Offenses committed while on release? Better to stipulate now than try to fix it later.

Raymond O. Washington v. United States (decided August 13, 2015).

Players:  Associate Judges Fisher and McLeese, Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Washington.  Trial judge: Herbert B. Dixon. 

Facts:  Mr. Washington was prosecuted for his role in facilitating a drug transaction between an undercover officer and a man in a Miami Dolphins jersey.  His indictment charged Possession of Liquid PCP, Possession with Intent to Distribute (PWID) PCP, Distribution of PCP, and a violation of D.C. Code § 23-1328, for committing the offenses while on pretrial release.  Prior to trial, the parties discussed the possibility of a stipulation regarding the fact that Mr. Washington was on release status, but eventually the defense lawyer indicated a willingness to “go forward without the stipulation” and the prosecutor told the court that the parties had not reached agreement on a stipulation.   The trial judge instructed the jury on the elements of an offense committed while on release and gave a limiting instruction after the evidence regarding Mr. Washington’s release status was introduced.  Mr. Washington was convicted on all counts.  

Issue 1:  Whether admission of the evidence regarding Mr. Washington’s release status was plain error.

Holding:  The Court held that because defense counsel refused to stipulate about the pretrial release status, it was not plain error for the court to admit the testimony.  The Court recognized that D.C. Code § 23-1328 describes a sentencing enhancement, as previously held in Eady v. United States, 44 A.3d 257 (D.C. 2012), and did not decide the question whether pretrial release status need be proven to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).  It concluded, however, that it was not plain or obvious error for the trial court to believe it appropriate to do so.  The Court went on to say that even assuming that it was a plain error that seriously affected Mr. Washington’s rights, it would not exercise its discretion to reverse under prong four of the plain error test given the compelling evidence of Mr. Washington’s guilt and his opportunity to stipulate about his release status at trial. 

Issue 2:  Whether trial counsel’s failure to object to the admission of the evidence constituted ineffective assistance of counsel.

Holding:  The Court indicated that it would not address the ineffectiveness claim on appeal, noting its preference that such an issue be litigated in the first instance in the trial court by a motion filed pursuant to D.C. Code § 23-110.

Issue 3:  Whether the Possession of PCP count merged with the PWID PCP.

Holding:  The government did not oppose vacating the Possession-of-Liquid PCP count, in response to appellant’s claim that it merged with PWID PCP, and the Court held that the two counts merge. 

Issue 4:  Whether the PWID PCP count merged with the Distribution count.

Holding:  The Court held that Mr. Washington properly stood convicted of PWID PCP as well as Distribution of PCP, because the man in the Miami Dolphins jersey had more PCP in his possession after the charged sale and the evidence supported a conclusion that Mr. Washington knowingly associated himself with the criminal venture that would involve future sales of the PCP.  

Of Note:

• In footnote 2, the Court notes that the government “acknowledges” that Mr. Washington was “incorrectly indicted, and subsequently convicted, ‘of offenses committed during release.’”  Presumably, the government had mistakenly indicted the D.C. Code § 23-1328 violation as a separate offense, rather than as a sentencing enhancement attached to three indicted counts.  The government’s “acknowledgment” is a bit odd, as it appears that the issue was not raised by appellant on appeal.  Furthermore, as a remedy, the Court vacates the conviction on the “incorrectly indicted charge of offenses committed during release,” and directs the trial judge to “add a separate consecutive sentence to each underlying conviction.”  This most unusual remedy of adding sentences at the government’s request does not appear to have been contested by appellant or litigated during the appeal – perhaps because Mr. Washington received concurrent sentences for the underlying charges and a resentencing likely would have no practical impact for him.  Were such an issue to arise in another case in which the client were at risk of receiving an enhanced sentence, counsel would want to consider challenging the right of the Court to direct that additional sentences be imposed.    

• The Court held that possession of liquid PCP merges with PWID PCP – an issue the government did not challenge, but did not expressly concede, probably because the possession offense specifies “liquid” PCP, while the PWID charge does not.  JF

Read full opinion here.

Attempted-Battery Assault Is Not a “Crime of Violence” for Federal Immigration Purposes, No Right to a Jury Trial

Esperanza Contreras v. United States (decided August 6, 2015)

Players: Chief Judge Washington, Judge McLeese, Senior Judge Belson. Opinion by Judge McLeese. Gregory W. Gardner for Ms. Contreras. Motions Judge: Fern Flanagan Saddler. Trial judge: Michael Ryan.

Facts: Ms. Contreras became angry with her teenaged daughter and slapped her in the face, causing the girl’s nose to bleed. She was charged with simple assault, and moved for a jury trial on grounds that a conviction would subject her to possible deportation. The motion was denied and her bench trial resulted in a conviction.

Issue: Was the charged assault a deportable “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(e)(i) (2012), entitling Ms. Contreras to a jury trial?

Holding: No. Federal law requires that a deportable “crime of domestic violence” be, among other things, a “crime of violence” within the meaning of 18 U.S.C. § 16(a). Focusing on the attempted-battery type of simple assault for which Ms. Contreras argued she was convicted, the court held that such an assault is not a “crime of violence” under the federal definition because it does not require the same degree of violence. “Violence,” in the context of D.C.’s simple assault statute, refers to any “attempt to do unlawfully to another any bodily injury however small,” while the federal “crime of violence” definition requires “force capable of causing physical injury or pain to another person.” (emphasis added).

Of Note:

• The court deemed it irrelevant that the facts of the charged crime did meet the federal “crime of violence” definition because courts look to the elements of a criminal statute, not the facts of each case, to decide whether it involves a “crime of violence” under federal law.

• The court rejected Ms. Contreras’s sufficiency claim, ruling that the trial judge had an adequate evidentiary basis, in the form of harsh comments Ms. Contreras made during the incident to the effect that her daughter ought not to have been born, to conclude that she slapped the girl out of “hurt pride” rather than for disciplinary purposes. The judge thus did not err in rejecting Ms. Contreras’s parental-discipline defense. FT

Read full opinion here.

The “Bias-Related Crime” Enhancement Can Apply to Any Crime on the Books

Girma Aboye v. United States (decided August 6, 2015)

Players: Judges Glickman and Easterly, Superior Court Judge Kravitz, sitting by designation. Opinion by Judge Glickman. Fletcher P. Thompson for Mr. Aboye. Trial judge: Robert E. Morin.

Facts: Mr. Aboye and his dog, Tarzan, had a tense relationship with the complainants, a gay couple. On one occasion when the couple approached Tarzan with their own dog, Mr. Aboye told them Tarzan “doesn’t like homosexuals.” A few months later, during a verbal exchange with the couple, Mr. Aboye “heatedly yelled, ‘Shut up you faggots[;] I’m going to kill you with my dog. I’m going to have my dog kill you.’” The complainants reported that Tarzan, a brindled pit bull mix, was not acting aggressively, and the officer who later arrested Mr. Aboye testified that he found Tarzan to be friendly and nonthreatening. After a bench trial, Judge Morin found Mr. Aboye guilty of bias-related threats to do bodily harm.

Issue 1: The sentencing enhancement for “bias-related crime” applies to “a designated act that demonstrates an accused’s prejudice based on the actual or perceived . . . sexual orientation . . . of a victim of the subject designated act.” D.C. Code § 22-3701(1). A “designated act” is defined as “a criminal act, including arson, assault, burglary, [and twenty-two other enumerated crimes].” D.C. Code §22-3701(2). Can the enhancement apply to threats, even though threats is not on the list of “designated act[s]”?

Holding 1: Yes. Elsewhere, the D.C. Code provides that “unless specifically provided otherwise: . . . . The word[] . . . ‘including’ mean[s] . . . ‘including, but not limited to.’” D.C. Code § 1-301.45(10). Thus, the plain language of the bias-related crimes law — like its statutory context and legislative history — indicates that the list of “designated act[s]” is not exclusive. The court held that “the term ‘designated act’ in D.C. Code § 22-3701(2) means any criminal act recognized under D.C. law.”

Issue 2: Was there sufficient evidence to prove the second element of threats, that Mr. Aboye’s words could convey fear of serious bodily harm or injury to the ordinary hearer?

Holding 2: Yes, in spite of Mr. Aboye’s argument that the evidence showed Tarzan to be a real pussycat, he was “no miniature lap dog,” and had already been described to the complainants as “hostile to homosexuals.” In any event, “even if Tarzan was friendly and tame, appellant’s death threat was not.” FT

Read full opinion here.

Get Your Hands Out of Your Pants! . . . Or The Police Can Stop and Frisk You

Edward Morgan, Jr. v. United States (decided August 6, 2015)

Players: Judges Thompson, Easterly, and McLeese. Opinion by Judge McLeese. Dissent by Judge Easterly. Stephanie L. Johnson for Mr. Morgan. Trial judge: J. Michael Ryan.

Facts: Police received a phone tip about potential drug activity from a caller who had just seen a man on a red bicycle exchange small objects with another man. The tipster said that during the transaction, the man on the bicycle “reach[ed] into the back of [his] pants and pull[ed] something out [and] put it back in.” Shortly thereafter, the tipster called again, this time reporting that the man on the bicycle was at a particular intersection. Police arrived at the intersection to find Mr. Morgan, who had a red bicycle and fit the physical description provided by the tipster. They initiated a Terry stop, which led to the discovery of cocaine in Mr. Morgan’s waistband and a conviction for possession of same.

Issue: Did the police have reasonable articulable suspicion (RAS) to stop Mr. Morgan?

Holding: Yes. The majority held that “a person’s removal and replacement of an object from inside the waistband of the back of his pants during an exchange will typically create reasonable articulable suspicion to believe the suspect was involved in criminal wrongdoing,” and it was “natural[]” to interpret the tip about Mr. Morgan reaching into “the back of [his] pants” to mean he reached into his waistband. The tipster thus gave police reason to believe the person he described was involved in unlawful activity, and Mr. Morgan sufficiently matched the suspect's physical description to be stopped.

Of Note:

• Despite the broad language of the majority’s ruling that reaching into a waistband gives rise to RAS, the modifying phrase “during an exchange” is an important limitation. The majority distinguished a New Jersey case that found no RAS arose from the suspect placing a paper bag inside his pants on grounds that “there were no other indications of a drug transaction, whereas the present case involves an exchange of small objects out on a street.” (emphasis added)

• Judge Easterly dissented, highlighting the rule that when a police officer does not observe suspicious activity first-hand, RAS can only arise if the tipster gives a specific description of suspicious activity rather than reporting a “hunch.” She concluded that the description of Mr. Morgan reaching into “the back of [his] pants” was vague and could well have referred to all manner of innocent activity, such as reaching into a back pocket for a wallet. The police ought to have asked for more detail, and the prosecution ought to have presented more detail, to develop and show RAS. FT

Read full opinion here.

Stalking Gets You Nowhere

Ronald L. Atkinson v. United States (decided July 30, 2015).

Players: Associate Judges Beckwith and McLeese, Senior Judge Nebeker.  Opinion by Judge Nebeker.  Judith L. Wheat and Marlon C. Griffith for Mr. Atkinson.  Trial Judge:  Robert I. Richter

Facts: This is a case of love gone wrong.  Ronald Atkinson and the complaining witness, Ms. Roebuck, had an intimate relationship that subsequently soured.  Ms. Roebuck moved on, Mr. Atkinson did not.  Mr. Atkinson repeatedly attempted to contact Ms. Roebuck even though she wanted nothing to do with him; she eventually obtained a civil protection order against him.  Contrary to the order, Mr. Atkinson did not stay away.  As a result, he was charged with and convicted of one count of stalking and six counts of violating the terms of the CPO.  

Issue:  Did the trial court err when it merged alternative theories of liability with respect to the stalking charge?  

Holding: Yes, but the error was harmless.  At the government’s urging, the trial court instructed the jury that to be guilty of stalking, it needs to find that Mr. Atkinson “knew or should have known that his conduct would cause Halima Roebuck or a reasonable person in Halima Roebuck’s circumstances” to fear for her safety.  This was error because the inquiry for stalking is objective, considering how a reasonable person in the complainant’s shoes would feel.  The instruction here “impermissibly reduced the government’s burden to convict by allowing the jury to find appellant guilty if he caused Ms. Roebuck to subjectively but unreasonably experience the enumerated emotional harm.”  However, applying the Chapman standard of harmless error, the court found that because the jury was presented with “overwhelming evidence” of Mr. Atkinson’s “objectively frightening behavior,” his conviction must be affirmed.  DH

Read full opinion here.

DCCA Limits Carjacking and Government’s Ability To Elicit That a Defendant Could Have Conducted Independent DNA Analysis

James A. Corbin v. United States (decided July 23, 2015)

The Players: Judges Blackburne-Rigsby and Beckwith, and Senior Judge Belson. Opinion by Judge Blackburne-Rigsby. PDS for Mr. Corbin. Trial Judge: Stuart G. Nash.

Facts:  A driver stopped to ask a man for directions.  The man unexpectedly got into her car and offered to direct her in exchange for a ride.  The driver, though nervous, went along with this.  The man gave her false directions and eventually told her to stop, at which point he tried to grab the car key and then pull her out of the car.  When another car approached, the man ran off.  The man was ultimately identified as Mr. Corbin through blood left behind in the car.  Mr. Corbin was charged and convicted of carjacking for this unsuccessful attempt, and subject to a 7-year mandatory minimum, as well as a subsequent incident in which a car actually was taken.

Issue 1:  Does the D.C. carjacking statute encompass attempted carjackings?

Holdings 1: No.  The carjacking statute is violated when a car is taken, not if there was merely an attempt to take it. Such attempt must, instead, be charged under the general attempt statute, which carries a maximum of 5 years. 

The Court was asked to construe the statute defining "carjacking," which states:

A person commits the offense of carjacking, if, by any means, that person knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempts to do so, shall take from another person actual possession of a person’s motor vehicle.

The question was what act “or attempts to do so” modifies. Mr. Corbin argued that it modifies the means of taking that precede the phrase, not “shall take.” If so, then the statute does not treat an attempted carjacking the same as a completed carjacking. The Court engaged in extended analysis and found both the language of the statute and its legislative history ambiguous.  It therefore applied the rule of lenity to conclude that a carjacking requires a completed taking.  The evidence at trial did not establish that the car was ever taken, since the driver voluntarily followed the man's directions, and he fled before he successfully took control of the vehicle.

(A separate paragraph of the carjacking statute defines an "armed carjacking" to include attempts, so this ruling only applies to unarmed carjackings.)

Issue 2:  May the court allow evidence that a defendant has a right to conduct independent DNA analysis when the defense has not asserted that the government's analysts were biased?

Holding 2:  No (but harmless error). The government may not adduce evidence that the defendant could have opted for an independent DNA analysis unless the defendant cross-examines the government’s expert in a manner that suggests she is biased or withheld evidence from the defense.  Here, defense counsel did not attack the government’s DNA analyst as biased by suggesting (during cross-examination and closing argument) that she made the case a low priority, used unreliable protocols, and took insufficient notes to show her work. “There is a distinction between a bias attack and an attack on the competence of an expert or the validity of protocols. Biased methods carry a degree of intentionality that incompetence and unreliability do not.” The Court thus limited the reach of its prior decisions in Teoume-Lessane and Gee, which had allowed evidence of the defendant's right to conduct DNA testing in response to defense assertions of bias.  SF

Read full opinion here.

Seizure occurred when police asked man about his identity for 10 minutes; suspicion that he lied about his name didn't justify the stop

Kelby R. Gordon v. United States (decided July 23, 2015).

The Players:  Associate Judges Beckwith and McLeese, Senior Judge Ferren.  Opinion by Senior Judge Ferren.  Anna B. Scanlon for Appellant.  Trial Judge: Harold Cushenberry, Jr.

The Facts: Four police officers entered the small foyer of a building in a “high crime” area where four men, including Mr. Gordon, were hanging out.  The whole building smelled like burned marijuana, but the officers did not see the men smoking.  One officer asked Mr. Gordon for identification.  Mr. Gordon said he had none and did not live in the building.  He told the officer his name was “Khalil Mikes” and gave his date of birth.  In response to more questioning, he said he had been locked up in D.C. before.  The officer used his laptop to search for Mr. Gordon’s record, but found nothing.  He continued to question Mr. Gordon about how he spelled his name, whether he used aliases, etc.  This went on for ten minutes or so.  Mr. Gordon eventually gave his real name.  The officer finally retrieved Mr. Gordon’s data, discovered he had an outstanding warrant, and placed him under arrest.  Mr. Gordon admitted he had weed on him, was searched incident to arrest, weed was found and he was subsequently charged with possessing it.     

Holding: Mr. Gordon was seized unlawfully, without reasonable, articulable suspicion that he had been engaged in criminal activity.  As to seizure, the Court held that a man questioned about his identity for ten minutes would not reasonably believe that he could simply walk away.  Gordon was seized because he submitted to what amounted to a show of police authority consisting of repeated questioning accompanied by computer database searches.  The police’s focus on him would lead a reasonable person to think that he would not be allowed to leave until his identity and record were confirmed by the searches.  Nor was the seizure justified.  The Court rejected the idea that giving a false name (even when combined with “high crime area” and other soft factors) gave grounds for a detention because people can give a false name merely because they are afraid, not because they are committing a crime. SF

Read full opinion here.