Failure to Advise MPD Officer of Potential Employment Consequences of His Testimony Was Not Ineffective Assistance

Turner v. United States (decided August 10, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judge McLeese, and Senior Judge Reid. Opinion by  Judge Reid. Nigel A. Barrella for Mr. Turner. Trial Judge: Robert E. Morin.

Facts: Turner, an officer with the Metropolitan Police Department (MPD), was convicted after a bench trial of simple assault based on an excessive force incident. Turner testified in his defense, but the trial judge concluded that his testimony was "not credible" and found him guilty of the assault. MPD filed disciplinary charges against Turner based on the assault, but a panel of MPD officers reasonably doubted that Turner was guilty (despite the conviction), and recommended that he be returned to full duty. However, the U.S. Attorney's Office later informed MPD that it would no longer sponsor Turner's testimony in future cases due to the adverse credibility finding made against him. Based on that, MPD amended the disciplinary charges against Turner, and he was fired.

Turner challenged his conviction on the basis of ineffective assistance of counsel, arguing that his trial attorney should have informed him of the adverse employment consequences that could flow from his decision to testify in his criminal trial. The trial court denied the claim.

Issue: Was trial counsel's failure to advise a defendant of potential adverse employment consequences that could result from his decision to testify constitutionally deficient performance?

Holding: No. Although the Supreme Court has held that an attorney must advise a defendant of the potential immigration consequences of a criminal case, that ruling does not extend to potential employment consequences. Unlike immigration cases, where deportation is "intimately related to the criminal process," Turner's loss of his job did not flow directly or automatically from his criminal case. Moreover, while immigration consequences can be determined from reviewing the pertinent statutes, an attorney would have "to jump through several speculative hoops" to advise Turner of the employment consequences from his decision to testify and a finding that his testimony was not credible.

Of Note: Because the DCCA found there was no deficient performance, it did not reach the issue of prejudice.  It did, however, note that the prejudice inquiry would present difficulties for Turner. He did not contend that the result of his trial might have been different had he not testified, and the DCCA saw no way it could "erase the trial court's finding that [Turner's] testimony was not credible," so that there was no basis for the court to eliminate the grounds for his termination.

DG

Read the full opinion here.

Denial of Request for Alcoholism Treatment in Lieu of Prosecution Was Improper

Cruz v. United States (decided August 3, 2017)

Players: Associate Judges Fisher, Beckwith, and Easterly. Opinion by Judge Beckwith. Gregory W. Gardner for Mr. Cruz. Trial Judge: Geoffrey M. Alprin.

Facts: Two weeks before the start of his trial for simple assault, Cruz moved to be treated for alcoholism in lieu of being prosecuted. See D.C. Code  § 24-607(b). Cruz's counsel said that Cruz had not yet been medically diagnosed with alcohol dependency, but that he wanted to be assessed and would obtain an expert to conduct an analysis. The trial court denied the motion, after a Pretrial Services Agency (PSA) officer said that Cruz had previously turned down an offer of treatment. Cruz was later convicted of simple assault.

Issue: Did the trial court properly exercise its discretion in denying the request for treatment in lieu of prosecution?

Holding: No. Section 24-607(b) authorizes a court to order treatment in lieu of criminal prosecution in a misdemeanor case if it finds, after a medical diagnosis and a civil hearing, that the defendant is a "chronic alcoholic" and that adequate and appropriate treatment is available. After making these findings, the trial  court has discretion whether to grant treatment in lieu of prosecution. The DCCA held that the record was inadequate to support the denial of treatment in this case. The trial court failed to explain the significance it gave the PSA officer's statement that Cruz had previously turned down an offer of treatment. In light of defense counsel's assertion that Cruz wanted treatment, the court lacked a "firm factual foundation" for giving "definitive weight to the PSA officer's representation."

The DCCA noted that the trial judge might also have thought that Cruz was ineligible for relief because he had been recommended for outpatient rather than inpatient treatment. This would have been a legally erroneous basis for denying relief, however, because "[t]he statute does not require inpatient commitment, and in fact indicates that outpatient commitment is an option."

The DCCA also thought it possible that the trial judge though Cruz's rejection of the treatment offered by PSA, combined with his "possible tardiness" in applying for relief, "weighed against granting treatment in lieu of punishment." "But even assuming such reasons would be sufficient to support the trial court's exercise of discretion," the trial court had not stated those reasons, and the DCCA could not affirm on that basis.

The DCCA rejected the government's argument that the denial was proper because Cruz failed to establish that he was medically diagnosed as a chronic alcoholic, noting that Cruz had specifically requested a hearing so that he could present such evidence, and the trial judge had not provided any reason for denying a hearing.

Of Note: The court's discussion of the principles government discretionary rulings, and its review of such rulings, is applicable more broadly than the specific statute at issue in this case. In any case subject to the "abuse of discretion" standard of review, there may be good appellate arguments to be drawn from this case.

DG

Read the full opinion here.

Escape Statute Does Not Cover Fleeing from an Attempted Arrest

Davis v. United States (decided August 10, 2017)

Players: Associated Judges Glickman and Fisher, Senior Judge Ruiz. Opinion by Judge Fisher. PDS for Mr. Davis. Trial Judge: John McCabe

Facts: Officers saw Mr. Davis appearing to urinate in public. They approached him, told him to put his hands on the railing, and one officer grabbed Mr. Davis's belt and pants. The officer then told Mr. Davis to put his hands behind his back, but Mr. Davis instead shoved the officer and ran off. Mr. Davis was arrested and charged with escape.

Issue: Did fleeing from an attempted, but not yet completed, arrest violate the escape statute?

Holding: No. The D.C. escape statute prohibits, in pertinent part, escaping from the "lawful custody" of a police officer. D.C. Code § 22-2601(a)(2). The DCCA had previously held in Mack v. United States, 772 A.2d 813 (D.C. 2001), that the escape statute applies to escapes from an officer's physical restraint pursuant to a lawful arrest. However, after reviewing cases from other jurisdictions, the court declined to extend Mack to an escape from physical restraint while attempting to make a lawful arrest. The court noted that a different statute, D.C. Code § 22-405, criminalizes efforts to evade arrest. But Mr. Davis was charged with escape, and that crime he did not commit.

Of Note: Once again, the DCCA rejects the government's attempt to argue that a defendant had "waived" his right to present a sufficiency issue on appeal by failing to renew an MJOA after the close of the defense case. Hopefully the government will get the hint and stop making this argument.

DG

Read the full opinion here.

Defense Was Entitled to Additional Discovery on Procedures in Lab Testing of Suspected Marijuana

Buchanan v. United States (decided August 3, 2017)

Players: Associate Judges Thompson and McLeese, and Senior Judge Ferren. Opinion by Judge Thompson. Donald Burke and Matthew M. Madden for Mr. Buchanan. Trial Judge: William M. Jackson.

Facts: Appellant was arrested after police officers found 7.5 ounces of a substance they believed to be marijuana in a duffel bag he dropped. The substance field tested positive for THC and was sent to the DEA laboratory for testing.

Pre-trial, appellant sought discovery under Rule 16(a)(1)(E) for (1) the standard operating procedures (SOPs) used in the lab, (2) validation studies relating to those procedures, (3) the lab’s maintenance and calibration records for the equipment, (4) the lab’s audit reports on the operations, (5) the lab’s training materials, and (6) proficiency examinations and performance evaluations for the chemist that performed the test. Appellant attached an affidavit from an expert stating the expert needed to review the requested documents to ensure the chemist came to the proper conclusion and that the conclusion was supported by analytical results, which was impossible to do without the requested documents.

The government rejected the requests as immaterial or beyond the reach of Rule 16. The trial judge ruled the government must produce the lab’s standard operating procedures and accreditation reports, and rejected requests for the remaining documents. When the government failed to produce the SOPs, the judge denied appellant’s second motion to compel, reasoning defense could call the chemist as a fact witness about the lab’s procedures.

The case proceeded to trial, where appellant did not contest that the substance was marijuana and stipulated to the chemist’s report. He was convicted in a bench trial.

Issue: Did the trial court erroneously deny appellant’s motion to compel documents related to testing done by the DEA laboratory?

Holding: Yes, the requested discovery was material to appellant’s case and supported by affidavits identifying the potential for error in the testing methods, the defense’s need for the information, and the absence of any burden on the government. The court considered each category of evidence individually.

Lab’s standard operating procedures: The trial court refused to hear appellant’s argument that the produced documents failed to include the SOPs, and appeared not to have reviewed the discovery itself. The government did not dispute that the defense’s expert needed the SOPs to understand the limits of the testing, nor did they assert production would be burdensome. The trial court’s decision was erroneous without a more careful consideration of what material information its ruling made inaccessible to the defense.

Training materials: The court previously held that submitting an affidavit from a qualified chemist that noted a possible flaw in the testing procedures used by the DEA shows materiality for copies of training materials used by the DEA. A prima facie showing that the results were unreliable is not required. The court held it is enough that appellant’s expert identified a possible flaw that called into question the government’s evidence, and the trial court erred in not requiring production of the training materials.

Validation studies: Appellant’s initial request for “validation studies relating to [the testing]” was too broad, but appellant’s expert elaborated in her third affidavit, explaining that although the DEA’s techniques are generally accepted in the community, that does not prove that the DEA was using the techniques accurately and reliably. The trial court erred by not considering the expert’s explanation and the issue was remanded to the trial court to consider more fully.

Maintenance and calibration records: Although the defense’s expert did not establish materiality because the request did not specify a time and so was overly broad, and she did not state that the equipment could lead to a false positive if not maintained, the issue must be remanded because the trial court’s decision was based on an incorrect application of the rule. The trial court denied because the request was unduly burdensome and Brady already required the government to produce information about any problems with the equipment. The court had no evidence it was unduly burdensome, and this was contradicted by appellant’s expert. It also did not consider the relevance of the lab failing to adhere to a maintenance or calibration regimen. The court remanded for the trial court to consider the issue more fully.

Audit reports: The trial court rejected appellant’s request as unduly burdensome and another Brady obligation, but appellant’s expert averred that the burden was minimal, as they must store the documents in an easily accessible location to maintain accreditation. Although appellant’s request may have been too broad because it sought documents other than during appellant’s testing, the court remanded for the trial court to reconsider only those reports that are temporally relevant.

Proficiency examinations and performance evaluations: The trial court denied appellant’s request for the chemist’s performance evaluations because disclosure was not mandated under the Privacy Act. The trial court erred because the Privacy Act does not create a discovery privilege and appellant was not required to show an actual need for the materials. Discovery can be compelled over the Privacy Act by a court discovery order.

The trial court must reconsider its rulings on the validation studies, maintenance and calibration records and audit reports. The government must produce the laboratory SOPs and training materials and the DEA chemist’s proficiency results and performance evaluations.

The court could not determine if the erroneous discovery rulings were prejudicial to appellant and if the erroneous ruling was significant enough to call the government’s proof of the substance’s identity into question. It held although appellant stipulated to the chemist’s report and analysis, and its theory of the case at trial did not rest on the testing of substance being inaccurate, appellant is still free to challenge the evidence. The court remanded to the trial court to reconsider if its ruling was prejudicial after reviewing the requested evidence.

AB

Read the full opinion here.

DCCA En Banc: Mens Rea for Threats Requires Purpose or Knowledge that Words Will Be Construed as a Threat, Maybe Recklessness

Carrell v. United States (decided August 3, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judge Washington. Opinion for the court by Judge Easterly. Partial concurrence/dissent by Judge Thompson. Fletcher P. Thompson for Mr. Carrell. PDS as amicus. Trial Judge: Heidi M. Pasichow

Facts: As we previously summarized in noting the Division opinion:

The complainant testified that Mr. Carrell said to her, “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 credited the complainant’s testimony and found Carrell guilty. To find Carrell guilty, the judge said the law required Carrell to have “an intent to utter the words which constituted a threat.” She found such intent and convicted him of attempted threats.

Issue: What mens rea must the government prove in order to obtain a conviction for misdemeanor or felony threats?

Holding: The government must prove the defendant’s mens rea to utter the words as a threat, and may do so by establishing the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.

On granting rehearing, the Court asked the parties to brief Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires a finding of mens rea as to both the conduct and the result elements of the statute. Adopting the Court’s reasoning in Elonis, the DCCA “reach[ed] the same conclusion.” To sustain a threats conviction, the en banc court held, “more is required than a showing that a reasonable person would have understood the defendant’s words as a threat or that a defendant should have known that that would be the case.”

The Court did not decide whether a lower-threshold mens rea of recklessness would suffice. The U.S. Attorney’s office had stated that it doesn’t intend to prosecute future threats cases on a recklessness theory.

The Court went on to find that, although there was legally sufficient evidence to support a finding that Mr. Carrell intended to threaten, the trial judge had failed to make a finding on that element, the error was not harmless beyond a reasonable doubt, and thus the case was remanded to the trial court to make the necessary mens rea finding in determining whether Carrell is guilty.

The partial concurrence/dissent: Judge Thompson said she agreed that a threats conviction “requires more than evidence that the defendant intended to utter the words that constitute the threat,” and that she agrees with the majority’s position on the mens rea required for the crime. But she said the opinion doesn’t go far enough, and — citing Justice Alito’s “eloquent[]” concurrence and dissent in Elonis — said the Court should have concluded that a finding of recklessness is enough to satisfy the mens rea element, at least for the misdemeanor threats statute, if not the felony threats statute.

Of Note:

• The Court endorses the Model Penal Code's gradations of intent (purpose, knowledge, recklessness, negligence) over the vague concepts of general and specific intent.
• The Court held that Carrell had preserved the intent issue raised on appeal, although he did expressly raise it at trial. "A 'full range of challenges' to the sufficiency of the evidence are automatically preserved at a bench trial by a defendant‘s plea of not guilty."

LT

Read the full opinion here.

Leaving After Colliding Statute Requires Drivers to Identify Themselves Without Unreasonable Delay, But Not Immediately

Cherry v. District of Columbia (decided July 27, 2017)

Players: Associate Judges Thompson, Beckwith, and McLeese. Opinion by Judge McLeese.  Matthew J. Peed for Mr. Cherry. Trial Judge: William M. Jackson.

Facts: Appellant appealed his conviction for leaving after colliding in violation of D.C. Code §50- 2201.05c (a)(2). Appellant hit a wall adjacent to a convenience store with his car. After the crash, appellant walked toward the convenience store and then came back to the scene of the crash. Officers arrived shortly after and asked a group of onlookers, including appellant, if they had seen anything, and appellant did not identify himself.

An officer then went to the convenience store and watched the surveillance footage. He recognized appellant as the driver, and began to search for him. Appellant had also walked toward the store but the officer did not see him. The officer was in the basement reviewing footage and admitted he could have missed appellant. Twelve minutes after the officer watched the footage, appellant approached the group, identified himself as the driver, and was arrested.

The trial judge found appellant was required to identify himself immediately to the officers on the scene and failed to do so quickly enough. Appellant was convicted of colliding and leaving.

Issue 1: Was appellant required to provide identifying information to law enforcement immediately?

Answer: No. D.C. Code §50- 2201.05c (a)(2) does not create this obligation. It states in part:

(a) Any person who operates… a vehicle within the District who knows or has reason to believe that his or her vehicle has been in a collision shall immediately stop and:

… 

(2) Where real or personal property belonging to another is damaged…, provide identifying information to the owner… or, where the owner or operator… is not present, provide…identifying information and the location of the collision to law enforcement.

The statute requires that the driver provide identifying information to the owner of the damaged property and only if the owner is not present must the driver provide identifying information to law enforcement.

The trial judge’s understanding was wrong because the statute does not require a driver to “immediately” provide identifying information. The term “immediately” only modifies “stop” and not “provide” because “provide” is too far removed from “immediately.” The court considered the statute’s intervening punctuation, grammatical complexity, and other substantive considerations and held they support this finding.

Issue 2: Can drivers wait as long as they like before providing identifying information, as long as they do not leave the scene?

Answer: No, the statute does not explicitly say when drivers must provide identifying information, but the court held it must be without unreasonable delay. Although the title to the statute is “Leaving after Colliding,” the court declined to interpret the statute to allow a driver to remain on the scene for an extended time while refusing to provide identifying information. The court stated the significance of the statute’s title should not be exaggerated, and should be only be considered when interpreting an “ambiguous word or phrase in the statue.”

The court held the statute not only requires drivers to stop and remain on the scene, but to take further steps while there, including summoning necessary medical assistance and providing identifying information.

Issue 3: Was the evidence sufficient to convict appellant?

Answer: Yes, viewed in the light most favorable to the government, the evidence indicated that: (1) appellant did not identify himself as the driver when asked; (2) appellant promptly walked away from the scene of the collision; (3) the officer did not see appellant enter the store; (4) the store owners did not seem to be aware of the collision when the officer entered the store; (5) the officer could not find appellant after identifying him on the tape; and (6) twelve minutes later, appellant returned to the scene and identified himself. This evidence would permit a rational fact-finder to find that appellant’s delay was unreasonable because he never notified the owner of the wall and instead left the scene for twelve minutes before identifying himself.

The court also held the driver must take affirmative steps to provide identifying information, simply leaving a car at the scene was not enough.

The trial judge’s comments imply he could have been relying on an incorrect understanding of the law, but other bases not considered by the trial court would sustain the conviction. The court vacated the judgment and remanded the case for the trial court to reweigh the evidence, rather than reversing outright. 

AB

Read the full opinion here.

A § 23-110 Motion Filed After Resentencing Cannot Be Barred As “Second or Successive,” Even If It Challenges the Underlying Conviction

Long v. United States (Long IV) (decided July 20, 2017)

Players: Associate Judges Beckwith and Easterly, Senior Judge Belson. Opinion by Judge Easterly. Vincent A. Jankoski for Mr. Long. Trial Judges: Judith A. Smith & Lynn Leibovitz.

Facts: Mr. Long was convicted of first-degree murder while armed and several lesser offenses in 1998. After a complicated procedural history that spanned 14 years, he filed a second § 23-110 motion for post-conviction relief in 2012 (the 2012 motion). In that motion, filed pro se, Mr. Long challenged his conviction on Fifth Amendment grounds, alleging that he was the victim of a vindictive prosecution and that the government knowingly relied on perjured testimony. Two years later, in April 2014, Judge Smith denied the motion without a hearing.

One month after the denial of his 2012 post-conviction motion, Judge Leibovitz held a new sentencing hearing for Mr. Long, pursuant to the DCCA’s decision in Long III (ordering resentencing due to the failure of prior appellate counsel to raise a meritorious Apprendi claim). At the conclusion of the hearing, Judge Leibovitz issued a new judgment and commitment order.

Following his resentencing, Mr. Long filed two more pro se appeals. The first was a direct appeal from his resentencing, arguing that the trial court had failed to apply the law in effect at the time of his offense. As a result, he argued, he was given a sentence of thirty-five years to life for his murder conviction when he should have been resentenced to life with eligibility for parole after 30 years.

Mr. Long also appealed the denial of his 2012 motion for post-conviction relief. The government argued that Mr. Long’s 2012 motion was procedurally barred as a “second or successive” motion for post-conviction relief. In response, Mr. Long’s counsel filed a third §23-110 motion for Mr. Long (the 2016 motion). In that motion, he renewed the claims made in Mr. Long’s 2012 motion. He then argued that under the Supreme Court’s decision in Magwood v. Patterson, Mr. Long’s claims were not procedurally barred because they were collateral challenges to a new judgment: the judgment Mr. Long received when he was resentenced by Judge Leibovitz. The 2016 motion was denied by Judge Leibovitz without a hearing, who ruled that a “resentenc[ing] does not convert a motion that presented a successive claim regarding his trial into a fresh claim.” Mr. Long appealed that denial as well, and all three appeals were considered together by the DCCA.

Issue 1: Was Mr. Long’s 2016 motion for post-conviction relief procedurally barred as “second or successive” pursuant to D.C. Code § 23-110 (e)?

Holding 1: No. Even though it was the third § 23-110 motion he had filed since his conviction, it was the first post-conviction motion he had filed after receiving a new judgment at his resentencing.

The DCCA first noted the similarities between the D.C. and federal habeas statutes. It then looked to the Supreme Court’s decision in Magwood, which addressed “second or successive” petitions in the federal habeas context. The Magwood court held that the “second or successive” bar is judgment based, not claim-based. In practical terms, explained the DCCA, this means that if a “‘new judgment’ intervenes between the first petition and one filed later in time, the later-in-time petition cannot be called ‘second or successive’” because it is the first habeas petition to challenge the new judgment. Importantly, “[t]he fact that the judgment incorporated an earlier error that could have been challenged in the habeas petition filed before [a petitioner] was resentenced [is] immaterial: ‘An error made a second time is still a new error.’”

Because the petitioner in Magwood was challenging his new judgment, the Supreme Court did not decide whether the “second or successive” bar would apply to Mr. Long’s situation: where a petitioner challenges his original conviction after he is resentenced and receives a new judgment. However, six of the eight Federal Courts of Appeals to consider the question have applied the rationale of Magwood and held that a habeas petition filed after a new judgment cannot be barred as “second or successive,” regardless of whether the petitioner is challenging the new sentence or his original conviction. The DCCA adopted this majority rule and held that “after being resentenced and receiving a new judgment, a prisoner may file a § 23-110 motion attacking either his sentence or underlying conviction without running afoul of the bar on second or successive motions.”

Issue 2: Did the trial court fail to apply the law in effect at the time of Mr. Long’s original conviction when he was resentenced?

Holding 2: Yes. The Court held that under the plain language of the statute in effect at the time of his conviction, the trial court could only resentence him to a life sentence. The law at the time also dictated that Mr. Long would become eligible for parole after thirty years.

ME

Read the full opinion here.

Although One "Cannot Aid or Abet Himself," It's Not Error To Instruct on Aiding and Abetting Where Government's Theory Is That the Defendant Was The Principal

Dickens & Fenner v. United States (decided July 20, 2017)

Players: Associate Judges Glickman, Fisher, and Thompson. Opinion by Judge Fisher. Separate statement by Judge Fisher. Jennifer Wicks for Mr. Dickens. PDS for Mr. Fenner. Trial Judge: Jennifer M. Anderson.

Facts: Fenner, Dickens, and Pitts were charged with his first-degree murder while armed as well as conspiracy to commit first-degree murder while armed resulting from the shooting death of Stanley Daniels. Fenner was also charged with possession of a firearm during a crime of violence (PFCV). Pitts pleaded guilty to the conspiracy charge and testified against Fenner and Dickens at trial.

Two witnesses to the shooting testified that they saw a shooter wearing a light gray or white shirt and jean shorts. One, standing a block away, said the shooter was “[a]lmost bald” and had facial hair. Two other witnesses, including Pitts, said they heard Fenner say he shot Daniels.

The government requested an “aiding and abetting” instruction. Fenner’s attorney argued the jury should only be instructed on aiding and abetting as to Dickens, since the government’s evidence and charges pointed to Fenner as the principal. The judge denied the instruction because he said the witness identifications of the shooter were subtly different, and a reasonable juror could find Fenner was an accomplice to Dickens because “the murder was ongoing until they left the scene.”

At trial, counsel for Fenner argued to the jury that it should attribute any holes in the government’s case to the government, not to the defense: “[I]f there are any questions you want answered, ….witnesses you wish you heard from, like the other people supposedly up there in the car with [Dickens], evidence you wish you had…” This line of argument was interrupted by the prosecutor's objection, and the judge told the jury to “ignore that one argument about people that were up there that you didn’t hear from.”

During deliberations the jury specifically asked whether a person had “to have a gun in hand” to have committed first-degree murder while armed, to which the judge answered no. The jury ultimately acquitted Fenner of PFCV, but found both Fenner and Dickens guilty of conspiracy and first-degree murder.

After trial, Dickens discovered new evidence. While preparing a presentence report (PSR) for Pitts before the trial, the Court Services and Offender Supervision Agency (CSOSA) interviewed him, and he made statements that weren’t given to the defense until the trial was over. Some of the statements contradicted Pitts’ testimony at trial.

Issue 1: Was it error to instruct the jury on aiding and abetting as to Fenner where the government's theory and evidence identified him as the principal?

Holding: No. The Court found there was sufficient evidence to convict Fenner under an aiding and abetting theory.

Fenner had relied on Brooks v. United States, 599 A.2d 1094, 1099 (D.C. 1991), which overturned a conviction where the aiding and abetting instruction was wrongly given because “[o]ne cannot aid or abet himself.” Fenner argued that the jury’s question and his acquittal on the PFCV charge showed the jury convicted him of aiding and abetting, and that such a charge was inconsistent with the government’s theory and the evidence presented at trial.

The Court disagreed, citing Inyamah v. United States, 956 A.2d 58, 62–63 (D.C. 2008) (holding that convictions may be sustained “where two correct theories of illegality are presented in the instructions and there is sufficient evidence to convict only on one”). Fenner had also argued, however, that Inyamah didn’t apply because the jury’s acquittal on the PFCV charge ought to rebut any presumption that the jury convicted him as a principal.

The Court dodged the PFCV question. Instead, it held the evidence sufficient in this case to have supported a conviction under either accessory or principal liability. The Court also noted that the jury’s conviction on the conspiracy count “provid[es] powerful evidence that it believed that the government had proven the requisite intent for aiding and abetting as well.”

Issue 2: Did the trial court commit reversible error in striking a portion of Fenner’s counsel’s closing argument?

Holding: No. The Court held that, without deciding whether the objected-to argument was improper, that because counsel was later able to “argue at length,” and argue that reasonable doubt could be based on the “lack of evidence in the case,” “there was no abuse of discretion.”

Issue 3: Did the government violate Brady or Superior Court Criminal Rule 33 in failing to turn over Pitts' statements in the PSR about Dickens until after Dickens’ trial?

Holding: No. On Brady, Dickens had argued that the government had an obligation to search for and acquire the statement even if it did not have it in its possession, and that CSOSA was acting as an agent of the prosecution in undertaking its investigation. The Court said that CSOSA assists the court in sentencing, not in prosecution. The Court also noted that the government “did not know the content of the report until it was able to access the PSR after trial.”

It held that though “there might be circumstances in which the government could be found to be in constructive possession of materials in the hands of CSOSA, those circumstances are not presented here.”

On Rule 33, the Court held that Dickens was not diligent in seeking out Pitts’ statement to CSOSA as demanded by Rule 33, and so did not reach the other prongs of the test.

Issue 4: Did the trial judge abuse his discretion in failing to conduct further inquiry into a pre-trial complaint Dickens made about his counsel?

Holding: No. The Court credited the judge's determination that the only issue in the attorney-client relationship was a continuance Dickens disagreed with, where he found that “I can’t appoint [Dickens] new counsel because you couldn’t get the date changed.” Dickens’ attorney agreed that was the primary issue. But he had also said there “may be other matters” leading Dickens to desire a new lawyer.

The Court called this “may be” statement a “fleeting and vague reference” that the judge was not required to investigate after delving into Dickens’ main complaint about counsel. The Court also noted that Dickens “did not voice displeasure” with his counsel at subsequent pretrial hearings.

The Separate Statement: Judge Fisher wrote separately to address what he called “enduring mischief” in Brooks that he believes invites the “pointless exercise” of distinguishing between accomplices and principals. Instead, Fisher wrote, trial courts “should focus on whether the evidence shows that the defendant acted alone or with one or more persons.”

LT

Read the full opinion here.