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 Therefore, Green was not binding precedent on that issue.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.

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.

The Term "Parking Area" in POCA Statute Does Not Mean a Parking Lot

Campbell v. United States (decided July 20, 2017)

Players: Associate Judges Beckwith and McLeese, and Senior Judge Belson. Opinion by Judge Beckwith. Vincent A. Jankoski for Mr. Campbell. Trial Judge: Milton C. Lee.

Facts: On June 9, 2014, Officer Poor saw a car parked on an unmarked grassy area between two church parking lots. The car was off, and a towel was draped over a missing rear window. When the officer approached the car, he saw Mr. Campbell sleeping in the driver’s seat and a half-empty bottle of vodka in the center console. Officer Poor woke Mr. Campbell up and asked if he had been drinking. Mr. Campbell admitted that he had a few sips.

At trial, Mr. Campbell was convicted of first-degree theft, unauthorized use of a vehicle, receiving stolen property, and possession of an open container of alcohol (POCA) in a “vehicle in or upon any street, alley, park, or parking area,” D.C. Code § 25-1001(a)(2). On appeal, Mr. Campbell challenged the sufficiency of the evidence for each of the convictions. He argued that the phrase “parking area” in the POCA statute does not include the location in which he was arrested. Based on this statutory claim, he challenged the convictions of theft and unauthorized use of a vehicle by arguing that “the trial court should have suppressed the fruits of the search incident to his unlawful arrest for POCA.”

Issue 1: Is Mr. Campbell’s statutory sufficiency challenge preserved if at trial his motion for judgment of acquittal (MJOA) only focused on his constructive possession of the bottle of alcohol?

Holding: Yes. A general motion for acquittal preserves the full range of sufficiency challenges. At trial, Mr. Campbell presented a specific sufficiency argument instead of a general MJOA. The DCCA expressed doubt that making one specific sufficiency claim renders another sufficiency claim unpreserved, but did not need to decide that. In any event, Mr. Campbell’s sufficiency claim would be reviewed de novo because it is a question of statutory construction.

Issue 2: Does the phrase “parking area” in the POCA statute include the location in which Mr. Campbell was arrested?

Holding: No. The original language of the POCA statute prohibited possession of open containers of alcohol in vehicles in a “parking,” not a “parking area.” Although the term “parking area” is not defined in the statute, the term “parking” is defined as “that area of public space which lies between the property line and the edge of the actual or planned sidewalk which is nearer to such property line, as such property line and sidewalk are shown on the records of the District,” D.C. Code § 25-101(36). This is distinct from the common meaning of parking area that the government advances, which is closer to a parking lot. There was no discussion of a change in meaning when the POCA statute was amended to change “parking” to “parking area.”

Elsewhere in the Code, the Council also uses “parking” and “parking area” interchangeably. The Urban Forest Preservation Act of 2003 defines “public parking” similarly to the POCA statute, but only uses the term “public parking area” throughout the rest of the statute. D.C. Law 14-309 § 102(4). The Council has also demonstrated their ability to use the term “parking lot” when they mean parking lot. D.C. Code § 38-826.05(a); D.C. Code § 7-2509.07(a), (a)(2).

Further, if the term “parking area” were interpreted as distinct from “parking,” subsection (b) of the POCA statute would be rendered meaningless. Subsection (b) currently exempts certain areas of the “parking” from the rest of the statute’s prohibitions. But if “parking” had a different meaning than “parking area,” those area within the “parking” would be excluded from the statute’s prohibition.

When there is ambiguity in the statutory construction of a criminal statute, the rule of lenity requires the court to construe the prohibition narrowly. Therefore, “parking area” must be given the less expansive definition, and must be construed as interchangeable with “parking.”

Finally, the government didn't argue that Mr. Campbell was found in the “parking” within the meaning of the statute. Instead, it argued that Mr. Campbell was on public property. However, it does not matter whether Mr. Campbell was on public property if that public property is not one of the enumerated places covered by the POCA statute. The Council has shown that it is able to ban activities in all public places if it so chooses. D.C. Code § 22-1312.

The DCCA reversed Mr. Campbell’s conviction and remanded to the trial court. It also remanded to allow the court to vacate Mr. Campbell’s conviction for receiving stolen property.

Of Note: The Court upheld Mr. Campbell’s convictions for first-degree theft and unauthorized use of a vehicle. In footnote 13, the Court held Mr. Campbell’s suppression arguments on these convictions were waived, because the statutory argument on which they were based was not raised at trial. The government moved to vacate the conviction for receiving stolen property after Mr. Campbell argued that conviction contradicted his conviction for first-degree theft. 

LS

Read the full opinion here.