United States v. Arcelious Moss, A/K/A Arcelious Morris , 438 F.2d 147 ( 1970 )

BAZELON, Chief Judge (dissenting):

Whether we are faced with an example of ineffective assistance of counsel is a close question for me in this case, but I would reverse the conviction on a simpler ground. The evidence was not sufficient to prove beyond a reasonable doubt appellant’s wilfulness in failing to appear before the Court of General Sessions, as required by 18 U.S.C. §§ 3146, 3150.

Two versions of appellant’s conduct were presented to the jury. The Government introduced evidence showing that appellant knew of his obligation to appear in court on the day in question, that the case was in fact called, that appellant did not answer, and that appellant approached no officer of the court to inquire about his case. There was conflicting testimony as to whether appellant’s counsel answered the call. A police officer who knew appellant and was present in the courtroom testified that he did not see appellant that day.

Appellant’s version is fairly summarized in the opinion of the court.

I do not see how either version of appellant’s conduct permits the jury to find beyond a reasonable doubt that appellant wilfully failed to appear as required. The court cites Franco v. United States, 119 U.S.App.D.C. 339, 342 F. 2d 918 (1964), for the proposition that the evidence in this ease presents a jury question. The Government’s brief, in addition, cites United States v. Hall, 346 F.2d 875 (2d Cir.), cert. denied, 382 U. S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965), and United States v. Currier, 405 F.2d 1039 (2d Cir.), cert. denied, 395 U.S. 914, 89 S.Ct. 1761, 23 L.Ed.2d 228 (1969). All three cases upheld convictions under 18 U.S.C. § 3146 (1964),¹ the forerunner of the present § 3150.² All three cases persuade me that we must reverse this conviction.

In Franco, appellant had left the District and was living under an assumed name in New Jersey, where he was finally arrested. He admitted knowing about revocation of his bond. The court said:

The jury might well have concluded from [the] testimony and appellant’s evasive behavior from April 30th to June 24th that he was * * * deliberately seeking to avoid a recognized legal obligation.³ [Emphasis added.]

In Hall, appellant’s attorney and the bail bondsman had each tried to find appellant after his bail had been revoked. Appellant was arrested in Hawaii, where he was living under an alias; there was testimony that he had told a third party that he had “jumped bail.” In upholding the charge to the jury the court said the following:

In explaining the issue of willfulness and knowledge, the [trial] court posed a series of relevant questions: “Did he know he had to appear in court? Did he willfully flee the jurisdiction to avoid trial here? Did he deliberately jump bail?”⁴ [Emphasis added.]

In Currier, appellant ignored his attorney’s notice, given the night before he was required to appear in court; his attorney secured a continuance until the following day (unlike the attorney in the case at hand) and notified appellant again, but once again appellant failed to appear. Appellant remained a fugitive for nine months, traveling from Maine to Florida and never staying in one place for more than a few days. He transferred the registration of his station wagon and lived under an alias. He admitted that he deliberately chose not to surrender himself, and that he knew he was being sought by the authorities.

Compare the evidence from which a jury could deduce wilfulness in these three cases with the evidence — on either version of appellant’s conduct — in the case at hand. The Government has essentially done no more than prove appellant’s failure to appear. There is no indication whatsoever that appellant attempted to flee the jurisdiction or to conceal himself from authorities. Appellant testified that after his abortive appearance in court he continued to report twice a week to the police station, as he had been required to do under the terms of his bond. This testimony was not controverted by the Government.

The crime appellant is charged with is not just “failure to appear,” it is “wilful failure to appear.” We cannot permit the jury to infer wilfulness from so meager a record as presented here.

1 . “Whoever, having been admitted to bail for appearance before any United States commissioner or court of the United States, incurs a forfeiture of the hail and willfully fails to surrender himself within thirty days following the date of such failure, shall, if the bail was given in connection with a charge of felony or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both. * * * [Emphasis added.]

2 . “Whoever, having been released pursuant to this chapter, wilfully fails to appear before any court or judicial officer as required, shall * * * incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both. * * * [Emphasis added.]

3 . 119 U.S.App.D.C. at 343, 342 F.2d at 922.

4 . 346 F.2d at 878.