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 

Prosecutors should not ask questions that contain misleading information, and when they do the defense is entitled to present evidence to correct the record, even if that means a mid-trial continuance

Brian K. Gilliam, John A. Daniels, and Ronald L. English v. United States, Nos. 08-CF-725; 08-CF-879; 08-CF-914 (decided November 21, 2013)

Players: Glickman, Fisher, Oberly.  Opinion by Judge Glickman.  PDS for Mr. English.  Montrell Scaife for Mr. Gilliam.  Thomas T. Heslep for Mr. Daniels.  Trial judge: Geoffrey Alprin.  Trial prosecutor: S. Vinet Bryant. 

Issue 1: Did the trial court err in denying the defense request for a continuance after the prosecutor introduced misleading information through questioning of a defense witness? 

Facts:  The defendants were convicted of conspiracy with intent to kill and gun-related charges, but acquitted of murder and assault charges.

The case involved a conspiracy that depended, in part, on the four co-conspirators (the 3 defendants and the government cooperator) getting together via a phone call between the government cooperator (Mr. Holmes) and one of the co-defendants (Mr. Daniels).  Mr. English’s attorneys introduced evidence that they believed showed Mr. Holmes’ testimony about that call was false: Holmes’ cell phone records that showed no call with Mr. Daniels during the relevant time.  They introduced the records through a custodian of records (Custodian # 1). 

AUSA Vinet Bryant, however, cross-examined Custodian # 1 about whether Holmes had a second phone and even asked whether he had checked a specific second number, (202) 277-1049.  Custodian #1 testified that (of course) he would not know if Holmes had a phone with a different service provider, and that he (of course) had not checked the records for the second phone number referenced in the prosecutor’s question. 

Mr. English’s counsel, who had previously been unaware of any other cell phone number belonging to Mr. Holmes, then scrambled mid-trial to obtain the records for this second phone number.  The records showed that Mr. Holmes did in fact have a second cell phone with the number referenced in AUSA Bryant’s question, but that the phone was not in service at the relevant time. 

The defense showed these records to the prosecutor, along with an affidavit from the custodian of those records (Custodian #2).  AUSA Bryant refused to stipulate to the authenticity of the records and insisted that she needed to cross-examine Custodian #2.  Custodian #2 was half-way across the country, however, so the defense requested a brief continuance of the trial in order for her to travel to D.C. and appear as a witness.  Judge Alprin denied the continuance and the jury convicted the appellants on conspiracy and weapons charges.   

Holding 1: Yes, the trial court abused its discretion in denying the continuance because it underestimated the value of the evidence, which would have showed conclusively that Holmes lied about the phone call, and because the prosecutor’s questions about the second phone “had the real potential to mislead the jury into assuming facts not in evidence[.]” 

Of Note:

• If a prosecutor’s question creates a misimpression with the jury, even if there is no actual evidence of the fact implied by the question, the defense is entitled to a continuance / delay of the trial in order to correct that misimpression through evidence; the general instruction that “questions are not evidence” and addressing the issue in closing arguments are not an adequate remedy.

• The Court of Appeals was not pleased with the conduct of the prosecutor and the trial court’s failure to correct the record:  “It therefore is dismaying that, after personally inspecting the phone records and having an opportunity to contact the Sprint Nextel records custodian, the prosecutor objected to the relief appellants sought; equally dismaying that the court did not acknowledge its duty to take appropriate action.”  Slip op. at 25

• “It is immaterial that the prosecutor had a good faith basis to ask the question and did not intend to mislead the jury.”  The problem was created because the “question threatened to plant a false and damaging insinuation …”  Slip op. at 24

• Although there was no actual evidence of a second phone, defense counsel argued forcefully in closing that there was no such evidence, and the judge instructed to the jury during final instructions that questions are not evidence, “those palliatives were not an adequate substitute for the hard evidence the court excluded.”   Slip op. at 28

• Relevant factors in determining whether a trial court abused its discretion in denying a continuance to secure a witness include 1) the probative value of the witness’s testimony, 2) the likelihood that the witness would appear if the continuance were granted, 3) whether the party seeking the continuance has exercised due diligence and good faith, 4) the prejudice to the party if the continuance is denied, 5) the prejudice to the opposing party if the continuance is granted, and 6) the duration of the requested continuance and any consequent disruption or delay of the trial.  Slip op. at 2.

Holding 2: No, Mr. Daniels’ Second Amendment rights were not violated because he was convicted, based on the instruction to the jury, of carrying the pistol without a license “in connection with the homicide of Anthony Knight” which is clearly not a purpose protected by the Second Amendment. 

Issue 3: Whether the conspiracy instruction erroneously permitted the jury to convict the appellants of a conspiracy based entirely on conduct in Maryland? 

Facts:  The government’s theory was that the conspiracy was formed in Maryland, some acts in furtherance of the conspiracy were committed in Maryland, and other acts in furtherance of the conspiracy were committed in D.C.  The jury instruction permitted the jury to find the defendants guilty of conspiracy by finding only that a conspiracy was formed and that at least one overt act was committed. 

Holding 3: Jurisdiction for conspiracy requires that either the formation of the conspiracy or at least one of the overt acts take place within the District of Columbia.  Because in this case the government’s theory is the conspiracy was formed in Maryland, if the appellants are retried for conspiracy the trial court should instruct the jury specifically that it must find that one of the conspirators committed at least one of the overt acts that allegedly occurred in D.C. in order to find a defendant guilty of conspiracy. 

Read full opinion here 

No Plain Error In Denying a Special Unanimity Instruction Where Multiple Threats Uttered During an Abduction Were Not Clearly or Obviously Factually or Legally Separate

Angela Guevara & Demecio Lopez v. United States, Nos. 11-CF-209 & 11-CF-280 (decided October 10, 2013)

Players:  Glickman, Oberly, Belson.  Opinion by Senior Judge Belson.  PDS for Ms. Guevara.  Phillip C. Zane for Mr. Lopez.  Trial judge:  Craig Iscoe.

Facts:  After an argument, Demecio Lopez and his brother Armando seized Silvano Lopez (their former brother-in-law), forcing him into a van driven by Angela Guevara and occupied by an unidentified man.  They drove around for a while, then stopped, and Armando and the unknown man stabbed Silvano.  They later left him near Catholic University.  In the course of the kidnapping and stabbing, Silvano was threatened three times.  When Silvano first entered the van, the unidentified man held a knife to his throat and told him he was going to die.  When Silvano’s cell phone rang during the van ride, the same man told Silvano he would cut him if he answered.  And when leaving Silvano after the stabbing, Demecio told him he would murder him in the hospital if Silvano identified his assailants to police.  Based on this incident, Demecio Lopez was convicted of armed kidnapping, related assault charges, and threats.  Angela Guevara was convicted only of threats.   

           

Issue 1:  Did the trial court commit plain error in failing to give a sua sponte special unanimity instruction telling the jury that in order to convict Ms. Guevara of threatening to injure or kill Silvano Lopez it must unanimously decide which of three possible threats served as the basis for conviction?

Issue 2:  Did the trial court’s failure to correct translation problems at trial amount to plain error entitling Demecio Lopez to a new trial? 

Holding 1:  No.  Any error was not plain because it was not clear or obvious that the three threats were factually or legally distinct, and the trial court reasonably could have seen the threats as part of a “single unbroken chain of events.”  Nor did Ms. Guevara show prejudice to her substantial rights, where the prosecutor’s closing argument referred to only one of the threats.

Holding 2:  No.  There was no plain error where the trial court “took precautions from the outset to ensure an accurate translation” and “assiduously policed the translation issues as they arose.”

Of Note:      

• Indications that the three threats were not “factually separate” included the facts that    they all occurred during the course of the abduction, all were “communicated in a similar manner and to the same person,” all took place within a “relatively short” period of about forty-five minutes, and all were motivated by a desire to silence Silvano Lopez.  Slip op. at 16-17. 
• Even though the Court identified these reasons to believe that the three threats were not            factually distinct, it “recognize[d] . . . that if defendant’s counsel had asked for a special unanimity instruction and stated the basis for it, the court might have been obliged to give such an instruction to the jury.”  Slip op. at 22.

 How To Use:  Given its recognition that a special unanimity instruction might have been required on the facts of this case if counsel had requested one, the opinion may offer support for a request for a special unanimity instruction at trial if the evidence shows distinct factual bases for a charged offense “separated by time, location, and surrounding circumstances.”  See Slip op. at 22 n.19.  MW.

Read full opinion here

Jury Says It's Confused About an Instruction? The Judge Can't Just Repeat the Original Instruction

Gray v. United States, No. 10-CF-1466

(decided Nov. 7, 2013)

Players: Fisher, Thompson, and Wagner.  Opinion for the Court by Judge Thompson; opinion concurring in part and dissenting in part by Judge Wagner.  PDS for Mr. Gray.  Trial judge: Ann O’Reagan Keary.

Facts:  Jeremiah Gray was convicted of armed robbery and gun charges.  The two complainants alleged that three men robbed them at gunpoint, and one of the men was struck in the face with a gun and injured, but they offered little description of their assailants, other than that they were black men in black jackets.  Shortly after the robbery, an officer saw two men matching that description about a block away, acting as if they were knocking on the door of a residence (the occupant indicated he did not know them).  The officer stopped the two men, Mr. Gray and Frank Tate.  Mr. Gray had nothing incriminating on him; Mr. Tate had some items belonging to one of the complainants.  The officers conducted a show-up identification procedure, and the complainants identified both men as their assailants. 

            During deliberations, the jury sent in a note asking whether “for someone to be found guilty of aiding and abetting an armed robbery and possession of a firearm during a crime of violence or dangerous crime, do they have to have participated at the time of the crime, or could they have participated after the crime occurred?”  The court responded by re-reading the aiding and abetting instruction that it had already given the jury, a copy of which the jury had with them throughout deliberations.

Issue:  Whether the trial court’s response to the jury note adequately responded to, and clarified the confusion revealed by, the jury note.  

Held:   The trial court's response was insufficient.  The note revealed juror uncertainty as to whether Mr. Gray could be convicted if he merely helped Mr. Tate abscond with proceeds from the armed robbery—but did not participate in it himself—and it was incumbent on the court to clarify that such after-the-fact participation was insufficient to convict Mr. Gray of aiding and abetting the armed robberies.

Of note:

• The Court’s instruction was faulty because it could have left the jurors with the false impression that they could convict Mr. Gray, under an aider and abettor theory, for acting as an accessory after the fact.  The instructions told jurors that they could convict Mr. Gray if he “participated in the crime as something wished to bring about and … intended by his actions to make it succeed,” and since the armed robbery instruction told jurors that robbery required “that the defendant carried away the property after taking it,” it was possible the jury convicted Mr. Gray on the basis that he helped Mr. Tate carry the property away after the fact, rather than for participating in the robbery.  
• The most important part of this opinion may be in the Court’s harm analysis, where it indicated not only that it was reviewing the instructional error under a Chapman “constitutional harm” standard of review—rejecting the government’s arguments that Kotteakos should apply—but expressly stating that the standard was dispositive of the issue, and that the Court would not have reversed but for its application of Chapman.  So often the Court just punts on these issues and invokes the familiar “under any standard” language that signifies it does not want to get dragged into a debate about which standard for evaluating harm applies.  Not only did the Court refuse to do that here, but by explicitly stating that the standard of review mattered to the disposition, it warded off any future argument that this was just dicta. 

How to use:

For trial counsel:

•  The opinion uses strong language telling trial courts that they need to be proactive in clarifying points of juror confusion; where a trial court attempts to re-read an instruction the jury already has in response to a note, this opinion could be used to press for a more concrete clarification (but whether you want to do that will depend on what concrete answer the court will give).
•  Where the evidence against your client suggests he may have only participated in the charged offense after-the-fact, be pro-active in asking the court to modify any instructions that could lead jurors to convict under an aider and abettor theory for that activity.  Do not wait for a jury note.

For appellate counsel:

• When raising a claim of instructional error, invoke the Chapman standard of review if the error can fairly be viewed as speaking to “a controlling issue” in the case, and use the facts of Gray when arguing about what constitutes such a controlling issue.  JD  
  
  
  Read Gray v. United States Here