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.