Thursday, April 28, 2016

You managed a store containing thousands of counterfeit CDs and DVDs and disc-burning equipment? Not good facts when issue is knowledge of deceptive labeling.

Allen v. United States (decided April 21, 2016).
Players: Associate Judges Beckwith and Easterly, and Senior Judge Belson. Opinion by Senior Judge Belson. Fletcher Thompson for Mr. Allen. Trial judge: Michael Ryan.  

Facts: Mr. Allen was the manager of a store where police found thousands of counterfeit CDs and DVDs, as well as equipment for burning discs and “spindles” of discs awaiting packaging. He was convicted of two counts of felony deceptive labeling in violation of D.C. Code § 22-3214.01(b).  

Issue: Was there sufficient evidence that Allen knowingly engaged in deceptive labeling?

Holding:  Yes. There was “ample evidence from which the jury could reasonably infer that appellant knowingly offered audio recordings and audiovisual work that did not clearly and conspicuously disclose the true name of the manufacturer,” where the record showed that Mr. Allen had worked as manager at the store for more than two years; that he was responsible for ordering CDs and assisting customers in purchasing them; that he had access to the areas where police found disc-burning equipment and burned discs awaiting packaging; and that he had made “mix tapes from illegally downloaded music.”              

Of Note: The statute’s knowledge requirement applies to both “the act of distributing or possessing for distribution . . . and the actual defects in the labeling.”  MW

Tuesday, April 26, 2016

Counsel Was Ineffective in Failing to Consult with Client About Legal Options After Government Breach of Plea Agreement, But No Prejudice

Ralph L. Clark v. United States (decided April 21, 2016)

Players: Chief Judge Washington, Judge Thompson, and Senior Judge Ferren. Opinion by Judge Ferren. William T. Morrison for Mr. Clark. Trial judge: Ann O. Keary.

Facts: This was an appeal from the denial of a § 23-110 motion based on ineffective assistance of counsel. Mr. Clark’s conviction was previously affirmed on direct appeal. See Clark v. United States, 51 A.3d 1266 (D.C. 2012). Clark pleaded guilty to an armed robbery, and his plea agreement provided that the government agreed not to allocate for a sentence greater than 10 years. Nonetheless, in its sentencing memo, the government recommended 20 years of incarceration. The trial judge caught the error at the sentencing hearing, but went forward with the sentencing, deeming it sufficient for the government to file an amended sentencing memorandum. Defense counsel agreed to this. During allocution, however, the prosecutor argued that a ten-year sentence would be “very generous.” The trial court sentenced Mr. Clark to ten years in prison.

On appeal, Mr. Clark argued that the government had compounded its breach of the plea agreement by arguing that that a ten-year sentence would be “very generous,” and sought remand for resentencing before a different judge. The Court of Appeals found the government’s breach to be “grave and inexcusable,” but because trial counsel did not object to the allocution or to the trial judge’s decision to keep the case for sentencing instead of referring it to another judge, the Court reviewed for plain error and affirmed Mr. Clark’s conviction.

Mr. Clark then filed a §23-110 motion alleging that his plea attorney had provided ineffective assistance by deciding to continue with sentencing without consulting with Clark about the government’s breach of the plea agreement and the available remedies, including assignment to a different judge for sentencing or plea withdrawal. The sentencing judge denied the § 23-110 motion without a hearing.

Issue: Did plea counsel provide constitutionally ineffective assistance warranting reversal by failing to inform Clark about the government’s breach of the plea agreement and failing to explain his legal options in response to that breach?

Holding: No. Counsel was constitutionally deficient in failing to consult with Mr. Clark about his legal options after the government’s breach of the plea agreement, but there was no “reasonable probability that, but for counsel’s failure to advise about plea withdrawal, Clark would have sought to withdraw his plea.”

Of Note:
  • No Shepard bar. The Court noted that Clark filed his § 23-110 motion after the Court of Appeals had announced its decision in his direct appeal (Clark I), but before the Court issued its mandate. It did not recognize any procedural default pursuant to Shepard v. United States, 533 A.2d 1278 (D.C. 1987) (generally requiring ineffective assistance claims to be raised during the pendency of the direct appeal), however, because “[n]either the government nor the court raised a timeliness issue when the motion was filed, nor does the government do so in this appeal.” The opinion does observe that Clark could have “ask[ed] for a stay of the mandate in Clark I so that, if the § 23-110 motion were denied, the appeal from that denial could be consolidated with the direct appeal.”
  • The decision about how to respond to the government’s breach of the plea agreement was “for a counseled client, not the lawyer, to make, no matter how improvident a plea withdrawal would be.” MW

Thursday, April 21, 2016

Where’s my money? If your convictions are reversed, you are entitled to reimbursement of money paid into the Violent Victims Act Fund.

Levin Ruffin v. United States (Decided April 14, 2016).

Players: Judges Glickman and Blackburne-Rigsby, and Senior Judge Farrell. Opinion by Judge Blackburne-Rigsby. Jeffrey Light for Mr. Ruffin. Trial Judge: Michael L. Rankin

Facts: The Court of Appeals previously reversed Mr. Ruffin’s misdemeanor assault on a police officer and felony threats convictions for insufficient evidence. See Ruffin v. United States, 76 A.3d 845, 847-48 (D.C. 2013).  We blogged about that decision here.  Following reversal, Mr. Ruffin moved the trial court to: (1) issue a certificate of innocence so that he could file an unjust imprisonment claim against the District of Columbia; and (2) order the return of $250 he paid into the Violent Victims Act Fund (VVC Fund). The court denied the requests, holding it lacked jurisdiction to issue a certificate of innocence and that it had no authority to order reimbursement from the VVC Fund.

Issue 1: Did the trial court have jurisdiction to issue a certificate of innocence?

Holding 1: Yes, although one was unwarranted in this case. Superior Court judges have authority to issue certificates of innocence under D.C. Code § 2-421. In order to receive a certificate of innocence, the petitioner must prove (1) “that his conviction has been vacated,” and (2) “that, based upon clear and convincing evidence, he did not (a) commit any of the acts charged or (b) his acts or omissions in connection with such charge constituted no offense, and (c) he did not, by his misconduct, bring about his own prosecution.” The Court found that although Mr. Ruffin satisfied the first prong, his “wrongful conduct,” though not sufficient to prove guilt of a crime beyond a reasonable doubt, still precipitated his prosecution. Thus, Mr. Ruffin was ineligible for a certificate of innocence.

Issue 2: Should the trial court have ordered the VVC Fund to reimburse Mr. Ruffin his money?

Holding 2: Yes, “the trial court has not only the power but the duty . . . to correct an illegal sentence or fine by imposing a valid and correct sentence (or as the case may be a valid assessment under the VVC Fund).” DH

Is that a gun in your pocket, or did you just drop your cell phone?

Cian Pridgen v. United States (decided April 7, 2016).

The Players: Associate Judges Blackburne-Rigsby and Thompson. Senior Judge Ferren. Opinion by Judge Thompson. Mindy Daniels for Mr. Pridgen. Trial Judge: Ronna Lee Beck.

Facts: Three police officers patrolling in an unmarked vehicle saw Mr. Pridgen walking toward an apartment building. As he walked in front of their car, one officer leaned out the open window, shined a flashlight at him, and shouted out to him to ask whether he had a gun. Mr. Pridgen did not respond, kept walking, and then began to run. He “kept the palm of his left hand pressed against his jacket on his left side” as he was running, and the officers got out and followed him. As the officers followed him, he dropped a cell phone just inside the apartment building but did not stop to get it. The officers stood outside the apartment building, with the Mr. Pridgen inside, and looked through the glass doors to see Mr. Pridgen with his hand moving in his left pocket, and his body pressed up against the apartment door as if he was trying to get inside the unit. Someone let the officers in the locked door, and they shouted at Mr. Pridgen to get on the ground. When he did not obey their orders, they tackled him and forced him to the ground. When they searched him, they found a gun in his jacket pocket. Mr. Pridgen moved to suppress the gun as the fruit of an unlawful seizure.

Issue: Did the police officers have reasonable articulable suspicion justifying a seizure when they tackled Mr. Pridgen inside the apartment building?

Holding: Yes. The court held that Mr. Pridgen was not “seized” until the moment he was tackled by the officers, and so did not analyze whether officers had reasonable articulable suspicion justifying a seizure at the point when Mr. Pridgen began running and the officers ran after him. However, the court found that by the time the officers tackled Mr. Pridgen, there was reasonable articulable suspicion justifying a seizure because 1) Mr. Pridgen was running while holding his left side, which a “reasonable officer” would recognize as “the way individuals tend to run when carrying a firearm;” 2) Mr. Pridgen did not stop to retrieve the cell phone he dropped, negating the possibility that he was holding his left side to protect some other valuable item that was not a gun; and 3) Mr. Pridgen did not obey the officers’ orders to get on the ground, even though he could see that they were wearing vests that said “Police,” creating a “reasonable basis to believe he was armed and dangerous.”

Accordingly, given the “totality of the circumstances,” the court found that there was a reasonable articulable suspicion that Mr. Pridgen was armed, justifying the seizure and search that the led the officers to discover the gun in Mr. Pridgen’s jacket pocket. 

Of Note: Although the court said it was not analyzing whether there was reasonable articulable suspicion to seize Mr. Pridgen when he began running and the officers chased him, the opinion strongly suggests that the court believed there was not. The court said that the crucial moment was when Mr. Pridgen dropped the cell phone but continued running. Recognizing that a gun is not the only item a person might hold onto while running, the court said: “we are persuaded that the officers’ articulable basis for suspicion that Mr. Pridgen was armed did not ripen into a reasonable suspicion that criminal activity was afoot until the officers saw Mr. Pridgen drop the cell phone, decline to stop and retrieve it even though the door was locked behind him, and continue to hold his side as he ran upstairs to the door of the apartment unit.” The court also suggested that running away from the police could not form a basis for suspicion, saying that “we are mindful that a suspect’s flight at the sight of officers who are targeting him with a flashlight may provide a basis for fear of harm that has nothing to do with whether the suspect is engaged in criminal activity.”  SN

Wednesday, April 20, 2016

Ballistics Unchained: Make the government prove chain of custody before admitting physical evidence.

Michael Wonson v. United States (Decided April 14, 2016)

Players: Judges Blackburne-Rigsby and Easterly, and Senior Judge Reid. Per curiam opinion. Concurrence by Judge Easterly. Deborah Persico for Mr. Wonson. Trial Judge: Thomas J. Motley

Facts: At a murder trial, the government admitted ballistics evidence without proving chain of custody. A crime-scene technician testified to collecting the ballistics evidence and a firearms and toolmark examiner testified about his examination of the evidence, but there was no testimony explaining how the evidence got from the technician to the examiner.

Issue: Was it reversible error for the trial court to admit the ballistics evidence?

Holding: No. There is no need to decide whether it was error at all because if it was error, it was harmless. The Court reasoned that the ballistics evidence was only a “peripheral part” of the government’s case against Mr. Wonson, which included a co-defendant’s inculpatory testimony and two witnesses who corroborated the co-defendant’s story.

Concurrence: Judge Easterly opined that the trial court’s admission of the ballistics evidence was erroneous. Judge Easterly recapped what the government must prove before admitting physical evidence. First, the government must show that “the objects are genuine—i.e., that the proffered evidence is what the government says it is.” Second, the government “must establish the integrity of the evidence—i.e., that the evidence has not changed in material ways.” The government must also establish an unbroken chain of custody by a reasonable probability to gain an “evidentiary presumption that it handled and suitably preserved the evidence.” Absent this showing, the trial court must generally exclude the physical evidence. Judge Easterly rejected the government’s argument that a break in the chain of custody affects only the weight of the evidence and not its admissibility.  DH

Tuesday, April 19, 2016

Silky Gates Did It! Defendant should have been allowed to point the finger at someone else.

Terry Johnson v. United States (Decided April 14, 2016)

Players: Judges Glickman and Thompson, and Senior Judge Farrell. Opinion by Judge Glickman. PDS for Mr. Johnson. Trial Judge: Herbert B. Dixon, Jr..

Facts: A masked man shot and killed Andre Wiggins in broad daylight. Nobody could identify the shooter. The government’s case against Terry Johnson turned on the “pre-existing enmity” between him and Wiggins. Indeed, the government argued Mr. Johnson was the “only” person who had a motive to kill Wiggins. As it turns out, that was not true. The defense proffered two other people’s beef with Wiggins—Silky Gates and Quannine Payne. Wiggins had pistol-whipped and robbed Mr. Gates days before the murder—a fact the government knew about but failed to disclose to the defense until five weeks before trial. And Wiggins robbed Mr. Payne of his motorbike shortly before the murder. The trial court precluded the defense from introducing the third-party perpetrator (aka Winfield) evidence, deeming the proffers “too speculative.”

The defense thereafter asked the trial court to admit the Silky Gates Winfield evidence as a Brady sanction for the government’s belated disclosure of the evidence. The court refused to impose sanctions finding it would be “incongruous” to allow Mr. Johnson to present a Winfield defense for this Brady violation after it had already decided the defense’s proffer was insufficient to present that defense. The court also denied sanctions because Mr. Johnson already knew about Gates’ motive to kill Wiggins independent of the government and thus it was not prejudiced by the belated disclosure.

Issue 1: Was it error for the trial court to exclude the Winfield evidence?

Holding 1: Yes. A defendant has a constitutional right to present Winfield evidence. For it to be admissible, the evidence “need only tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” When a Winfield defense is based on a third party’s motive, the defense must also proffer the person had the “practical opportunity” to commit the crime, meaning the third party had at least “inferential knowledge” of the complainant’s whereabouts. Mr. Johnson’s proffers satisfied the test for admissibility; moreover, the trial court was required to “resolve close questions of admissibility in this setting in favor of inclusion, not exclusion.”

Issue 2: Were the trial court’s reasons for not imposing Brady sanctions erroneous?

Holding 2: Yes. The Court found that the Silky Gates evidence was admissible and material and thus the government was required to disclose the evidence under Brady. That Mr. Johnson learned of Gates from another source “does not get the government off the hook for its tardiness.”

Notes: The trial court also precluded the defense from cross-examining a jailhouse snitch, who was attempting to curry favor from the government based on his testimony in this case, about the lies he had told police during the investigation of his own murder case. The DCCA held that preclusion of this line of cross was error because these past falsifications were relevant and admissible to show testimonial bias because they demonstrated the snitch’s willingness to lie to avoid punishment.  DH

Friday, April 15, 2016

Court Holds Any Object Complainant Reasonably Perceived to Be A Gun Qualifies As A “Dangerous Weapon,” but Casts Some Doubt on Whether Such an Object Should Also Qualify As An “Imitation Firearm”

Warren B. Washington v. United States
 (decided April 7, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Belson. Opinion by Chief Judge Washington. Concurrences by Chief Judge Washington and Judge Fisher. PDS for Mr. Washington. Trial Judge: Stuart G. Nash.

Facts: Mr. Washington was convicted of ADW and PFCV committed “with a firearm or imitation thereof” for an incident in which he brandished an object as if it were a gun, and threatened his ex-girlfriend and her companion as they sat inside a locked car. The object was not recovered, and there was conflicting evidence about whether it was in fact a gun or a cell phone, though at least one of the complainants believed it was a gun. The jury was instructed that to convict for ADW, it must find Mr. Washington “committed the threatening act with a dangerous weapon; that is, a firearm or imitation thereof,” and that “[a]n object is a dangerous weapon if it is designed to be used, actually used, or threatened to be used in a manner likely to produce death or serious bodily injury.” The deliberating jury sent a note inquiring whether “an object that is not a gun (or other truly dangerous weapon)—such as a cell phone—but is brandished in a manner so as to give the impression that it is a dangerous weapon, count[s] as ‘an imitation thereof,’ as set forth” in the ADW instruction. The trial court initially responded by repeating the catchall definition of “dangerous weapon,” but then issued a supplementary instruction defining “imitation firearm” as “any object that resembles an actual firearm closely enough that a person observing it in the circumstances would reasonably believe it to be a firearm.” On appeal, Mr. Washington argued that this answer was erroneous because “imitation firearm” means a physical replica of a gun, not some other object—like a cell phone—that is misperceived to be a gun.

Issue: Was the trial court’s answer incorrect because it failed to require that an “imitation firearm” actually physically resemble a real firearm?

Holding: The jury instruction was not incorrect under the current state of the law. While there is no statutory definition for “imitation firearm,” the Court noted that the definition used here was virtually identical to an instruction defining “imitation pistol” that the Court had previously approved in Smith v. United States, 777 A.2d 801, 810 n.15 (D.C. 2001) (defining “imitation pistol” for purposes of “while armed” statute). Moreover, the Court reasoned, because “any object which the victim perceives to have the apparent ability to produce great bodily harm can be considered a dangerous weapon,” it ultimately “did not matter whether the object in appellant’s hand was objectively physically similar to a firearm.” In other words, the fact that “the victim perceived the item in appellant’s hand to be a firearm” was enough for the jury to conclude that the object was “a dangerous weapon.”

Concurrence #1: Chief Judge Washington, who wrote the opinion for the Court, also wrote a concurring opinion in which he concluded that the Smith-approved definition of “imitation firearm” is overbroad and should be corrected by the full court sitting en banc. The concurrence details why the plain meaning of the term, the statutory context in which it is used, and its legislative history all indicate that “an imitation firearm must physically conform to the characteristics commonly attributable to a real firearm.” It also notes that, despite opining on the meaning of “imitation firearm,” the court in Smith was not actually focused on whether an object like a cell phone could qualify as an “imitation firearm.”

Concurrence #2: Judge Fisher wrote a separate concurrence opining that en banc review is unwarranted in this case because “[a]ny metaphysical shortcomings in the jury instruction defining an imitation firearm did not lead to an unjust conviction,” since Mr. Washington used the object—whatever it was—to create a situation “fraught with danger” by making it appear that he had a gun.

Of Note
  • The PFCV and while armed statutes both expressly include “imitation” firearms among the specific weapons to which they apply, but the ADW statute says only that it applies to “dangerous weapons.” The Court held that an “imitation firearm” is a type of dangerous weapon within the meaning of the ADW, because it is a “gun,” and a “gun” is an inherently dangerous weapon—not only because it can be used to injure someone, but also because its apparent ability to cause injury can prompt people to react in a way that itself might lead to harm. 
  • The Court’s opinion seemed to take care to state that the complainant’s mere perception that Mr. Washington was holding a gun was enough to find that the object in his hand was a dangerous weapon. Despite acknowledging that Smith currently remains good law, the Court’s opinion did not state that the complainant’s perception was enough to find the object was an imitation firearm. This distinction may be important in cases where the charged offense requires proof of a real or imitation firearm, rather than the broader category of any dangerous weapon. 
  •  Because there is a suggestion that the court might revisit this issue en banc, it is wise to preserve any challenges to a Smith-type instruction for the foreseeable future. FT