A question about the Youth Rehabilitation Act produces four opinions, but no firm answers.

Briscoe v. United States (decided March 29, 2018)

Players: Associate Judges Thompson and McLeese, and Senior Judge Ruiz. Opinion by Judge Thompson. Concurring Opinion by Judge McLeese. Separate Statement by Judge Thompson. Dissent by Judge Ruiz. Donna L. Biderman for Mr. Briscoe. Trial Judge: Milton C. Lee

Facts: Briscoe was convicted of robbery while armed, assault with a  dangerous weapon, and possession of a firearm during a crime of violence (PFCV). Because of Briscoe's young age, his attorney asked for a "lenient" sentence under the Youth Rehabilitation Act (YRA). The trial judge imposed a five-year sentence, the mandatory minimum under both the statute for a robbery (or other crime of violence) while armed (D.C. Code § 22-4502(a)) and the PFCV statute (D.C. Code § 22-4504(b)). The judge stated that five years might be "a little too harsh," but imposed that sentence anyway.

Issue: Did the trial court have discretion under the YRA to impose a sentence below the mandatory minimums ordinarily required by the while-armed and PFCV statutes?

Holding: No plain error. The Court reviewed this claim only for plain error because, although defense counsel asked the trial court to make expungement possible under the YRA, "he never argued that the court had discretion not to impose the mandatory-minimum sentences." The attorney's request for a "lenient" sentence did not apprise the court that he was asking for a  below-minimum sentence.

The majority rejected the argument that it was bound by Green v. United States, 974 A.2d 248 (D.C. 2009). In Green the government had conceded that the mandatory minimums in the while-armed and PFCV statutes do not apply in YRA-eligible case. The Court accepted the concession in Green, but, according to the majority, had not decided the issue. Therefore, Green was not binding precedent on that issue.

Analyzing the issue "afresh," the majority held that it was not plain error to apply the mandatory minimum provisions of the "while armed" and PFCV statutes. The YRA authorizes a suspended sentence or a sentence of "treatment and supervision" in place of imprisonment. D.C. Code § 24-903. Both the while-armed and PFCV statutes impose five-year minimums and prohibit (in gun cases) suspension of sentence before the five-year minimum has been served. Thus, the question is whether the YRA trumps the while-armed and PFCV statutes, or vice versa.

For the while-armed statute, the court recognized that Briscoe "possibly has ... the better of the argument." The court noted that § 22-4502(e)(1) expressly forbids a YRA sentence after a person's first while-armed offense — implying that a YRA sentence could be imposed for the first while-armed offense.

For PFCV, however, the Court found nothing in the statute or legislative history to suggest that the statute permits below-minimum sentences under the YRA.  The Court therefore could not find any error that was plain in the PFCV sentence.  For that reason, any assumed error in the armed robbery sentence could not affect Briscoe's "substantial rights" because the sentences were concurrent.

Of Note

• Although the majority opinion suggests that the YRA does not authorize a below-minimum sentence in a PFCV case, it does not so hold. It merely holds that any error was not obvious enough to qualify as plain error. Defense attorneys may continue to argue for below-minimum sentences in these cases.  Support for those arguments can be found in both the majority and dissenting opinions.

• Judge McLeese's concurrence emphasized why, in the majority's view, the Court was not bound by Green.

• Judge Thompson wrote a separate statement, responding to a point in the dissent, explaining why she did not think that the appellant in this case and in Green were "similarly situated."

• Judge Ruiz dissented, concluding that the trial court plainly erred in thinking it was bound by the mandatory minimums. Judge Ruiz reasoned that the Court was bound by Green because the opinion did not say it was merely accepting the government's concession or assuming the issue without deciding it. She also analyzed the statutes to conclude that the YRA trumps the mandatory minimums in the while-armed and PFCV statutes.

• The Court summarily rejected a claim that sanctions should have been imposed for the government's failure to preserve surveillance video of the robbery. Although an investigator testified that he saw a camera in the alley where the robbery occurred, he was never able to get the footage from the property owner.  Because the footage was never in the government's possession, it had no duty under Brady or Rule 16 to turn it over to the defense. DG

Read the full opinion here.

Court Holds Any Object Complainant Reasonably Perceived to Be A Gun Qualifies As A “Dangerous Weapon,” but Casts Some Doubt on Whether Such an Object Should Also Qualify As An “Imitation Firearm”

Warren B. Washington v. United States (decided April 7, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Belson. Opinion by Chief Judge Washington. Concurrences by Chief Judge Washington and Judge Fisher. PDS for Mr. Washington. Trial Judge: Stuart G. Nash.

Facts: Mr. Washington was convicted of ADW and PFCV committed “with a firearm or imitation thereof” for an incident in which he brandished an object as if it were a gun, and threatened his ex-girlfriend and her companion as they sat inside a locked car. The object was not recovered, and there was conflicting evidence about whether it was in fact a gun or a cell phone, though at least one of the complainants believed it was a gun. The jury was instructed that to convict for ADW, it must find Mr. Washington “committed the threatening act with a dangerous weapon; that is, a firearm or imitation thereof,” and that “[a]n object is a dangerous weapon if it is designed to be used, actually used, or threatened to be used in a manner likely to produce death or serious bodily injury.” The deliberating jury sent a note inquiring whether “an object that is not a gun (or other truly dangerous weapon)—such as a cell phone—but is brandished in a manner so as to give the impression that it is a dangerous weapon, count[s] as ‘an imitation thereof,’ as set forth” in the ADW instruction. The trial court initially responded by repeating the catchall definition of “dangerous weapon,” but then issued a supplementary instruction defining “imitation firearm” as “any object that resembles an actual firearm closely enough that a person observing it in the circumstances would reasonably believe it to be a firearm.” On appeal, Mr. Washington argued that this answer was erroneous because “imitation firearm” means a physical replica of a gun, not some other object—like a cell phone—that is misperceived to be a gun.

Issue: Was the trial court’s answer incorrect because it failed to require that an “imitation firearm” actually physically resemble a real firearm?

Holding: The jury instruction was not incorrect under the current state of the law. While there is no statutory definition for “imitation firearm,” the Court noted that the definition used here was virtually identical to an instruction defining “imitation pistol” that the Court had previously approved in Smith v. United States, 777 A.2d 801, 810 n.15 (D.C. 2001) (defining “imitation pistol” for purposes of “while armed” statute). Moreover, the Court reasoned, because “any object which the victim perceives to have the apparent ability to produce great bodily harm can be considered a dangerous weapon,” it ultimately “did not matter whether the object in appellant’s hand was objectively physically similar to a firearm.” In other words, the fact that “the victim perceived the item in appellant’s hand to be a firearm” was enough for the jury to conclude that the object was “a dangerous weapon.”

Concurrence #1: Chief Judge Washington, who wrote the opinion for the Court, also wrote a concurring opinion in which he concluded that the Smith-approved definition of “imitation firearm” is overbroad and should be corrected by the full court sitting en banc. The concurrence details why the plain meaning of the term, the statutory context in which it is used, and its legislative history all indicate that “an imitation firearm must physically conform to the characteristics commonly attributable to a real firearm.” It also notes that, despite opining on the meaning of “imitation firearm,” the court in Smith was not actually focused on whether an object like a cell phone could qualify as an “imitation firearm.”

Concurrence #2: Judge Fisher wrote a separate concurrence opining that en banc review is unwarranted in this case because “[a]ny metaphysical shortcomings in the jury instruction defining an imitation firearm did not lead to an unjust conviction,” since Mr. Washington used the object—whatever it was—to create a situation “fraught with danger” by making it appear that he had a gun.

Of Note: 

• The PFCV and while armed statutes both expressly include “imitation” firearms among the specific weapons to which they apply, but the ADW statute says only that it applies to “dangerous weapons.” The Court held that an “imitation firearm” is a type of dangerous weapon within the meaning of the ADW, because it is a “gun,” and a “gun” is an inherently dangerous weapon—not only because it can be used to injure someone, but also because its apparent ability to cause injury can prompt people to react in a way that itself might lead to harm. 

• The Court’s opinion seemed to take care to state that the complainant’s mere perception that Mr. Washington was holding a gun was enough to find that the object in his hand was a dangerous weapon. Despite acknowledging that Smith currently remains good law, the Court’s opinion did not state that the complainant’s perception was enough to find the object was an imitation firearm. This distinction may be important in cases where the charged offense requires proof of a real or imitation firearm, rather than the broader category of any dangerous weapon. 

•  Because there is a suggestion that the court might revisit this issue en banc, it is wise to preserve any challenges to a Smith-type instruction for the foreseeable future. FT

Read full opinion here.