Brown & Shepherd v. United States, Nos. 11-CF-1503 and 11-CF-1507 (decided April 17, 2014)
The Players: Judges Fisher, Blackburne-Rigsby, and Belson. Opinion by Judge Fisher. Debra Soltis for Darius Brown. Richard Stolker for Jamal Shepherd. Trial Judge: Ronna Beck.
The Facts: Mr. Brown and Mr. Shepherd were convicted of several offenses arising from a shooting and later cover-up. During an argument between the appellants and their friend Mr. Brooks, on one side, and Mr. Washington, on the other, Shepherd suddenly grabbed a gun that Brooks had been carrying and shot Mr. Washington. Police arrested Brooks, who informed police that he and Brown had witnessed the shooting; although Brooks initially denied knowing the shooter’s name, he later implicated Shepherd. Brown told police, and later the grand jury, that he did not know the shooter’s name and had met the shooter on just two earlier occasions. But Brown later stated, during a recorded phone call, that he “lied to the police officers” and was “guilty” of obstruction of justice. He also spoke with Shepherd on the phone approximately 1500 times during the 15 months following the incident. During these conversations, Brown and Shepherd expressed anger that Mr. Brooks had “told the truth” to police and agreed that they needed to “get at [Mr. Brooks].” On appeal, Brown and Shepherd challenged primarily the sufficiency of the evidence as to certain counts.
Issue 1: Was there sufficient evidence to support Mr. Brown’s convictions for perjury, obstruction of justice, and conspiracy to obstruct justice?
Holding: Yes. Given that Brown and Shepherd spoke with each other about 1500 times over the course of 15 months after the incident, and Mr. Brown admitted in recorded phone calls that he had lied to police, the jury could reasonably infer that he had lied — with the intent to derail the investigation — when he told police and the grand jury that he did not know Mr. Shepherd’s name. And because the contents of their phone calls “attest to an understanding between [them] that they needed to do something to stop Brooks’s continued cooperation with authorities,” the jury could reasonably find that they conspired to obstruct justice.
Issue 2: Was there sufficient evidence to support Mr. Shepherd’s convictions for obstruction of justice and carrying a pistol without a license?
Holding: Yes. As to obstruction of justice, Shepherd told Brooks in a recorded phone call to “keep the code,” which Brooks understood as a reference to a code against snitching. That statement amounted to obstruction of justice under the part of the statute that prohibits actions that impede an official proceeding “[c]orruptly, or by threats of force.” D.C. Code § 22-722(a)(6). The Court concluded that both of these prongs were satisfied: Shepherd’s reference to the code against snitching implied a “threat of force,” and even if it did not, the statement was made “corruptly” inasmuch as it was “motivated by an improper purpose” to obtain Brooks’s silence. As to carrying a pistol without a license, Shepherd’s momentary possession of the gun — when he grabbed it from Mr. Brooks and shot Mr. Washington — was sufficient for conviction even though he did not carry the gun either before or after the shooting. JM.