                            District of Columbia
                             Court of Appeals
No. 14-CM-1209
                                                                      MAR 17 2016
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: THOMPSON, EASTERLY, and MCLEESE, Associate Judges.

                                    JUDGMENT

               This case came to be heard on the transcript 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 reversed,
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.
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-CM-1209                      3/17/16

                         STERLING P. EVANS, APPELLANT,

                                         V.

                            UNITED STATES, APPELLEE.

                         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, were on the brief, for appellee.
      Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges.


      THOMPSON, Associate Judge: After a bench trial, appellant Sterling Evans

was convicted of a Bail Reform Act (“BRA”) violation for “willfully fail[ing] to
                                         2

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. 1987), reasoned 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 in 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 intend to fail to appear as ordered. Conversely, appellant argues
                                                                       (continued…)
                                          3

judge in this case relied 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 . . . relied 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 issue 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) (remanding for further proceedings
after holding that negligence does not suffice to support a conviction under the
federal threats statute, without deciding whether recklessness would suffice).
                                         4

      Appellant was arrested on August 6, 2013, 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., for 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 warrant

issued in response to his failure to appear on April 2, and the testimony of the

Metropolitan Police Department officer 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. He further testified,

however, that he “believe[d]” he “had to come back on [April] 4th.” He testified

that he did not “know where [he] got April the 4th 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 my clothing,

my paperwork and I knew that I had to come in April. But, to my knowledge, I

thought that it was the 4th.” Appellant further explained, “I knew that it was in
                                         5

April. But, to my knowledge, what I can recollect is because during that time, I

had 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 agreed 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 in April[,]” and remarked that he “should have” called his

attorney. He agreed that there was nothing “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 were “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 date[.]” 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, the prosecutor emphasized the
                                          6

evidence that appellant was “not a new comer [sic] to the criminal justice system”

who could “hide behind the shield 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 date

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.”      Willfulness 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 mistake 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 under
                                            7

Trice and Raymond v. United States, 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 misapplied 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’” that 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 of fact” entitled him to reversal of his

conviction and entry of a judgment of acquittal. In the alternative, he asks 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 date. 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 the day in question, despite having signed

a release form advising him of the date 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 that

“neither his attorney nor anyone from the Pretrial Services Agency called him or

mailed him a notice regarding his next scheduled court appearance[,]” id. at 178.

He further testified that “he could not remember what had happened” to the form

that told 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 that

agency 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 received

a secondary notification from the Pretrial Services Agency, as he had on several

previous occasions, “was not a legally acceptable excuse for his failure to appear.”

Id. at 180. We said 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 violation 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 had 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 Agency). The opinion in Trice did not 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 be

deemed willful. Thus, in this case, Trice did not compel 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 check 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
was willful. See D.C. Code § 23-1327 (b) (providing that “[a]ny failure to appear
after notice of the appearance date shall be prima facie evidence that such failure to
appear is wilful”); 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 inference of willfulness from failure to appear, and noting that
                                                                        (continued…)
                                          10

      As Trice recognized, “To 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)
“although 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 testimony 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 2nd.”
We can agree that appellant’s failure to appear on April 2 was intentional in that
sense, but whether it was deliberate is a different question, “else both [terms]
would not be used conjunctively.” United States v. Illinois Cent. R.R., 303 U.S.
239, 243 (1938) (internal quotation marks omitted); see also Jenkins v. United
States, 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 left open the possibility that his failure to appear was

inadvertent or accidental rather than willful.6



       That said, there was more in this case.              For 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 the 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 Illinois 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 testimony 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 The evidence of appellant’s chronic or recurring 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 marijuana-possession 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
impairment of the ability to 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 affirmative 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 appear”) (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 relevant 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 date 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 finding of

willfulness[.]” 576 A.2d at 1344. Because the trial court did not do that, we

conclude that a remand is in order.
                                         14



                                  III. Conclusion




      For the foregoing reasons, we reverse 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.
