Four Errors Do Not a Reversal Make, a.k.a. Tips on Jury Instructions for Aiding and Abetting and Co-conspirator Liability

Buskey v. United States (decided Nov. 10, 2016).

Players:  Associate Judges Glickman and Easterly, and Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Buskey and Margaret M. Cassidy for Mr. Simms.  Trial judge: John McCabe.

Summary:  Mr. Buskey and Mr. Simms were tried jointly for two robberies.  In both robberies, the victims were confronted by two men working together.  In the first, which occurred in the elevator of the victims’ apartment building, one of the assailants threatened to stab the victims, although no knife was visible.  In the second, which occurred in the victims’ home, both assailants had visible knives. 

This appeal arose from numerous claims regarding the substance of the jury instructions, the order in which those instructions were given, as well as the manner in which supplemental instructions were given in response to jury notes. Ultimately, the DCCA affirmed all of appellants’ convictions, but this opinion is notable because the court found that the trial court erred in numerous ways regarding the jury instructions.  Each of those errors is noted below.

Errors 1 and 2: The trial court’s initial jury instruction on aiding and abetting liability included a general explanation, and then included offense specific instructions for burglary, robbery, and kidnapping, but included no offense specific instruction for carrying a dangerous weapon (CDW).  The omission of this offense specific instruction was error, and that error was plain.

The jury subsequently inquired whether aiding and abetting could apply to a CDW charge, and trial court acknowledged its error.  However, in reinstructing, the jury the court plainly erred again.  The reinstruction told the jury that to convict of aiding and abetting CDW, the jury needed to find that the defendant “acted with the intent that the weapon be used unlawfully,” but failed to instruct it to find that the accomplice had “aid[ed] and abet[ted] the principal’s ‘carrying’ of the dangerous weapon . . . [by] tak[ing] some step ]to further the carrying.’”  

Error 3: The trial court’s placement of its instruction on co-conspirator liability between two instructions relating to the substantive charge of conspiracy as a distinct crime was plain error.  That is because jury instructions “as a whole should provide the jury with a clear path to understanding the substantive law, the theories of defendant liability, and the general but fundamental principles governing a defendant’s guilt,” which these instructions failed to do.

Error 4: The trial court’s failure to read its supplemental jury instructions (in response to several jury notes) in open court was error.  The DCCA did not seem to find this error plain in this case, given the dearth of on-point case law in this jurisdiction, although henceforth, it will be.  CP

Read full opinion here.