For the reasons given above, I find that at the sentencing hearing on September 25, 1987, the judge released Williard on his own recognizance pursuant to the Bail Reform Act, 18 U.S.C. § 3143(a), pending execution of sentence.
The second element of the offense of bail jumping is that the defendant failed to surrender for service of his sentence. Williard has not contested that he failed to self surrender at Allenwood Federal Prison Camp or at any other location on October 9, 1987, or at any other time.
For the reason given above, I find that Williard failed to report for service of his sentence. Therefore, the second element of the offense charged is proved.
Knowledge is the third essential element of a violation of 18 U.S.C. § 3146.
In order for defendant Williard to be guilty of the offense of bail jumping under the statute, he must have knowingly failed to surrender for service of his sentence. 18 U.S.C. § 3146(a)(2). This means that the defendant's decision not to appear must be made voluntarily and intentionally and not because of accident or mistake. See Screws v. United States, 325 U.S. 91, 101-102, 65 S. Ct. 1031, 1035, 89 L. Ed. 1495 (1945). Although it is a close question in this case, I find that defendant Williard acted knowingly in failing to surrender himself on October 9, 1987, as ordered by the sentencing judge.
The fact that a defendant was present when ordered by the court to appear on a specific date and that he subsequently failed to appear or keep his attorney or the authorities advised of his whereabouts can be considered in determining whether his failure to appear was knowing. Cf. United States v. Ott, 741 F.2d 226, 229 (8th Cir. 1984) (nonappearance and notice to appear can be considered in determining whether failure to appear was willful under former § 3150); Gant v. United States, 506 F.2d 518, 521 (8th Cir. 1974), cert. denied, 420 U.S. 1005, 43 L. Ed. 2d 764, 95 S. Ct. 1449 (1975) (failure to apprise lawyer or authorities of location can be considered in determining whether failure to appear was willful under former § 3150).
In this case, the sentencing judge told Williard that he was to report to the place of incarceration on Oct. 9, 1987.
Williard is fluent in English, a college graduate, and an experienced businessman. Therefore, it is fair to conclude that he understood the court's directive.
It is true that at sentencing Williard was not instructed to surrender at a specific institution because at that time the place of incarceration had not yet been determined. After it was determined, the authorities were unable to notify Williard personally of the location because he could not be reached at the numbers that he had provided the Marshal's Office for that purpose. Actual knowledge of the place of surrender, however, is not required for conviction under the Bail Reform Act for knowing failure to surrender. A course of conduct designed to avoid knowledge is sufficient. See United States v. Joyce, 542 F.2d 158, 161 (2nd Cir. 1976), cert. denied, 429 U.S. 1100, 97 S. Ct. 1122, 51 L. Ed. 2d 548 (1977) (knowledge can be inferred from conscious avoidance). Cf. United States v. Bright, 541 F.2d 471, 476 (8th Cir. 1976), cert. denied, 430 U.S. 935, 51 L. Ed. 2d 780, 97 S. Ct. 1560 (1977) (defendant guilty of willful failure to appear under former § 3150 when he purposefully engaged in course of conduct designed to prevent receipt of notice to appear).
The court finds that Williard engaged in such purposefully evasive conduct designed to prevent receipt of notice to appear. Although he had designated two phone numbers at which he could be reached, the Marshal's Office could not locate him at either of these numbers on October 7, 1987, two days before he was to self surrender. There was no answer at defendant's home number. The second number was that of Mrs. Williard's place of employment and when called, Mrs. Williard stated that the defendant was not there. An assistant marshal asked her to tell the defendant that he was to surrender at Allenwood Federal Prison Camp on October 9, 1987 and that the defendant should call him so that he would know that the message had been received. In February, 1988, over four months after the defendant was to begin serving his sentence, two more attempts were made to contact him. On both of these occasions a deputy Marshal spoke to Mrs. Williard and asked her to have the defendant contact him. Notwithstanding such telephone calls, there is no record of any attempt by Williard to contact the Marshal's Office. Williard was eventually apprehended at his home on June 15, 1988, eight months after he was supposed to have surrendered.
For the reasons given above, I find that Williard acted knowingly in failing to report to the Attorney General or his authorized representative on October 9, 1987, at noon for service of his sentence as required by court order.
The defendant, Elwood Williard, stands guilty as charged of violating 18 U.S.C. § 3146(a)(2).