                               District of Columbia
                                Court of Appeals

No. 14-CF-1260
                                                                     MAY - 5 2016
CHARLES E. WILKINS,
                                          Appellant,

      v.                                                CF2-3132-14


UNITED STATES,
                                          Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

             BEFORE: FISHER, EASTERLY and MCLEESE, Associate Judges.

                                    JUDGMENT

            This case was submitted to the court on the transcript of record and the briefs
filed, and without presentation of oral argument. On consideration whereof, and for the
reasons set forth in the opinion filed this date, it is now hereby

            ORDERED and ADJUDGED that the appellant‟s conviction is affirmed.


                                             For the Court:




Dated: May 5, 2016.

Opinion by Associate Judge John R. Fisher.
Notice: 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-CF-1260                         5/5/16


                        CHARLES E. WILKINS, APPELLANT,

                                        V.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CF2-3132-14)

                       (Hon. Robert I. Richter, Trial Judge)

(Submitted March 8, 2016                                       Decided May 5, 2016)

      James E. Drew was on the brief for appellant.

       Channing D. Phillips, United States Attorney, and Elizabeth Trosman,
Elizabeth H. Danello, Katherine Earnest, and Karen P. Seifert, Assistant United
States Attorneys, were on the brief for appellee.

      Before FISHER, EASTERLY, and MCLEESE, Associate Judges.

      FISHER, Associate Judge: A jury convicted appellant Charles Wilkins of

violating the Bail Reform Act (the “BRA”) by willfully failing to appear for

sentencing.1 He argues that the trial court erred by not giving his proposed theory-


      1
          D.C. Code § 23-1327 (2015 Supp.).
                                         2

of-the-case jury instruction and that the record contained insufficient evidence of

willfulness to support the conviction. We affirm.



                                I.    Background



      On Wednesday, February 19, 2014, appellant appeared in Superior Court for

proceedings related to two misdemeanor criminal cases. Appellant signed two

notices, one for each case, acknowledging that he was required to appear for

sentencing two days later, on Friday, February 21, 2014, at 11:00 a.m. Although

transcripts of the February 19 and February 21 proceedings are not part of the

record before us, the government presented expert testimony at appellant‟s trial

explaining standard courtroom practice. Courtroom clerks will orally notify a

defendant of the date and time he is next required to appear in court and of the

consequences for failing to appear, require that he sign a Notice to Return to Court

containing the same information, and give him a copy of the signed notice.

Appellant‟s former attorney explained that the start time for the February 21

hearing was deliberately set later than usual, at 11:00 a.m., to give Mr. Wilkins

more time to get to court.
                                           3

      On February 21, appellant was not present in court at 11:00 a.m. When his

attorney, Marnitta King, “called Mr. Wilkins at his house” at 12:17 p.m. and

12:49 p.m. that day, he was still at home, even though “[h]e knew he needed to be

in court.” During the first call, Ms. King said, she “told him he need[ed] to be here

by two; a, because [after that time] the judge will be gone; but b, because I will be

gone.”



      By the second time Ms. King spoke to appellant, a bench warrant had issued

for his arrest in each misdemeanor case. During the second phone call, Ms. King

told appellant that if he could not get to court by the time the judge left the bench

(and she left the courthouse) at 2:00 p.m., then he should come to court on Monday

so she could try to get the warrants quashed. Ms. King testified that appellant

“didn‟t say he wasn‟t coming”; rather, “[h]e was in the process of getting himself

together to come.” Appellant never came to court on February 21, however. He

was arrested on the outstanding warrants around 1:00 a.m. on February 22, 2014.

Appellant did not testify.



                                    II.   Analysis



                   A.        The Instruction Appellant Requested
                                             4



         Appellant presents two arguments regarding his proposed jury instruction.2

First, he argues that the statute required only that he appear on the date stated in the

notice, not at a specific time, so being late to court was not a violation of the BRA.

Therefore, he implies, he could not have been convicted if he had appeared by

5:00 p.m. on February 21. Second, he claims that the court could easily have

modified his proposed instruction on its own initiative and that it erred by failing to

do so.



         When considering whether a requested defense instruction was properly

denied, we view the record in the light most favorable to the defendant. Fearwell

v. United States, 886 A.2d 95, 100 (D.C. 2005). “Jury instructions must properly

inform [the jury] of the applicable principles involved.” Murphy-Bey v. United

States, 982 A.2d 682, 690 (D.C. 2009) (alteration in original) (internal quotation

         2
             Appellant requested the following jury instruction:

                 There is evidence that Mr. Wilkins did not appear in
                 court on Friday, February 21, 2014[,] because his lawyer
                 told him to come to court the following Monday. If you
                 find a special circumstance, namely, that Mr. Wilkins
                 relied on the advice of his counsel in failing to come to
                 court on February 21, 2014, you may consider that
                 special circumstance in determining whether the
                 government has proven beyond a reasonable doubt that
                 Mr. Wilkins‟s failure to appear was willful.
                                           5

marks omitted). Thus, an instruction must be an “accurate statement” of the law

and not misleading to the jury. See Fearwell, 886 A.2d at 97, 101 (concluding that

“special circumstances” jury instruction on willfulness “should have been given

because it was an accurate statement of a legal principle”). In addition, the issue

must have been “fairly raised by the evidence.” Id. at 100 (quoting Simms v.

United States, 867 A.2d 200, 204 (D.C. 2005)).



      Judge Richter refused to give the instruction because it “read[] more like an

argument” and he believed that “technically, . . . failure to appear on time could be

a violation.” Judge Richter also said the instruction misstated the law, or at least

was “misleading,” because, while “you‟d be entitled to an instruction if coming to

court late was a defense, . . . [t]he problem with your theory of the case is it

suggests that it‟s in and of itself a defense to not appearing at eleven o‟clock[,] . . .

which is what he‟s required to do.” “The best you can say is . . . the government

can‟t prove that he wouldn‟t have appeared after two o’clock if his lawyer hadn‟t

told him not to bother” (emphasis added).
                                          6

                       1. Interpreting D.C. Code § 23-1327



      Appellant first argues that, as a matter of statutory interpretation, the words

“fails to appear” in D.C. Code § 23-1327 mean failing to come to court on the date

required, so “merely” being late is not a violation of the statute. He asserts that

because there is no explicit reference to “time” in the statute, appearing late on the

appointed day is a “complete defense” to a charge of “failure to appear.” Thus, his

argument goes, he cannot be held responsible for the period between 11:00 a.m.

and 2:00 p.m. because he was “merely” late and still “was coming” to court, and he

cannot be held responsible for the period between 2:00 p.m. and 5:00 p.m. because

his attorney told him not to bother coming to court after 2:00 p.m.



      Appellant‟s interpretation ignores our numerous precedents construing and

applying § 23-1327. See generally, e.g., Foster v. United States, 699 A.2d 1113

(D.C. 1997); Trice v. United States, 525 A.2d 176 (D.C. 1987). The statute says,

quite clearly, that anyone who “willfully fails to appear before any court or judicial

officer as required” is subject to the penalties enumerated. D.C. Code § 23-1327

(a) (emphasis added). Furthermore, our recitation of the elements of a § 23-1327

violation has been consistent for nearly thirty years: “[T]he trier of fact must find

(1) that the defendant was released pending trial or sentencing, (2) that he was
                                          7

required to appear in court on a specified date or at a specified time, (3) that he

failed to appear, and (4) that his failure was willful.” Fearwell, 886 A.2d at 100

(quoting Foster, 699 A.2d at 1115) (emphasis added); see also Trice, 525 A.2d at

179 (same). Thus, the time of the hearing is just as much a part of the requirement

to return as is the date, and a defendant is responsible for appearing in court on the

correct date, at the correct time, and in the correct courtroom, or else he may be

subject to the penalties enumerated in D.C. Code § 23-1327.3



      “Without question, punctuality is essential to a functioning court

system . . . .” Thompson v. United States, 690 A.2d 479, 484 (D.C. 1997) (quoting

Williams v. United States, 576 A.2d 1339, 1345 (D.C. 1990)).             It would be

impossible to run a court system if parties and attorneys (and judges and court

staff) came to court on a particular day, but at any time each person chose. Little

court business could be accomplished under such a freewheeling system. We

cannot accept appellant‟s interpretation because it is inconsistent with the statute

and our case law, as well as being an unworkable rule in practice.

      3
          Contrary to appellant‟s arguments, the fact that a trial court tolerates some
late arrivals, that the government does not prosecute every failure to appear, or that
lateness can be caused by a variety of reasons is irrelevant to interpreting whether
tardiness is proscribed by § 23-1327. The reason for a defendant‟s delayed
appearance may provide a defense to the willfulness element, but the availability of
the defense does not transform every late appearance into an absolute defense to a
charge under § 23-1327.
                                          8



         Appellant pointed out, to both the trial court and this court, that the

indictment does not specify a time at which he failed to appear. However, it does

allege that, “[o]n or about February 21, 2014, . . . [appellant] willfully failed to

appear before the Court as required” (emphasis added).



         “What is „required‟ [by a court‟s order] is determined in the individual

case.”     Gilliam v. United States, 46 A.3d 360, 370 (D.C. 2012).            Here, on

February 19, appellant signed two Notices to Return, each specifying a date two

days hence (February 21, 2014) and a time (11:00 a.m.) when he was next required

to be in court. Each notice stated, “It is your responsibility to appear on time in the

proper courtroom” and warned, in capital letters, that “failure to appear promptly

may result in the issuance of a warrant for your arrest[]” (emphases added). By not

being present at 11:00 a.m. on February 21, appellant failed to appear “as

required,” and was subject to the penalty provisions of the BRA if his failure was

willful.     Therefore, Judge Richter correctly refused to give the requested

instruction because it implied that the lawyer‟s advice could retroactively excuse

appellant‟s failure to appear by 11:00 a.m., or any time prior to 2:00 p.m.
                                          9

      Appellant acknowledges that courts use their contempt power to penalize

defendants who fail to appear in court on time, citing Williams, 576 A.2d at 1340-

43.   Mr. Wilkins then asserts, however, that only court-initiated contempt

proceedings, and not prosecution under the BRA, may be used to punish a

defendant‟s late appearance. However, when two statutes criminalize the same

conduct, the prosecutor may apply either statute, “so long as the selection does not

discriminate against any class of defendants.” Caldwell v. United States, 595 A.2d

961, 965 (D.C. 1991) (citing (Raymond) Evans v. United States, 417 A.2d 963, 965

(D.C. 1980)) (holding that prosecutor may choose between general and specific

contempt sanctions for violating a condition of release).



      Thus, a defendant ordered by a court officer to be in court on a particular

date and at a particular time is required to be present in the courtroom at that date

and time.    Willful failure to comply with the court‟s order may expose the

defendant to prosecution under the BRA or for contempt.



               2. Modification of the Proposed Jury Instruction



      Appellant also contends that the trial court erred by failing to modify his

draft instruction on its own initiative by adding “after 2:00 p.m.” Perhaps the
                                         10

proposed instruction could have been modified to make it legally accurate. In fact,

the court did state, during the discussion, that “[t]he best you can say is . . . the

government can‟t prove that he wouldn‟t have appeared after two o’clock if his

lawyer hadn‟t told him not to bother,” (emphasis added), which is precisely what

appellant is now requesting. However, defense counsel never asked the trial court

to modify the instruction in that way, or any other, merely requesting that the

original formulation “be made part of the record.”



      Our rules oblige the parties to play an active role in proposing, objecting to,

and clarifying instructions. See Super. Ct. Crim. R. 30. Nevertheless, in Whitaker

v. United States, 617 A.2d 499 (D.C. 1992), we endorsed the view that “even a

request for an instruction which is not entirely perfect may in some situations

impose upon the court the duty to give a more specific instruction on an issue” if it

is necessary to assist the jury in making its decision intelligently. Id. at 507-08

(alteration and internal quotation marks omitted) (supp. op. on reh‟g). There are

limits to that duty, however. See Zeledon v. United States, 770 A.2d 972, 976

(D.C. 2001). For example, “a [trial] court is not required to rewrite an improper

instruction to capture a kernel that may have some validity.” Pannu v. Jacobson,

909 A.2d 178, 198 (D.C. 2006) (alteration in original) (citation omitted).
                                        11

       To transform appellant‟s instruction into an accurate statement of the law

that would not distract or mislead the jury, the court would have had to fashion a

multipart substitute. A balanced instruction would have needed to incorporate two

theories: first, that appellant‟s failure to appear after 2:00 p.m. was not willful

because he was acting on advice of counsel (perhaps a “kernel” with “some

validity”); and second, a more pertinent, but vague, explanation why his failure to

appear as required at 11:00 a.m. was not willful. In this situation, where the

proffered instruction was so far off the mark, the trial court was not required to

rewrite it.



       Importantly, the trial court did not restrict appellant‟s argument about his

lack of willfulness, and even encouraged counsel to argue just that. In fact, almost

all of defense counsel‟s closing argument maintained that the government failed to

prove willfulness: “It was Ms. King who told him, [i]f you can‟t get here by two,

come on Monday. . . . Ms. King has explained . . . that she and her investigator

babied him because of the issues he had with coming to court. And in th[ese]

circumstances, we submit, . . . that was not wil[l]ful.” The jury obviously did not

find the argument persuasive.
                                          12

                             B.    Proof of Willfulness



      “When analyzing the sufficiency of the evidence, we view the evidence in

the light most favorable to the government, giving full play to the right of the jury

to determine credibility, weigh the evidence, and draw justifiable inferences of

fact, and making no distinction between direct and circumstantial evidence.”

McCray v. United States, Nos. 12-CF-1778, etc., 2016 WL 932657, at *16 (D.C.

Mar. 10, 2016) (quoting Medley v. United States, 104 A.3d 115, 127 n.16 (D.C.

2014)). “[I]t is only where the government has produced no evidence from which

a reasonable mind might fairly infer guilt beyond a reasonable doubt that the court

can reverse a conviction.” Id. (alteration in original) (quoting Medley v. United

States, 104 A.3d at 127 n.16).



      Section 23-1327 (b) contains a permissive inference that “[a]ny failure to

appear after notice of the appearance date shall be prima facie evidence that such

failure to appear is wil[l]ful.” Id. To be “willful,” a defendant‟s failure to appear

in court must be “knowing, intentional, and deliberate, rather than inadvertent or

accidental.”   (Sterling) Evans v. United States, No. 14-CM-1209, 2016 WL

1078259, at *3 (D.C. Mar. 17, 2016) (quoting Trice, 525 A.2d at 181). Judge

Richter‟s jury instruction used this definition of “willfulness.”
                                           13



      If a defendant believes that special circumstances make his failure to appear

not willful, he bears the burden of bringing that evidence before the jury.

Raymond v. United States, 396 A.2d 975, 978 (D.C. 1979). However, “[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.” (Sterling) Evans, 2016 WL

1078259, at *3 n.4 (second alteration in original) (quoting Trice, 525 A.2d at 182).

Contrary to appellant‟s argument, “[t]he mere presentation of a defense does not

dispel the statutory inference or cause it to drop out of the case, . . . for the jury is

always free to accept or reject the defense evidence.” Trice, 525 A.2d at 182.



      Appellant undisputedly received notice that he was required to be in court at

11:00 a.m. on February 21, 2014, and failed to appear. By presenting this prima

facie evidence, the government triggered the permissive inference of willfulness.

See D.C. Code § 23-1327 (b). Ms. King testified that she and her investigators

“kind of baby” Mr. Wilkins and tried to help him get to court on time because he

“falls asleep a lot, he has all these mental health problems, he has a lot of issues.”

But she offered no details, and appellant did not call a medical doctor to testify that

appellant had been diagnosed with or treated for a sleep disorder.              Nor did
                                         14

appellant himself explain why he had been unable to appear by 11:00 a.m. on

February 21.



       Appellant might have had a persuasive defense to the willfulness element for

the period from 11:00 a.m. to 2:00 p.m. if he had presented evidence that a sleep

disorder or other genuine obstacles prevented him from appearing on time. But see

(Sterling) Evans, 2016 WL 1078259, at *4 n.8 (“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” as required); see also 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 . . . .”).



       Presented with this evidence (or lack thereof), it was the role of the jury to

determine whether it credited appellant‟s version of the circumstances or whether it

inferred willfulness from his knowledge and failure to appear.        See (Sterling)

Evans, 2016 WL 1078259, at *3 n.4. Viewing the evidence in the light most

favorable to the government, we cannot say that “the government has produced no
                                       15

evidence from which a reasonable mind might fairly infer guilt beyond a

reasonable doubt.” McCray, 2016 WL 932657, at *16.



                               III.   Conclusion



     For the reasons stated above, appellant‟s conviction is



                                      Affirmed.
