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 Therefore, Green was not binding precedent on that issue.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

Convictions set-aside under the Youth Rehabilitation Act may still trigger repeat-offender sentencing enhancement.

(Singer/Songwriter Richard Marx of “Repeat Offender” Fame)

Wade v. United States (decided November 16, 2017)

Players: Associate Judges Fisher, Thompson, McLeese. Opinion by Judge McLeese. Trial Judge: Lynn Leibovitz. April E. Fearnley for Appellant.

Facts: On October 8, 2015, police received an anonymous 911 call. The caller reported seeing a man with a gun in his waist in the 1200 block of 7th Street NW. This man was walking with another man. Police responded and saw two men matching the descriptions about a block away from where the caller had said. The defendant, Mr. Wade, matched the description of the man who was reported to have had a gun. The officers pulled their police car alongside the two men, who both began running. Officer Brown gave chase and briefly lost site of Mr. Wade as he ran around a shed. Shortly after, he regained sight of Mr. Wade and apprehended him. The officer conducted a pat down but did not find a gun.

However, a civilian eyewitness reported seeing a man matching Mr. Wade’s description toss a gun near the same shed behind a dumpster. (At trial, the civilian said he did not actually see the gun tossed, which he had testified to at the suppression hearing, but only that he saw the man run past with someone else and then saw a gun in the air). An officer looked in the area and saw a gun in plain view. Police then conducted a showup and the witness identified Mr. Wade as the person who threw the gun. Police placed Mr. Wade under arrest and a search incident to arrest recovered six .357 caliber bullets. Mr. Wade was convicted of unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.

Issue 1:  Did police have sufficient reasonable suspicion to support the initial stop?

Holding: Yes. The Court cited the fact Mr. Wade was observed near the location the 911 caller had said and matched the description from the caller (black male, navy blue shirt, tan hat, blue jeans, walking with another black male wearing a light green shirt). Plus, when the officers arrived, Mr. Wade fled and was observed placing his hand near his waist, which was where the 911 caller said he saw the gun. The Court concluded such facts were sufficient for reasonable suspicion.

Issue 2: Was the showup identification procedure unduly suggestive?

Holding: No. The Court noted that all showup identifications involve some suggestivity but that “something more egregious than mere custodial status is required to establish” impermissible suggestivity. Here, Mr. Wade was in handcuffs, with an officer on either side of him and standing between two police cars. The Court concluded that did not rise to the level of impermissible suggestivity. The Court stated that the fact one of the officers on the scene had a “passing familiarity” with the eyewitness did not render the identification procedure unduly suggestive.

Issue 3: Was the evidence sufficient to establish that Mr. Wade possessed the gun?

Holding: Yes. Mr. Wade cited to the eyewitness’s testimony at trial where he said he did not actually see Mr. Wade throw the gun and saw two people run behind the shed to support his argument that the evidence was insufficient to show he ever had the recovered gun. The Court disagreed. The Court cited the 911 call and that Mr. Wade matched the description of the person observed with a gun, that he fled when police arrived and was observed with his hand in his waistband area, the witness said he saw a gun tossed behind a dumpster at the same time Mr. Wade ran behind the dumpster, and Mr. Wade possessed bullets that matched the caliber of the gun recovered.

Issue 4: Did the trial court err in imposing a three-year mandatory minimum sentence on the count of unlawful possession of a firearm?

Holding: No. UPF prohibits possession of a firearm by persons with a prior conviction punishable by more than one year and provides for a mandatory minimum sentence for anyone who violates the statute and has previously been convicted of a crime of violence other than conspiracy. Mr. Wade had a prior conviction for attempted robbery, which is punishable by more than one year and which meets the definition of crime of violence. However, he contended that his conviction could not be used to impose the mandatory minimum because it had been set aside under the Youth Rehabilitation Act (YRA). The Court disagreed. The Court first cited the YRA itself, which explicitly authorizes a set-aside conviction of attempted robbery to be used to support a conviction. Mr. Wade tried to draw a distinction between using a set-aside conviction to provided a needed element for a conviction as opposed to using it to impose a mandatory sentence. Though the Court agreed that the YRA was silent as to that question, it did not agree that the YRA supported such a distinction. The Court believed that the legislative history of the YRA supported its conclusion that no such distinction exists. Accordingly, the trial court correctly determined that Mr. Wade was subject to a three-year mandatory minimum for his UPF conviction.

Of Note: 

• The Court did not address Mr. Wade’s argument that police exceeded the scope of a lawful investigative detention by detaining him for between forty-nine and fifty-three minutes before conducting the showup identification because the Court concluded that police had probable cause to arrest when they recovered the gun in the area where the witness had said it had been thrown.
• The Court noted that this case had a “procedural wrinkle” of whether it can rely on evidence that was developed at trial that contradicted evidence at the suppression hearing to reverse a decision of the trial court when the losing party failed to renew the motion to suppress based on the new evidence at trial. The Court concluded that in this situation the trial evidence would not have changed the outcome of its decision on the suppression hearing, but attorneys should remember to renew any suppression if additional evidence is developed at trial that could alter a trial court’s pre-trial decision. BM

Read the full opinion here.

The Youth Rehabilitation Act Gives Superior Court Judges Discretion To Set Aside A Young Offender’s Misdemeanor Convictions

Ferguson v. United States (decided April 13, 2017).

Players: Chief Judge Blackburne-Rigsby, Associate Judge McLeese, and Senior Judge Reid. Opinion by Judge Reid. Christine Pembroke for Mr. Ferguson. Trial Judge: Lynn Leibovitz

Facts: In September 2014, Mr. Ferguson was sentenced under the Youth Rehabilitation Act (YRA) to concurrent sentences of 30 days in jail, execution of sentence suspended, followed by 12 months of probation for two counts of attempted threats. After Mr. Ferguson was arrested on new misdemeanor charges in February 2015, the court revoked his probation and ordered him to serve the 30 days. Mr. Ferguson served his time, and in 2015, he completed his probation.

In April 2015, Mr. Ferguson moved to set side his convictions, explaining the misdemeanor case against him had been dismissed. The trial court denied the motion, reasoning, “Under D.C. Code § 24-906(b), if a defendant has served his sentence under the YRA before unconditional discharge, it is the [Parole Commission], and not the court, that has jurisdiction to set aside the conviction.”

Issue: Does the Superior Court have jurisdiction to set aside convictions under the YRA where the term of probation expires prior to a misdemeanant youth offender’s unconditional discharge?

Holding: Yes. The Parole Commission and the Superior Court have different duties depending on the category of offender. Under D.C. Code § 24-906(c), the Parole Commission is authorized to terminate the term of supervised release of a youthful felon before it expires, and if the term of release is terminated, the young offender is entitled to an automatic set aside of his/her conviction.

However, because Mr. Ferguson committed a misdemeanor, and because he was not unconditionally discharged before his probation ended, he was not entitled to the automatic set aside of his convictions. Rather, as D.C. Code § 24-906(e) “plainly states”: “If the sentence of a youth offender who has been placed on probation by the court expires before unconditional discharge, the court may, in its discretion, set aside the conviction.”

Consistent with the plain language of the statute, the trial judge did indeed have jurisdiction to consider Mr. Ferguson’s motion to set aside his convictions. The DCCA therefore reversed and remanded for further proceedings. DH

Read full opinion here