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 Therefore, Green was not binding precedent on that issue.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 Warns That Red Book’s “While Armed” Instruction Can Impermissibly Imply That Defendant Did, In Fact, Possess Charged Weapon

Nathaniel Cousart v. United States (decided August 4, 2016)

Players: Associate Judges Glickman and Fisher, Senior Judge Steadman. Opinion by Judge Steadman. Matthew J. Peed for Mr. Cousart. Trial Judge: Patricia A. Broderick.

Facts: Mr. Cousart was convicted of aggravated assault while armed (AAWA) for stabbing one Mr. Barrett with a knife, and with ADW for again taking out his knife and stepping threateningly toward a private security guard who came to Mr. Barrett’s aid. The security guard testified that he drew his gun in response, prompting Mr. Cousart to retreat and throw the knife down a sewer before he was apprehended. The trial court instructed the jury on AAWA using language taken virtually verbatim from Red Book Instruction 4.103, describing the elements of aggravated assault, followed immediately by Instruction 8.101(B), the “while armed” instruction. The latter began, “At the time of the offense, Nathaniel Cousart was armed with or had readily available a knife. A dangerous weapon is any object likely to produce death or great bodily injury by the use made of it. In deciding whether the defendant was armed with or had readily available a dangerous weapon, you may consider all the circumstances surrounding its possession and use. . . .” In instructing the jury on ADW, the trial court read Red Book Instruction 4.101, Option A, which defines the attempted-battery theory of ADW. It did not include bracketed language from that instruction requiring the jury to determine whether Mr. Cousart “had the apparent ability to injure” the complainant at the time of the offense. The defense did not object to either instruction.

Issue 1: Was the trial court’s AAWA instruction an improper partial directed verdict that Mr. Cousart did, in fact, possess the knife as a dangerous weapon?

Holding 1: No. Considering the jury instructions as a whole, under the rigorous plain error standard of review, the Court of Appeals held that there was no reasonable probability that jurors would have understand the challenged sentence to mean they did not have to determine whether Mr. Cousart actually possessed the alleged knife (and whether the knife met the definition of “dangerous weapon”). Nevertheless, the Court urged trial judges to take care in using the Red Book’s “while armed” Instruction, which begins, “At the time of the offense, [name of defendant] was armed with, or had readily available,” followed by a bracketed list of weapons to which the enhancement applies. The Court warned that “when this instruction is simply tacked on to a prior instruction without a clear indication that it is a statement of what the jury must find and not an assertion that the defendant did in fact carry some particular item, it could be subject to misinterpretation.”

Issue 2: Did the trial court’s omission of the “apparent ability to injure” element from its ADW instruction require reversal?

Holding 2: No. The Court of Appeals assumed without deciding that an apparent ability to injure is a required element of attempted-battery assault (as it is for intent-to-frighten assault), but declined to reverse on plain error review. In light of the government’s evidence that Mr. Cousart advanced on the security guard while brandishing the knife in a frightening enough manner to prompt him to draw his gun, the Court concluded that there was no reasonable probability the jury would have reached a different verdict had it been instructed that it must find Mr. Cousart had the apparent ability to injury the security guard.

Of Note:

• The Court of Appeals also held that there was sufficient evidence of attempted-battery ADW based on Mr. Cousart’s pulling out his knife before stepping toward the security guard. It noted, however, that it was a “close” sufficiency call. FT

Read full opinion here.