Thursday, April 30, 2015

Court holds that it is not a robbery to greet a stranger at 11:00 p.m. near the metro by saying, “What, what, what.”

FurlJ. Williams, Arthur Terence Bullock, & Marteese Norman v. United States, Nos. 12-CF-1604, 12-CF-1605, 12-CF-1504 (decided April 23, 2015)

Players: Chief Judge Washington, Associate Judge Fisher, & Senior Judge Reid. Opinion by Judge Reid. Opinion concurring in the judgment by Judge Fisher. Peter H. Meyers for Mr. Williams. Abram J. Pafford for Mr. Bullock. PDS for Ms. Norman. Judge: Gerald I. Fisher.

Facts:  Mr. Chau encountered the defendants around 11:00 p.m. while waiting for a metro elevator on his way home from work. The defendants walked past Mr. Chau, looked back, and then approached him. When the defendants were three to four feet away from Mr. Chau, positioned around him in an arc, two of them said, “What, what, what,” while the third looked around. The defendants did not threaten him. Mr. Chau, who had limited ability to communicate in English, interpreted “[w]hat, what, what” to mean, “do [you] have any money.” Mr. Chau gave the defendants his wallet, and they left.

When the defendants were stopped soon after the incident, Detective Tabron conducted a show-up identification procedure with Mr. Chau. Detective Tabron testified at trial that he had “very little” trouble understanding Mr. Chau’s English, though he testified in the grand jury that he had understood Mr. Chau “[v]aguely.” According to Detective Tabron, Mr. Chau told him that Mr. Williams “was demanding money from him” and “was asking for money” and that Mr. Bullock “was asking for money.”

Issue:  Was the evidence insufficient to show that the defendants took Mr. Chau’s wallet “by violence or by putting him in fear”?

Holding:  Yes. The government must show that a defendant’s actions would “portend an immediate threat of danger to a person of reasonable sensibility.” The only words ascribed to the defendants by Mr. Chau — “What, what, what” — would not cause a reasonable person to perceive an immediate threat of bodily harm. And Detective Tabron’s “hearsay testimony” — that Mr. Chau had told him that two of the defendants demanded or asked for money — did not count for much, as the record left the court “with doubts as to whether Detective Tabron merely assumed what Mr. Chau told him.”

Of note:
  • Cite the court’s reasons for dismissing Detective Tabron’s “hearsay testimony” when arguing that particularly unreliable evidence does not suffice to establish guilt beyond a reasonable doubt.
  • More generally, the court helpfully reminds that insufficient-evidence claims must be assessed in light of the “demanding standard” of proof “beyond a reasonable doubt.”  JM

Wednesday, April 29, 2015

Surprise! Severance denied, convictions (mostly) affirmed.

Joseph Jenkins, Edward E. Warren, Darnell N. Anderson, & James Bates v. United States, Nos. 11-CF-106, 11-CF-162, 11-CF-281, & 11-CF-745 (decided April 23, 2015)

Players: Chief Judge Washington, Senior Judges Pryor & Farrell. Opinion by Judge Farrell. Thomas T. Heslep for Mr. Jenkins. Gregory S. Smith for Mr. Warren. Jason M. Knott for Mr. Anderson. Thomas C. Paynter for Mr. Bates. Trial Judge: Lynn Leibovitz.

Facts:  The government alleged that defendants, who belonged to the same gang, murdered several individuals associated with a rival gang in retaliation for the murder of one of their own. With respect to one of the murders, the government’s evidence showed that Bates, Jenkins, and Anderson — but not Warren — killed English. Warren, however, testified that he killed English without help from the other defendants. Defendants were acquitted of the conspiracy but convicted of various substantive offenses. The five most important issues are discussed below. Others are omitted to avoid boring you.

Issue #1: severance of parties

Warren’s trial attorney, Madden, aggressively impeached Warren’s testimony that he, and not the others defendants, committed the English murder. This prompted Bates, Jenkins, and Anderson to request severance from Warren. They argued primarily that Madden put on a defense fundamentally incompatible with theirs and functioned as a “second prosecutor” when he attacked Warren’s testimony exculpating them. The court held that severance was not required mostly due to the strength of the government’s case and the partial verdict, which showed that the jury was able to keep separate the evidence against each defendant. But the court noted that it might have reached a different conclusion had the government’s evidence been “paper-thin.”

Issue #2: admissibility of double-hearsay co-conspirator statements

The government admitted recorded telephone conversations between unindicted co-conspirators relating to the English murder and other “beefs” involving the rival gang. Defendants argued that these conversations contained impermissible double hearsay, as neither conversation participant had personal knowledge of some of the events they discussed. The court rejected this argument, noting that “courts considering the issue have rejected ‘double hearsay’ or lack-of-personal-knowledge objections” to admission of co-conspirator statements.

Issue #3: right to special-unanimity instruction with respect to the street-gang statute

The street-gang statute criminalizes a gang member’s participation in a felony or violent misdemeanor “for the benefit of” the gang or “in association with” another gang member. Defendants argued that the trial court should have instructed the jury that it needed to be unanimous about whether defendants committed the crimes “for the benefit of” the gang or “in association with” a gang member to convict on either of those bases. The court disagreed, reasoning that these phrases constitute “different means” of committing a single crime rather than “separate elements” of “different crimes.”

Issue #4: propriety of adult sentencing

Warren, 16 years old when indicted, argued that the criminal division of the Superior Court lacked jurisdiction to sentence him as an adult because he was acquitted of the only crimes that had conferred jurisdiction to try him as an adult. The applicable statute provides jurisdiction to the criminal division over a 16-year-old child who has been “charged” with an enumerated crime, including murder, and any other offense “properly joinable with” an enumerated crime. The court held that Warren fell within this provision because, although he was ultimately acquitted of murder, he had been “charged” with murder and other offenses “properly joinable” with the murder charge.

Issue #5: merger of street-gang convictions

The general rule under Blockburger is that convictions merge if, and only if, all elements of one crime are included as elements of the other crime. But in this case, the DCCA announced an important exception to this rule. The court held that multiple street-gang convictions merge if they are predicated on different felonies — felonies that do not themselves merge under Blockburger — that each arose from the same “violent act.”  JM

Read full opinion here.

Tuesday, April 28, 2015

Three strikes, you’re out (of luck): assaulting three police officers during a brief scuffle warrants three APO convictions

Robin Bowles v. United States, No. 14-CM-386 (decided April 23, 2015)

Players: Chief Judge Washington, Associate Judge McLeese & Senior Judge Belson. Opinion by Judge Belson. Sean R. Day for Mr. Bowles. Trial Judge: Todd E. Edelman.

Facts: Two officers responded to a home to investigate a reported domestic assault. Mr. Bowles walked up to the front door, where the officers were standing. The officers told Mr. Bowles not to walk away, but Mr. Bowles walked past them, bumping both of them “fairly hard” in the process. The officers grabbed Mr. Bowles and told him not to resist, to no avail: Mr. Bowles fought the officers as they tried to arrest him. A third officer arrived and helped put handcuffs and leg irons on Mr. Bowles. Mr. Bowles continued to physically resist all three officers, including by kicking at the leg restraints applied by the third officer.

Main issue: Do Mr. Bowles’ three assault on a police officer (“APO”) convictions merge?

Holding: No. Three APO convictions were proper because Mr. Bowles (1) committed “multiple assaultive acts” (2) involving “each of the three police officers.”

Of noteThe court limits its holding to situations involving multiple officers and distinct assaultive acts. “[T]he foregoing analysis would not support multiple convictions of Mr. Bowles for APO if the assaultive acts had all been committed against a single officer.”  JM

Monday, April 27, 2015

Corruption bias: defendant entitled to attack jailhouse informant’s track record in past cases with extrinsic evidence

Charles M. Coates v. United States, No. 12-CF-2047 (decided April 23, 2015)

Players: Associate Judges Glickman & Fisher, Senior Judge Ruiz. Opinion by Judge Glickman. PDS for Mr. Coates. Trial Judge: William M. Jackson.

Facts:  The government’s case against Mr. Coates rested on the testimony of a jailhouse informant, Mr. Bethea, who claimed that Mr. Coates confessed to murdering his cousin in a dispute over robbery proceeds. Mr. Coates testified, by contrast, that he killed his cousin by accident after his cousin, in a PCP-induced fit, pulled out a gun and Mr. Coates tried to wrestle it from him. Mr. Coates denied that he had ever confessed to Mr. Bethea. The trial was substantially a credibility contest between Mr. Bethea and Mr. Coates.

Main issue:  In a different case several years earlier, Mr. Bethea had told police that Mr. Freeman, another fellow inmate, confessed to a murder. Mr. Freeman denied committing or confessing to that murder. The trial court permitted Mr. Coates to cross-examine Mr. Bethea about whether he had falsely implicated Mr. Freeman — Mr. Bethea denied this — and allowed Mr. Coates to elicit Mr. Freeman’s testimony that he did not confess to Mr. Bethea. But the court prevented the defense from introducing evidence that Mr. Freeman could not possibly have committed the murder, as he had been incarcerated at the time it occurred.

By excluding this evidence, did the court violate the Confrontation Clause?

Holding:  Yes. 

In most situations, a party wishing to impeach a witness by showing that the witness has acted dishonestly in the past is stuck with the witness’ answer and may not complete the impeachment with extrinsic evidence. This rule does not apply, however, when the impeachment goes to a government witness’ bias. The Confrontation Clause entitles a defendant to probe for bias both through cross-examination and with extrinsic evidence as long as the defendant proffers facts that “support a genuine belief[] that the witness is biased in the manner asserted.”

Evidence that Mr. Bethea had falsely implicated Mr. Freeman in a murder showed that Mr. Bethea was a corrupt witness who was prepared to “thwart the ascertainment of truth in a judicial proceeding.” Corruption is a “distinct form of testimonial bias.” Evidence that Mr. Freeman could not have committed the murder tended to show that he most likely did not confess to Mr. Bethea and thus that Mr. Bethea was a corrupt witness.

Of note:
  • The court rejected the government’s assertion that a defendant must “show convincingly” that the witness’ past conduct was dishonest before impeaching him in this way. The “shown convincingly” test does not apply when a defendant seeks to present evidence of a witness’ prior dishonest acts for the purpose of establishing bias, including corruption bias.
  • The court expressed deep distrust in the reliability of jailhouse informants, citing seven authorities for the proposition that it is not “implausible that a jailhouse informant would, in order to curry favor with the government or for other personal motives, lie about a fellow inmate having confessed.”  JM

Wednesday, April 22, 2015

#RealTalk: The DCCA on (Re-)Interpreting Jurors and Witnesses

Kalete Johnson v. United States, No. 13-CF-838 (decided April 15, 2015).

Players: Associate Judges Glickman and Thompson, Senior Judge King. Opinion by Judge Thompson.  PDS for Mr. Johnson.  Trial Judge: Stuart Nash.

Facts: A jury convicted Mr. Johnson of conspiracy to rob, in violation of D.C. Code § 22-1805a. One morning, the complaining witness, Mr. Carrera, called the police to report that three young men wearing black jackets and black ski masks had approached his truck from behind while he was waiting for his work site to open. According to Mr. Carrera, the tallest of the three had approached his window and demanded that he surrender the vehicle, causing him to drive away in fear and call the police.  Mr. Carrera returned in time to see the police chasing three men. The officers apprehended two individuals named Carrington and Taylor, and Mr. Carrera identified them as two of the men involved. The police could not catch the third, tallest man but allegedly identified him as Mr. Johnson, using a nickname provided by Mr. Carrington and Mr. Taylor.

Mr. Johnson faced several charges in connection with his alleged role in this incident. During jury selection, the trial judge stated that trial would last approximately eight days. Juror 809 voiced concern about the hardship of paying for childcare during that time, but the trial judge would not dismiss her. Juror 809 was selected, and on the fourth day of trial, she sent a note saying, “[I]t looks like it’s going to be very difficult for me to participate in trial this next week. I can’t afford my child’s care anymore.” In a follow-up inquiry, the juror explained that her babysitter had cancelled but that another had been called. The juror had no alternate arrangements for the day other than her husband, who recently started a new job. Finally, in answer to the question “Is this going to be a problem . . . the rest of the week as well or is it just today?”, the juror stated, “Probably will be a the rest of the week, too.” The trial judge dismissed Juror 809 over the defense’s objection, citing cancellation of childcare as his reason, over and above the financial hardship he had previously rejected.

At trial, Mr. Taylor testified that when he, Mr. Carrington, and Mr. Johnson were walking toward Mr. Carrera’s truck, Mr. Carrington stated that he “wanted to get the truck[.]” Mr. Johnson responded by saying “like All right, like, go ahead, do what you got to do.” After a few questions regarding the meaning of these words, the prosecution sought to impeach Mr. Taylor with his grand jury testimony that Mr. Johnson meant that he would help Mr. Carrington take the truck from Mr. Carrera. The defense objected that the prosecution should not be allowed to elicit what Mr. Taylor thought Mr. Johnson meant. The trial judge overruled the objection, reasoning that Mr. Johnson’s words were ambiguous and that Mr. Taylor could help clarify their meaning using communication cues that he was able to observe.

Issue 1: Whether the trial court abused its discretion by dismissing Juror 809 in light of ambiguities in the record regarding the nature and duration of the juror’s asserted hardship.

Holding: No. On the record presented, the trial judge could have reasonably concluded that when the juror said “Probably will be a problem the rest of the week, too” she meant that obtaining childcare, as opposed to merely paying for it, would be the problem. By the time the trial judge dismissed Juror 809, he had seen her several times, giving him many chances to see her demeanor. The husband’s appearance in court underscored the need for him to work that afternoon, and thus, his unavailability to provide childcare. The trial judge did not abuse his discretion in failing to postpone afternoon proceedings to see if Juror 809 could get another babysitter for the rest of the week because she said her problems would persist for that long.  

Issue 2: Whether the trial court abused its discretion by admitting Mr. Taylor’s lay opinion testimony about the meaning of “all right.”  

Holding: No. Under Fed. R. Evid. 701, a lay witness is permitted to opine on the meaning of words that “would have been clear in context to the person hearing them, but may not be clear to one merely hearing the words.”  Slip op. at 6 (quoting United States v. Martin, 920 F.2d 393, 397-98 (6th Cir. 1990) (emphasis in original)).  Mr. Taylor had heard Mr. Johnson make this statement and knew Mr. Johnson “like a brother.”  He also provided a factual basis for his opinion that by “all right,” Mr. Johnson meant he would help take the truck from Mr. Carrera.  Specifically, Mr. Taylor testified that after saying “all right,” Mr. Johnson walked toward the passenger side of the truck.

Of Note: 

  • The opinion should be read with care, because the Court notes a number of factual circumstances that are important to its conclusions. If a juror is being dismissed prematurely, you can emphasize the limited, fact-bound nature of this opinion.  And be sure the record is absolutely clear where the juror’s availability to serve is concerned.  

  • As for distinguishing the court's ruling admitting lay opinion as to what another witness meant, point out that Mr. Johnson knew Mr. Taylor “like a brother,” there was a factual basis for Mr. Taylor’s opinion, and Mr. Johnson’s statement was clear in context but ambiguous when repeated after the fact.  WC 

Monday, April 20, 2015

Prosecutors must disclose exculpatory evidence or risk discipline: Materiality is not a relevant consideration under DC ethics rule

In re Andrew Kline, No. 13-BG-851 (decided April 9, 2015).

Players:  Chief Judge Washington, Associate Judges Glickman and Thompson.  Opinion by Chief Judge Washington.  Seth A. Rosenthal for Mr. Kline.  PDS as amicus curiae. 

Facts:  The Board on Professional Responsibility recommended that former Assistant United States Attorney Andrew Kline be suspended for 30 days from the practice of law after finding that he had violated Rule 3.8(e) of the District of Columbia Rules of Professional Conduct.  Rule 3.8(e) prohibits a prosecutor in a criminal case from intentionally failing to disclose to the defense any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused.  Mr. Kline had been the prosecutor in a felony assault case where Arnell Shelton was charged with the drive-by shooting of Christopher Boyd.   In the course of preparing the case, Mr. Kline spoke with MPD Officer Edward Woodward, who informed him that when he first interviewed Mr. Boyd at the hospital shortly after the shooting, Mr. Boyd told him that he did not know who shot him.  Mr. Boyd subsequently identified Mr. Shelton as his shooter.

Mr. Kline took notes to memorialize the conversation at the hospital but never disclosed the information to the defense – despite specific requests for prior inconsistent or non-corroborative statements by witnesses as well as for any other information that impeaches a witness’s testimony, and despite the fact that the defense gave a pre-trial alibi notice so that the reliability of the government’s eyewitnesses was obviously going to be a contested issue at trial.  The trial prosecuted by Mr. Kline ended with a hung jury and a mistrial.  Soon thereafter, Mr. Kline left the office.  The case was reassigned twice and both subsequent prosecutors flagged the information as necessary to disclose to the defense.  (The second prosecutor left the office due to a family emergency and the letter with the information was never mailed out; the third prosecutor disclosed it.)  Mr. Shelton was convicted at the second trial.  

Mr. Kline defended against the ethics violation by stating that he believed his disclosure obligation was only to turn over evidence that would prove to be material to the outcome of the trial – that is, evidence that would ultimately give rise to a reversal of a conviction under Brady and its progeny.  In his eyes, the Boyd hospital statement did not merit disclosure under that standard.  

Issue:  Whether the ethical disclosure obligation imposed on prosecutors by Rule 3.8(e) is co-extensive with a defendant’s right to a fair trial as contemplated by the Supreme Court in Brady and its progeny, or whether the ethical obligation requires a prosecutor to disclose evidence that tends to negate the guilt of the accused or mitigate the offense whether or not the information may later be deemed material to the outcome of the trial.
Held:  “Rule 3.8(e) requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements of Bagley, Kyles, and their progeny.”  

As to sanctions:  While the Court concluded that Kline violated Rule 3.8(e) by intentionally witholding the Boyd hospital statement, it concluded that a 30-day suspension was inappropriate in Kline’s case because of the confusion generated by the comment to Rule 3.8(e) which some – including the ABA –  had read to suggest that a finding that the information withheld was “material to the outcome” of the trial was necessary to a determination that Rule 3.8(e) had been violated.  Because Kline’s understanding of the rule’s requirements was “wrong but it was not unreasonable,” the Court concluded that no sanction was warranted. 

Of Note:

  • While much of the Court’s opinion addresses a prosecutor’s ethical obligation and therefore does not create rights enforceable by a criminal defendant, in one paragraph of the opinion the Court emphasizes that a prosecutor’s constitutional pretrial disclosure obligations are also not dependent on a post-trial materiality analysis.  The Court cites two of its previous cases – Zanders and Miller – in support.  Boyd and Vaughn support this important proposition as well. 

  • The Court notes that there are a number of respects in which a prosecutor’s ethical obligation differs from his or her constitutional obligations, including: (1) a Rule 3.8(e) violation involves an intentional failure to disclose exculpatory evidence, while a Brady violation can be inadvertent; (2) Rule 3.8(e) only requires disclosure of evidence about which the prosecutor has actual knowledge, whereas under Brady potentially exculpatory evidence known by other government actors is imputed to the prosecution; and (3) a violation of Rule 3.8(e) requires a finding that the prosecutor knew or should have known that the evidence tended to negate the guilt of the accused or mitigate the offense, whereas a Brady violation is not focused on the conduct of the prosecutor, only whether the evidence was potentially exculpatory and whether it had an effect on the verdict. 

  • Although the Court did not sanction Kline, it issued a warning to prosecutors that – now that the scope of a prosecutor’s disclosure obligation under Rule 3.8 is clear – henceforth similar conduct will incur sanctions comparable to the sanction recommended by the Board of Professional Responsibility in Kline’s case.  Thus this case will surely catch the eye not only of prosecutors (whose bar cards are now on the line when they “tack too close to the wind”) but also of trial judges (who need to decide whether bar referrals are appropriate when faced with the intentional suppression of exculpatory evidence).  JF

Tuesday, April 14, 2015

Turn off your ignition if you don’t want the cops to do it for you

Michael A. Hawkins v. United States, No. 13-CM-816 (decided April 9, 2015)

Players:  Associate Judges Thompson and Beckwith, Senior Judge Nebeker.  Opinion by Judge Nebeker.  Howard Margulies for Mr. Hawkins.  Trial judge: Patricia A. Broderick.

Facts:     Mr. Hawkins moved to suppress evidence found in a car by deputy marshals after they executed a fugitive warrant for his arrest.  The incident began when the deputy marshals, who were conducting surveillance at an apartment complex in an attempt to arrest Mr. Hawkins on a fugitive warrant, saw Mr. Hawkins walk out of an apartment building with a red backpack, enter the driver’s side of a car that was parked in the parking lot, put his backpack on the front passenger seat and start the engine.  Mr. Hawkins then stepped out and walked towards the back of the car, at which point one of the deputy marshals placed him under arrest.  The other marshal entered the driver’s side of the car to turn off the ignition.  When he opened the door, he noticed a strong smell of marijuana – a smell that the second marshal smelled “right in front of him” as he opened the passenger door.  The marshals then took the backpack out of the car and searched it, finding the evidence that Mr. Hawkins sought to suppress.
Issue:  Whether the marshals violated the Fourth Amendment by entering the car.   

Held:  The Court first held that the trial judge was wrong to conclude that the search was justified under the exigent circumstances exception to the warrant requirement.  First, the Court noted, turning off a vehicle left running in a parking lot is not analogous to the other circumstances that support the exigent circumstances exception from the warrant requirement:  hot pursuit of a suspect, prevention of evidence destruction, or prevention of immediate bodily injury.  Second, the exigent circumstances exception only excuses the failure to obtain a warrant – the search must still be supported by probable cause – and at the time that the marshals entered into the car, they lacked the probable cause that would be required to justify a search or obtain a warrant.
The Court nonetheless affirmed the trial court’s ruling, holding the search was justified under the community caretaking doctrine.  Under Supreme Court case law, the community caretaking exception applies when an officer’s activities are “totally divorced from the detection, investigation, or acquisition of evidence relating to the the violation of a criminal statute.”  Cady v. Dumbrowski, 413 U.S. 433, 441 (1973).  In this case, the Court set out a 4-point test for courts to apply to assess whether an officer’s community caretaking conduct is reasonable, noting that the government must show:  1) by specific and articulable facts that the government’s conduct was totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute; 2) the government’s conduct was reasonable considering the availability, feasibility, and effectiveness of alternatives to the officer’s action; 3) the officer’s action ended when the citizen or community was no longer in need of assistance; and 4) the government’s interests outweigh the citizen’s interest in being free from minor government interference.  The Court noted that the government is not required to pursue the least restrictive means of correcting the problem. 
Applying the test to the facts, the Court concluded that the marshal’s action in entering the car to turn off the running engine was justified:  the action was necessary to safeguard the car and its contents from theft, as well as to prevent excessive emissions, unauthorized use of the vehicle, and a non-moving violation; there was no evidence that the owner was readily available to take control of the car; the marshals could not have sought a warrant because there was no crime-based probable cause to enter the car; the privacy interest in a car is less than the privacy interest in a dwelling; and the entry was minimal.  The Court therefore concluded that the marshals’ entry into the car was reasonable and no Fourth Amendment violation occurred.  
Of Note:
  • The opinion should be read with care, because the Court notes a number of factual circumstances that are important to its conclusion that the entry into the car was reasonable.  For instance, the Court notes that the situation would be “entirely different” if “the owner of the vehicle was at the scene and ready to take possession of the vehicle.”  The Court also notes that the marshals smelled the marijuana immediately upon entering the vehicle, “well before turning off the engine and retrieving the keys.”  And that the entry “was minimal,” because the officers “did not search through the rest of the car or open any closed containers or compartments” (until they had independent grounds to do so).  The Court also emphasized the Supreme Court’s holding that an individual’s privacy interest in a vehicle is lesser than his or her privacy interest in a dwelling.  JF

Read full opinion here.