Court rules DNA testing problems at DFS not enough for new trial

Barber v. United States (decided March 1, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Glickman, Senior Judge Pryor. Opinion by Chief Judge Blackburne-Rigsby. Matthew B. Kaplan for Mr. Barber. Trial Judge: Russell F. Canan.

Facts: Appellant Tavon Barber was convicted of theft, armed burglary, three counts of third-degree sexual abuse, and eight counts of possession of a firearm during a crime of violence (PFCV) in connection with two home invasions on June 4 and 5, 2013. The evidence of sexual abuse consisted of testimony to the effect that Mr. Barber slapped the bottom of a female victim during the second home invasion and then fondled and ran his gun barrel along her body. The government relied in part on DNA evidence in its case against Mr. Barber, using testimony both of a DFS employee and of independent expert Dr. Bruce Budowle. Dr. Budowle generally agreed with DFS’s conclusions as to whether or not samples collected from the scene “matched” the suspects and victims but voiced concerns about the statistical calculations underlying these conclusions. Following trial, both DFS and the U.S. Attorney’s Office engaged in an internal audit led by Dr. Budowle himself, and the panel’s report identified multiple systemic flaws in DFS’s protocol for interpreting forensic DNA tests and calculating “match” probability. Based on these findings, Mr. Barber filed a Rule 33 motion for a new trial on the theory that the report “unequivocally demonstrates the unreliability of DFS testing and invalidates the entire testing process” and thus significantly undermines the DNA evidence used to convict him. Judge Canan denied this motion, noting that the challenged DNA evidence was “not the ‘key evidence’” in the prosecution’s case and that even Dr. Budowle had no concerns about the particular evidence used against Mr. Barber. 

Issue 1: Did the trial judge err in denying appellant’s motion for a new trial based on newly discovered evidence?

Holding 1: No. Rule 33 imposes four requirements for motions for a new trial based on newly discovered evidence, two of which were contested here: whether the new evidence is “material…and not merely cumulative or impeaching” and whether the evidence is “of a nature that it would probably produce an acquittal.” The Court found that the Budowle Report failed both of these prongs. Regarding materiality, the Court of Appeals noted that the systemic issues identified after trial were essentially remedied in Mr. Barber’s case by Dr. Budowle providing his own, undisputed conclusions to the jury. The Court also found that any cross-examination of the DFS expert concerning the lab’s systemic issues would have served merely to impeach her, which cannot be the basis for a new trial under Rule 33.

With respect to the evidence’s probability of producing an acquittal, the Court of Appeals agreed with the trial judge, finding that the DNA was not crucial to the prosecution’s case. The government introduced various other pieces of evidence incriminating Mr. Barber, including fingerprint evidence in a stolen car, a hand-print from the scene, the identifying testimony of one of the victims, and a third-party witness’s relation of Mr. Barber’s detailed confession to the crimes. Accordingly, because the new evidence was merely impeaching and unlikely to have produced an acquittal, the Court of Appeals held that the trial court did not abuse its discretion in denying Mr. Barber’s motion.

Issue 2: Should the appellant’s three sexual abuse and eight PFCV charges have been merged into one charge of sexual abuse and one charge of PCFV?

Holding 2: No. Criminal acts do not merge when “there is an appreciable length of time between the acts…or when a subsequent criminal act was not the result of the original impulse but a fresh one.” Sanchez-Rengifo v. United States. For sexual assault cases, the Court of Appeals inquires whether “the defendant sought a ‘new and different kind of sexual gratifications,’ with each act committed against the victim, such that [the Court is] convinced that the defendant was acting ‘in response to a fresh impulse.’” The Court held that the three acts of sexual assault charged here—slapping the victim’s bottom, flipping her over to touch her breast, and touching the victim’s thighs and buttocks with a firearm—pass this test. In finding that the first two do not merge, the Court placed emphasis on appellant’s forcing the victim to change position, distinguishing the facts here from Cullen v. United States, in which acts of sexual assault had merged. In addition, the Court held that appellant’s use of the firearm implicates the third-degree sexual abuse statute’s specific mention of threats of bodily injury; this mention “denotes the legislature’s attempt to distinguish different counts … based on differences in the nature and character of the acts.”

Regarding appellant’s eight PFCV charges, such charges merge only when their predicate crimes merge, and here, all of the eight predicate offenses  were found to pass the “fork-in-the-road” test—“appellant was at a fork in the road an had an opportunity to reconsider his actions.”—Jackson Myers.

Read the full opinion here.

No Double Jeopardy violation when trial court fixed “clerical error” two years after issuing sentencing order

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

Players: Associate Judges Glickman and Fisher, Senior Judge Reid. Opinion by Fisher. Trial Judge: Ann O’Regan Keary. PDS for Mr. Herring.

Facts: After a jury trial, Mr. Herring was convicted of several offenses related to a shooting, including two counts of possession of a firearm during a crime of violence (PFCV). These counts represented counts three and four. Judge Keary sentenced Mr. Herring to “a total of 174 months” with sixty months on each of the PFCV counts. Judge Keary ordered count three to be concurrent while count four would be consecutive. On his direct appeal, the Court of Appeals affirmed Mr. Herring’s convictions but remanded with instructions to merge the two PFCV convictions. Upon remand, Judge Keary issued an amended commitment order which removed count four (the PFCV count designated as consecutive), but otherwise neglected to state whether the remaining convictions would be consecutive or concurrent. The order stated the total term of incarceration would be 174 months.

Mr. Herring then filed an unopposed motion requesting that the court re-instate the word “concurrent,” as it had originally. In April, 2014, the court obliged and issued an amended order which specified a sentence of “60 months incarceration” but kept the total term of 174 months. At the time, neither Mr. Herring nor the government brought to the court’s attention that the aggregate term would only be 114 months if the count was to be concurrent, but that she had left the total term as 174 months.

Nearly two years later, Judge Keary sent a letter to Mr. Herring that due to “certain clerical errors,” the order vacated the wrong PFCV count, that the consecutive count should have remained, but concluding “[t]his does not change the defendant’s original sentence in any way.”

Mr. Herring objected, arguing that the double jeopardy clause prohibited reinstatement of the consecutive counts because he had already begun serving his sentence and that the change was substantive and not clerical. Mr. Herring also requested a hearing before a different judge so that Judge Keary could be called as a witness.

Judge Keary held a hearing where she ruled she had “in too hasty a review” failed to notice that the clerk had retained the concurrent PFCV count instead of the consecutive count. She concluded that reinstatement of the correct count was within the court’s inherent power pursuant to Rule 36. The judge also concluded there was “no reason” to reconstruct her memory by testifying before a different judge because her on-the-record pronouncements consistently revealed her intent for a total sentence of 174 months.

Issue:  Whether the court reinstating the term “consecutive” two years after issuing the sentencing order violated the Double Jeopardy Clause of the Fifth Amendment?

Holding: No. The Court concluded that Mr. Herring was not constitutionally entitled to a removal of the term consecutive for the remaining PFCV count. First, the Court concluded that, even though a person typically attains a legitimate expectation of finality in a prison sentence when he begins serving it, Mr. Herring he did not have a legitimate expectation here. Without addressing the two-year delay, the Court believed Mr. Herring could not have had a reasonable expectation of finality because Judge Keary’s sentencing order was “ambiguous on its face.” The Court said that the total term of 174 months could not be disregarded, but rather “supplied concrete information about the court’s sentencing intent.” Also, the Court stated “no reasonable defendant would disregard the incongruity between the total term and the sentences listed on the face of the judgment and commitment order,” warning future defendants that “the proper response to a seemingly ambiguous court order is not to read it as one wishes.” The Court distinguishes Mr. Herring’s case from cases such as United States v. Robinson, 388 A.3d 469 (D.C. 1978), Smith v. United States, 687 A.2d 581 (D.C. 1996), and Borum v. United States, 409 F.2d 433 (D.C. Cir. 1967), because in each of those cases the inconsistency occurred when comparing one order to a different order. But here, the Court stated, because the same order contained the inconsistency Mr. Herring is “not automatically entitled to the less severe construction of the unclear judgment and commitment order.”

Second, the Court rejected Mr. Herring’s argument that because he had already served one PFCV sentence by the time Judge Keary years later amended the judgment that he had been “unconstitutionally subjected . . . to multiple punishments for the same offense.” The Court wrote that “‘in the multiple punishments context, th[e] [Double Jeopardy Clause] interest is limited to ensuring that the total punishment did not exceed that authorized by the legislature.’” (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)). Per the Court, Mr. Herring had no legitimate expectation that his sentence for PFCV would be served concurrently with his sentences for ADW, rather than consecutive to those sentences”

Third, the Court concluded that the error in the sentencing order was a clerical error, subject to correction under Rule 36, and not a substantive one. Rule 36 allows a court to correct clerical errors “at any time.” Mr. Herring argued that there was no evidence that there was even an error in the first place when Judge Keary removed the consecutive PFCV while leaving the concurrent count. The Court, by relying on Judge Keary having always left the total term of 174 months, disagreed. The Court wrote that in reaching the conclusion that it was a clerical error, Judge Keary was permitted to rely on the “entire record,” as opposed to only the face of the sentencing order.

And fourth, the Court ruled that Judge Keary did not need to testify. The Court agreed that it would have been error for Judge Keary to rely on her memory in ruling against Mr. Herring, but determined that is not what she did. Instead, the Court ruled she had “considered only materials in the record” The Court dismissed Judge Keary writing that the mistake occurred because in her “too hasty [] review [she] failed to notice” the consecutive PFCV was the count that had been removed. The Court felt that was not an example of her relying on her memory, but “a natural inference from the materials in the record.”

Of note:  The Court's opinion holds that if there is an ambiguity in a sentencing order—as opposed to inconsistencies between different orders—a defendant cannot assume that automatically the less severe construction controls. BM

Read the full opinion here.

Rabbi Sets Up Hidden Camera in Ritualistic Bath and Receives Consecutive Sentences for 52 Counts of Voyeurism.

Bernard Freundel v. United States (decided September 15, 2016).

Players: Judges Glickman, Blackburne-Rigsby, and McLeese. Opinion by Judge McLeese. Jeffrey Harris for Mr. Freundel. Trial Judge: Geoffrey Alprin

Facts: Rabbi Freundel placed a clock radio with a hidden video recorder in a mikvah—“a ritual bath primarily used by Orthodox Jewish women for spiritual purification.” Between 2009 and 2014, Mr. Freundel surreptitiously recorded over 100 women in some state of undress. As a result, he pled guilty to 52 counts of voyeurism, in violation of D.C. Code § 23-3531 (b)-(c)—a misdemeanor punishable by up to 1 year in prison, with each count premised on his recording of a different woman. At sentencing, Judge Alprin sentenced Mr. Freundel to consecutive sentences of 45 days’ incarceration for each count—totaling close to 6 ½ years in prison.

Issue: Did the court’s imposition of consecutive sentences violate the Double Jeopardy Clause?

Holding: No. The Court of Appeals noted that as a general matter, “the Double Jeopardy Clause does not prohibit separate and cumulative punishment for criminal acts perpetrated against different victims,” and that in analogous circumstances, it has approved of “separate punishment where a single act affected multiple victims.” “Moreover, if the legislature so intends, multiple punishments for violating a single criminal statute may be imposed based on a single act.”

Here, the Court found that separate punishment for each victim was permitted because the goal of the voyeurism statute was to “protect the privacy of individual victims.” The Court reasoned that if it held otherwise, “once a defendant unlawfully recorded one victim, all future voyeuristic recording . . . would not be separately punishable.” As such, “there would be no incentive for the defendant not to do it again (and again and again),” which does not “comport with reason and with sound public policy” and was “surely not a result which the legislature intended.”

Of Note: Mr. Freundel made a number of arguments that the Court walked through and rejected. One of the more interesting arguments was that “the title of the omnibus act establishing the voyeurism statute, which describes the statute as making it unlawful to record ‘individuals (plural),’” suggested that “the legislature intended to punish the conduct of recording rather than to separately protect the privacy of each individual recorded.” The Court refused to subscribe to this argument, reminding that the “Supreme Court has stated that the title is of use in interpreting a statute only if it sheds light on some ambiguous word or phrase in the statute itself,” and here, the plain text of the statute uses “the singular rather than the plural.” DH

Read full opinion here.

Move to dismiss if you think your claim is jeopardy-barred

Stanley Moghalu v. United States (decided August 6, 2015).

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Belson.  Opinion by Judge Fisher.  Rahkel Bouchet for Mr. Moghalu.  Trial judge: Patricia A. Broderick. 

Facts:  Mr. Moghalu was tried three times for unlawful possession of a firearm and carrying a pistol without a license.  The first two trials ended in mistrials.  At the second trial, over which Judge Henry Greene presided, “[o]ver appellant’s adamant objection, the trial court declined to given an anti-deadlock instruction and declared a mistrial.”  Mr. Moghalu was convicted at the third trial, Judge Broderick presiding. 

Issue:  Appellant argued that Judge Greene abused his discretion by declaring a mistrial when there was no manifest necessity to do so and asserted that his third trial was barred by the Double Jeopardy Clause.

Held:  The Court holds that the double jeopardy claim was waived because appellant had not raised the “double jeopardy defense” prior to the third trial, before Judge Broderick.  It bases its ruling on cases that establish that double jeopardy claims can be waived if not raised at trial, and notes that this waiver need not be a Johnson v. Zerbst, “knowing, voluntary and intelligent” waiver.  The Court also states that it “need not decide” whether appellant may obtain relief under the plain error doctrine, because even if there were a colorable claim of double jeopardy (something the Court finds “highly doubtful”), it would not have been “clear or obvious” to Judge Broderick. 

Of Note:

• The upshot here is that you must file a motion to dismiss on double jeopardy grounds if you have a claim that a mistrial was granted over objection when there was no manifest necessity for doing so at a prior trial.  (Note that a denial of such a motion is appealable pre-trial, if you are so inclined.)

• The analysis in the opinion is questionable, because an objection to a mistrial on the ground that there was no manifest necessity is precisely the same claim as an objection to a retrial on double jeopardy grounds because a mistrial was granted when there was no manifest necessity.  And some of the Court’s opinion seems to turn on the fact that the judge at the third trial was different than the judge at the second -- suggesting that a lawyer needs to give the new judge a chance to pass on the question.  It would seem that the “trial court” is all one, however, and that the question whether there was manifest necessity justifying a mistrial was litigated and resolved at the second trial; indeed, the law of the case doctrine might even have militated against a new judge revisiting the same claim prior to the third trial.  In any event, the law is now the law:  file a motion to dismiss on double jeopardy grounds if this happens to you and you want the issue to be preserved for appeal.  JF

Read full opinion here.