MEMORANDUM OPINION* BY v. Record No. 0517-22-4 JUDGE LISA M. LORISH JUNE 27, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Charles S. Sharp, Judge Designate

Sean A. Sherlock (King, Campbell, Poretz & Mitchell, PLLC, on brief), for appellant.

Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Man K. Nguyen posted bond as a surety bail bondsman for the release of Ibrahim Elkahlil

Bouaichi who was being held on several charges in the Circuit Court of the City of Alexandria

committed against K.D.G. In doing so, he signed a recognizance agreeing he would “obey all of the terms and conditions” on the recognizance form. One such term was that Bouaichi was to remain at his parents’ home. During the next couple of months, Nguyen repeatedly invited

Bouaichi to leave his parents’ home to come to work with Nguyen and hang out as friends.

Nguyen eventually invited Bouaichi to stay at Nguyen’s home while Nguyen was on vacation.

While Nguyen was out of town, Bouaichi stole his gun and car and murdered K.D.G. The Commonwealth sought a capias from the circuit court for Nguyen for contempt of court for violating the recognizance. The court issued the capias, then tried and convicted Nguyen of criminal contempt.

* This opinion is not designated for publication. See Code § 17.1-413.

Nguyen argues on appeal that the trial court erred in finding sufficient evidence to

convict him of contempt, finding his request to proceed pro se at trial was voluntary, knowing, and intelligent, and not appointing substitute counsel. We affirm Nguyen’s conviction.

BACKGROUND1

Factual Background

Bouaichi was charged with rape, strangulation, abduction, burglary, forcible sodomy, and malicious wounding allegedly committed against K.D.G. In April 2020, Nguyen, a licensed bail

bondsman for Freedom Bail Bonds, posted bond for Bouaichi’s release. The Circuit Court of the City of Alexandria’s bond order required Bouaichi to “remain in the home of his parents . . . except to 1) meet with his counsel or 2) to meet with pretrial services,” and to have no contact with K.D.G. The recognizance listed the same conditions.

Nguyen was not present for the bond hearing but signed the recognizance as a surety.

The recognizance required that “each person who sign[ed] [the] bond agree[ed] to the bond terms and any attached applicable terms” and “each person who sign[ed] the form agree[ed] to obey all

of the terms and conditions on both sides of [the] form.” The magistrate also signed the recognizance, indicating that he had “explained the conditions and warnings contained in [the order]” and “each person signing as surety swore or affirmed to fulfill the recognizance and . . . the bond.”

At the time Nguyen posted bond for Bouaichi, the two men had been friends for more than ten years. After Bouaichi was released on bond, Nguyen did not hear from him for several weeks until Bouaichi reached out asking to meet Nguyen’s son in mid-June. Nguyen and Bouaichi began occasionally meeting at a local park. Nguyen started bringing Bouaichi to work with him at a mall and allowing Bouaichi to ride along with him when he conducted bondsman duties. They sometimes went out for dinner together. Nguyen soon learned that Bouaichi’s parents had barred him from their home after an incident between Bouaichi and his father, after which Bouaichi began living in a tent in the woods. Nguyen started picking up Bouaichi from the tent to go to work and dropping him back off at the end of the day.

Nguyen had a vacation planned for a weekend in late July 2020. He asked Bouaichi to stay in his home to watch his dogs and wash his father’s car while he was away. He offered use of his car to Bouaichi for the weekend so Bouaichi could get to work and get food. Before leaving town, Nguyen removed his duffel bag with his pistol from his car and hid it in his bedroom closet under towels so Bouaichi would not find them. He also told Bouaichi, “Don’t fuck this up.”

That weekend, Bouaichi took Nguyen’s car and pistol and drove to Maryland, where he murdered K.D.G. Bouaichi killed himself a week later. Nguyen had been in touch with

Bouaichi the first day of his trip but became worried after he stopped hearing from Bouaichi and confirmed that Bouaichi’s family also had not heard from him. When Nguyen returned home two days later, he realized his car and pistol were missing. He called the police and warned them

Bouaichi might do something to K.D.G. A detective told Nguyen that Bouaichi had already killed K.D.G.

Criminal Contempt Trial

The Commonwealth moved the Circuit Court of the City of Alexandria to issue a capias against Nguyen for criminal contempt of court for his “knowing and willful violation of several of the provisions contained in the [bond] order and recognizance.” The court issued the capias and requested that a judge from another jurisdiction be designated for the case. Judge Sharp was designated and presided over Nguyen’s bench trial in January 2022.

At the close of the Commonwealth’s case-in-chief, Nguyen moved to strike the Commonwealth’s evidence, arguing that nothing in the bond order, recognizance, or Virginia

law obligated Nguyen to ensure Bouaichi’s compliance with Bouaichi’s bond conditions. The court denied the motion, finding that “the signature of the defendant on these documents does

make him personally liable for if not the enforcement, at least the monitoring of the conditions of bond as are set out by the court.” The court explained:

[A] bondsman’s responsibilities do not rest solely on making sure that the charge appears at court on time, but also makes sure that all the items indicated in the bond instruments are complied with. That much is clear from the specificity with which they’re spelled out in the bond documents. It’s also clear in the pre-printed form, which clearly obligates the signatories to follow all the rules imposed by the court.

The court concluded that it “could find that there were violations, that they were willful, and they were contemptuous,” noting “the defendant was personally involved at many stages of those deviations where other actions could have been taken.”

Nguyen then presented evidence in defense. Nguyen’s retained counsel, Jonathan

Moseley, called and questioned one witness. Moseley was questioning a second witness—David

Gambale, owner of Freedom Bail Bonds and Nguyen’s employer—when he asked the court for a brief recess. Moseley then informed the court that Nguyen wished to “take over at this point.”

The court informed Nguyen of the magnitude of the decision to represent oneself and explained that the court would need to make a few findings before allowing Nguyen to exercise his right to self-representation.

As part of this colloquy, the court asked Nguyen if he “underst[ood] that once [he] ma[de] this decision, [he] [could not] change course, and then decide [he] want[ed] to return to counsel.” Nguyen responded that he understood and that he wanted to represent himself because

Moseley had been unresponsive leading up to trial and “wasn’t prepared” and he now realized during trial that Moseley was “incompetent.” Nguyen said, “I feel like I could do a better job representing myself. Or . . . if you give me an opportunity to get a public defender, that’d be great too.” When the court asked him to clarify, Nguyen said he “would rather have a public defender if that’s possible.” The court replied that it would be “too late in the game for [it] to appoint a public defender.” Nguyen responded, “I can represent myself, sir, I can do it.” He

testified that he felt “very competent” to represent himself. He also said he planned to testify in his own defense. The court twice confirmed that Nguyen understood he was not required to testify in his own defense. The court then found that Nguyen was “making [his] decision competently” and ruled Nguyen could represent himself, with Moseley at his side for Nguyen to consult if needed. Nguyen responded to the ruling, “Perfect, thank you sir, appreciate it.”

Nguyen proceeded with questioning Gambale, who testified that bondsmen are generally not obligated to enforce conditions of bond. Nguyen then testified in his own defense that

because he was not in the courtroom for the bond hearing, he “wasn’t aware of the conditions of the bond.” He admitted he signed the recognizance without reading the conditions or paying much attention to the magistrate because, in his several years as a bondsman, he had never had to enforce bond conditions. Nguyen renewed his objections from his motion to strike in his closing argument.

The court convicted Nguyen of contempt of court, in violation of Code § 18.2-456(A)(5).

The court found that “the bondsman is required not only by law, but by the terms of the bonding instrument not only to assure the appearance of the defendant, but also to assure compliance with all the other issues on the bond document.” The court rejected Nguyen’s argument that he was unaware of the bond conditions and recognizance terms, because he had signed the recognizance, the magistrate signed indicating that all signatories had been advised of the terms of the recognizance, and Nguyen told Bouaichi to “not fuck this up.” The court explained that it had never seen such a relationship between bondsman and principal, and distinguished this case from a case in which the bondsman “came upon information that somebody was doing something bad[,] [o]r somebody wasn’t living where they were supposed to be, and failed to report it.”

Instead, the court found Nguyen affirmatively “allow[ed] [Bouaichi] on a daily basis to be in violation” of his bond conditions in a “whole series of events that was being ratified by

[Nguyen],” which the court characterized as a “willful violation.”

The court continued the case for sentencing to give Nguyen time to obtain counsel, then found Nguyen was indigent and appointed counsel. After a sentencing hearing, the court sentenced Nguyen to 12 months’ imprisonment, with 11 months suspended, and a $1,000 fine.

Nguyen appeals his conviction.

ANALYSIS

I. Criminal Contempt

Nguyen argues that the evidence was insufficient to convict him of contempt of court for violating the terms of the bond order and recognizance because the instruments did not require him to ensure that Bouaichi complied with all the terms and conditions of his bail. While we agree that Nguyen was not required to enforce the bond conditions or ensure Bouaichi’s compliance, we disagree that the court lacked sufficient evidence to convict Nguyen for contempt.

A. Standard of Review

“Where the court’s authority to punish for contempt is exercised by a judgment rendered, its finding is presumed correct and will not be reversed unless plainly wrong or without evidence to support it.” Abdo v. Commonwealth, 64 Va. App. 468, 474-75 (2015) (quoting Brown v.

Commonwealth, 26 Va. App. 758, 762 (1998)). When reviewing the sufficiency of the evidence, this Court “does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020)

(quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Instead, we ask only ‘whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Secret, 296 Va. at 228). To the extent that a defendant’s

sufficiency challenge “requires the Court to determine the meaning of a statute and its terms, [we] review[] that issue de novo.” Brewer v. Commonwealth, 71 Va. App. 585, 591 (2020).

B. A court’s inherent contempt authority is broader than the contempt power delineated in Code § 18.2-456.

“It has long been recognized and established that a court is invested with power to punish for contempt, both by the inherent nature and constitution of the court and by [statute].”

Higginbotham v. Commonwealth, 206 Va. 291, 294 (1965); see also Wells v. Commonwealth, 62

Va. (21 Gratt.) 500, 503 (1871) (“The power to fine and imprison for contempt is incident to every court of record.”). Nguyen was convicted under Code § 18.2-456(A)(5), which authorizes courts to summarily punish for contempt of court “an officer of the court, juror, witness, or other

person” who “disobe[ys]” or “resist[s]” “any lawful process, judgment, decree, or order of the court.” More broadly, this statute sets out the acts for which a court can punish summarily for contempt, without a full hearing or other due process protections. Code § 18.2-456.

But Virginia courts have long held that “these statutes do not limit the court’s power

where it exercises its inherent common law power to punish for indirect contempt.”2 Robinson v. Commonwealth, 41 Va. App. 137, 146 (2003); Carter v. Commonwealth, 96 Va. 791, 808 (1899)

(explaining that contempt statutes are “declaratory of the powers existent in the court established

“Indirect contempts” are contempts “committed not in the presence of the court,” like by the constitution” and can “reasonabl[y] regulat[e]” courts’ contempt powers, but cannot “be construed as a negation of the power of the court to punish a contempt”). In other words, a trial court retains common law authority to punish acts beyond those delineated in the statute, so long as it affords the accused full plenary proceedings. See Robinson, 41 Va. App. at 146. While

Nguyen received such process (obtaining counsel, preparing a defense, and having a full bench

trial), we nevertheless find the parties proceeded under Code § 18.2-456(A)(5), and so the language of that statute applies here to limit the court’s authority. Nguyen was charged with a violation of Code § 18.2-456(A)(5), convicted with reference to the statute (without objection by

either party), and both parties continue to argue on appeal that Nguyen must have acted in “disobedience or resistance . . . to any lawful process, judgment, decree, or order of the court.”

Therefore, we review the contempt finding under Code § 18.2-456(A)(5).

C. When a defendant is admitted to bail, the bail order and recognizance together constitute a “lawful process” of the court.

A court’s authority to admit defendants to bail, set bond conditions, and issue recognizances is governed by statute. See Code §§ 19.2-119 through -152.7. Code

§ 19.2-120(A) requires judicial officers to admit defendants to bail “unless there is probable cause to believe that: 1. [the defendant] will not appear for trial or hearing or at such other time and place as may be directed, or 2. [the defendant’s] liberty will constitute an unreasonable danger to himself, family or household members . . . or the public.” In doing so, the court may

“fix[] terms of bond or recognizance.” Code § 19.2-120(C). “Recognizance” is defined as a

“signed commitment by a person to appear in court as directed and to adhere to any other terms ordered by an appropriate judicial officer as a condition of bail.” Code § 19.2-119. “Bond” is

defined as the “posting by a person or his surety of a written promise to pay a specific sum, secured or unsecured, ordered by an appropriate judicial officer as a condition of bail to assure performance of the terms and conditions contained in the recognizance.” Id. The surety is often a surety bail bondsman, defined by statute as:

a person licensed pursuant to [the code section and the State Corporation Commission] as a property and casualty insurance agent, who sells, solicits, or negotiates surety insurance . . . pursuant to which the insurer becomes surety on or guarantees a bond, as defined in § 19.2-119, that has been posted to assure performance of terms and conditions specified by order of an appropriate judicial officer as a condition of bail.

Code § 9.1-185. The statutory scheme also makes clear that “[n]othing in [Title 19.2, Chapter 9] shall interfere with or prevent the exercise by any court of the Commonwealth of its power to punish for contempt, except that a person shall not be sentenced for contempt and [willful failure to appear] for the same absence.” Code § 19.2-129.

In sum, a court may order a defendant’s release on bail conditioned on the posting of a bond as well as other terms, and the recognizance memorializes those conditions and provides notice and an enforcement mechanism for revoking bail if terms are violated. So a recognizance

is part of the court’s bail “process,”3 and so long as that process is “lawful,” disobedience of or resistance to the obligations of the recognizance can support a contempt conviction under the language of Code § 18.2-456(A)(5). See Brown v. Commonwealth, 144 Va. 676, 678-79, 683

(1926) (affirming contempt conviction for defendant’s “disobedience of the [court’s] lawful process” for failing to comply with a recognizance’s terms); see also Epps v. Commonwealth, 47

Va. App. 687, 716 (2006) (en banc) (affirming defendant’s conviction for “disobedience of lawful process or order” for removing an order the judge had posted on the courthouse door), aff’d, 273 Va. 410 (2007).

D. Out-of-court conduct cannot be the basis for contempt without notice that the conduct was prohibited, and Nguyen had sufficient notice of the recognizance’s terms here.

A person cannot be held in contempt for out-of-court conduct without notice that such

conduct violated some obligation to the court. See, e.g., Zedan v. Westheim, 60 Va. App. 556, 574 (2012) (“In order to hold a litigant in contempt for violation of a court order, the litigant must have knowledge of the terms of the order.”). And that obligation “must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied.” Epps, 47 Va. App. at 716 (quoting Michaels v. Commonwealth, 32 Va. App. 601, 609

(2000)).

The recognizance Nguyen signed stated: “The terms and conditions of the recognizance are incorporated by reference, and each person who signs the form agrees to obey all of the terms and conditions on both sides of this form.” (Emphasis added). One such term on the other side

of the form was: “Defendant shall remain in the home of his parents at 7101 Megan Lane, Greenbelt, MD” except to meet with his attorney or pretrial services.

The trial court found Nguyen had notice of the recognizance’s terms, rejecting his argument that he was unaware of the requirement that Bouaichi remain at his parents’ home except to meet with counsel or pretrial services. Nguyen signed the recognizance as a surety bail

bondsman. See, e.g., First Nat. Exch. Bank of Va. v. Johnson, 233 Va. 254, 259 (1987) (“In the absence of fraud, duress, or mutual mistake, as here, an individual having the capacity to understand a written document who signs it . . . without reading it, is bound by the signature.”).

A magistrate signed the recognizance, attesting, “After I explained the conditions and warnings

contained in this document . . . each person signing as surety swore or affirmed to fulfill the recognizance and, if any, the bond.” The court also found that Nguyen’s warning to Bouaichi - 10 - not to “fuck this up” before leaving town on vacation showed Nguyen knew that he had created a situation that violated the requirement of the recognizance and bond order. See McGowan, 72

Va. App. at 516 (requiring this Court to regard as true “all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence”). The trial court did not err in finding that Nguyen had notice of the recognizance’s terms.

E. While a bail bondsman has no general duty to report bond violations to the court, or to enforce the court’s bond conditions, Nguyen failed to obey the terms of the recognizance by taking active steps to help Bouaichi live elsewhere.

Having found that Nguyen had notice of the recognizance’s terms, we now consider

whether Nguyen “disobey[ed] or resist[ed]” the court’s condition that Bouaichi “remain in the home of his parents . . . except to meet with his attorney or pretrial services.” While we agree

with the circuit court that Nguyen’s actions qualified as contempt under Code § 18.2-456(A)(5), we disagree that a bail bondsman is “personally liable for . . . the monitoring of the conditions of bond” and “[en]sur[ing] that all the items indicated in the bond instrument are complied with.”

When a defendant uses a surety bail bondsman to pay a cash bond, a contract is formed among three parties: the criminal defendant, the bondsman, and the court.^[4] The bondsman pledges the full amount of the financial bond to the court in exchange for the defendant paying the bondsman some percentage of that amount that the bondsman keeps. See Code § 9.1-185.10.

The bondsman promises the court that the defendant will appear as ordered. Code §§ 9.1-185, 19.2-119. If that promise is kept, the court returns the money to the bondsman. If the defendant fails to appear, the court retains the full amount. Code §§ 19.2-128, 19.2-148.

As a result, the bondsman has a strong financial incentive to ensure that a defendant appears as ordered. Code § 19.2-149(A) permits a bondsman to arrest the defendant “at any