Tuesday, September 19, 2017

Seeing co-conspirators receive better plea deals is not a valid reason to withdraw a guilty plea

Long v. United States (decided Sept. 14, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Fisher and Easterly. Opinion by Judge Blackburne-Rigsby. Charles E. Wagner for Mr. Long. Trial Judge: Anita Josey-Herring.

Facts: Mr. Long plead guilty to one count of conspiracy to defraud the District of Columbia and Office of Campaign Finance (OCF) in violation of D.C. Code § 22-1805(a)(1). The plea letter informed him that the charge carried a maximum sentence of five years imprisonment, a fine of $10,000, and a maximum of three years of supervised release. The agreement stated that Mr. Long “conspired with others, Jeffrey Thompson and Eugenia Harris, to defraud the District and OCF ‘by funding and concealing and by attempting to fund and conceal contributions to MAYORAL CAMPAIGN A for purposes of electing MAYORAL CANDIDATE A in excess of those permitted,’ ‘thereby obstruct[ing] and imped[ing] the due administration of the campaign finance laws.” Mr. Long signed a Statement of Offense, which explained the conspiracy in “great[] detail,” and, during the Rule 11 colloquy, acknowledged that the government’s proffer as to the facts of the crime was “correct.” Also, during the Rule 11 colloquy, Mr. Long said he understood that the maximum prison sentence he was facing was five years, his plea was in exchange for his cooperation in related cases, and that he was waiving certain constitutional rights. He also said he was “satisfied” with the performance of his counsel. The court then accepted his plea.

Nearly eighteen months later, but before sentencing, Mr. Long sought to withdraw his guilty plea, arguing that he was factually innocent of the conspiracy, that the Rule 11 inquiry was defective, and that he should be allowed to withdraw in the interest of justice because he received ineffective assistance of counsel due to co-conspirators receiving better plea deals. The trial court denied his request, ruling that while Mr. Long asserted his innocence generally he did not dispute any of the underlying facts, he was properly advised of the maximum prison term he faced, and the mere fact co-conspirators received better deals did not render his attorney ineffective as “every circumstance is obviously different.”

Issue 1: Did the trial court err in refusing to permit Mr. Long to withdraw his guilty plea when his request was made prior to sentencing?

Holding: No. The Court stated that whether to permit the withdrawal of a guilty plea is left to the discretion of the trial court and a defendant may withdraw a plea prior to sentencing by showing either a fatal defect in the Rule 11 proceeding or by showing that justice demands withdrawal under the circumstances of the case. The Court determined Mr. Long failed to make either showing.

First, Mr. Long contended there was a defect in the Rule 11 proceeding because he was only subject to a maximum of six months imprisonment for conspiracy, and not five years as was stated in the plea agreement, and because the trial court failed to confirm whether the factual proffer was sufficient. The Court disagreed with both contentions. The Court explained that because Mr. Long pled guilty to conspiring to defraud the District of Columbia, and not conspiring to commit a specific offense, he was subjected to the default five-year maximum prison term of conspiracy contemplated by the statute. See D.C. Code §22-1805a(a)(1). The Court also found there was a sufficient factual basis for the plea because the proffer alleged that Mr. Long worked with Harris and Thompson to defraud the District and OCF by concealing campaign contributions and he understood the intent was to conceal the payments, and that he knowingly worked with Harris and Thompson to convince “Mayoral Candidate C to drop out of the race and endorse Mayoral Candidate A ‘in exchange for a thing of value.’”

Second, Mr. Long contended it was fair and just to set aside his guilty plea because he asserted his actual innocence and because his counsel was ineffective. Again, the Court disagreed with both contentions. Mr. Long asserted his innocence by contending he did not personally contribute money to the campaign, but the Court agreed with the trial court’s reasoning that Mr. Long did not have to personally contribute money to be guilty of conspiracy and Mr. Long did not dispute any of the facts in the proffer that did establish conspiracy. Also, the Court added that “even assuming [Mr. Long ] made out a true assertion of innocence, the trial court was free to discredit [his] assertion of innocence in light of ‘the proffer made by the government, [his] sworn adoption of the facts contained in that proffer, and [his] own sworn admissions made at the time the plea was entered.”Also, the Court found no abuse of discretion in the trial court’s ruling that the nearly eighteen-month delay before Mr. Long sought to withdraw his plea—even though it did occur prior to sentencing—weighed against allowing him to withdraw it. Lastly, the Court saw no merit in Mr. Long's contention that his counsel was ineffective because other conspirators received better plea deals. The Court explained that “even assuming that they did” receive better plea deals, “everybody had different circumstances and the government was free to take into account the various considerations they did in making an appropriate offer.” The Court noted it is “not appropriate to compare the plea deals of [Mr. Long's] co-conspirators with his own, especially given the fact that their cases were held in federal District Court.”

Of note:  The Court’s opinion reinforces the uphill battle to withdraw a guilty plea, even when the request occurs prior to sentencing. The Court agreed that there was no abuse of discretion in a trial court weighing a delay of eighteen months, despite it still being prior to sentencing, against allowing a person to withdraw a guilty plea. Similarly, the Court wrote that even if a person asserts innocence, a trial court is within its discretion to discredit it. It thus remains critical that when seeking to withdraw a plea, more than a general claim of innocence is likely needed, but an assertion of innocence that, at minimum, would negate the elements at issue (or a key provision of any proffer that was agreed to during the Rule 11 colloquy). BM

Friday, September 8, 2017

Concussion Protocol: (Head) Injury + Manifest Risk of Grave, Long-Term (Head) Injury + Diagnostic Testing to Evaluate the Danger and Need for Treatment = Significant Bodily Injury

Cheeks v. UnitedStates (decided September 7, 2017)

Players: Glickman and Fisher, Associate Judges, Reid, Senior Judge. Opinion for the Court by Judge Glickman. Majority opinion by Judge Fisher (joined by Judge Reid). Dissenting opinion by Judge Glickman. PDS for appellant. Trial Judge Yvonne Williams.

Facts: Appellant was prosecuted for assault with significant bodily injury (ASBI) and other offenses in connection with the stabbing and beating of the complainant. The complainant testified that he was walking home one evening, when a man got out of a truck, accused the him of stealing a cell phone, and stabbed him with a knife. The complainant fled around the corner, where he encountered appellant and an unknown second man, who, rather than helping, punched the complainant in the face and head. The first, knife-wielding man caught up and stabbed the complainant from behind. The complainant eventually fell, whereupon appellant and the unknown second man kicked and stomped him.

When the three abandoned their attack, the complainant called the police and was taken to the hospital. The treating physician testified that upon arrival, the complainant required stitches, staples, and antibiotics for his four stab wounds, as well as pain relievers and diagnostic tests for internal injuries, including CAT scans that revealed a nasal fracture but no brain injury. The complainant was discharged four hours after arrival and had no follow-up treatment.

The government prosecuted appellant for armed ASBI under the theory that he aided and abetted the stabbing but also asked for an instruction on unarmed ASBI, in case it had not proved that appellant was aware of the stabber’s knife. Appellant argued that without the stab wounds, the complainant’s injuries were not serious enough to be “significant.” The government argued that the CAT scan made the non-puncture injuries “significant.” The court agreed and instructed on unarmed ASBI.

The court initially instructed the jury on the mens rea required to aid and abet armed ASBI but failed to instruct on the mens rea for aiding and abetting unarmed ASBI. During deliberations, the jury sent a note asking the court to “clarify instructions on the specifics of aiding and abetting, specifically for the [unarmed] assault w[ith] significant injury.” Appellant asked the court to instruct consistent with its armed ASBI instruction, that for the unarmed version, “regardless of whether the defendant [is charged] as an aider or abettor, the government must prove beyond a reasonable doubt that [he] personally acted with the intent or knowledge.” The court refused, stating that it was “in the instruction already” and instead instructed the jury that “Instruction 3.2 aiding and abetting applies to every offense with which the defendants are charged.” Unbeknownst to the parties, at the top of the jury’s note, someone had crossed out a question: “Does the aiding & abetting apply to [unarmed] assault w/ significant injury?”

The next day, after further deliberation, the jury found appellant not guilty of armed ASBI but guilty of unarmed ASBI.

Issue 1 (Opinion by Judge Glickman): Was there was sufficient evidence to instruct the jury on unarmed ASBI?

Holding 1: Yes. “[A]lthough a ‘significant bodily injury’ is one calling for professional medical treatment to prevent long-term physical damage or avert severe pain, it also may be an injury that poses a manifest risk of such harm and requires diagnostic testing to evaluate the danger and need for treatment – even if testing reveals that treatment is unnecessary.” Slip Op. at 13-14. The complainant’s treating physician described extensive bodily injuries that required a CAT scan to diagnose brain damage, broken bones, and internal injury. As in Blair v. United States, 114 A.3d 960 (D.C. 2015), this testimony supported a finding that the injuries required diagnostic testing to evaluate the need for treatment.

Issue 2 (Opinion by Judge Fisher): Did the trial court err in responding to the jury note asking it to “[c]larify instructions on the specifics of aiding & abetting[,] specifically for the [unarmed] assault w[ith] significant injury”?

Holding 2: No. The jury could have been seeking clarification on whether the theory of aiding and abetting applied to both armed and unarmed ASBI or, specifically, whether the mens rea for aiding and abetting applied to both offenses. By instructing that “Instruction 3.2 aiding & abetting applies to every offense with which the defendants are charged,” the court effectively addressed both issues. A reasonable jury would have applied the sentence about mens rea from Instruction 3.2 to unarmed ASBI, consistent with the defense’s proposal. The jury also received other, correct instruction on the mens rea required for unarmed ASBI.

Of Note: This opinion recognizes an exception to the rule that “significant bodily injury” excludes injuries for which treatment and diagnosis are ultimately unnecessary, in that “the victim would not suffer additional harm by failing to receive them,” Quintanilla v. United States, 62 A.3d 1261, 1265 (D.C. 2013), where an injury poses manifest risk of grave, long-term injury and, as such, requires diagnosis to rule out the need for treatment. Going forward, whether an injury posed manifest risk of grave, long-term injury may depend on the type of injury involved. Notably, this case involved significant head trauma, and in deciding it, the court relies on two others (Blair and Quintanilla) that specifically addressed significant head trauma.

Judge Glickman dissents from the court's opinion as to Issue 2.


Read the full opinion here.

Tuesday, August 15, 2017

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.


Read the full opinion here.

Monday, August 14, 2017

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.


Read the full opinion here.

Friday, August 11, 2017

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.


Read the full opinion here.

Monday, August 7, 2017

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.

Friday, August 4, 2017

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."