You don't constructively possess a firearm just because you're found trying to dispose of drugs in the same room in which the gun is found.

James M. Schools v. United States, No. 12-CF-1448

(decided December 19, 2013)

Players:  Judges Thompson, Wagner, and Schwelb.  Opinion by Judge Thompson.  Dissenting opinion by Judge Wagner.  Jamison Koehler for appellant.  Trial Judge:  Stuart Nash.

Facts: Police officers executed a warrant at the residence of appellant.  When they arrived, they found appellant in the back bedroom of the house trying to hide a white shoe that was found to contain 53 baggies of crack cocaine.  Officers also found a digital scale in the room.  In addition to appellant, two other men—appellant’s nephew and a friend of his—were found in the residence just outside of the same bedroom, and they were also detained.  After detaining the men, officers grabbed some clothes that were sitting on a chair in the room and gave them to appellant, who put them on without protest (this kind of matters).  The officers then searched the room and found a gun and some ammunition under some clothing in one of the dresser drawers.  Appellant was acquitted on the narcotics related charges, and convicted of possession of a firearm by a felon, possession of an unregistered firearm, and unlawful possession of ammunition.  A defense witness testified that two other men shared the room where the firearm was, while appellant usually slept on the couch. 

Issue: Whether the evidence was sufficient to show that appellant constructively possessed a gun that was found in a dresser when (a) he was found in a room handling 53 baggies of crack cocaine in the room with the dresser and (b) some of his clothing was in that room, but (c) there was no evidence that his clothing was in the dresser, and (d) there was evidence that another individual stayed in that room. 

Holding:  The evidence was insufficient to convict appellant of constructive possession of the firearm.  The jury would have had to rely on pure speculation to determine whether the gun belonged to appellant or one of the other men who had access to the room.  The jury had no evidence before it to point to appellant as the person who possessed the gun.  Importantly, the government did not put on any evidence to show that the clothing in the dresser belonged to Appellant (who was obese) or one of the other men (who were much smaller).  Absent that, the mere link between guns and drugs was not sufficient evidence to conclude that appellant—because he was found with 53 baggies of crack cocaine on him—exercised control over the gun in the dresser.

Dissent:  Judge Wagner thought the evidence was sufficient to convict appellant of possession of the gun.  She noted that the jury simply might not have credited the defense witness who indicated that appellant shared his room with his nephew. Judge Wagner also stressed the link between guns and drugs as being strong enough to supply the inference linking the gun to appellant, since he was found holding a shoe full of narcotics.

Of note: The jury acquitted appellant of narcotics charges and the Court begins its opinion by detailing the evidence on those charges and noting that there was certainly sufficient evidence to convict him of those charges, even though that was not an issue in the case. The Court also stated that appellant’s acquittal of the narcotics charges did “not show [the jurors] were not convinced of his guilt” of those charges, and oddly cites to Mayfield—an inconsistent verdicts case—for that proposition.  The Court basically leaves unexplained why an acquittal on a charge does not show the jurors were unconvinced of appellant’s guilt of that charge even when there is no inconsistent verdict undermining that assumption. 

Read full opinion here.

Unlawful entry does not require the government to prove that a defendant believes his entry is unlawful.

Adam Jaramillo Ortberg v. United States, Nos. 11-CM-1154 & 12-CO-874

(decided December 19, 2013)

Players: Judges Beckwith, Easterly, and Pryor.  Opinion by Judge Easterly.  William Francis Xavier Becker for appellant.  Trial judge: Marisa J. Demeo

Facts:  Adam Jaramillo Ortberg was convicted of unlawful entry after entering a hotel banquet hall at the W Hotel where there was an “invitation-only” fundraiser for a member of the U.S. House of Representatives.  Ortberg is an animal rights activist and he was there to protest.  He entered the banquet hall through an exit or service door after walking by a registration desk.  Once inside, he held up a sign and began yelling “an educational message about his cause.”  He appealed his conviction on the basis that there was insufficient evidence to uphold his conviction for unlawful entry.

Issue:  Whether a defendant can be convicted of “unlawful entry” under D.C. Code § 22-3302 if he merely “knew or should have known” that his entry was unwanted by the lawful occupant, or if the government must show that he intended to defy the will of the lawful occupant or intended to violate the law? 

Holding:  The offense of unlawful entry is proven where the government shows (1) that the defendant intentionally entered the premises—which was not in dispute here—and (2) that the defendant knew or should have known that his entry was unwanted by the occupant.  While a defendant cannot be convicted where he enters with a bona fide or good faith belief that he has a right to enter, there is no requirement that he be explicitly informed that he cannot be there, nor is there a requirement that he believe his entry is unlawful.  Applying those requirements to the facts of this case, Ortberg should have known he was not welcome in the banquet hall, and he did not have a bona fide belief that he was welcome (he admitted as much), so there is sufficient evidence to sustain his conviction. 

Of note:  The opinion made quick work of Ortberg’s argument that Hotel banquet halls are semi-public spaces, disposing of that in a footnote by stating that a privately rented banquet hall “under no definition could be considered a semi-public space.”   The opinion is very cryptic on the details of the offense, such as which Congressman was hosting the event and what Ortberg’s sign said, perhaps because it did not want to further publicize a message delivered through unlawful means.  This is not Ortberg’s first time in D.C. Courts. Goldman Sachs previously sought an injunction against him to prevent him from protesting outside of their offices and employees’ homes.  While successful in the trial court, the preliminary injunction was vacated by the D.C. Court of Appeals last April. JD. 

Read full opinion here.

The government’s bare claim that there is no biological material is not enough to defeat an IPA motion for DNA testing

Wallace G. Mitchell v. United States, Nos. 05-CO-1261 & 05-CO-1262

(decided December 12, 2013)

Players: Judges Oberly, Beckwith, and Easterly.  Opinion by Judge Beckwith.  Steven R. Kiersh for appellant.  Trial judge: James E. Boasberg.

Issue 1: Can the government defeat a post-trial Innocence Protection Act (IPA) motion for DNA testing simply by claiming that it does not possess biological material?  Does the defendant bear the burden of showing that there is biological material to be tested?

Facts: Appellant was convicted in 1991 of murder and assault with intent to kill (and related charges) for shooting two men in an apartment, one of whom died.  The crime scene examiner photographed blood on the scene but the record was silent regarding whether any blood or other biological material was collected.  In 2005 appellant filed a pro se motion – deemed by the trial court to be an IPA motion – seeking DNA testing of the material.  The government argued that the motion should be denied based on its assertion that there was no biological material to be tested, citing the crime scene officer’s trial testimony that did not mention the collection of blood or other biological material and a crime scene evidence report that did not record any biological material.  The trial court denied the motion for DNA testing.

Holding 1: “[I]f the government responds to an application under the IPA for DNA testing by alleging that it has no testable biological material, it bears the burden of substantiating that claim.” Specifically, the government must conduct “a reasonable search for the evidence, meaning an extensive search in any place the evidence could reasonably be found.”  If “the government contends that the material does not exist or no longer exists, it must proffer a reasonable search – evidence that defense might probe at a hearing – and the trial court should determine whether the government has reasonably searched for” the evidence.  If “the government cannot demonstrate that it has performed a reasonable search, the court can order it to take additional measures.”  The DCCA remanded, in part, for the government to make such a showing if it maintains that the blood evidence does not exist or no longer exists.

Issue 2: Whether the defendant satisfied the requirements under DC Code § 22-4133 (b) for a request for DNA testing under the IPA.

Holding 2:  The defendant’s initial request combined with a subsequently filed affidavit stating that he is actually innocent satisfied the requirements of DC Code § 22-4133 (b). (1) He filed an affidavit stating that he was actually innocent. (2) He identified the specific evidence which he wanted testing by identifying the “‘scatterings of blood’” in the apartment where the homicide occurred.  More specific evidence was not required because “[s]uch a strict requirement would obstruct the IPA’s goal of exonerating wrongfully convicted prisoners.” (3) He set forth the reason why DNA testing had not previously been completed by explaining that DNA testing was not available at the time of the original trial in 1991.  (4) He explained how the DNA testing would help establish his innocence “by explaining that ‘the assailant became involved in a scuffle with the decedent,’ that ‘the depth of the battle’ yielded a ‘high probability that the assailant himself was injured in the brawl,’ and that given the government’s single-shooter theory, and other evidence that a single person had committed the crime, ‘a DNA test will point a clear finger at the true perpetrator.’”  The trial court “erred in asking whether he had ‘adequately explained’ how DNA testing would help establish his innocence.”  This section of the IPA requires only an explanation, not an “adequate” explanation, and it does not call for the trial court, at this stage in the process, “to assess the plausibility of the explanation.”

Issue 3: Must a defendant moving post-trial under the IPA for DNA testing articulate “specific, non-conclusory facts that demonstrate that the movant is actually innocent” in order to demonstrate “a reasonable probability that testing will produce non-cumlative evidence that would help establish” actual innocence?

Holding 3: The IPA “does not require an applicant for DNA testing to show ‘specific’ evidence of innocence.”  The requirement of “specific, non-conclusory facts” governs motions to vacate the conviction or grant a new trial on grounds of actual innocence based on new evidence.  The case is remanded, in part, for the trial court “to parse alternative versions of the factual record and to apply the reasonable probability standard[.]”

Of Note:  The appellant presented a number of additional claims under the IPA and DC Code § 23-110.  The DCCA affirmed the trial court’s rulings denying those claims on fact-specific grounds.  --JA.

Read full opinion here.

The trial court cannot rely on a statement’s content to determine admissibility under the coconspirator statements hearsay exception

Emanuel Jenkins and Azariah Israel v. United States, Nos. 10-CF-1184 & 10-CF-1232 (decided December 12, 2013)

Players: Judges Glickman and Oberly, Senior Judge Reid.  Opinion by Judge Glickman.  Abram J. Pafford for Emanuel Jenkins.  Richard S. Stolker for Azariah Israel.  PDS as amicus.  Trial judge: Michael Rankin.

Issue 1: Can a trial court admit coconspirator hearsay (for its truth) by considering the alleged coconspirators’ statements themselves?

Facts:  Mr. Israel was found guilty of 2 counts of first-degree murder, three counts of assault with intent to kill, and related firearms charges, in connection with the shooting of several individuals in Columbia Heights in 2005.  Mr. Israel was also found guilty, along with Mr. Jenkins, of the 2006 murder of a witness to the 2005 shooting.  Mr. Jenkins and Mr. Israel were cousins.  The government’s theory was that Mr. Israel committed the first murders/shootings, and then he and Mr. Jenkins conspired to murder the witness while Mr. Israel was in jail pending trial, a plan that Mr. Jenkins carried out.  The government introduced jail phone calls between Mr. Israel and Mr. Jenkins (and others), and admitted the statements for their truth under the coconspirator statements exception to the hearsay rule (statements by Mr. Jenkins and others were admitted against Mr. Israel, statements by others were admitted against Mr. Jenkins).  In determining that the statements were admissible under the coconspirator statements exception, the trial judge considered the content of the coconspirators’ statements.

Holding 1: The coconspirator statements exception requires the judge to find by a preponderance that (1) a conspiracy existed, (2) the defendant had a connection to the conspiracy, and (3) the coconspirator made the statements during the course of and in furtherance of the conspiracy; in making that finding the judge may not consider the alleged coconspirators’ statements themselves.  Beyond the statements themselves, there was not sufficient evidence to make the statements admissible.  The error in admitting the statements for their truth was harmless, except with respect to Mr. Israel’s conviction for obstruction of justice.

Of Note:  The division held that it was bound by prior precedent interpreting this jurisdiction’s coconspirator statement exception, which prohibits the trial judge from considering the statements themselves, specifically Butler v. U.S., 481 A.2d 431 (D.C. 1984).  Butler adopted Federal Rule of Evidence 801(d)(2)(e) (the coconspirator statements exception).  At the time the DCCA issued its opinion in Butler ruling that the content of the statements could not be considered in determining admissibility, there was a split on the issue among federal circuits.  The Supreme Court resolved the split in Bourjaily v. U.S., 483 U.S. 171 (1987), holding that courts can consider the statements themselves in ruling on admissibility.  The Bourjaily holding was based on Federal Rule of Evidence 104 (a), which allows judges to consider hearsay and other inadmissible evidence in ruling on questions of admissibility.  The division here concluded that Butler nonetheless controls: “The Federal Rules of Evidence do not govern proceedings in the local courts of the District of Columbia (except to the extent that [the DCCA], on a case-by-case basis, has chosen or chooses in the future to adopt a specific Rule as local law)” and the DCCA has not formally adopted Rule 104 (a) (although it generally follows the rule).  Thus, Butler can only be overruled if the DCCA considers the issue en banc and adopts the Supreme Court’s Bourjaily reasoning.

Issue 2: Can the trial court consider hearsay statements for their truth in determining the admissibility of other out-of-court, un-confronted testimonial statements under a “forfeiture by wrongdoing” theory?

Facts: The witness-decedent’s un-confronted statements (grand jury testimony and other statements) were admitted for their truth against both defendants.  The trial court concluded the statements were admissible because the defendants had forfeited their Sixth Amendment right to confront the witness and hearsay objections: they had “wrongfully procured the unavailability of the witness with the purpose of preventing the witness from testifying.”  In ruling the statements admissible, the trial court relied on the statements referenced in Issue 1 (the jail calls / alleged coconspirator statements).

Holding 2: The trial court can rely on inadmissible hearsay in determining forfeiture by wrongdoing, i.e. to find the required preponderance of the evidence that the defendants procured the unavailability of the witness by wrongdoing with the purpose of preventing the witness from testifying.

Holding 2 (a): When the trial court makes such a finding it is does not undermine the presumption of innocence, nor does it undermine the judge’s objectivity.

Issue 3: Is there sufficient evidence for carrying a pistol without a license (CPWL) where there is sufficient evidence that the defendant shot the decedent to death and there is un-refuted evidence that the defendant did not have a license to carry a pistol?

Holding 3: No.  There was no evidence that the firearm used to kill the decedent was a pistol, a firearm with a barrel less than 12 inches in length, therefore there was insufficient evidence to convict Jennings of CPWL.

Of note:

• The Butler rule discussed in Issue 1 applies to the coconspirator statement hearsay exception and does not extend to the forfeiture by wrongdoing exception.

• The Court also concluded that certain other crimes evidence was properly admitted under the identification exception / as direct evidence (an uncharged murder committed a week before the first charged murders with the same gun, in the same neighborhood, and also – like the first murders – by a lone individual).

• The government’s view of permissible inferences to be drawn from slang used during the jail calls was prosecution work product and therefore not discoverable.

• The witnesses’ interpretation of slang on the jail calls was not expert testimony because “they were personally acquainted with appellants [and the decedent] and were members of the milieu in which the slang was used.”

• The prosecutor did not present herself as an expert witness when she argued in closing one of the permissible interpretations of the slang.

• The joinder of the first murders with the witness murder was proper under Rule 8(b) because the offenses bore a sequential relationship to each other. --JA

Read full opinion here

Trial judges must determine the admissibility of a defendant's prior acquittals on a case-by-case basis.

De’Andre Williams v. United States, No. 11-CF-526 (decided October 10, 2013)

Players: Appellate judges: Glickman, Blackburne-Rigsby, Beckwith.  Opinion by Judge Beckwith.  Peter Meyers for De’Andre Williams.  Trial judge: Michael Rankin.

Facts: Two days after a double murder, police arrested Mr. Williams near the scene after he allegedly fled from them and, while fleeing, dropped a firearm consistent with the murder weapon.  Mr. Williams’s defense theory was that the officers lost sight of the suspect during part of the chase and misidentified Mr. Williams as the person who had fled and dropped the gun.

Prior to his murder trial, Mr. Williams was charged, tried, and acquitted on the charge of possessing a firearm (as a felon) arising from these events.  Notwithstanding his acquittal on the firearm-possession charge, Mr. Williams’s murder prosecution was largely based on the same evidence that he had possessed the firearm in question.  

After the trial court admitted the firearm-possession evidence over defense objection, Mr. Williams sought to counteract the evidence by informing the jury about his prior acquittal, but the trial court disagreed and excluded evidence of the acquittal.

Issue 1: Did the trial court abuse its discretion by excluding evidence of Mr. Williams’s acquittal on the felon-in-possession charge, offered on the theory that it would help the jury make a “fair and balanced consideration of the evidence.”

Holding 1: No.  In this case of first impression, the Court concluded that admission of prior-acquittal evidence, offered to help the jury assess the value of prior-crimes evidence, is “ultimately a discretionary decision” for the trial court.  That discretion was not abused here because the court properly balanced probative value against prejudice and did not follow a “rigid policy of inadmissibility.”

Of note:

·         Although the Court affirmed the exclusion of acquittal evidence in this case, it made clear that such evidence can be admissible and should be evaluated on a “case-by-case” basis.

·         The Court generally agreed with federal courts that acquittals “often will be of limited relevance to prove or disprove a fact at issue in the prior trial,” and might run into hearsay problems when offered for that purpose, but also stated that in some cases acquittals can be highly relevant for a nonhearsay purpose “to correct for the likelihood that jurors have made a mistaken inference that the defendant was tried and found guilty of the prior crimes.”

·         The Court emphasized that on appeal Mr. Williams did not raise two other potentially promising arguments, i.e. that his acquittal should have: (1) estopped the government from relitigating whether he had possessed the firearm, and (2) influenced the trial court’s decision that there was clear and convincing evidence that Mr. Williams had possessed the firearm, warranting its admission at trial as prior-crimes evidence under Drew.

Issue 2: Did the trial court abuse its discretion by refusing to dismiss the case or give a missing-evidence instruction as discovery sanctions based on the police’s failure to preserve the murder victims’ clothing and the car in which the murder occurred?

Holding 2: No.  Dismissal is an appropriate discovery violation only when the government has acted in bad faith, and the trial court reasonably found that the officers’ lapses here were merely negligent, not in bad faith.  To the extent that the trial court refused a defense request for a missing-evidence instruction, any error was harmless because the defense powerfully argued in closing that the police’s investigative lapses gave reason to doubt.

Issue 3: Did the trial court’s error in accidentally giving the jury an unredacted copy of a transcript of a witness’s testimony at Mr. Williams’s prior trial substantially sway the verdict?

Holding 3: No.  The record gave no reason to suspect that the jury read or relied on the unredacted parts of the transcript before the trial court realized the mistake and redressed it by instructing the jury to limit itself to the redacted transcript.  JM.

Read full opinion here

If you ask nicely, asking someone to lie for you about a crime you committed is not “harassment” for obstruction of justice purposes

Ronald Wynn v. United States, No. 11-CF-22

(decided November 21, 2013)

Players: Fisher, Oberly, Ferren.  Opinion by Judge Oberly.  David Reiter for Ronald Wynn.  Trial judge: Hebert Dixon, Jr.

Issue 1: Was there sufficient evidence for an obstruction of justice conviction that Wynn had “harassed” a witness to dissuade the witness from testifying truthfully or reporting information concerning a crime?

Facts: The government’s evidence was that Wynn went to a cookout, had an argument with the decedent’s wife, had a physical altercation with the decedent, and then went to his car, retrieved a gun and shot the decedent.  The government also presented evidence that after the shooting, Wynn asked his girlfriend to say, if asked, that she was with Wynn at the time of the shooting.  Wynn’s girlfriend testified that she was confused by the request because she did not know what had happened or what was going on.  The defense was self-defense. 

Holding 1: There was insufficient evidence of “harassment.”  Merely asking a witness, in a non-threatening manner that does not cause fear, distress, or even irritation, is not sufficient evidence of “harassment” for the purposes of the obstruction statute. 

Issue 2: Did the trial court’s response to notes from the jury after a Winters anti-deadlock instruction coerce verdicts?

Facts: This case involved two trials, and this issue pertains to the first trial, which resulted in guilty verdicts on some counts and a mistrial on other counts.  At the first trial, the jury sent notes indicating it was deadlocked, but context indicated the jury was deadlocked on the murder charge.  After a Winters anti-deadlock instruction, the jury also sent updates indicating it had reached verdicts on some counts but not others.  The jury returned guilty verdicts on some weapons and obstruction counts, and ultimately a mistrial was declared on the homicide count and PFCV counts.

Held: Because the post-Winters instruction notes were merely status updates, the Court’s failure to declare a mistrial on all counts after receiving those notes did not coerce the convictions.

Issue 3: Did the trial court err when it allowed a potential defense witness to assert a Fifth Amendment privilege and not testify at all?

Facts: To support the defendant’s self defense claim, the defense proffered a witness who would testify that the decedent had a gun in his hand when the defendant shot him.  The witness asserted his Fifth Amendment privilege because he had testified before the grand jury that the witness did not have a gun, thus testimony consistent with the defense proffer would put him at risk of a perjury prosecution.  The government was willing to offer immunity only if the witness debriefed first.  The trial court concluded that there was no way to “parse” the witness’s testimony and allow some limited questions that would not implicate the witness’s Fifth Amendment privilege, thus the witness did not testify at all.

Held: While the trial court’s ruling that there was no way to “parse” the questioning of the witness to allow some questions that would not implicate the witness’s right against self-incrimination is “subject to reasonable debate,” questioning about the only fact that would be helpful to the defendant – that the decedent had a gun – would clearly implicate the witness’s Fifth Amendment right.  Therefore, even if there was a flaw in the trial court’s approach, it was harmless.  

Read full opnion here 

The mens rea for threats is only an intent to utter the words, not an intent to threaten, but stay tuned for possible reconsideration en banc

Lee Carrell v. United States, No. 12-CM-523

(decided November 21, 2013) 

Players: Thompson, Newman, Schwelb.  Opinion by Senior Judge Newman.  Dissent by Senior Judge Schwelb.  Fletcher Thompson for Mr. Carrell.  Trial judge: Heidi Pasichow. 

Facts:  The complainant testified (credited in full by the trial judge) that Mr. Carrell said to the complainant, “I wish you would die,” and told her that if she called any of her family or friends for help, he would kill them.  He later yelled, “I could kill you right now, I could fucking kill you” with both hands around her throat while pushing her against a window.  The trial court found Carrell guilty but in her findings indicated that the intent required was “an intent to utter the words which constituted a threat.

Issue:  Whether the charge of threats requires only a “general intent,” i.e. an intent to say the words that constitute the threat, or whether it requires a “specific intent,” i.e. an intent to utter the words as a threat (an intent to threaten). 

Holding: Over a strong dissent, the majority determines that it is bound by prior precedent to conclude that a threats conviction requires only a “general intent,” an intent to say the words that constitute the threat. 

Of note: 

• This case is ripe for en banc review. For record preservation purposes, defense counsel in threats cases should continue to argue that the mens rea is an intent to utter the words as a threat while acknowledging the contrary holding of a divided panel in this case.
•  Senior Judge Newman, joined by Judge Thompson, explored the DCCA’s prior cases which contain different language regarding the intent element of threats.  A footnote in a 1982 case, Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C. 1982), articulating the element as an intent “to utter the words which constituted the threat,” pre-dated a 1983 case, United States v. Baish, 460 A.2d 38 (D.C. 1983), articulating the element as an intent “to utter the words as a threat.”  Two DCCA cases subsequently used Campbell’s language, and four DCCA cases subsequently used Baish’s language.  Because the Campbell footnote pre-dated Baish by 1 year, the majority held that it was bound by M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), to follow Campbell.   Judge Newman also concluded that the Court was bound by language in Holt v. United States, 565 A.2d 970 (D.C. 1989) (en banc), describing threats as a “general intent” crime.  The majority also noted that the majority of federal circuits, interpreting a similar federal threats statute, have stated that the federal threats statute requires only a general intent. 
• Senior Judge Schwelb dissented.  The dissent argued that none of the prior language cited by the majority (for either proposition) constitutes binding precedent because the Court has never been asked to focus on the difference between merely intending to utter the words and intending to utter the words as a threat.  The dissent concluded that, because neither Campbell nor Holt focused on the issue, neither is binding under M.A.P. v. Ryan, while also noting that of the eight DCCA decisions with language on the topic, five refer to the mens rea as the intent to utter the words “as a threat.”  The dissent acknowledged that most federal circuits interpreting a similar federal statute include general intent language, but nonetheless concluded that the mens rea for threats should be an intent to under the words as a threat for two reasons.  First, common sense: virtually every time a person utters words, they have intended to utter those words, thus for the intent element of the statute to have any real meaning it must require that the person intended those words to be threatening.  Second, in the absence of clear language in the statute or clues from the legislative history (no legislative history was presented to the Court), the rule of lenity should be applied to require a meaningful mens rea element.             
• Read full opinion here