial court to render additional findings and conclusions

relating to its rejection of appellant’s defense that his failure to appear was

inadvertent, not willful. 2



                                          I.



       Appellant was arrested on December 15, 2017, for second-degree theft. He

was released that same day and advised to return to court on January 17, 2018. But

he did not return on that date, and Metropolitan Police executed a bench warrant for

his failure to appear, after they came into contact with him in the Georgetown area

on January 22 for an unrelated reason. The only contested issue at trial was whether

appellant’s failure to appear in court on January 17 was willful.



       1
           D.C. Code § 23-1327(a) (2019 Supp.).
       2
        Evans v. United States, 133 A.3d 988, 990 (D.C. 2016) (quoting Foster v.
United States, 699 A.2d 1113, 1116 (D.C. 1997)).
                                          3

      Testifying at trial, appellant said he had been unemployed since 2006 and

homeless since 2009, and he described how the circumstances of his homelessness

contributed to his failure to appear in court on January 17. Appellant claimed not to

“remember being caught” for second-degree theft on December 15, 2017, but that

he did “remember the[] . . . act.” He claimed, too, that he did not recall having to be

in court on January 17, 2018, prior to the execution of the bench warrant five days

later. Around that time, appellant explained, he was traveling between the District

and Virginia, where he previously had lived, in search of work. He described his

homelessness as “not comfortable.” He did not “have [the] chance,” he explained,

“to think like somebody [who] ha[d] a roof overhead.” He experienced “stressful

moments where” he “had to think more about protecting [his] skin,” to avoid

“deal[ing] with violent offenders, i.e., hoodlums, drug addicts, drunkards, [and] all

kinds of elements of the streets.” Protecting himself on the streets “t[ook] a bit of

effort,” so he spent “quite a bit of [time] thinking more about [his] safety.” To

corroborate that testimony, appellant introduced body-camera footage of his arrest

on January 22, which, his counsel argued, showed appellant was cooperative with

the police and genuinely surprised by his arrest.



      On cross-examination, appellant admitted to having been convicted of a

number of offenses – for petty larceny, unlawful entry, trespass, and even failure to
                                           4

appear in court. He agreed that, “when [a] case starts against you, you will have to

come to court again, after that first day in court.” And in tension with his testimony

on direct, he admitted to knowing he had to return to court after his December 15,

2017 arrest and release. Moreover, appellant admitted, he “kn[ew] how to show up

somewhere after [he had] been told to go there,” from his experience attending

classes for school, attending appointments with the Department of Motor Vehicles

and the doctor, and meeting the curfew requirements of his former homeless shelter.



      After closing arguments, the trial judge made three factual findings. The first

was that appellant received notice of the January 17, 2018 court date. The second

was that appellant failed to appear in court that day. The third was to infer, based

on the first two findings of fact, that appellant’s failure to appear was willful, an

inference expressly allowed under D.C. Code § 23-1327(b).



      It appears that the trial judge relied only on that statutory inference to find

appellant’s failure to appear willful, even though the judge credited appellant’s

testimony. “[I]t cannot be the case,” the judge said, “that somebody who is in

difficult circumstances and disorganized and doesn’t keep track of court dates can

simply take a piece of paper telling them when they need to be back in court and

ignore it. Or lose track of it. Or fail to pay attention to it.” A contrary result “would
                                          5

give virtually half the defendants [who] appear on [the] calendar every day of the

week a perfect defense if they chose not to appear,” because “many of them are in

the circumstances described by [appellant] in his testimony.” “The law does not

require any more than the fact that [a defendant] received proper notice of the date

and place to appear, and then willfully thereafter failed to appear by not coming.” A

defendant who forgets to attend court is “just as clear” of a case as a person who

“[does not] feel like coming.” “[I]t’s [the defendant’s] duty to remember [his] court

date and to appear as required once [he has] received notice.” “[E]ven if those

circumstances did play a role in his failure to appear,” the judge concluded, “they do

not, in my judgment, overcome the inference of willfulness that[ is] created simply

by his failure to appear after adequate notice.”



      The judge accordingly found appellant guilty of failing to appear in court on

January 17, 2018. Appellant filed a timely appeal.



                                          II.



      The crime of bail jumping has four elements: “(1) that the defendant was

released pending trial or sentencing, (2) that he was required to appear in court on a

specified date or at a specified time, (3) that he failed to appear, and (4) that his
                                           6

failure was willful.” 3 Appellant did not contest the government’s proof of the first

three elements of the offense at trial. Nor does he do so on appeal. He argues,

however, that the government presented insufficient evidence to prove that his

failure to appear was willful. He claims, more specifically, that he presented

sufficient evidence at trial to negate, as a matter of law, the statutory inference of

willfulness relied upon by the trial court. We disagree.



      “To establish willfulness in a bail jumping case,” the government need not

prove that the defendant had an evil or corrupt intent, but rather “that the defendant’s

failure to appear in court when requested was knowing, intentional, and deliberate,

rather than inadvertent or accidental.” 4 D.C. Code § 23-1327(b) instructs that “[a]ny

failure to appear after notice of the appearance date shall be prima facie evidence

that such failure to appear is wilful [sic].” In the face of a Fifth Amendment due

process challenge, we interpreted that statutory provision as permitting, but not

requiring, the fact finder to infer that a defendant’s failure to appear was willful in




      3
        Trice v. United States, 525 A.2d 176, 179 (D.C. 1987) (quoting Raymond v.
United States, 396 A.2d 975, 976 (D.C. 1979)).
      4
          Id. at 181.
                                          7

the situations described by § 23-1327(b). 5 After the government makes a showing

sufficient to support the inference, “the burden of production of, or going forward

with, rebuttal evidence rests with the defendant.” 6 In presenting rebuttal evidence,

the defendant is entitled to show there were “special circumstances that explain the

failure to appear.” 7



       We disagree with appellant that he presented sufficient evidence to negate the

inference of willfulness as a matter of law. Although, as we discuss below, we

believe the trial judge did not give sufficient consideration to appellant’s personal

circumstances in making his finding of willfulness, 8 nothing compelled the judge to


       5
           Raymond, 396 A.2d at 977.
       6
           Id.
       7
           Id. at 978.
       8
         Past decisions of this court confirm the relevance of personal circumstances
such as those appellant described in determining whether a failure to appear in court
was willful. See Evans, 133 A.3d at 993-94 (“As another example, appellant testified
that he ‘had so much stuff going on’ while his underlying marijuana-possession case
was pending, including financial difficulties and housing challenges—
circumstances that the trial court, if it credits appellant’s testimony, may also deem
relevant on the issue of willfulness.”); Foster, 699 A.2d at 1115 (“We do not think
that a finding of willfulness can rest solely upon Mr. Foster’s decision to make the
trip to Montreal, as the trial court appeared to conclude. Like any trip, there was a
possibility that events would arise which would delay a return, but Mr. Foster’s trip
was a source of needed income and the testimony does not show that delays were a
normal event.”).
                                          8

credit all of appellant’s testimony. And there was other evidence in the record that

undermined appellant’s claim of inadvertence and could have supported a finding of

willfulness. First, appellant’s criminal record, which had at least one conviction for

failure to appear, indicates, as we have explained before, that he “is not a newcomer

to the criminal justice system and cannot now hide behind a shield of naivety and

confusion.” 9 Second, appellant agreed on cross-examination that he knew he had to

return to court but simply forgot (as opposed to misremembered) the date. If a

defendant “d[oes] not purport to know what date he [is] due in court,” we have said,

and realizes that he does not know, he has a “duty” to contact the court or pretrial

services to get the correct date. 10 Third, appellant admitted attending to some of his

other obligations and knowing how to be somewhere when necessary. All things

considered, we think a trier of fact reasonably could find that appellant consciously

disregarded his obligation to appear in court.



      But although the evidence is sufficient to support appellant’s conviction, we

deem it sufficient based only on findings of fact that the trial judge could have made




      9
           Trice, 525 A.2d at 180 (quoting Raymond, 396 A.2d at 978).
      10
         Evans, 133 A.3d at 992. Although we have framed this factor as one of
“duty,” we see no reason why other circumstances in a particular case cannot
overcome a defendant’s failure to fulfill this “duty.”
                                          9

but did not. Our concern is that the judge inadequately considered appellant’s

excuses and relied only on an inference of willfulness from the bare failure to appear

as required. We therefore believe that a remand of the record is appropriate for the

judge more precisely to consider appellant’s defense and make more specific

findings and conclusions regarding the central issue in this case. Our cases hold that

where, as here, a defendant presents special circumstances explaining his failure to

appear as inadvertent, the judge (in a bench trial) must either discredit the

defendant’s evidence or credit some or all of it while pointing to other evidence

overcoming it. 11 In other words, if a defendant puts forward a colorable defense to

a finding of willfulness, and if the judge credits that defense, then the judge must

discuss in sufficient detail the proffered reasons for failing to appear and what other

evidence overcomes those reasons, in order to find the defendant’s failure to appear

willful. In those situations, the judge cannot simply rely on the statutory inference

alone.




         11
              Id. at 994.
                                          10

      In Foster v. United States 12 and Evans v. United States, 13 we remanded for

more specific findings regarding the appellants’ defenses and the impact of their

personal and financial circumstances. In Foster, Mr. Foster accepted an assignment

to drive a Greyhound bus from New York to Montreal two days prior to his

scheduled court date, thereafter missing court due to inclement weather preventing

his planned return trip. 14 He testified at trial that he was the sole source of income

for his wife and six children, and he claimed to have had “no intention of trying to

evade the court.” 15   While he acknowledged that he had gotten “stuck” in a

destination before, he stated that getting “stuck” was not a frequent occurrence. 16

Mr. Foster did not turn himself in until about five months later, because he “feared

incarceration would place his job in jeopardy,” and he wanted to “arrange a leave of

absence from Greyhound before turning himself in.” 17 The trial court, in finding

that Mr. Foster’s failure to appear was willful, was “persuaded” that Mr. Foster “put



      12
           699 A.2d 1113.
      13
           133 A.3d 988.
      14
           699 A.2d at 1114.
      15
           Id.
      16
           Id.
      17
           Id.
                                            11

himself in a position where it was not possible for him to get back to court,” and that

this demonstrated he had a “reckless indifference to” his obligation to return. 18



       We reversed the conviction and remanded, explaining that “a finding of

willfulness” could not “rest solely upon Mr. Foster’s decision to make the trip to

Montreal.” 19 “Like any trip,” we explained, “there was a possibility that events

would arise which would delay a return, but Mr. Foster’s trip was a source of needed

income and the testimony does not show that delays were a normal event.” 20 A

remand was appropriate because other record evidence in addition to the statutory

inference could have supported the trial court’s finding that Mr. Foster’s failure to

appear was willful, including adverse credibility determinations the court could have

made and the fact that Mr. Foster waited five months to turn himself in. 21 “We

[we]re thus presented with an evidentiary record sufficient to support a finding of

guilt but insufficient on the precise grounds . . . relied upon by the trial court.” 22 And



       18
            Id. at 1115.
       19
            Id.
       20
            Id.
       21
            Id.
       22
            Id. at 1115-16.
                                          12

in a bench trial for bail jumping, “if [the] particular basis [for conviction] is

erroneous but other bases not addressed by the trial court would sustain a conviction,

the proper course of action is to remand rather than reverse outright.” 23



       In Evans, 24 Mr. Evans misremembered his court date and sought to explain

his lapse of memory at trial by testifying that he was wrapped up in dealing with an

eviction, financial struggles, marijuana-possession charges, a drinking problem, and

chronic memory loss. 25 In finding that Mr. Evans’s failure to appear was willful, the

trial court read our cases as imposing a duty on defendants to contact the court or

pretrial services whenever they misremember their court date. 26 The court, in effect,

“relied on just” § 23-1327(b)’s “inference [of willfulness] to find [Mr. Evans]

guilty.” 27




       23
              Id. at 1116 n.5.
       24
              133 A.3d 988.
       25
              Id. at 990.
       26
              Id. at 991.
       27
              Id. at 989-90.
                                          13

      We reversed the conviction and remanded, holding that defendants are under

no such duty when they misremember (as opposed to when they realize they have

forgotten) their court date. 28   Although there was evidence in the record that

supported a finding of willfulness – such as Mr. Evans’s voluntary intoxication and

untreated chronic memory loss – there was other evidence in the record that “left

open the possibility that [Mr. Evans’s] failure to appear was inadvertent or accidental

rather than willful” – such as his financial and housing struggles and the fact that the

court date he misremembered had not passed by the time of his arrest. 29 The record,

we said, did “not clearly reveal the trial court’s views with respect to [all of the]

evidence [that] bear[s] upon the issue of willfulness[,]” 30 and the court, we

explained, “should have either discredited [Mr. Evans’s] testimony explicitly or

credited some or all of [it] while pointing to specific acts or omissions justifying a

finding of willfulness.” 31




      28
           Id. at 991-92.
      29
           Id. at 993.
      30
           Id. at 990 (quoting Foster, 699 A.2d at 1115 n.4).
      31
           Id. at 993 (quoting Williams v. United States, 576 A.2d 1339, 1344 (D.C.
1990)).
                                            14

      Here, we are confronted with a record that we consider similar to those in

Foster and Evans.      On the one hand, appellant presented evidence of special

circumstances explaining his failure to appear as inadvertent. Although appellant

claimed that the press of his unfortunate circumstances caused him not to remember

his obligation to return to court rather than (as in Evans) to misremember the date

he was due to return, the latter is not the only basis for finding inadvertence. On the

other hand, the trial judge could have discredited appellant’s testimony or found it

to be overcome by evidence that his failure to appear was willful. The issue,

however, is that it appears the trial judge did not adequately address appellant’s

defense and relied only on the statutory inference. 32 “[M]indful that we are a court



      32
           The government’s argument, that “[t]he trial court . . . correctly applied
Evans when it reasoned that appellant, despite his ‘difficult circumstances,’ could
not ignore his notice to return and ‘then fail to appear in court as required,’” is based
on a misreading of our cases. The trial judge, under Evans and Foster, must
determine more than that the defendant was obligated to appear in court in spite of
his difficulties; the judge must determine whether those difficulties in fact rendered
the nonappearance inadvertent rather than willful. In this case, the judge does not
appear to have grappled explicitly with that question. The government also argues
that a remand is inappropriate because “the reasoning in Evans is limited to situations
where a defendant’s testimony, if credited, would change the outcome of the case.”
Fair enough, but if a defendant, as appellant did here, testifies that he did not
remember he had an ongoing criminal matter in Superior Court, and if the trier of
fact credits that testimony, it is difficult to say that the defendant’s “failure to appear
in court when requested was knowing, intentional, and deliberate, rather than
inadvertent or accidental,” Trice, 525 A.2d at 181, unless the trier identifies other
evidence in the record that overcomes that testimony.
                                            15

of review, not of first view,” 33 the absence of trial court findings and conclusions

directed to appellant’s defense warrants a remand, so we will retain jurisdiction over

the appeal and remand the record to the trial court pursuant to D.C. Code § 17-306

(2012 Repl.). 34 This remand will “give the trial judge the opportunity to complete

or clarify the record so that this court will have an adequate basis for review of the

trial court’s rulings.” 35 On remand, the judge should rule on appellant’s credibility

and whether appellant’s defense, considered in light of all the evidence, raised a

reasonable doubt as to whether his failure to appear was willful. After the judge

issues new findings in accordance with this opinion, the record thus supplemented

shall be returned to this court for decision. 36



                                                     So ordered.




      33
           Newell-Brinkley v. Walton, 84 A.3d 53, 61 (D.C. 2014) (citations and
alterations omitted).
      34
           See Bell v. United States, 676 A.2d 37, 41 (D.C. 1996).
      35
           Id.
      36
         In a record remand such as this, the trial court does not have the authority
to amend its judgment of conviction. If, upon reweighing the evidence for the
purpose of making new findings, the judge indicates an inclination to acquit
appellant, the proper course is for one of the parties to move this court for a remand.
See id.
                                           16

      THOMPSON, Associate Judge, dissenting:            Notwithstanding my sincere

sympathy for this homeless appellant and my distaste for upholding a conviction that

adds further to his troubles, I cannot agree that the trial court’s findings were wanting

in any respect. Though the court did not state explicitly that it credited appellant’s

testimony, it clearly did. Otherwise, the court would not have remarked that

appellant’s situation was sympathetic, that he lost his own place to live in 2009, that

he lost the “anchor” of living with his uncle, that he was in difficult circumstances,”

and that he was “disorganized” and “living on the street.” The court also understood

that the inference that a defendant who fails to return to court after receiving notice

to do so is a permissible rather than mandatory inference; the court referred to the

inference as one that “can be drawn.”



      Appellant testified that he did not remember that he was to return to court on

January 17, 2018, but acknowledged that he knew that his case was continuing and

that he “w[as] going to have to be in court again for th[e] [trespassing] charge” he

faced. Further, he testified that he had “stressful moments” and “quite a bit of time”

where he had to think about his safety and protecting his skin in the streets, but he

did not say that he had no time to think about anything else.
                                         17

      The court reasoned that a person in appellant’s circumstances who does not

keep track of court dates may not simply ignore or fail to keep track of the paper

telling him when to come back to court, because there is a duty to

remember. Finally, the court said that even if appellant’s circumstances played a

role in his failure to appear, they did not overcome the inference of willfulness the

court drew. I do not understand what more the trial court was required to do, so I

respectfully dissent from the remand order. I would affirm the conviction.
