Trice v. United States

that, present had to evi- said, actually not what of what she

dence say, all probably intended to which is

she According- Papaj’s testimony showed. Papaj’s

ly, I hold that Detective tes- would incompetent prove any mate-

timony was fact, erroneously

rial that it was therefore

admitted, event it was not and that

sufficient, in combination either alone or evidence, the crime other charged. reasons, respectfully dissent.

For these TRICE, Appellant, L.

Vincent STATES, Appellee.

UNITED

No. 84-518. Appeals. of Columbia Court

District 4, 1985.

Argued June April

Decided D.C., Sines, Washington, copy ap- Deborah L. Exhibit No. 4 was a of the District pointed by court, appellant. Agency’s for of Services Columbia Pretrial form, conditional which was issued release McGuire, Edward Atty., C. Asst. U.S. July appellant’s on arraign- diGenova, Joseph Atty., with whom E. ment. It I appellant’s listed address as 636 Stevens, Michael John E. W. Farrell and Street, S.E., Apartment 33. form in- The D.C., Attys., Washington, Asst. U.S. were report appellant structed in brief, appellee. for Agency Pretrial Services once week. Appellant’s appeared signature next to a TERRY, MACK, ROGERS, Before said, “I print statement bold that under- Judges. Associate penalties imposed stand the appear on me for willful or for failure TERRY, Judge: Associate violation of condition release and Appellant was convicted of fail- agree comply my the conditions of with ing to appear required, in court when required.” release and Im- appear commonly jumping, crime as bail known mediately signature appellant’s above was violation of the District Columbia Bail stating a box was “NEXT appellant Act, 23-1327(a) (1981). ap- D.C.Code On 1, 1983, August DUE BACK” on in Court- peal he contends evidence on the Finally, room 1 at 9:00 a.m. another box element of willfulness was insufficient to appellant’s signature, beginning below conviction, support his and that the trial “IMPORTANT,” appeared the word a no- court’s instructions to were con- instructing tice in capitals appellant block fusing incomplete. reject We all his “to notify immediately the D.C. Pretrial arguments and affirm the conviction. Avenue, Agency, Services 500 Indiana N.W., floor, telephone first number 727- I address, any change employ- ment, change presented no status release live testi- mony in its case in conditions.” simply chief but intro- exhibits, duced photocopy four each a of an Appellant deny he did not official court document.1 Exhibit No. 1 August in court on part was file in the case Criminal Case ground defended on that his failure M-8783-83, No. appel- which showed that was not willful. He testified that he was charged lant was awith misdemeanor on August not in because he court on was 11,1983. July released day He was supposed unaware that he to be in his recognizance, own to return to court for time, said, day. court that At that August trial on 1. The exhibit also indi- pending had another criminal No. F- appellant cated that was advised of the 3821-82, in made which he had “around penalties in court as appearances missing nine or ten” without directed. Appellant any scheduled court dates. ex- entry plained routinely Exhibit No. 2 a docket received notices in show- appellant Agency the mail from the Services failed Pretrial M-8783-83, August telling him 1 in and that a when and where No. day court. The notices mailed to his bench warrant was issued for his Road, N.W., Park copy arrest. 3 was a aunt’s home at 613V2 Exhibit No. Street, at 636 I bench return at the rather than his own home warrant. The bottom S.E., apartment in his appellant showed that was arrested on the because mailbox building September warrant on 1983. had been “vandalized.” mother, authenticity 3.Appellant’s whom he lived at 636 parties stipulated to the Street, S.E., testimony his each of the corroborated documents. damaged. into and the mailbox had been broken this, testified, she had rented a Because of she parties stipulated authenticity 2. The post office box. appellant’s signature. Williams, Appellant going aunt, remembered court on Cora testified Road, that she July day arraigned, lived at 613V2Park N.W. he was She said that had lived with her day but all he could think about that unspecified past, an time in the and that “going He home.” said that neither during that time he had mail received attorney anyone nor from the Pretrial Ser- However, ap- there. no mail addressed to Agency him vices called or mailed him a pellant had come to her house for over two regarding his next scheduled court years.4 specifically She stated she appearance. had not received mail for him he after cross-examination, appellant On acknowl- away, moved and that no mail came for him edged signed that he had the Pretrial Ser- August in 1983. When asked whether she Agency vices conditional release form im- appellant had ever notified of his court mediately stating the box that he below dates, replied, she he had court “[W]hen 1 Aug. was “NEXT DUE BACK on 83 in him, mail, days, got I notified he when 9 A.M.” He Courtroom at also conceded got he ain’t no mail there.” form, copy that he had received a of the The recalled Mr. as a Gunn hap- but he could not what had remember He rebuttal witness. testified that pened Appellant to it. admitted that he did Agency telephone records showed one Agency not contact the Pretrial Services appellant concerning contact with case No. August until when he called to inform M-8783-83. contact on Au- That occurred Agency problem receiving of his 25, 1983, gust August appellant 8 as mail and find to out when was to return addition, pointed had claimed. In Mr. Gunn to court. He did know with whom he appellant comply out that did not at all August talked on but whoever was did one in of the conditions of his release not know the date of his next scheduled M-8783-83, report namely, No. that he appearance. Finally, appellant court said weekly, person, Agency. he “understood” that the document he part The court instructed the signed July on order” for him “was an follows: return to court. of the offense essential elements Gunn, representative Michael jumping, of which the of bail each Agency, Pretrial Services testified that the prove beyond a rea- Government must doubt, Agency’s records showed that between sonable are: 26,1982, 7,1983, July Agency June 1. That the defendant was released appellant’s pending felo- sent notices about by judicial officer in connection with case, F-3821-82, ny misdemeanor; No. to him at 613V2 charge a Road, Park N.W. The records also 1st, 1983, August the de- 2. That on showed, however, respect that with to his required appear before a fendant was pending misdemeanor No. M-8783- judicial officer in connection appellant charge; scheduled to with the misdemeanor appear August in court on willfully the defendant failed 3. That (not 636) I Agency sent the notices to 6 appear required. this connec- mailed, Street, notices were one tion, you S.E. Two act done are advised that an July July intentionally, 15 and one on 27. On cross- willfully knowingly, if done explained deliberately. examination Mr. Gunn Agency pro- relied each defendant beyond a doubt you If find reasonable mailing notify vide a correct address and notice of the defendant had received Agency any changes of address. appear be- the date on which he was said, Agency, way judicial had no to deter- officer and that fore a court or date, you purported then mine a defendant’s ad- he failed to on that whether may infer that his failure dress was correct. since at least place January to the Park Road address

4. Since the trial come took January would mean that no mail for may surrounding date was willful. You not infer from the circumstances. how- You consider statement made ever, if, considering all of the evi- by the defend- and act done or omitted dence, you find that his failure to ant, and all other facts and circumstanc- was not willful. es in evidence which indicate state

You are further instructed that mind. You infer that a ordi- even the defendant did not actual no- narily probable receive intends the natural and tice of the date on which he was to consequence knowingly of acts done or officer, judicial before a court or However, knowingly you omitted. you may, you beyond find a reasonable should consider all the circumstances doubt that reasonable efforts made you evidence that deem relevant deter- notify that the de- mining whether the Government has fendant, by actions, willfully his own proved beyond a reasonable doubt notice, receipt frustrated the of actual the defendant acted with the willfully find that the defendant failed to intent. appear. appeal, appellant argues On that the evi- determining In from all the circum- prove dence was insufficient to that he question stances in whether the defend- willfully appear failed to in court when appear ant’s failure to was willful be- required, and that the court’s instructions doubt, yond you a may reasonable confusing. erroneous and whether, consider at the time of his re- He also maintains that the court’s failure custody, lease from the defendant was give to a intent instruction was by judicial penal- advised officer of the reversible error. appear. ties for failure to You are in- structed, however, that the Government II need not establish that the defendant jumping, The crime of bail under D.C. penalties was advised of the for failure 23-1327(a) (1981), ele- Code has four § appear you to return a verdict (1) ments. The trier of fact must find guilty defendant, as to the even pending the defendant was released trial or though there is no that the defend- (2) sentencing, ap- he to was penalties ant was advised for fail- pear specified in court on a date or at a appear, ure you to are satis- otherwise time, (3) specified appear, he failed to beyond fied a reasonable doubt from all (4) Ray- that his failure was willful. the evidence that the defendant’s failure States, 396 A.2d mond v. United appear was willful. (D.C.1979). case, in most bail person Intent means that a had the cases, jumping government’s proof of thing. It that he do means the first three elements was not contested. failed to act or acted with the will or will The critical issue before the was thing. not to do the It means that he issue of willfulness. consciously acted or failed to or vol- act untarily inadvertently and not or acciden- obliged was tally. “having appellant, been released ... any court appear before require

Some criminal offenses fail[ed] so, required_” D.C. judicial and it officer as intent. Where this is 23-1327(a). knowingly “Any appear failure to is shown that a has Code § appearance date committed an act which the law makes a notice of the [is] crime, intent be inferred from the that such failure prima facie evidence doing 23- of the act. willful.” D.C.Code appear [was] 1327(b). into introduced ordi-

Intent is a state of mind. Intent appellant’s signed release form narily proved directly, because cannot be immediately stated July which fathoming way there is no and scruti- required to signature that he was above his nizing operations of the human mind. on No. 1 at 9:00 a.m. appear in Courtroom you may But infer the defendant’s case, pending August just legally acceptable thereafter. was not a three weeks The evidence also showed that excuse for his failure to Ray- penalties failing supra, was advised of the mond v. United 396 A.2d at directed, (bail in court as and that he jumping upheld conviction when August 1. Thus the given had been written notice government presented enough evidence to requirement on a date cer- prima case under the tain, establish “although he re- was not thereafter fade statute. Agency”). minded of it dispute Appellant did not his failure to Although appellant testified that testimony and he admitted in his copy lost his of the release form and was that he understood the release form to be thus unaware of when he was due back directing him to return to court on an order court, signed dispute he did not August Focusing his defense on the immediately DUE form below the “NEXT willfulness, presented evi- element box, conspicuously stated BACK” which designed dence to show that his failure to required appearance. Even the date his This evidence did willful. form, if he did it does not follow lose negate prima fade appearance he lacked notice of the case, however, simply created a factual date; re contrary, undisputed his issue for the to resolve. arraignment ceipt the form at his Appellant testified that he had come adequate sufficient to establish that he had rely mailed notices from the Pretrial notice, in turn evi fade pending Agency Services another August appear on dence that sought prove through Mr. he Gunn 23-1327(b) 1 was willful. D.C.Code § Agency in No. M-8783-83 the that case Moreover, (1981). Raymond, in as we said wrong to the address. mailed its notices crimi appellant “is not a newcomer to the showed, testimony how Appellant’s own justice system and cannot now hide nal ever, he did not inform the Pretrial naivety a shield of and confusion.” behind Agency problem with receiv Services respon appellant’s 396 A.2d at 978. It was until at ing mail even at the correct address in instructed sibility court when August least one week after his scheduled If he could not remember the to do so. government’s re appearance. 1 court form, up him on the it was date that was only buttal evidence established immediately. His Agency to contact Agen appellant in fact failed to contact the excuse his violation failure to do so cannot after Au cy until more than three weeks of the statute. 1, complied at all gust but that he never sum, govern In we hold of his one of the other conditions case. prima ment established release, in fade report was to pretrial which light fa in the most Viewing the evidence every person Agency to the week. must,5 government, as we vorable testimony that he relied Appellant’s sufficient fully that it was are satisfied we mail to him was on his aunt to forward go permit the case to Raymond to under testimony that by his aunt’s contradicted jury. appellant’s mail not received she had years least two before trial. for at Ill event, suggestion that his ab the trial argues Appellant also August 1 due to from court on sence jury as to instructions confused secondary notifica court’s to receive a his failure government had Agency, as what from the Pretrial Services tion that will- He contends of willfulness. in his other issue occasions had on several States, 562, U.S.App.D.C. States, (1967); Curley 81 v. United E.g., A.2d United 460 McClain v. 837, denied, 229, States, 389, (D.C.1983); 67 331 Byrd 388 A.2d 160 F.2d cert. v. United 567 (D.C.1978); United 1229 L.Ed. 1850 Crawford States, U.S.App.D.C. 375 F.2d 332 intentional, deliberate, adequately ing, defined than fulness has never been rather court, by this and that the case law does inadvertent or accidental. This is consist- jumping in long-established not make clear whether the bail ent with case law the requires showing purpose meaning statute bad District Columbia on the intent, turpi- or evil with crimes of moral willfulness: Appellant

tude. further maintains that a very It is few criminal cases that specific intent instruction was be- pur- “done “willful” means with a bad cause the is “to the statute pose.” Generally, “no more it means punish disregard complete intentional or charged than that with the appear,” indifference to a notice to but not doing. It duty knows what is does negligent failure to that, addition, sup- not mean he must pose breaking he is law.” Appellant’s arguments fly face States, Patton v. United Townsend v. our decision in United App.D.C. denied, held in Pat (D.C.1974). 223, 229, 352, 358, cert. 326 A.2d 818 95 F.2d We ton that a conviction under (1938), D.C.Code U.S. 82 L.Ed. Surety from American v.Co. Sul quoting 23-1327 for willful failure to re livan, quires showing only (2d Cir.1925); see of “what is common 7 F.2d R.R., ly United States v. Illinois Central referred to as a intent of the omission,” defendant to commit the act of 82 L.Ed. Patton, supra, (1938), and that “lack of an quoted evil state of mind does 773 exculpate jumping a bail defendant.” A.2d 820. The trial this case Id. at 820. We noted that section instructed the 23-1327(b), provides “[a]ny prove beyond fail had to a reasonable doubt ure to appear appellant “willfully notice of the ance date shall be required,” facie evidence that and that “an act is done appear willful,” such knowingly, is “irrec intentionally, done and delibe charge oncilable with the contention that rately.”6 Later its the court rather, required; intent or an ‘evil mind’ requisite told the that to have had the requisite intent, is inferable from the must or have “acted failed Id.; see also Bethea v. omission itself.” consciously voluntarily to act and not United 64, (D.C.1976), inadvertently accidentally.” 365 A.2d in 87 or These denied, cert. 911, 2979, jury 433 U.S. 97 S.Ct. 53 structions sufficed to inform the on (1977) (“Only L.Ed.2d 1095 by inference the element of willfulness. can the existence of intent —or the differen reject appellant's conten We also forms, tiation between its such as confusing the instructions so tion that v. determined”); State Co specific or —be proof the to him. as to shift burden

fone, 164 Conn. 162, 164, 381, 319 A.2d 383 stating After first that “an act is done (1972) (“Intent be, is, in usually knowingly, intentionally, willfully done conduct”). ferred from deliberately,” specifical court trial ly jurors they “may told the that infer” Patton that a

We held appear was that will intent to violate the law is not an element ful, only they found “that jumping. of the offense of This is so [he] bail notice of the date on which was jumping received because bail is not a common law (malum se), judicial a court or officer turpitude crime moral before (malum prohibi failed to on that statutory and that he but a crime which we characterized in Patton ) very In its next breath the tum date....” nature_” jury, may not “regulatory in cautioned the “You 326 A.2d at how 820. To establish willfulness in a bail infer that if, considering case, ever, all of the evi jumping all must dence, his failure to you find that prove is that the defendant’s failure instructions The court’s requested in court when know- was not willful.” Columbia, 1978). (3d Jury ed. No. 3.06 6. Criminal Instructions for the District 182 Francis, 1504, (11th

on must be reviewed “not ... 723 F.2d willfulness Cir. isolation, 1984).7 artificial but ... the context of charge.” Cupp Naughten, the overall dissenting colleague suggests Our 141, 146-147, 396, 400, 414 U.S. S.Ct. statutory inference of willfulness van- (1973) (citation omitted). Ap- L.Ed.2d 368 appellant put ished from the case when on standard, we are plying this satisfied that agree. Accepting his defense. We cannot instructions, whole, considered as prima the dissent’s definition of evi- facie proving made clear that the burden of be- good dence as “evidence and sufficient each element of yond a reasonable doubt contradicted,” its face until rebutted or offense, willfulness, including remained post 186, we think it is for the trier of government. with the at all times proof fact decide whether offered comparable The instructions here are not or defense rebuts contradicts Supreme led Court to those which have evidence. facie in some cases to reverse convictions presentation mere of a defense does not ground they shifted to the defendant dispel it to inference or cause proving his or her state of the burden case, drop main- out of the dissent example, in Mullaney mind. For v. Wil- tains, 189, post jury always for the bur, 421 U.S. 95 S.Ct. L.Ed.2d accept reject the defense evi- free to (1975), in- specifically it, jury accepts If the defendant dence. prosecution that if the established structed it, acquitted; jury rejects if the the statu- a homicide was intentional and unlaw- pro- tory inference remains the case and ful, aforethought “conclu- malice vides sufficient basis for a verdict of then had to sively” implied; the defendant compel guilty. But it does not a verdict prove by preponderance of the evidence guilty; “prima evidence is evi- passion he acted in the heat of dence, held and as such to reduce the adequate provocation order guilt.” Bailey v. insufficient to make out manslaughter. charge from murder Alabama, dispute no real Thus there was J., (1911) (Holmes, dis- 55 L.Ed. shifted to defendant. (citation omitted). senting) The instruc- States, 342 Similarly, Morissette v. United think, tions in this we made that clear (1952), 96 L.Ed. jury. of in- conclusive

involved a Affirmed. tent, ele- effectively eliminated the of “know- of intent from the offense ment MACK, dissenting: Judge, Associate government property. ingly converting” majority the critical agree with the Montana, In Sandstrom jumping” in this “bail issue before (1979), 61 L.Ed.2d 39 that of whether “will- case was juror could held that a reasonable Court trial. I also fully” for presumes instruction “the law interpret the initially estab- agree that ordinary conse- person intends the that a the mean- prima lished facie case within a voluntary acts” as a manda- quences of his 23-1327(a) (1981),by in- ing of D.C.Code § 515, 99 S.Ct. at tory finding of fact. Id. at documentary appel- troducing evidence however, implied, that a The Court 2454. and did not notice of the trial date lant had op- to that effect—as permissive inference majority’s im- disagree I pass consti- posed to a —would government could plicit conclusion that the case involves muster. The instant tutional infer- prima facie rely continue to inference, permissive presumption. not a (i.e. plus “no ence of statute County County Ulster See also Court of his 2213, show”) had met 140, once the defendant Allen, 99 S.Ct. show that evidence to (1979); producing v. burden L.Ed.2d Tucker States, “knowingly” 7 U.S.C. interpretation Liparota United The decision in present 2024(b) (1985), did not The case L.Ed.2d 434 issue. constitutional congressional and the Court’s turned on signed (and his failure to by appellant show was accidental or inad- the address at vertent. I find the trial appellant court’s instructions subsequently was arrested circumstances, jury, warrant). under these to pursuant Agency to a bench inherently contradictory be so and confus- representative appel- also corroborated ing as to rise to level of constitutional testimony belatedly lant’s that he had Montana, See Sandstrom v. infirmity. agency inquire called the about mis- 61 L.Ed.2d 39 case, although demeanor there was a dif- (1979). I grave difficulty also have testimony precise ference in the as to the of Patton v. United reasoning August. date of that call (D.C.1974), applied 326 A.2d 818 when majority can no factual com- draw my the facts of this case: view this fort, therefore, from the assertion that it application lessening has the effect of appellant’s responsibility notify proof in burden of contraven- agency ap- of his correct address when principles tion of basic of criminal and con- pears agency had that address. stitutional law. appellant The fact attempt did not address, flee from that and the fact that he I voluntarily did agency call the about the Certainly majority’s recitation of the appearance, date of are consistent with his appellant, facts reveals that slip assertion by let the date inad- government introduced court records show- Moreover, vertently. I sig- do not see the August that he did not majority’s nificance of the comment that 1983, for charges, trial on misdemeanor appellant was not a to the crimi- newcomer presented plausible story why as to justice system. Appellant nal was not at- did not fail to do so. He acknowl- tempting legally accepted to advance “a edged day arraignment that on the (i.e., agency excuse” charges signed these he had the Pretrial neglected secondary to send him a Agency’s Services conditional release form notice) (which but rather the fact ironi- listing August date; explanation cally from the follows fact that he was no of stressful preoccupation at the time as justice system) newcomer to the criminal growing well as his reliance the Pretrial by past practices that he had lulled been Agency Services for notice was not incredi- relying upon Surely into such notice. charged ble. He had been an unrelated majority suggesting experienced is not felony appeared case 1982 and had nine criminals are not entitled to confused. times ap- without incident for scheduled pearances event, relying on notices do not see issue as appearance being produc- dates mailed to him that one of whether the evidence agency appellant and addressed to the Park Road ed was sufficient to ne- repre- gate residence of his aunt. An Agency showing by govern- appellant sentative corroborated testimo- ment but rather one of whether ny agency routinely producing mailed has met his these July notices to that his failure to so between willful dissipate 1982 and June 1983 to the Park ad- inference and Road as to Moreover, Agency dress.1 records showed thus retain on the the burden August going that the two notices of the 1983 of willfulness be- forward to (on appearance latter issue yond dates the misdemeanor a reasonable doubt. This charges) incorrectly appears had been to from to me to be the addressed follows what Eye of a statute Eye “6 St. S.E.” rather than to “636 reasonable construction (D.C.Code (1981)) S.E.,” appellant St. 23-1327 that reads in the correct address of part: typed pertinent that had been on the release form appellant’s testimony ny mail for him for at 1. It is not clear to me that she had not received how (of years trial. Rather the aunt’s that he relied his aunt the N.W. ad- least two before dress) testimony appears have been contradicted to forward mail to him could be said to to seriously agency representative. be contradicted the aunt’s testimo- that of the Whoever, effort, following (a) having released un- made no the admission of been inadvertence, prior appellant’s der this title to the commencement to evidence sentence, appear to willfully surrounding of his show that circumstances fails judicially officer as before appellant failed offense demonstrated that if in con- required, shall ... released appear disobey or [ ] to with the to misdemeanor, charge nection with a Instead, disregard to the law. it continued be fined not more than the maximum rely solely documentary evidence and im- provided for such misdemeanor presented in its case-in-chief. ninety days prisoned for not less than confusing na- Against backdrop, this year.... than one and not more ture of the trial court’s instructions (b) Any appear to after failure listed, surprising. jury is not The court appearance date shall offense, element of the an essential ap- that such to failure appéar. While it told willful failure [Emphasis pear willful_ added.] infer that the jurors they that could not gridlock interpre- It is the if, appear defendant that has led to the tation of this statute evidence, they of all consideration government, Thus the current confusion. found that his failure to was “willfully ap- fails to ignoring phrase willful, they found it also instructed that argued in the provision, first pear” doubt that the defend- beyond reasonable provision the second com- trial court that the date on ant had received notice of mind pels legal conclusion that “state of failed and that he which he was important” this offense. The is not they might infer that his failure objections raised to defense government instructed While the court was willful. demonstrate, in vari- attempts to counsel’s purposeful act or fail- that intent meant a ways, failure to ous (as opposed to an inadvertent or ure to act inadvertent, if he maintaining that act), immediately followed that accidental date, August 1 trial notice of the received criminal of- comment that “Some with the rely on Pretrial Ser- not entitled to he was require only general intent. fenses could raise no de- Agency notice and vices so, that a this is and it is shown Where mistake, good inadvertence or fense of act knowingly committed an person has initially questioned The trial court faith. crime, intent the law makes a “legally appellant’s evidence whether doing act.” inferred from [statutory] infer- rebut allowable to they told that Finally jurors ultimately permitted the evi- It ence.” intent from might infer the defendant’s in, fact stated that “the dence to come circumstances, almost im- surrounding being [appellant] aware of thereafter, infer they might mediately of the of- is not an element appearance the natural ordinarily intends that a of the word ‘will- and that the “use fense” knowing- of acts consequence probable It confuses the issue.” ful’ the statute] [in knowingly omitted. ly done or instruction that a found coun- inappropriate” grant and stat- defense “highly The court refused would be ed, this is a order clearly “I find that instruction proffered sel’s intent crime.” must find that jurors convict obligation of his “aware” argued that its bur- instruction give a defense refused to It also change did not den to show willfulness “special cir- produced defendant that if the permitted the defend- the court even after failure to explained the cumstances of inadvertence introduce evidence ant to being willful intention appear [as to continue it was entitled or mistake: that requirement defendant], the statutory inference rely entirely on the appear is not willfully failed to following notice which, counsel instruction satisfied” —an willfulness, “prima facie evidence” apprise jurors argued, would instructed. Con- have the so and to explanation, defendant’s they believed position, sistent with obscured, meaning may rath- inference in effect Its should drop ascertained, out. by simple expedi- er than specific or labeling ent of an offense as a efforts, By panacean these the trial “regulatory general intent crime or a crime sought interpret jury for the the mean- in nature.” lawyers of a statute about which even (and confused; judges) proba- are the most outset, therefore, suggest I At the jury ble result is that it could knew Patton’s 23-1327 as characterization of § infer, through- and could continue to infer creating “regulatory in a crime nature” trial, appellant’s guilt. out showing which very recently, required tells us little. Just II States, Liparota v. United question I see the before us as “whether (1985), 85 L.Ed.2d 434 challenged jury had the instruction[s] Supreme faced a stat- Court was relieving effect of the state of the burden nature,” “regulatory ute that was proof question ... critical fraud, stamp governing food 7 U.S.C. Sandstrom petitioner’s state of mind.” 2024(b) (1982). The Court held Montana, supra, at 99 S.Ct. obliged government was question at 2458. I whether these instruc- possession defendant knew food tions, together, Congress’ taken effect in- stamps unauthorized statute and creating tent criminal sanctions for “will- regulations fail- and that trial court’s ful” failure to give ure to intent instruction was majority question does not in- therefore reversible error. tent —mens rea —is an essential element of 2092. the District of Columbia Moreover whatever the nomenclature appellant’s argu- statute.2 It forecloses that, apply, one chooses to the fact is with- ment the trial court’s instructions considering confusing inadequate by exception, courts refer- out Patton v. United former federal “failure to statute, ence to our decision in appear” States, supra. Patton agree I do not 1984), (repealed which U.S.C. § disposes appellant’s contentions. as an essential also included “willfulness” agree that willfulness within Patton, supra, see element, A.2d at meaning jumping of the bail statute (noting 820 n. 4 that the District of Colum- adequately has never been defined.3 former federal statutes bia and “contain[ ] language”), of willfulness the same sort out, appellant points

As is a “willful” re- uniformly held that the statute have many meanings; its construction is word of quires at the defendant’s dependent the context it is Murdock, law, used. United States v. conviction and disallow violate mistake, 389, 394-95, acci- 381 the failure to 78 L.Ed. challenge rejected constitutional majority will- we a similar 2. The in fact states ‘To establish jury jumping in a bail all that the instruction that the fulness government statute and to an prove in court when must is that the defendant’s “may from notice and failure infer” willfulness Ray- failure to knowing, relying solely on Robinson. In intentional, deliberate, rather persuasion stressed that die burden mond we majority than inadvertent or accidental." may never be element of intent on the critical opinion defendant, no error but we found shifted to the given because it would there in the instruction statutory infer considered the 3. We have never totally ignore the inference. permit implementing in the ence and context which instructions Raymond to con- have occasion We did not it is here raised. In Robinson 322 A.2d argument that the cumula- here sider States, (D.C.1974), v. United instructions was to trial court’s effect of the tive read the essential challenge to we reviewed a broad constitutional of the crime—willful- element appeal. statute raised for the first time the After statute, foreclose the and to ness—out possibility drawing analogy to the an ignore the infer- could recently possession stolen attendant Ray property, plain ence. error. we found no (D.C.1979), A.2d 975 mond v. United 186

dent, good specific See United States applied or in faith. desired a instruction to be Wilson, (9th 118, Cir.1980); Patton, 119 supra, v. to the offense. 631 F.2d 326 Wetzel, 175, States v. 514 177 United F.2d A.2d at 819 n. 2. We do that the case know denied, 423 844, (8th Cir.), cert. 96 U.S. which Patton relied as “support[ive]” 80, (1975); United 46 L.Ed.2d 65 S.Ct. the denied a one which trial court Cohen, 1019, 2, 450 F.2d n. States 1021 proffered when the continuance (5th Cir.1971); United States v. Bour 1022 produce to show would witnesses assa, (10th cert. de Cir.), 411 74 F.2d for by that his absence was caused fear nied, 396 U.S. 90 S.Ct. 24 L.Ed.2d which, proved, fact own even —a (1969). under Pat to a would not amount defense Patton can To the extent therefore contrast, appellant pro ton. By Trice has every holding read as case aris- evidence that his failure to duced statute, ing under the District of Columbia intentional nor deliberate but neither showing specific required, intent is a or defense rather inadvertent accidental—a Patton deserves a closer look court be valid under Patton. If the which would sitting en banc. presup “prima facie evidence” definition by reading This is illustrated best good poses and sufficient its evidence Patton opinion in the abstract and then contradicted, or we can face until rebutted Patton, the context of this case. reasoning of why application see of the word trial court had instructed poses Patton problem.4 this case a If done meant “that the “willful” [act] holding read Patton we therefore as voluntarily consciously and not inad- and compelling convincing no how or a matter vertently accidentally or act is ... [and] justification, defendant’s inten- knowingly, if it is done done may deprived of of the never be the benefit tionally deliberately.” appeal, On inference, posture we are in the willfulness rejected claim the trial court Patton’s rendering the statute unconstitutional. give a improperly refused to “the Due hardly repeating It bears intent, than a intent rather protects accused Process Clause affirmed, relying upon the instruction. We against except upon proof be conviction Act a fact that Bail Reform created every fact nec yond doubt of a reasonable offense, com- regulatory existence at the crime with which essary to constitute law, no mon and thus evil Winship, In re charged.” he is also or criminal intent. We noted 25 L.Ed.2d after notice inference was failure Winskip, a (1970). legislative Under spe- “irreconcilable with the contention presump legitimately create authority may required; ‘evil mind’ is cific intent or an in certain requisite is from defenses inferable tions and affirmative rather produc omission itself.” shift the cases that defendant, see persuasion tion or Patton Significantly does not tell us York, v. New Patterson intro- happens a defendant has what when see (1977); L.Ed.2d casting explanation a or duced rebuttal — -, Ohio, Martin infer- validity doubt on The burden L.Ed.2d know, example, We do not ence. however, government, must remain Patton introduced evidence whether two doubt prove beyond reasonable all; prof- defense counsel it is clear that an “actus each offense: core how he elements position no as to fered definitive defense, which if party’s or 4. Black’s claim Dictionary Law at 1071 defines contradicted, suf- will remain or not rebutted facie evidence as follows: is evidence facie evidence Prima ficient. which, face; good on its such Evidence and sufficient uncontradicted, unexplained or law, as, judgment of judgment in favor to sustain sufficient fact, given or sufficient to establish supports, but which the issue given constituting group or facts chain of by other evidence. contradicted fact, group constitut- or the or chain facts defendant,5 intent; recting finding given in all reus” the lack offenses, rea, liability mens strict some qualifying of clear as to instructions intent. legal (presumption) effect of the inference possibility we cannot discount the litany jury used to a in- describe jury may interpreted have the instructions creating “permissive” struction as a infer- shifting as effectively per the burden of ence, informing jury “may the that it infer” Id. at suasion on the element of intent. appear, intent from notice and to failure 515-19, (as A altogether presump not eliminate at 2454-57.6 does the S.Ct. suggested) government pro- which, conclusive, has the due although tion not has problem. dealing We cess are not here shifting per “the effect of the burden of a inference a statutory natural but question suasion to the defendant” on the one. determination of the nature of a intent, prosecution part of the of relieves of “inference,” (statutory) no less than that of the Winship proof of critical presumption, requires more than a shal- question mind, represents of of state and characterization; low determination “[t]hat Sandstrom v. Mon error. constitutional the a presumption] requires nature of [of tana, supra, 442 U.S. at S.Ct. at to the actually spo- careful attention words Wilbur, Mullaney See also v. 2459. to jury ken the ... for whether a defend- ant has been accorded his constitutional (burden (1975) L.Ed.2d 508 of on in rights depends way the a reasonable culpabil critical tent —“a fact so to criminal juror interpreted could have the instruc- defendant, ity” may be shifted not — Montana, supra, tion.” Sandstrom v. notwithstanding typical fact that “intent (emphasis 442 U.S. at 99 S.Ct. at 2454 ly peculiarly a fact considered within the Sandstrom, added). jurors defendant”); Raymond knowledge of presumes person told that the law supra United at note 396 A.2d ordinary intends the consequences of his (burden persuasion intent, at of as to acts. Id. voluntary at 2454. an ap essential element of Here, jurors only were told not offense, pear may constitutionally not be they could infer that a ordinarily defendant; shifted to the “the intends the and probable natural conse- require cannot to quence omitted, of knowingly acts or done mind”). innocent of state they but could infer from intent My position is explained by best refer- doing and failure to and from the majority opinion Bailey Sandstrom, ence to the an act. Here as there was Alabama, jurors, having the “risk” found (of omission) (1911) L.Ed. 191 from our majority act to be volun-

tary, interpret In Bailey dissenting would as di- instruction chooses a comment.7 act, reus,” majority solely upon 5. An "actus is an essential element relies the trial court’s one crime, every thoughts may because alone "[b]ad line that “You infer instruction not crime; however, cannot must constitute there be an appear, if after con- failed act_ evidence, Thus the common law crimes are de- sidering you find that his all of act, fined in terms act or omission and issue, failure was not I take willful." statutory crimes are unconstitutional unless so turn, majority’s implicit with the conclusion movement, bodily qualify A as defined. an (with that the instructions read as a whole refer- forming liability, act the basis criminal must ence to inferences that be drawn from Scorr, voluntary.” be W.R. & A.W. Jr., act, LaFave doing notice and of an failure R. Perkins § 25 Criminal & Law probable consequences and the natural (1982) ("necessity R. Law Boyce, Criminal therefrom) employ flowing did not the infer- crime”); act for the existence of an Model jury’s ability adversely ence so affect as to 1.13(2). Code Penal weigh dispassionately the evidence. Patton, Despite read its reliance on the ma- quotes Bailey majority from the dissent 7.Our jority recognizing dangers here as these (“prima to define facie evidence rejecting position of the evidence, Thus, such evidence is and as important.” "state of in re- mind is guilt”). out insufficient to make jecting appellant's held contention the instruc- Majority opinion proof, note that did not the burden of 182. We tions shift —“permitted] an ele- assump- defendant’s essential an make state, ment of the offense defined tion which all the evidence considered to- there, here, the state had defined an gether logically establish ... [did] (breach contract) as “prima initial fact overriding pre- with the [and] conflicted] An facie evidence” of intent to defraud. sumption innocence.” argument made the Court Although might there cases which statutory inference sound because supporting the inference is so interpreted requiring could be as not persuasive that any prompting additional contract, to infer fraud from breach jury procured by the instruction simply rather as permitting such an regarded harmless, could be that is not inference, The and was therefore valid. the here. For this is case situation not a Court said: jurisdic which the defendant had left the It is not sufficient to declare that the Dorman, v. tion, see United States 496 duty statute not the the does make it of denied, (4th 438, Cir.), cert. F.2d 440 419 convict, jury to where there is other no 945, 214, 42 U.S. L.Ed.2d 168 evidence but the breach of the contract (1974); gone underground, see Unit or had pay and the failure to the debt. The 548, (8th DePugh, ed v. States 434 F.2d 554 that, point is the such a statute denied, cert. Cir.1970), 978, 401 91 authorizes the jury to convict. It is not 1208, (1971); 28 L.Ed.2d 328 or was S.Ct. enough say jury not may to the alias, v. see Gant apprehended using an sufficient; accept that evidence as alone States, 518, (8th United 506 F.2d 519 Cir. it, for the jury accept they and have denied, 1974), 1005, cert. 420 U.S. 95 S.Ct. express the the warrant of statute 1449, (1975); 43 L.Ed.2d 764 or had failed accept it as a basis for their verdict.... keep the informed of his forward jury the were told effect that [T]he Wetzel, ing address, see United States v. evidence, rule, statutory the under supra, 514 F.2d 177. The sufficient, they and treated it as hence presented no evidence of willfulness other assumption The normal is that such. statutory minimum: fact than the and, will the statute follow signed had a form that included acting in accordance with authori- appearance Appellant date. testified ty confers, accept it mil as sufficient form, and that he lost that relied on what so expressly the statute describes. in agency keep him Pretrial Services [Emphasis added.] formed, previous it nine times as had done 235-37, at 149-50. 219 U.S. at 31 S.Ct. ly, He of his trial date. Risinger, Presumptions, also Ashford & customary did receive when he not Assumptions, Due & Process Criminal agency, from the which had twice notice Overview, A Cases: Theoretical 79 Yale Appel to an been sent erroneous address. 165, (1969). Similarly danger L.J. 199 flee, attempt to was ar lant made no but burden-shifting, employing per- of when circum in his home. Under these rested explained by presumption, may missive stances, government’s case was where the v. of Morissette language paraphrasing the giv negligible, consisting of the bare facts 72 United inference, statutory ing rise to (1952): a de- 96 L.Ed. 288 once lift relatively strong, the case as defense production fendant has met his burden of proof of burden facts, exculpatory permis- to show even by taken is achieved instructions given jury— inference instruction sive regarded harmless. as cannot be as it infer” from notice a whole “may willfulness fact; law, is sufficient to establish the Bailey majority prima facie evidence in defines rebutted, pur- quite terms. remains sufficient for different pose." Prima outweigh evidence facie evidence is sufficient Alabama, Bailey supra, 219 of innocence and v. added). omitted; (citation support a by opposing emphasis not met S.Ct. at 149 as, judgment guilty. "It verdict of is such significant The fact in acquittal the instant case is verdict where the convict, although that the did there is proved only these facts. United an absence what majority as defines Wilson, (9th v. States F.2d intent, evidence to establish despite the Cir.1980); James, United States v. fact that an essential element of (D.Md.1977); F.Supp. United the offense bailjumping. only logi- The Reed, (W.D. 18, 19-20 F.Supp. States explanation cal jury, told that Mo.1973); Moss, see also United States statutory the evidence under the inference U.S.App.D.C. 438 F.2d convict, was sufficient thus treated it inference cre it conclusive. If found guilty Trice because by Congress ated thus insures it Trice engaged disbelieved then it has in government consisting case do, i.e., what it could not placed the burden get to appear jury. failure will of showing did Once case has survived a motion for have the intent for conviction judgment of acquittal, and the defendant under the statute. gone has pro forward with his question remains proper willfulness, duction to show lack of notice, role on these facts of the no serves useful to instruct which the statute deems that it infer willfulness from the evidence of intent. I the view definition of alone; government’s indeed, case as out prima a facie case created the as statute above, lined such an instruction can a restriction on the trial court’s discretion: govern have lessening the effect of the since and appear failure to are proof ment’s burden of burden that —a sufficient, deemed of virtue the infer- government through should remain on the ence, prima case, to create a facie the court trial, out preju under Winship —and may not acquittal direct verdict of at dicing the defense. would therefore hold close of the case once notice opponent statutory once the appear and failure to are demonstrated. inference, appellant, went forward with his definition of a facie production introducing of evi — case legislative thus be seen aas justified jury dence that would have find of a circumvention series of federal deci- ing in his favor—the inference should have interpreting sions the former fail- federal dropped out of the and issue of statute, to appear ure 18 TJ.S.C. 3150 intent should then have been submitted to 1984).8 (repealed Several courts had held jury without reference to the infer notice and failure to alone were Preliminary Thayer, A ence. J. insufficient to sustain an inference of will- Trea statute, fulness under and that Common Law 336- lower tise on Evidence refusing (1898).9 courts had erred in to direct provided, pertinent part: charge jury, leaving lump 8. That section times to it in "all presumptions," they as the evidence and the if Whoever, having pursuant been released capable being weighed together as one chapter, willfully this any fails before probative mass matter.... [S]ometimes shall, judicial required, court or officer go judges presumption on to declare that the is if ... he was released in connection awith matter, probative in itself so much to be misdemeanor, charge of be fined not more matter, Le., probative weighed against other provided than the for maximum such misde- word, proper is sense of and evidence imprisoned meanor or for not more than one make this notion the basis of a decision. Such year, or both.... grave quite an and harmful to be error too [Fjixing duty going proof 9. forward with overlooked.... It is one of the commonest of alone, appears scope misapprehend ... es- be characteristic and and limita- errors pre- presumption.... ordinary sential rules work of While it tions of the and maxims obvious, then, sumption; that a and to to them a mistaken ... accom- attribute are, seen, rate, plishes, They quality for the moment and as we have the work force. result, evidence, they presup- reasoning merely prima precepts; and and ... neither this it, constitutes, requires pose only expressed nor the rule certain facts. which itself, facts, reasoning. might they be such as either if This The addition other bearing, presump- plain require seem too make the mention it were not have evidential inapplicable. into phraseology for is then turned an the loose courts some- tion All view, my Congress beyond In the fact that has tice—constituted a reason- pushes appellant willfully created an inference that able doubt that acquittal” over “verdict I respectfully trial. dissent. Congress hurdle does not mean that has requirement

eliminated

government prove beyond a reasonable

doubt that the defendant aware of his

obligation deliberately failed to honor Congress’ preservation

it. of “willfulness”

as an element of the offense of essential sign govern- is a POE, Jr., Harvey Appellant, L. point ment is at no relieved of its burden to prove beyond a reasonable doubt aware- obligation ness of and intentional failure to NOBLE, Appellee. Ben Paul comply. is entitled an No. 85-1652. get inference of willfulness order its may rely case to instruc- on an Appeals. District of Court Columbia tion on the inference the defendant fails Argued Dec. 1986. go exculpatory forward evidence. April Decided addition, Raymond, supra, as in had the abso- instructed that it was lutely ignore free to the inference—and in

addition, properly instructed infer- uphold wilfulness—we could

ence instruction. Where the defendant has

gone evidence, exculpatory forward with

however, govern- the burden shifts to the demonstrate,

ment to on all of based

evidence, the failure to in a Especially

willful. case such

one, trial where the court also instructed could infer intent from act,

appellant’s or acts omissions to

burden is not satisfied mere of

notice and failure to On this

record, light evidence on

willfulness, I cannot conclude no- consisting solely of case— evidence, persuasion. party upon ordinary Once question of the two burdens of presupposed rests comes three facts in the rule of whom forward vanishes, rest, evidence, place presumption their take some force, operate, part as a v. with their own natural not be instructed on it. Davis should Altmann, (D.C.1985); probative matter. v. [T]he total mass 492 A.2d Green is, pre- point Dep’t Employment main to observe that the rule Ser District Columbia

sumption vices, (D.C.1985); has vanished. see New 499 A.2d Gamer, 303 170- Ins. Co. v. 337, 339, York (emphasis supra J. add- Life Thayer, 502-03, (1938); 82 L.Ed. 726 ed). Mobile, Turnipseed, J. & RR. v. Or, K.C. jurist, colorfully put by smother rather 42-43, 136, 137-38, (1910); L.Ed. 78 "Presumptions ... looked on as bats 614, 617, French, (15 Otto) law, Lincoln flitting twilight disappear- in the (1881); Wigmore, Evidence L.Ed. 1189 J. in the sunshine actual facts.” Mockowik (Chadbourn 1981). Railroad, rev. It would at 305-06 196 Mo. 94 S.W. 256 if, light presumption of (Lamm, (1906) J.). anomalous cases, presumption in innocence criminal civil The clear rule in cases is absent on a strong policies," a case to create a heavier burden "exceptionally such some and visible party case. in a civil presumptions production, than create burdens of

Case Details

Case Name: Trice v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 27, 1987

Citation: 525 A.2d 176

Docket Number: 84-518

Court Abbreviation: D.C.