Before KAUFMAN, HAYS and ANDERSON, Circuit Judges.
Advancing a novel theory of the proof required under the federal bail-jumping statute, 18 U.S.C.§ 3146*fn1 , Dennis Richard Hall appeals from a judgment of conviction entered after a jury found him guilty of that offense. The one-count indictment, framed in terms of the statutory language, alleged that Hall, on July 11, 1963, forfeited bail of $15,000 posted in connection with a felony charge and, thereafter, willfully and knowingly failed to surrender himself within thirty days following the date of forfeiture.Appellant was sentenced to five years' imprisonment*fn2 We affirm, finding (a) no error in the charge or supplemental instructions, (b) more than sufficient evidence to convince the jury beyond a reasonable doubt that the failure to surrender was knowing and willful, and (c) no prejudicial error, under the circumstances, in requiring appellant's counsel to testify briefly as a witness for the prosecution.
As is so often the case when willfulness is the critical element in a criminal trial, the basic evidentiary facts are uncontroverted and the dispute focuses on the reasonable inferences they support. Hall was indicted, on May 28, 1962, for transporting and conspiring to transport stolen securities in interstate commerce, 18 U.S.C. §§ 2314, 371. He signed and executed the $15,000 bail bond to assure his appearance in connection with those charges. In the thirteen-month period between the filing of the indictment and July 1963, the case appeared on the calendar of the United States District Court for the Southern District of New York from fifteen to twenty times, with Hall present or his absence excused on each occasion.
At the trial, Jerome J. Londin, Hall's assigned attorney in both the stolen securities and bail-jumping cases was called to testify that on June 27, 1963, he was informed by the Assistant United States Attorney in charge of the stolen securities prosecution that thereafter Hall would have to be in court every day that his case was on the calendar. Mr. Londin promptly relayed these instructions to Hall the very same day. The appellant thereafter appeared in court on June 27, June 28, and July 1, and on each occasion the prosecution was granted an adjournment. But, subsequently, Hall's attorney did not see his client so that he could specifically inform him that the Government required his presence again in court on July 8. Hall did not appear on that date or July 9, and on July 11, 1963, his bail was declared forfeited. All efforts by Mr. Londin and the bail bondsman to locate Hall proved unavailing.
The record further indicates that on October 16, 1963, an agent of the Federal Bureau of Investigation found and arrested Hall in Hawaii, where he was using the alias Clarence Young. Hall admitted his identity to the agent and, in a hearing before the United States Commissioner in Honolulu, also admitted that he was the person wanted in connection with the stolen securities charges. It appears, moreover, the agent learned that Hall had come to Hawaii with his wife and three children and that he had previously been to the islands in July 1963 using the name Lawrence Philips.
Two men who shared a Honolulu jail cell with appellant in the fall of 1963 also testified. One stated that Hall told him he was in trouble because of dealings with an elderly lady in New York who was in her 80's and that if she died, he would no longer have to fear criminal conviction. Hall also asked this witness "how long * * * it would take for a boat to * * * go to Vera Cruz, Mexico," and "how many miles out was the territorial limits for the Coast Guard." Appellant told his other cellmate that he had "jumped bail" and did not mind if he remained in jail for a year because by that time there would be no case against him if the old lady died.
On the basis of this evidence, the trial judge, after denying Hall's motions to dismiss at the conclusion of both the Government's proof and the entire case, submitted the case to the jury. When the jury returned a verdict of guilty, the court denied defense motions for a judgment of acquittal or, in the alternative, a new trial, and this appeal followed.
Hall contends that the trial judge erred in submitting the case to the jury on the concept that his failure to be present in court on all the days required was itself sufficient to violate the bail-jumping statute. He directs our attention to portions of the charge and the judge's answers to specific inquiries where, as appellant reads them, the jurors were repeatedly instructed to convict if they found that he had deliberately failed to appear in court when his presence was required. On the contrary, however, having examined the charge and supplemental answers in their entire context, we find no basis for his reading or validity to the claim of reversible error. The trial judge clearly stated the ultimate, controlling question: whether Hall willfully failed to surrender within thirty days of the forfeiture or failed to appear for some reason devoid of criminal willfulness.
Thus, the basic charge, in addition to quoting fully from both statute and indictment, accurately listed the elements of the bail-jumping offense. No problems were presented by the first three elements: that Hall was charged with a crime, was admitted to bail on that charge, and incurred a forfeiture of that bail. As to the fourth element - willful failure to surrender within thirty days - "the dispute," accurately pinpointed by the instructions, "is whether his failure was willful, whether he did it deliberately. Did he know what he was doing or was it for some innocent reason?" In explaining the issue of willfulness and knowledge, the court posed a series of relevant questions: "Did he know he had to appear in this court? Did he willfully flee the jurisdiction to avoid trial here? Did he deliberately jump bail?" The jury's attention was quite properly directed to, though by no means solely focused on, Hall's knowledge of whether he had to appear in court on July 8, for the extent of his awareness of that obligation would be an element probative of willfulness. And, it is significant that appellant's competent and experienced trial counsel made no objection at the conclusion of the charge to the court's catalogue of the elements of the offense.
After deliberating for about an hour, the jury asked, "When the trial was adjourned on July 1 was the announcement made in open court in the presence of the defendant that the trial was to resume on July 8?" The judge, most likely believing the jurors were asking him to give his own recollection of the evidence, responded that it was for them to recollect the evidence and if they desired any testimony reread this would be done. But, he went on to indicate that "the question isn't whether he was here for trial, the question is whether he was here when he was required to be here," and thus any possible misapprehension that the defendant was required to appear at an actual trial was clarified. Since there was no further inquiry on this score, and we must view the evidence in a light most favorable to the Government, United States v. Robbins, 340 F.2d 684 (2 Cir. 1965); United States v. Tutino, 269 F.2d 488 (2 Cir. 1959), it seems reasonable to assume that the jury was satisfied with the testimony that Hall had been told by his assigned attorney, Mr. Londin, to appear for all calendar calls. The inquiry, indeed, showed an understanding of one of the important factors to be considered in determining whether Hall's actions were willful.
Some two hours later the jury returned with a further question: "The Court in its charge indicated 'Did he ignorance of the law constitute an innocent reason?" Responding to this indication that the jurors were experiencing the not uncommon layman's difficulty with the meaning of willfulness, the trial judge first recited that part of the statute specifying that the conduct punishable is the willful failure to surrender within thirty days after incurring a forfeiture. He then explained,
Now, the reason the word willful is in there is so that no one will be convicted of a crime because of a mistake or because he does something ...