Returning stolen property for a reward may not be a crime under certain circumstances. And sometimes, Kool-Aid steals laptops.

Lihlakha v. United States, No. 12-CM-606 (decided April 24, 2014)

The Players: Judges Glickman, Easterly, and Ferren.  Opinion by Judge Ferren.  Concurring opinion by Judge Easterly.  R. Michael Labelle for appellant.  Trial Judge: Truman Morrison III.

The Facts: The complainant's laptop was stolen from outside her Howard University dorm room, prompting her to post signs around campus promising a reward for the return of her laptop.  Shortly thereafter, the defendant, Jessica Lihlakha, called the complainant and represented that she may be able to obtain the laptop and return it for the promised reward.  The laptop had apparently been stolen by "Kool-Aid"--a local drug dealer, not the delicious sugary beverage--and Kool-Aid gave the computer to the defendant to return in exchange for the reward money.  When the defendant attempted to return the laptop to the complainant, she was greeted by an undercover officer, who placed her under arrest.  At trial, the defendant was convicted of receiving stolen property.  On appeal, she challenged the sufficiency of the evidence supporting that conviction.  The Court of Appeals determined that sufficient evidence supported her conviction but remanded for further proceedings because the trial judge failed to recognize the existence of a return-for-reward defense to the charge of RSP.

Issue: Whether the law recognizes a "return-for-reward" defense to the fourth element of D.C. Code 22-3232(a) (2001), which requires the government to prove that the defendant acted "with the intent to deprive another of the right to the property or a benefit of the property."

Holding: Yes, if certain conditions are met.  A defendant "may establish a return-for-reward defense that negates the requisite intent for receiving stolen property if the evidence shows that: (1) the reward had been announced . . . before the property was possessed or agreed to be possessed; (2) the person claiming the reward had nothing to do with the theft; (3) the possessor returned the property without unreasonable delay to the rightful owner or to a law enforcement officer; and (4) the possessor imposed no condition on the return of the property."  As Judge Easterly's concurrence clarifies (and as the majority opinion establishes less directly), "[s]eeking a previously announced reward in exchange for the return of stolen property is not such an impermissible condition."

Of Note: Lihlakha interprets the old receiving stolen property statute, which was modified in April 20, 2012, to delete the "intent to deprive" element at issue in this case.  Thus, Lihlakha is most directly applicable to cases where the crime was committed prior to April 20, 2012, and any attempt to apply Lihlakha's ruling to subsequent cases would require the litigant to argue that the holding remains applicable to the new statute despite the modification.  CK.

Read the full opinion here.

Court holds that a non-threatening request for a friend to stay silent (“keep the code”) amounts to obstruction of justice.

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.

Read the full opinion here.

Prosecutors should not make improper comments about a limited- or no-English defendant's exercise of his rights to a qualified interpreter.

Melvin Andrade v. United States, No. 12-CF-265 (decided April 3, 2014)

Players:  Judges Blackburne-Rigsby, Thompson and Reid.  Opinion by Judge Reid.  Craig N. Moore for appellant.  Trial judge: Michael Ryan.

Facts:  Melvin Andrade was tried on assault and weapons charges for stabbing a man.  Mr. Andrade, who emigrated from El Salvador at fifteen and spoke some English, was appointed an interpreter to help him understand the trial proceedings. He testified that he stabbed the complainant in self-defense.  On cross-examination, Mr. Andrade stated that he was confused and having trouble understanding or making himself understood by the prosecutor as she pressed him about his version of events.  The prosecutor responded, “You were there, if you need a different interpreter . . . you tell me because [you are] not going to hide behind translation.”  She also inquired about whether Mr. Andrade discussed the content of his testimony with defense counsel prior to trial.  In closing, the prosecutor insinuated that Mr. Andrade had feigned confusion, arguing that his claim not to have discussed his testimony with counsel prior to trial was “not believable” and that he “trie[d] to hide behind the interpretation,” even though her “questions were very simple,” “Spanish is not a very complicated language,” and “these are certified [c]ourt [r]eporters [sic].” 

Issue: Did the trial court’s failure to take corrective action in response to the prosecutor’s comments violate Mr. Andrade’s rights to an interpreter and to a fair trial?

Holding:  Not in this case.  “[T]he prosecutor arguably transcended the bounds of permissible comment” by using her questions and remarks about Mr. Andrade’s discussions with defense counsel and his hiding behind interpretation in order to express her opinion about his veracity.  Her remarks about the complexity of the Spanish language and the interpreters’ qualifications were also “disrespectful” and “insensitive,” if not improper, particularly after all present had recognized problems with the quality of interpretation at an earlier stage of trial.  Op. at 13-15.  Nevertheless, these errors did not meet the “stringent plain error standard” that applies when there has been no objection to improper prosecutorial comments.  Op. at 12, 16 (citation omitted).  The prosecutor’s questions about Mr. Andrade’s conversations with defense counsel, to which counsel did object, likewise did not meet the “substantial prejudice” standard for preserved prosecutorial improprieties.  This prejudice analysis turned in significant part on the Court’s opinion that the trial judge had taken adequate steps to ensure “that in her zeal to obtain a conviction, the prosecutor did not unduly infringe” on Mr. Andrade’s right to use an interpreter by:  barring an interpreter who had trouble early in trial, allowing for the correction of possibly mistranslated testimony, sustaining an objection to a question that directly accused Mr. Andrade of lying, and admonishing the prosecutor not to engage in narrative while cross-examining Mr. Andrade.  Op. at 15-16.

Of Note:  The Court pointed out that both “‘non-English [and] limited-English speaking’” defendants are entitled by statute to a “‘qualified interpreter,’” Op. at 9 (quoting D.C. Code §§ 2-1902(a) (2012 Repl.), 2-1901(2)), and that a lack of effective interpretation may “substantially undermine” the defense and pose “a serious possibility of grave injustice,” id. (citation omitted).  It also noted that prosecutors may not express personal opinions on witness credibility, argue negative inferences from a defendant’s decision to consult with counsel, or make comments directed at jurors’ emotions or assumed prejudices.  Op. at 11-12.  Defense counsel should object, citing these principles, when a prosecutor makes disparaging comments about a defendant’s need for, or use of, an interpreter.

Read the full opinion here.