Foster v. US, 95-CM-1283.

• Decision Date: 31 July 1997
• Docket Number: No. 95-CM-1283.,95-CM-1283.
• Citation: 699 A.2d 1113
• Parties: Kenneth L. FOSTER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

699 A.2d 1113

Kenneth L. FOSTER, Appellant, v. UNITED STATES, Appellee.

No. 95-CM-1283.

District of Columbia Court of Appeals.

Argued May 20, 1997.

Decided July 31, 1997.

Cynthia Goode, Public Defender Service, with whom James Klein, Public Defender Service, and Samia Fam and Gretchen Franklin, Public Defender Service, were on the brief, for appellant.

Rachel Adelman-Pierson, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN, STEADMAN and REID, Associate Judges.

REID, Associate Judge.

After a bench trial, appellant Kenneth L. Foster was convicted of willfully failing to appear in court, in violation of D.C.Code § 23-1327(a) (1996) (Bail Reform Act ("BRA")).¹ He filed this appeal contending that (1) the trial court erred in applying a negligence standard to determine willfulness under the BRA; and (2) there was insufficient evidence to support his BRA conviction.² We remand the case to the trial court for further consideration in light of this opinion.

FACTUAL SUMMARY

On July 12, 1994, Mr. Foster was given notice to return to court for trial on August 8, 1994, in connection with four pending misdemeanor charges. He not only acknowledged receipt of the notice to return, but conceded that he was fully aware of his obligation to return and the consequences of a failure to do so. However, on August 8, he did not appear in court, and a bench warrant was issued for his arrest. On January 25, 1995, five months after the issuance of the bench warrant, Mr. Foster turned himself in to authorities.

Mr. Foster offered the following explanation for his failure to appear. He stated that, at the time of his BRA violation, he had been employed as a Greyhound bus driver for three years on a pay as you work basis. In addition, he was the sole source of financial support for his wife and six children. He was unable to appear in court on August 8, 1994, because he was "stranded in Montreal in the course of his Greyhound employment." On August 6, he accepted an assignment to drive a tour bus group from New York to Montreal. His employer assured him that he could return to New York on August 7, by driving another tour group from Montreal, leaving there about 11 a.m. The return trip would have enabled him to catch a complimentary bus ride from New York to the District of Columbia ("District") in time to appear in court at 9:00 a.m. on August 8. However, he asserts, due to circumstances beyond his control, the August 7 return trip from Montreal was cancelled, thereby leaving him stranded with no other means to return to New York. He had only $7 in cash because all of his lodging and meals were provided for by Greyhound. On August 8, he called his attorney to advise her of the situation.

Mr. Foster returned to New York late in the evening on August 8, and worked the next day, driving round trip from New York to Baltimore. The following three days, Wednesday through Friday, he did not work, and failed to report to court during those days. Not until January 25, 1995, did he finally report to court on the bench warrant. When asked whether he has ever been "stuck... in a location before," he answered affirmatively. When asked how often he has been stranded, Mr. Foster responded, "It doesn't happen on a daily basis but it has happened before...." He also testified that "he had no intention of trying to evade the court."

Mr. Foster claims he delayed turning himself in to the court because he knew from his experience as a former corrections officer that he would be incarcerated for failing to appear. He feared incarceration would place his job in jeopardy. Thus, he waited for a time when he could arrange a leave of absence from Greyhound before turning himself in. He claimed the earliest he could arrange leave was on January 25, 1995, some five months after the bench warrant was issued.

After his bench trial, the trial court stated, inter alia,

I convict Mr. Foster of the offense of having ... willfully failed to appear in court.

I find ... that the defense has conceded... that the case presented by the Government is sufficient ... because it permits the inference that, that Mr. Foster willfully did not appear as he was directed to do.

Now the defense has conceded generally that, ... Mr. Foster was directed to appear on a date certain. He knew it and... he did not appear. Rather he offers a defense. The defense is along the lines of coercion or duress ... that circumstances were such that it was impossible for him to come back to court.

And there is some force to that argument, but on reflection I'm persuaded that... Mr. Foster put himself in a position where it was not possible for him to get back to court. And it seems to me that the testimony established that fact in an indifferent sort of way or, ... in a fashion that indicates if not a contempt for his obligation to the Court, as I say reckless indifference to it.

He left both the jurisdiction and the country, and when he did that, his testimony was that he knew that from time to time he would get to a destination that could be hundreds of miles away. In this case, Montreal is some 800 miles from Washington and Mr. Foster was not be able to get back.

And it seems to me that it's proper to infer that he recognized that ... accepting this assignment to drive to Montreal was incompatible with his obligation to appear in court on Monday, if for no other reason that he knew he might be marooned there and in fact that's what happened.

The trial court decided not to take Mr. Foster's five month delay in contacting authorities into consideration in ruling on the BRA charge.

ANALYSIS

Mr. Foster argues that (1) the trial court erred in applying a negligence standard to determine willfulness, and (2) the evidence was insufficient to prove he willfully failed to appear in court on August 8, 1994. Because we cannot resolve this matter on the record before us, we remand the case for further consideration in light of this opinion.

This court will reverse a conviction on the basis of insufficient evidence "only if, after viewing the evidence in the light most favorable to the government, it can be said that the decision is clearly erroneous." Cooper v. United States, 680 A.2d 1370, 1371 (D.C.1996). "Only if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, can we reverse for insufficiency of the evidence." Id. (internal quotation omitted) (citing Raymond v. United States, 396 A.2d 975, 978 (D.C.1979)). To convict an individual under the Bail Reform Act, "the trier of fact must find (1) that the defendant was released pending trial or sentencing, (2) that he was required to appear in court on a specified date or at a specified time, (3) that he failed to appear, and (4) that his failure was willful." Trice v. United States, 525 A.2d 176, 179 (D.C.1987); See also D.C.Code § 23-1327(a).

Mr. Foster contends that the government failed to show that his failure to appear was willful. Under the BRA, "Any failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is willful." D.C.Code § 23-1327(b). Mr. Foster claims that his testimony negated any inference of willfulness. The trial court determined that his own conduct created the circumstances of his failure to appear, that "in a negligent or reckless fashion,he left the jurisdiction knowing from his past experience that he might not be able easily to get back in the jurisdiction." Thus, the trial court was "persuaded that appellant placed himself in a position where it was impossible for him to get back to court."

We do not think that a finding of willfulness can rest solely upon Mr. Foster's decision to make the trip to Montreal, as the trial court appeared to conclude. Like any trip, there was a possibility that events would arise which would delay a return, but Mr. Foster's trip was a source of needed income and the testimony does not show that delays were a normal event.³ On the other hand, the evidence actually before the trial court was certainly...