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Criminal Perjury by John Giovannelli
Criminal Perjury by John Giovannelli
These opinions are made available as a joint effort by the District of Columbia Court of Appeals and the
District of Columbia Bar.
v.
Before WAGNER, Chief Judge, and TERRY and REID, Associate Judges.
(1996), commonly known as the Bail Reform Act (BRA). In these consolidated
appeals from the two convictions, appellant contends that the trial court erred in
denying his motion to dismiss one of the counts on the ground that the two
agree, and thus we affirm one conviction and reverse the other.
preliminary hearing for July 24 and released him on his own recognizance after
he signed a written notice to return on that date. When appellant did not show
up for the preliminary hearing, the court issued a bench warrant for his arrest.
court on July 24.2 On March 26, 1997, the government reduced the charges by
1
D.C. Code § 22-502 (1996).
2
Because the underlying charge of assault with a dangerous weapon was a
felony, the BRA violation was also chargeable as a felony. See D.C. Code §
3
filing a misdemeanor assault information in the ADW case and dismissing the
separate BRA case in lieu of the felony indictment. At a status hearing on April
4, at which appellant was present, the trial court consolidated the two new
misdemeanor charges (assault and BRA) under Super. Ct. Crim. R. 13. At that
point, therefore, appellant had two misdemeanor charges against him awaiting
trial.3
The court then continued the status hearing until April 30. After signing
a single “Notice to Return to Court” form containing the case numbers of both of
the underlying charges, appellant was released without bond. When he did not
appear on April 30, the court issued a second bench warrant for his arrest. On
23-1327 (a)(1). If a defendant who fails to appear was originally charged with a
misdemeanor, the BRA violation is also a misdemeanor. See id. § 23-1327
(a)(2).
3
Both of these underlying charges were eventually dismissed. The trial
court dismissed the assault charge for want of prosecution shortly before trial. In
addition, after hearing testimony at trial that appellant had made a good faith
effort to inform his attorney and the court that he was in the hospital on July 24,
1996, the government dismissed the underlying BRA charge.
4
appellant separately with failure to appear on April 30 in the assault case and the
original BRA case. After his arrest on the new bench warrant, appellant filed a
motion to dismiss one of the new charges as multiplicitous, arguing that because
he failed to appear for a single hearing, he therefore committed only one BRA
violation and could not be punished twice for it. The court denied the motion,
and the case went to trial without a jury. At the conclusion of the defense case,
the government dismissed the original BRA information (see note 3, supra), and
appellant was convicted of two BRA violations for his failure to appear on April
30. The court suspended the imposition of sentence in each case, and appellant
filed separate notices of appeal from the two convictions. We later consolidated
II
from his failure to appear at a single hearing, violate the Double Jeopardy Clause.
It is well settled that the Double Jeopardy Clause “protects against multiple
punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711,
717 (1969); accord, e.g., Gardner v. United States, 698 A.2d 990, 1002 (D.C.
5
1997). However, the function of the Double Jeopardy Clause in a case such as
this “is limited to assuring that the court does not exceed its legislative
Ohio, 432 U.S. 161, 165 (1977); accord, Byrd v. United States, 598 A.2d 386,
388-389 (D.C. 1991) (en banc). There is therefore no double jeopardy violation
when the legislative intent is to impose more than one punishment for the same
criminal act. Missouri v. Hunter, 459 U.S. 359, 368-369 (1983); Freeman v.
a single statute for a single act,4 our role is to determine what the legislature
U.S. 81, 83 (1955); see Dunham v. District of Columbia, 442 A.2d 121, 124-
125 (D.C. 1982). We must ascertain whether the legislative intent behind D.C.
Code § 23-1327 is to punish the single act of failing to appear for a unitary court
proceeding or the two separate acts of not appearing for trial on each underlying
4
We think it clear that appellant’s failure to appear for trial on the two
underlying charges did not constitute two separate criminal acts. Compare
Owens v. United States, 497 A.2d 1086, 1094-1095 (D.C. 1985), cert. denied,
474 U.S. 1085 (1986); Gardner v. United States, supra, 698 A.2d at 1002.
6
charge. Appellant contends that the prohibited offense is the failure to appear in
court, regardless of how many underlying charges may have been consolidated
with, and convicted of, only one violation of D.C. Code § 23-1327. The
government argues, on the other hand, that the proscribed act is the failure to
appear for trial on each of the underlying charges in a consolidated case. Thus,
the government maintains, because appellant faced two charges when he failed to
appear at the April 30 status hearing, he could properly be charged with, and
In interpreting any statute, we look first to its plain meaning, and “[i]f the
meaning of [the] statute is plain on its face, resort to legislative history or other
Young, 376 A.2d 809, 813 (D.C. 1977); see Burgess v. United States, 681 A.2d
Board of Zoning Adjustment, 642 A.2d 125, 128 (D.C. 1994) (citing cases).
sense and with the meaning commonly attributed to them.” Davis v. United
7
States, 397 A.2d 951, 956 (D.C. 1979). The relevant portion of section 23-1327
reads as follows:
The government, citing the penalty provisions, contends that the statutory
language shows that the unit of prosecution is the individual charge for which the
defendant failed to appear. It argues that because the statute sets the penalty for
a violation according to whether the defendant was released “in connection with
We read the statute differently. As we see it, the essence of the offense
is found in the first clause of the statute specifying the prohibited act, not in the
ensuing penalty provisions. The criminal act which the statute prohibits is
we agree with appellant that the prohibited act, or “unit of prosecution,” is the
willful failure to appear at the time and place specified by the court.5 It follows
that a defendant who fails to appear for a single court proceeding may be
App. 3d 344, 352 N.E.2d 379 (1976), and State v. Richter, 189 Wis. 2d 105,
525 N.W.2d 168 (Wis. Ct. App. 1994), but we find them both distinguishable.
In Albarran the defendant was released on two separate bonds and failed to
5
Because the language of the statute is sufficiently clear, we need not
resort to legislative history to assist in its interpretation, although of course we are
not precluded from doing so. See, e.g., Burgess, 681 A.2d at 1095; Young, 376
A.2d at 813.
9
appear for trial. He was subsequently charged with and convicted of two counts
of bail jumping.6 On appeal he contended that the two convictions arose from
“one course of conduct” and therefore were violative of the Double Jeopardy
Clause. 40 Ill. App. 3d at 347, 382 N.E.2d at 352. The court rejected his
failed to appear on both, and therefore committed two separate acts of bail
bonds and was convicted of three counts of bail jumping after he made a single
phone call in violation of a condition of each of his three bonds.7 The court,
6
The Illinois bail jumping statute provided in part:
7
The applicable statute provided in part:
concluding that the defendant had violated three bond agreements and thus had
committed three separate criminal acts, rejected his contention that the three
purposes, each defendant committed a separate act when he violated the terms
of a particular bail bond. In the present case, however, appellant was not
admitted to bail, but was released on his personal recognizance after he signed a
single notice to appear. More significantly, the statute under which he was
the statutes in Albarran and Richter proscribed violating the terms of a bond
8
In State v. Anderson, 214 Wis. 2d 126, 133, 570 N.W.2d 872, 875 (Wis.
Ct. App. 1997), the Wisconsin Court of Appeals distinguished Richter from the
case before it, in which the defendant was charged with two counts of bail
jumping for the violation of a single bond.
9
In State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997), the court
rejected a double jeopardy challenge when the defendant had violated the terms
of two separate bail bonds by failing to appear for a single sentencing hearing.
As in Albarran and Richter, the court interpreted the applicable statute, which
prohibited “willfully fail[ing] to appear when legally called according to the terms
of his bail bond or promise to appear,” to define the offense as the breach of
each individual bond. Id. at —, 699 A.2d at 925-926.
11
The present case is more like McGee v. State, 438 So. 2d 127 (Fla. Dist.
Ct. App. 1983). Although the defendant in McGee was also released on bail,
there was a single bond for multiple charges, and the applicable statute, virtually
identical to D.C. Code § 23-1327, proscribed the failure to appear in court rather
FLA. STAT. § 843.15 (1981). The court interpreted the statute as stating that “the
gravamen of the offense is the failure to appear at the time and place specified,
not how many offenses or cases are pending and scheduled for disposition on
On the other hand, in Bristow v. State, 905 P.2d 815 (Okla. Crim. App.
1995), a case also involving multiple bail bonds, the court concluded that the unit
of prosecution under the statute was the failure to appear because “the two cases
were being docketed and treated as one for the purpose of court appearances.”
Id. at 817; see also People v. Hanna, 48 Ill. App. 3d 6, 10, 362 N.E.2d 424,
428 (1977), cert. denied, 435 U.S. 997 (1978).
12
that particular occasion.” 438 So. 2d at 131. Because the defendant failed to
appear in court on one occasion, the court concluded that he “committed only
one statutory offense, and the multiplication of [his] failure to appear on a single
occasion into seven separate offenses and sentences violated [his] constitutional
single notice to appear and fails to appear for a single hearing may be convicted
of only one count of failure to appear. It is uncontested that appellant signed one
“Notice to Return to Court,” was released once, and failed to appear at one
hearing. He may therefore be convicted of only one violation of the Bail Reform
Act.