Neither Saying to a Friend that a Witness Must Be “Dealt With,” Nor Saying During An Exchange of Calls With An Associate, “Don’t Tell What Happened,” Is Obstruction of Justice

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JUST SAYIN’ 

Darnell Hawkins & Marvin Verter, Jr. v. United States (decided July 9, 2015).

Players:  Chief Judge Washington, Associate Judge Beckwith, Senior Judge Reid.  Opinion by Associate Judge Beckwith.  Abram J. Pafford for Mr. Verter and Phillip C. Zane for Mr. Hawkins.  Trial judge:  Ronna Lee Beck.

Facts:  The government’s evidence showed that Mr. Hawkins, Mr. Verter and the decedent, Dawan Felder, were members of a drug-selling group called the “Get Money Soldiers.”  Government witnesses Sharde Wright and Jerita Campbell were members of a women’s auxiliary of sorts, the “Get Money Bitches,” who assisted in the drug sales. Mr. Verter and Mr. Hawkins asked Ms. Campbell to notify them if she saw Mr. Felder near her apartment, after suspicions arose that Mr. Felder had been stealing the groups’ proceeds.  Ms. Campbell did so.  Once notified, Mr. Verter and Mr. Hawkins came to her building, spoke to Mr. Felder, and then Mr. Hawkins shot and killer Mr. Felder.  Minutes later, Mr. Verter asked Ms. Campbell to give Mr. Hawkins a ride.  Ms. Campbell drove Mr. Hawkins to a gas station, where he met and confessed the murder to the head of the Get Money Soldiers.  Mr. Hawkins later exchanged several phone calls with Ms. Campbell, telling her at least once not to tell anybody what happened.

Ms. Wright, meanwhile, visited Mr. Verter, with whom she was romantically involved, in jail.  During the visit, Mr. Verter told Ms. Wright that Ms. Campbell had to be “dealt with” or gotten “out of the way.”  She said Mr. Verter made the statement because Ms. Campbell “was talking” and “[s]he was the main witness.”  The government posited that Mr. Verter obstructed justice by directing Ms. Wright to silence Ms. Campbell before she could testify to the grand jury.  When the trial judge ordered post-conviction briefing on whether “the bald statement, ‘We’ve got to get rid [sic] of [Campbell]’ is enough to make out an obstruction count,” the prosecution posited a different theory—that Mr. Verter’s statement was intended to intimidate Ms. Wright out of testifying against him.  The trial court upheld the obstruction conviction on that theory.

Issue #1:  Was Mr. Verter’s statement to Ms. Wright that Campbell should be “dealt with” or “gotten out of the way” sufficient to support Mr. Verter’s conviction for obstruction of justice?

Holding #1:  No.  Under either of the government’s theories, the evidence was insufficient to show that Mr. Verter “obstructed or impeded or endeavored to obstruct or impede the due administration of justice” in a D.C. court proceeding, as required by the charged obstruction provision, D.C. Code § 22.722(a)(6).  While an “endeavor” to prevent a witness from testifying need not be successful, “idle talk” is not sufficient without an active, specific intent to deter testimony.  There was no evidence Mr. Verter intended by his comment either to direct Ms. Wright to take action against Ms. Campbell or to frighten Ms. Wright herself out of testifying—to the contrary, the evidence suggested he believed Ms. Wright was already on his side and thus had no reason to pressure her. 

Issue #2:  Was there sufficient evidence to convict Mr. Hawkins of obstructing justice by “harass[ing]” Ms. Campbell via telephone “with the intent to hinder, delay, prevent, or dissuade” her from talking to the police, under D.C. Code § 22.722(a)(3)(B)?

Holding #2:  No.  It is not a crime merely to ask someone to lie so that one may evade law enforcement.  “Harassment” requires words and conduct that would reasonably tend to badger, disturb or pester an ordinary person (or threats, intimidation, or the use of physical force).  That Mr. Hawkins made calls to Ms. Campbell—many of which she returned, some of which went straight to voicemail, and on which there was no evidence of how many times he asked her to lie—does not establish obstruction by harassment.  Ms. Campbell’s asserted fear of being labeled a “snitch” and that other members of the Get Money Soldiers had keys to her residence could not be attributed to Mr. Hawkins.

Of Note: 

• The Court rejected Mr. Hawkins’ challenge to the jury instruction on yet another obstruction charge, for influencing his girlfriend’s grand jury testimony.  It held that instructing the jury it must find “an intent to undermine the integrity of the proceeding” adequately ensured that the jury would only convict upon finding that Hawkins acted “corruptly,” as the applicable subsection requires, D.C. Code § 22-722(a)(2)(A)-(B).

• The Court held that where a defendant obstructs justice by instructing a person to lie in an official proceeding, he violates both subsections (A) and (B) of D.C. Code § 22-722(a)(2), by (A) “influencing” the person’s truthful testimony, and (B) “causing or inducing the person to withhold truthful testimony.”  As such, Mr. Hawkins’ convictions under both subsections for the same act of instructing his girlfriend to lie merged.

• In rejecting Mr. Hawkins’ unpreserved challenge to the trial court’s failure to sever his trial from Mr. Verter’s, the Court noted that “[t]he fact that counsel for one defendant effectively acts as a ‘second prosecutor’ is generally insufficient to constitute prejudice requiring severance.”  FT.

Read full opinion here.