The DCCA did not issue any criminal opinions this week.

The DCCA clarifies the mens rea for receiving stolen property and writes a model instruction.

Alphonso Owens v. United States, 13-CF-1332 (decided May 15, 2014)

The Players: Judges Fisher, Easterly and Ferren.  Opinion by Judge Fisher.  William T. Morrison  for appellant.  Trial Judge:  Heidi Pasichow.

The Facts: Two days after a Maxima was stolen, Owens was stopped by the police while driving it.  The ignition was damaged, a side vent window was broken, and it was being operated with an altered BMW key.  He was convicted of RSP after the judge responded to a jury note asking for clarification on the required mens rea – whether the defendant possessed the car “knowing or having reason to believe that the property was stolen.”  Without objection, the judge instructed the jury that the “reason to believe … determination should be based upon what a reasonable person would have believed under the facts and circumstances as you find them.”   

Issue:  Did the judge commit plain error by instructing the jury that “reason to believe the property was stolen,” the mens rea for RSP, was satisfied by an objective standard, i.e., proof that a reasonable person would have known the car was stolen? 

Holding: The instruction was error because the standard is a subjective one, but reversal is not required under plain error review on the facts here.  If the government is relying on a theory broader than actual knowledge, the following instruction is recommended as a correct legal statement:

Element No. 3 requires that the defendant either knew or had reason to believe that the property was stolen.  This state of mind is a subjective one, focusing on the  defendant’s  actual state of mind, and not simply on what a reasonable person might have thought.  In determining whether the government has met its burden of proving the defendant’s subjective state of mind, you may consider what a reasonable person would have believed under the facts and circumstances as you find them.  But guilty knowledge cannot be established by demonstrating mere negligence or even foolishness on the part of the defendant.  It may, nonetheless, be satisfied by proof beyond a reasonable doubt that the defendant deliberately closed his eyes to what otherwise would have been obvious to him.   

Read full opinion here.  

Picking up a knife to defend yourself from a person hurling household objects at you is not “excessive force.”

Shirley Williams v. United States, No. 12-CM-474 (decided May 15, 2014)

The Players: Judges Beckwith, Easterly, and Belson.  Opinion by Judge Belson.  Raymond J. Rigat for appellant.  Trial Judge: Brian Holeman.

The Facts: When Ms. Williams came to pick up her children from their paternal grandparents, a fight broke out between her and the children’s grandmother, Jennifer Bragg, in an upstairs bedroom.  Ms. Williams testified that she retreated downstairs, where the front door was locked and she could not get out.  The government did not call the alleged victim, but her husband and Ms. Williams both testified that once the women were downstairs, objects were flying around and breaking.  Ms. Williams testified that the complainant was hurling the objects at her, while the husband testified that he did not know who threw them.  Ms. Williams testified that she ran to the kitchen and picked up a knife to defend herself.  The Braggs’ son testified that at this point he came up from the basement and took the knife from Ms. Williams without a struggle. 

The trial judge acquitted Ms. Williams of assault because the government failed to establish that Bragg was not the first aggressor in the bedroom.  As for the events downstairs, the trial judge did not resolve the question of who was hurling the objects but nonetheless convicted Ms. Williams of attempted possession of a prohibited weapon (knife), D.C. Code § 22-4514(b) (“PPW(b)”), on the ground that even if Ms. Williams was the victim downstairs – with the complaining witness throwing objects at her – it was excessive under the circumstances to pick up and brandish a knife rather than try to find a way to escape.   

Issue:  Did the government adduce evidence sufficient to establish that the defendant’s brandishing of a knife under the circumstances was not in self-defense? 

Holding:  No.  If indeed Ms. Williams was the one under attack (objects thrown at her downstairs), then the brandishing of a knife was not excessive force as a matter of law.  Ms. Williams was acting in “the heat of conflict” and her reactions must be accorded leeway and not be judged by the standards of “a calm mind”; and merely brandishing a knife should not be confused with the actual use of deadly force.  While the Court would normally remand on the question the judge did not address – who was the aggressor with respect to hurling objects – it was unnecessary to do so here because the government failed to adduce sufficient evidence that Ms. Williams was the one hurling the objects where her testimony on the point was uncontroverted.  SF.

Read the full opinion here.

No new criminal opinions this week either. In lieu of content, we leave you with adorable puppies.

The DCCA did not issue any new criminal opinions this week.

Returning stolen property for a reward may not be a crime under certain circumstances. And sometimes, Kool-Aid steals laptops.

Lihlakha v. United States, No. 12-CM-606 (decided April 24, 2014)

The Players: Judges Glickman, Easterly, and Ferren.  Opinion by Judge Ferren.  Concurring opinion by Judge Easterly.  R. Michael Labelle for appellant.  Trial Judge: Truman Morrison III.

The Facts: The complainant's laptop was stolen from outside her Howard University dorm room, prompting her to post signs around campus promising a reward for the return of her laptop.  Shortly thereafter, the defendant, Jessica Lihlakha, called the complainant and represented that she may be able to obtain the laptop and return it for the promised reward.  The laptop had apparently been stolen by "Kool-Aid"--a local drug dealer, not the delicious sugary beverage--and Kool-Aid gave the computer to the defendant to return in exchange for the reward money.  When the defendant attempted to return the laptop to the complainant, she was greeted by an undercover officer, who placed her under arrest.  At trial, the defendant was convicted of receiving stolen property.  On appeal, she challenged the sufficiency of the evidence supporting that conviction.  The Court of Appeals determined that sufficient evidence supported her conviction but remanded for further proceedings because the trial judge failed to recognize the existence of a return-for-reward defense to the charge of RSP.

Issue: Whether the law recognizes a "return-for-reward" defense to the fourth element of D.C. Code 22-3232(a) (2001), which requires the government to prove that the defendant acted "with the intent to deprive another of the right to the property or a benefit of the property."

Holding: Yes, if certain conditions are met.  A defendant "may establish a return-for-reward defense that negates the requisite intent for receiving stolen property if the evidence shows that: (1) the reward had been announced . . . before the property was possessed or agreed to be possessed; (2) the person claiming the reward had nothing to do with the theft; (3) the possessor returned the property without unreasonable delay to the rightful owner or to a law enforcement officer; and (4) the possessor imposed no condition on the return of the property."  As Judge Easterly's concurrence clarifies (and as the majority opinion establishes less directly), "[s]eeking a previously announced reward in exchange for the return of stolen property is not such an impermissible condition."

Of Note: Lihlakha interprets the old receiving stolen property statute, which was modified in April 20, 2012, to delete the "intent to deprive" element at issue in this case.  Thus, Lihlakha is most directly applicable to cases where the crime was committed prior to April 20, 2012, and any attempt to apply Lihlakha's ruling to subsequent cases would require the litigant to argue that the holding remains applicable to the new statute despite the modification.  CK.

Read the full opinion here.

Court holds that a non-threatening request for a friend to stay silent (“keep the code”) amounts to obstruction of justice.

Brown & Shepherd v. United States, Nos. 11-CF-1503 and 11-CF-1507 (decided April 17, 2014)

The Players: Judges Fisher, Blackburne-Rigsby, and Belson.  Opinion by Judge Fisher.  Debra Soltis for Darius Brown.  Richard Stolker for Jamal Shepherd. Trial Judge: Ronna Beck.

The Facts:  Mr. Brown and Mr. Shepherd were convicted of several offenses arising from a shooting and later cover-up.  During an argument between the appellants and their friend Mr. Brooks, on one side, and Mr. Washington, on the other, Shepherd suddenly grabbed a gun that Brooks had been carrying and shot Mr. Washington.  Police arrested Brooks, who informed police that he and Brown had witnessed the shooting; although Brooks initially denied knowing the shooter’s name, he later implicated Shepherd.  Brown told police, and later the grand jury, that he did not know the shooter’s name and had met the shooter on just two earlier occasions.  But Brown later stated, during a recorded phone call, that he “lied to the police officers” and was “guilty” of obstruction of justice.  He also spoke with Shepherd on the phone approximately 1500 times during the 15 months following the incident.  During these conversations, Brown and Shepherd expressed anger that Mr. Brooks had “told the truth” to police and agreed that they needed to “get at [Mr. Brooks].”  On appeal, Brown and Shepherd challenged primarily the sufficiency of the evidence as to certain counts.

Issue 1:  Was there sufficient evidence to support Mr. Brown’s convictions for perjury, obstruction of justice, and conspiracy to obstruct justice?

Holding:  Yes.  Given that Brown and Shepherd spoke with each other about 1500 times over the course of 15 months after the incident, and Mr. Brown admitted in recorded phone calls that he had lied to police, the jury could reasonably infer that he had lied — with the intent to derail the investigation — when he told police and the grand jury that he did not know Mr. Shepherd’s name.  And because the contents of their phone calls “attest to an understanding between [them] that they needed to do something to stop Brooks’s continued cooperation with authorities,” the jury could reasonably find that they conspired to obstruct justice.

Issue 2:  Was there sufficient evidence to support Mr. Shepherd’s convictions for obstruction of justice and carrying a pistol without a license?

Holding:  Yes.  As to obstruction of justice, Shepherd told Brooks in a recorded phone call to “keep the code,” which Brooks understood as a reference to a code against snitching.  That statement amounted to obstruction of justice under the part of the statute that prohibits actions that impede an official proceeding “[c]orruptly, or by threats of force.”  D.C. Code § 22-722(a)(6).  The Court concluded that both of these prongs were satisfied: Shepherd’s reference to the code against snitching implied a “threat[] of force,” and even if it did not, the statement was made “corruptly” inasmuch as it was “motivated by an improper purpose” to obtain Brooks’s silence.  As to carrying a pistol without a license, Shepherd’s momentary possession of the gun — when he grabbed it from Mr. Brooks and shot Mr. Washington — was sufficient for conviction even though he did not carry the gun either before or after the shooting.  JM.

Read the full opinion here.