United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1998 Decided November 20, 1998
No. 97-3076
United States of America,
Appellee
v.
Ralph T. Wilson,
Appellant
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Consolidated with
Nos. 97-3077 and 97-3129
Appeals from the United States District Court
for the District of Columbia
(No. 96cr00319-01)
(No. 96cr00319-02)
(No. 96cr00319-03)
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Reita Pendry, Assistant Federal Public Defender, argued
the cause for appellant Ralph T. Wilson. With her on the
briefs was A. J. Kramer, Federal Public Defender.
Thomas G. Corcoran, Jr., appointed by the court, argued
the cause and filed the briefs for appellant Louis Wilson.
Richard Seligman, appointed by the court, argued the
cause and filed the briefs for appellant Marcellus Judd.
All counsel for appellants were on the joint briefs.
Barbara J. Valliere, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish,
Jr., and Arthur G. Wyatt, Assistant U.S. Attorneys. Mary-
Patrice Brown, Assistant U.S. Attorney, entered an appear-
ance.
Before: Edwards, Chief Judge, Ginsburg and Rogers,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: These appeals arise out of the
murder of a government witness scheduled to testify in the
trial of James Wilson, who was charged with robbing a
United States Post Office. The postal robbery charge was
based on information supplied by the witness, who had worn a
wire while he and James were at the Lorton Reformatory.
Following James's arraignment on January 17, 1996, the
government turned over to James's attorney a copy of the
Lorton tape and transcript on the condition that the attorney
not give copies of this material to anyone, including James,
without the government's prior permission. The tape, as well
as a January 25 letter from the prosecutor to James's attor-
ney, revealed that the government's key witness was named
Leroy Copeland. Shortly before the March 26 trial date,
James's attorney met with James's wife and brother Ralph to
review the evidence against James, informing them of Cope-
land's role and playing and reading portions of the tape and
transcript to them. That evening the Wilson brothers--
Ralph and Louis--began looking for Copeland. On March 25,
Kirk Thomas, whom the Wilson brothers had enlisted to find
Copeland, spotted Copeland and informed Marcellus Judd
that Copeland was in the area. That evening, Louis mur-
dered Copeland by shooting him repeatedly. The jury found
James's brothers Ralph and Louis, as well as Marcellus Judd,
guilty of conspiracy to kill a witness (18 U.S.C. s 371), killing
a witness with intent to prevent him from testifying (id.
s 1512(a)(1)(A)), retaliating against a witness (id.
s 1513(a)(1)(B) & (2)), and first degree murder while armed
(D.C. Code ss 22-2401, -3202). Louis was also convicted of
two counts of using a firearm during and in relation to a
crime of violence (18 U.S.C. s 924(c)) and possession of a
firearm during a crime of violence (D.C. Code s 22-3204(b)).
On appeal, appellants contend that the district court erred
in impaneling an anonymous jury, denying severances, admit-
ting the Lorton tape recording, excluding evidence that other
persons might have murdered Copeland, instructing the jury
on credibility and conspiracy, and providing copies of the trial
transcript in response to a note from the jury. Judd further
contends that there was insufficient evidence to convict him of
conspiracy and of aiding and abetting. Louis contends that
one of his consecutive s 924(c) convictions must be vacated
and that the District of Columbia and federal charges merge,
as do the s 1512 and s 1513 (killing and retaliation) charges.
Concluding that appellants' contentions are mostly unpersua-
sive, we affirm their convictions except for Judd's convictions,
which we reverse, and one of Louis Wilson's s 924(c) convic-
tions, which we vacate.
I.
In contending that the district court erred in denying his
motion for judgment of acquittal, Judd maintains that the
evidence showed only that "Judd made statements during
casual conversation ... while discussing the shooting." Our
review is de novo, considering the evidence in the light most
favorable to the government and determining whether any
rational trier of fact could find all of the essential elements of
the crime beyond a reasonable doubt. See United States v.
Harrington, 108 F.3d 1460, 1464 (D.C. Cir. 1997). As this
court has observed, however,
[t]his review, although deferential, is not servile: "We do
not ... fulfill our duty through rote incantation of these
principles followed by summary affirmance. We must
ensure that the evidence adduced at trial is sufficient to
support a verdict as a matter of law. A jury is entitled
to draw a vast range of reasonable inferences from
evidence, but may not base a verdict on mere specula-
tion."
United States v. Harrison, 103 F.3d 986, 991 (D.C. Cir. 1997)
(quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.
1990) (Thomas, J.)). We therefore cannot sustain a jury's
verdict when "the government's web of inference is too weak
to meet the legal standard of sufficiency." United States v.
Teffera, 985 F.2d 1082, 1086 (D.C. Cir. 1993).
The validity of Judd's convictions turns on whether the
government presented sufficient evidence to show that Judd
was part of the conspiracy and aided and abetted the murder
of Leroy Copeland. The government offered evidence that
on two occasions on the day of the shooting Judd informed
the Wilson brothers that Copeland was in the area: first,
when the Wilson brothers showed up in the area within ten
minutes after Judd was seen in the same area as Copeland,1
and second, when Kirk Thomas informed Judd that Copeland
was in the area and Copeland was subsequently killed.2 The
government also presented evidence that Judd returned to
the area where Copeland was shot. Finally, the government
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1 Copeland did not arrive in the District of Columbia until March
24. Around noon on March 25, Steve Hamilton saw Copeland at
5th and O Streets, N.W., looking for heroin. While Hamilton was
purchasing heroin, he noticed Judd on the street. Hamilton then
entered an abandoned house to use the heroin. About ten minutes
later he emerged and saw the Wilson brothers, in their car with
guns, looking for Copeland. Copeland had already left the scene.
2 Earlier in the evening, Thomas, who was with Glenn Young,
encountered Copeland at the Bundy School playground. Thomas
later saw Judd by his car and informed him that Copeland had been
spotted in the area. According to Thomas, this last exchange
occurred shortly before the shooting, although he could not say how
long. Copeland's friend Kevin Eddings saw the shooter, whom he
later identified as Louis Wilson, as did Tim Carrington.
presented evidence that after the murder Judd told two
people (Glenn Young and Steve Hamilton) that he had been
the person who had informed the Wilson brothers that Cope-
land was in the area.
To prove that Judd was a conspirator, the government has
the burden to show that he "entered into an agreement ... to
commit a specific offense," that he "knowingly participated in
the conspiracy with the intent to commit the offense," and
that "at least one overt act was committed in furtherance of
the conspiracy." United States v. Gatling, 96 F.3d 1511, 1518
(D.C. Cir. 1996); see also United States v. Wynn, 61 F.3d 921,
928-29 (D.C. Cir. 1995). The existence of an agreement is
the sine qua non of the statutory crime of conspiracy. See
United States v. Treadwell, 760 F.2d 327, 336 (D.C. Cir.
1985). Thus, the government had to offer evidence that Judd
agreed to join the Wilson brothers' effort to murder Cope-
land. Viewing the evidence most favorably to the govern-
ment, as we must, see Gatling, 96 F.3d at 1517, the evidence
shows only that Judd knew that the Wilson brothers were
looking for Copeland, that he learned from Thomas that
Copeland had been seen in the area, that he twice informed
the Wilson brothers of that fact, and that he was in the same
area as Copeland when Copeland was killed.
To convict, the jury would need to infer not only that Judd
knew that the Wilson brothers planned to murder Copeland,
but also that with knowledge of their plan and objectives, he
agreed to join them. Given that several witnesses were in a
position to offer testimony about the nature of Judd's involve-
ment with the Wilson brothers' effort, the absence of such
evidence is telling. While there was evidence that the Wilson
brothers enlisted Thomas in an effort to locate and identify
Copeland, informing Thomas of the reasons for their search,
and that Thomas told Judd that another man (Young) had
seen Copeland in the area, neither the Wilson brothers nor
Thomas nor anyone else testified that Judd was told to inform
the Wilson brothers, much less that the Wilson brothers and
Judd were part of a joint effort to kill Copeland. That Judd
twice informed the Wilson brothers of Copeland's presence
shows, at best, only general knowledge of a planned crime,
which is insufficient to prove conspiracy. See Teffera, 985
F.2d at 1087.
The sufficiency of the evidence of aiding and abetting
presents, perhaps, a closer question. Aiding and abetting
requires the government to prove: "(1) the specific intent to
facilitate the commission of a crime by another; (2) guilty
knowledge (3) that the other was committing an offense; and
(4) assisting or participating in the commission of the of-
fense." United States v. Gaviria, 116 F.3d 1498, 1535 (D.C.
Cir. 1997). The elements of aiding and abetting may overlap
to some extent with, but still differ from, those of conspiracy.
See United States v. Beckham, 968 F.2d 47, 51 (D.C. Cir.
1992). In any event, the government still fails to meet its
burden. To prove aiding and abetting the government must
show that Judd shared some intent with the Wilson brothers
and took some affirmative action to assist them in carrying
out their plan to kill Copeland. See Gaviria, 116 F.3d at
1535. Although the intent of the aider and abettor need not
be identical to that of the principal, see United States v.
Walker, 99 F.3d 439, 442 (D.C. Cir. 1996), the government
still was required to show that Judd had sufficient knowledge
and participation to allow a reasonable juror to infer that he
"knowingly and willfully participated in the offense in a
manner that indicated he intended to make it succeed."
Teffera, 985 F.2d at 1086 (quoting United States v. Raper, 676
F.2d 841, 849 (D.C. Cir. 1982)).
In other words, the government must show that Judd
intended to bring about Copeland's murder (or to retaliate
against Copeland or to prevent him from testifying) and that
he knew why and what the Wilson brothers intended to do to
Copeland. Here, there was no evidence that Judd knew of
the Wilson brothers' criminal enterprise when he alerted
them that Copeland was in the area. See Teffera, 985 F.2d at
1086. Again, while several of the government's witnesses
were in a position to identify Judd as having such knowledge,
none did. Nor was there evidence that Judd had an interest
in seeing the Wilson brothers succeed. See id. at 1087. The
evidence shows only that Judd told the Wilson brothers that
Copeland was in the area. Such conduct is susceptible, as in
Teffera, 985 F.2d at 1086, of too many plausible innocent
explanations: Judd could simply be a gossip, mischievous, or
hoping to land in the Wilson brothers' good graces. Judd's
knowledge that the Wilson brothers were looking for Cope-
land is simply not evidence that Judd knew that the Wilson
brothers were intending to kill Copeland and that Judd had
decided to assist them in that enterprise. Contrary to the
government's position, the evidence did not show that after
informing the Wilson brothers on March 25 that Copeland
was in the area Judd sought out Copeland in order to be in a
position to identify him for the Wilson brothers when they
arrived on the scene. Instead, Copeland approached Judd,
who was standing near his car across the street, presumably
seeking a ride. Moreover, only the government's brief, but
no witness, characterized Judd's post-murder statements as
boasting, and there was evidence to suggest that Judd, like
others, did not know the shooting was going to occur.
While the government is not required to negate all possible
innocent explanations of a defendant's behavior, see id. at
1088, the alternative explanations available for Judd's conduct
provide an equally plausible if not more plausible account
than the government's theory, and the government cannot
prevail on the basis of jury speculation, see Long, 905 F.2d at
1576, cited in Teffera, 985 F.2d at 1088. Had anyone else in
the neighborhood told the Wilson brothers that Copeland was
in the area, the government's theory of Judd's guilt would
apply to them as well. Indeed, a government witness (Steve
Hamilton) indicated that he also knew what Judd knew,
namely that people were looking for Copeland. Thus, the
evidence put Hamilton, as well as several others, including
Thomas, Young, and Carrington, in the same position as Judd
with regard to knowledge. Hence, the government's theory
of Judd's guilt casts too broad a net and quite simply the
"web of inference is too weak." Teffera, 985 F.2d at 1086.
As is true with the evidence of conspiracy, there was no
evidence that Judd aided and abetted the Wilson brothers in
murdering Copeland.
For these reasons we hold that there was insufficient
evidence to convict Judd of conspiracy and aiding and abet-
ting.
II.
Appellants' contentions that the district court erred in
denying their motions for severance are unpersuasive.3
Marcellus Judd, a codefendant, made two post-murder
statements that were admitted into evidence. Glenn Young
testified that Judd told him that he, Judd, went to the Wilson
brothers' home on the evening of Copeland's death and told
Louis that Copeland was in the area. Judd repeated his
statement to Steve Hamilton, who advised him to keep this
information to himself. The Wilson brothers maintain that
Judd's post-murder statements were hearsay and that admis-
sion of the statements violated their rights under the Con-
frontation Clause; thus severance of their trials from Judd's
was required. This court has generally favored joint trials,
see United States v. Manner, 887 F.2d 317, 324 (D.C. Cir.
1989), and reviews the denial of a severance for an abuse of
discretion, see United States v. Brown, 16 F.3d 423, 432 (D.C.
Cir. 1994). While Confrontation Clause challenges are re-
viewed de novo, the district court's findings of trustworthi-
ness are reviewed for clear error. See United States v.
Workman, 860 F.2d 140, 144 (4th Cir. 1988). We hold that
the district court did not err in determining that the state-
ments were against Judd's penal interest and sufficiently
reliable to be admitted in a joint trial.
A statement is against interest if "at the time of its making
[it is] ... so far tended to subject the declarant to civil or
criminal liability ... that a reasonable person in the declar-
ant's position would not have made the statement unless
believing it to be true." Fed. R. Evid. 804(b)(3). Moreover,
__________
3 For ease of reference we continue to refer to "appellants," even
though our disposition of Judd's sufficiency contentions means that
we need not, and we do not, address his other contentions. Our
reference from this point on to "appellants" is confined to Ralph
and Louis, to whom we also refer as "the Wilson brothers."
as the Supreme Court made clear in Williamson v. United
States, 512 U.S. 594, 603 (1994), "[e]ven statements that are
on their face neutral may actually be against the declarant's
interest." Judd's statements that he had informed the Wil-
son brothers that Copeland was in the area are, set alone,
hardly incriminating. But their timing is key, occurring the
day after the murder to one man who had witnessed the
murder and to another man who knew Copeland. As such
the statements were potentially incriminating had there been
evidence that Judd was part of the conspiracy or an aider and
abettor to the Wilson brothers. See id. at 603.4 Indeed, one
of the persons to whom he made the statement advised Judd
to keep the information to himself, suggesting that it was
against Judd's interest. Given the evidence that Young and
Thomas were acquaintances if not friends of Judd, the cir-
cumstances indicate that his statements were reliable. See
United States v. Matthews, 20 F.3d 538, 546 (2d Cir. 1994);
see also Fed. R. Evid. 804(b)(3) notes of advisory committee
on proposed rules.
Nor is the Confrontation Clause a barrier to the admission
of Judd's statements. Appellants' reliance on Bruton v.
United States, 391 U.S. 123 (1968), as interpreted by this
court in United States v. Coachman, 727 F.2d 1293 (D.C. Cir.
1984), is to no avail. In Coachman, the court held that the
admission of an accomplice's statements against interest that
also incriminated the defendant violated the defendant's Con-
frontation Clause rights where the declarant was unavailable
for cross examination. See 727 F.2d at 1296-97. After this
circuit decided Coachman, the Supreme Court clarified the
Sixth Amendment inquiry when the government seeks to
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4 Our holding that the government failed to adduce sufficient
evidence to convict Judd of conspiracy and aiding and abetting does
not alter our conclusion that Judd's post-murder statements were
against his penal interest. At the time that the statements were
admitted into evidence, they were probative of Judd's possible guilt,
and the mere fact that the statements alone do not create an
inference of guilt beyond a reasonable doubt does not remove them
from the ambit of Rule 804(b)(3).
admit a nontestifying codefendant's statement that inculpates5
another defendant in a joint trial. See Cruz v. New York, 481
U.S. 186 (1987); Lee v. Illinois, 476 U.S. 530 (1986). Under
Cruz, a court may, in a joint trial, admit an out of court
confession or statement against penal interest by one defen-
dant that inculpates a codefendant if the statement is "direct-
ly admissible" against the other defendant. Cruz, 481 U.S. at
193. Generally, such a statement will be directly admissible
if it is reliable, as defined in Lee and in Ohio v. Roberts, 448
U.S. 56 (1980), and if the declarant is unavailable to testify,
see Cruz, 481 U.S. at 193 (citing Lee, 476 U.S. 530).6 In
__________
5 The Supreme Court has acknowledged that not all inculpatory
statements are equally inculpatory, and has held that with a proper
limiting instruction, admission in a joint trial of a codefendant's out
of court statement that does not "facially incriminat[e]" another
defendant is permissible. See Gray v. Maryland, 118 S. Ct. 1151,
1154-57 (1998); Richardson v. Marsh, 481 U.S. 200, 211 (1987); see
also United States v. Applewhite, 72 F.3d 140, 145-46 (D.C. Cir.
1995). The government does not claim that Richardson or its
progeny applies in the instant case. Appellants however, interpret
Gray, involving redacted confessions, to hold that the statement of a
nontestifying defendant that inculpates codefendants is inadmissible
in a joint trial. However, the Court in Gray revisited Bruton and
Richardson to clarify that statements that incriminate only inferen-
tially are outside the scope of Bruton. The Court explained that
such statements if included under Bruton analysis "too often would
provoke mistrials, or would unnecessarily lead prosecutors to aban-
don the confession or joint trial, because neither the prosecutor nor
the judge could easily predict, ... whether or not Bruton had
barred use of the confession." Gray, 118 S. Ct. at 1157. Although
Judd's statement named the Wilsons, his statement was not a
confession that "facially incriminated" them. Judd's statement,
which was against his penal interest, inculpated Judd as well as the
Wilson brothers only when it was linked with other evidence at
trial. It was not the sort of statement under Bruton or Gray that
would require severance or exclusion.
6 In other words, if the government seeks to admit an out of court
statement by defendant A against A, and such testimony also
inculpates codefendant B, the testimony is inadmissable in the joint
trial unless it would be admissible against B if B were tried alone.
Roberts, the Court noted that a statement is admissible and
does not violate the Confrontation Clause where there is a
necessity (i.e., the witness is unavailable) and the statement
bears sufficient "indicia of reliability" in that it falls within a
"firmly rooted hearsay exception," or has "particularized
guarantees of trustworthiness" such that "there is no material
departure from the reason for the general rule." Roberts,
448 U.S. at 62-67. After Lee, the question remains whether
statements against penal interest can qualify as a firmly
rooted hearsay exception as a class or whether each state-
ment must qualify through its particularized guaranties of
trustworthiness.7 We do not address this question because
we conclude that the particular statements admitted in the
instant case were reliable.
As the government suggests, because Federal Rule of
Evidence 804(b)(3) is based on the idea that "declarations
against interest are reliable because people do not make such
statements unless believing them to be true," United States v.
Barone, 114 F.3d 1284, 1295 (1st Cir. 1997), statements that
__________
Thus, the government may not use a joint trial to bootstrap
admission of incriminating hearsay against one codefendant that it
would not be able to admit if the trials were severed.
7 In Lee the Court noted that confessions have a rebuttable
"presumption of unreliability" and do not fall within a "firmly
rooted" hearsay exception. 476 U.S. at 543. In footnote 5, the
Court also seemed to reject a broad application of the statement
against penal interest exception to allow the admissibility of confes-
sions, observing that "the concept defines too large a class for
meaningful Confrontation Clause analysis." Id. at 544 n.5. In the
end, the Court did not state whether the penal interest exception
was "firmly rooted" and the circuits have taken different views on
the issue. See United States v. Moses, 148 F.3d 277 (3d Cir. 1998);
United States v. Keltner, 147 F.3d 662 (8th Cir. 1998); LaGrand v.
Stewart, 133 F.3d 1253 (9th Cir. 1998); Neuman v. Rivers, 125 F.3d
315 (6th Cir. 1997); Earnest v. Dorsey, 87 F.3d 1123 (10th Cir.
1996); United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995); United
States v. Matthews, 20 F.3d 538 (2d Cir. 1994); United States v.
Flores, 985 F.2d 770 (5th Cir. 1993); United States v. York, 933
F.2d 1343 (7th Cir. 1991).
inculpate both the declarant and the codefendant are admissi-
ble if they "truly" fit the exception to the hearsay rule.
Viewing the totality of circumstances, the district court could
reasonably find that Judd's statements to Young and Thomas
were reliable. Judd's statements were not contained in a
confession to law enforcement officials. He made the state-
ments to lay persons with whom he had no motive or incen-
tive to diminish his role by shifting blame, see id. at 1292;
quite the contrary, Judd's statements revealed conduct be-
yond his mere presence in the area where Copeland was seen
and shot. Judd's statements also occurred at different times
to different people on the day after the murder.8
III.
Appellants also contend that the district court erred in
denying their motion for a new trial because the government
violated Brady v. Maryland, 373 U.S. 83 (1963), by tardily
disclosing two statements by Kevin Eddings the day before
he and Thomas testified at trial. Under Brady, the govern-
ment must "disclose to an accused exculpatory information
that is both favorable and material to guilt or punishment.
This duty extends to evidence drawing into doubt the credibil-
ity of a witness when the witness' reliability may be determi-
native of guilt or innocence." United States v. Dean, 55 F.3d
640, 663 (D.C. Cir. 1995). While the government maintains
the statements fall only within the ambit of Jencks state-
__________
8 Even if admission of the statements was error, the error was
harmless beyond a reasonable doubt, see Chapman v. California,
386 U.S. 18, 24 (1967), in light of the nonconflicting, nonambiguous,
and overwhelming evidence against Ralph and Louis. The Lorton
tape, see infra Part V, established their motive to kill and to
retaliate; James's attorney testified that Ralph had heard portions
of the tape; Thomas testified that on that same night Ralph
enlisted his help in finding Copeland; Hamilton saw Ralph and
Louis armed at 5th and O Streets, N.W., looking for Copeland
around noon on the day of the murder; and in a telephone
conversation after the murder Ralph told James's son that his
father's trial "looked alright now." In addition, four eyewitnesses
saw Louis shoot Copeland.
ments,9 in viewing them as Brady material, we note that in
the district court appellants did not request a continuance in
order to determine whether the statements supported a via-
ble alternative defense, nor request a mistrial, nor even claim
a Brady violation had occurred; instead, they made effective
use of the statements at trial. We find no plain error. See
United States v. Olano, 507 U.S. 725 (1993).
In the first statement, made to law enforcement officials in
April 1996, Eddings indicated that Copeland was afraid of one
of the men they encountered at the Bundy playground. (That
man was Thomas.) He stated that he and Copeland encoun-
tered the same man near a church, and Copeland spoke to the
man, who responded to the effect that "I'm [James's] brother,
your problems are with him not me."10 The second statement
was Eddings's grand jury testimony, where he repeated that
Copeland had told him to run if the man (later identified as
Thomas) made a move, and that he and Copeland ran,
eventually coming to 5th and N Streets, N.W., where Cope-
land was shot. Eddings put Thomas, Young, and another
man named Tim Carrington together on the street corner
when the shooting occurred. Eddings recanted his earlier
claim, however, that an exchange had occurred near the
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9 See Jencks v. United States, 353 U.S. 657 (1957); 18 U.S.C.
s 3500 (1994).
10 In the early evening, Eddings had met his friend Copeland and
they walked to the Bundy School playground. Two men, later
identified as Young and Thomas, were in the Bundy playground
sitting on a wall. In earlier statements to the police and the grand
jury, Eddings said that Copeland told him that if one of the men
made a move they should run. When Thomas stood up, Copeland
and Eddings ran from the playground.
Copeland and Eddings, upon leaving the park, proceeded to 5th
and N Streets, N.W. At the corner they encountered Thomas,
Carrington, and Young. Copeland then began "loud-talking" to
Young, or to no one in particular, about the fact that he was not
"Hot," and if they killed him they would be killing the wrong
person. At this point, Copeland saw Marcellus Judd and called out
to him. Then Eddings heard a shot. Eddings, Young, and Car-
rington identified the shooter as Louis Wilson.
church between one of the Wilson brothers and Copeland.
Thus, Eddings told the police and later the grand jury that he
had seen the shooter earlier that day at the Bundy play-
ground and chose Louis's photograph as resembling the
person he had seen.
Beyond disclosing the largely immaterial recantation by
Eddings before the grand jury, the government maintains,
persuasively, that there is virtually nothing in Eddings's
statements to support a viable alternative defense theory that
Thomas was the shooter. Not only was Eddings consistent in
identifying the person he thought was the shooter, he was
standing across the street from the place where the shooting
took place, and he and other government witnesses placed
Thomas with Eddings. At most, then, Eddings's statements
revealed that his identification of Louis as the shooter was
undermined by his claim that the shooter had been in the
Bundy playground earlier. They also revealed that Copeland
feared Thomas, and raised the question of where the Wilson
brothers were immediately before the shooting and how Judd
could have gone to retrieve someone (Louis) who was already
at the scene.
But even if Eddings's statements were potentially of great-
er importance to the defense than the government suggests, a
new trial is rarely warranted based on a Brady claim where
the defendants obtained the information in time to make use
of it. See United States v. Dean, 55 F.3d 640, 663 (D.C. Cir.
1995); United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir.
1988); United States v. Tarantino, 846 F.2d 1384, 1417 (D.C.
Cir. 1988). Appellants have the burden to show that "had the
statements been disclosed earlier, there is a probability suffi-
cient to undermine our confidence in the actual outcome that
the jury would have acquitted." Tarantino, 846 F.2d at 1417.
Appellants make no such showing.
First, appellants made effective use of the statements at
trial. Ralph ended his cross examination of Eddings by
eliciting an admission that the shooter was the same person
from the Bundy playground, contradicting Eddings's earlier
testimony. As the government notes in its brief, "[t]here was
nothing left to say." Second, appellants fail to show, beyond
vague generalities, how the trial would have been different
with earlier knowledge of Eddings's statements. Having
decided to use Eddings's statements in cross examination
rather than request time from the district court to determine
whether there was a viable alternative defense with Thomas
as the shooter, appellants' Brady claim loses force. Appel-
lants therefore fail to show a "reasonable probability" of a
different result.
IV.
Nevertheless, for other reasons, appellants contend that
they were denied the opportunity to develop a defense theory
that a third party committed the murder. We review the
district court's decision to deny admission of evidence for
abuse of discretion, finding abuse where "it plainly appears
that the excluded evidence bears on a matter that could be
determinative of guilt or innocence." United States v. Mor-
gan, 581 F.2d 933, 936 (D.C. Cir. 1978). We find no error,
much less an abuse of discretion.
A defendant has a constitutional right to present a defense,
see Chambers v. Mississippi, 410 U.S. 284 (1973), and the
district court must proceed cautiously in restricting such
efforts, see United States v. Stewart, 104 F.3d 1377, 1384
(D.C. Cir. 1997); United States v. Foster, 982 F.2d 551, 552
(D.C. Cir. 1993). At the same time, the district court may
properly restrict the presentation of evidence based on con-
cerns that the evidence might confuse or mislead the jury.
Cf. Fed. R. Evid. 403. Appellants challenge the district
court's exclusion of evidence with regard to: (1) FBI Agent
Bamel, who was not permitted to give the names of other
defendants against whom Copeland was scheduled to testify;
(2) Christine Huff, who was not allowed to identify one of
three young men she claimed did the shooting; and (3)
Terrence Blair, who was not allowed to testify that he heard
another person state shortly after the shooting, "That's going
to teach niggers don't mess with our business."
Appellants' contentions regarding the first two witnesses
are meritless. During Agent Bamel's testimony the district
court allowed the jury to hear that Copeland had assisted the
government in numerous cases, but drew the line at admitting
the names of the defendants in those other cases. Specific
names would be irrelevant for the jury to hear absent some
proffer--and there was none--that one of those named indi-
viduals had an opportunity to kill Copeland. As for Christine
Huff, she was called as a witness by Louis, and the district
court ruled that if Ralph's attorney wanted to venture into
the subject of other people Huff saw shooting Copeland he
should call Huff as his own witness, because that subject
exceeded the scope of Louis's direct examination of Huff.
Ralph never attempted to call Huff as his own witness; and
consequently, he has no basis to claim that the district court
restricted him from presenting evidence of third-party culpa-
bility. Moreover, Huff did testify she saw a man other than
Louis shoot Copeland; she was prevented only from identify-
ing that man, whom she knew by a nickname.11
Appellants' contention about the third witness--that the
district court improperly restricted Terrence Blair's testimo-
ny--turns on the nature of the statements Blair purportedly
heard. Blair testified that he and his girlfriend were coming
from the park when they heard shots and saw people scatter-
ing. They approached the area where Copeland's body lay,
and as Blair and others stood around talking, a man ap-
proached from behind. Defense counsel proffered that Blair
would testify that the man, who looked as if he had a gun,
said in effect that Copeland got what he deserved and that his
death would teach others not to mess in our business. De-
fense counsel argued that the statement was admissible as a
statement against penal interest or, alternatively, that it was
a statement that Blair reported to the police that should have
been a part of the investigation of the murder. The govern-
ment countered that the statement did not qualify as one
against penal interest and that as a statement used to excul-
__________
11 In rebuttal, the government called FBI Agent Bamel, who
testified that Huff often changed her story.
pate the defendant, the statement required corroboration.
The district court agreed that the statement was not against
penal interest because its meaning and relevance could not be
determined and thus it was inadmissible hearsay. In addi-
tion, the evidence could not be admitted to show that the FBI
had a lead it did not follow because the information was
irrelevant and such testimony might place Blair in unneces-
sary jeopardy.
Regardless of whether, as the government urges, evidence
that a third party committed the crime is admissible only if
coupled with "substantial evidence,"12 or, as appellants argue,
is admissible without a heightened showing,13 the district
court was well within its discretion to exclude it. The court
simply refused to allow testimony about an ambiguous re-
mark by an unidentified man about whom nothing more was
known. Such proffered evidence hardly meets Winfield's
"reasonable possibility" test and is tantamount to evidence
about a hypothetical suspect. See Gethers v. United States,
684 A.2d 1266, 1271 (D.C. 1996). We accordingly find no
error.
V.
Appellants also contend that the district court erred in
admitting into evidence the Lorton tape recording because
the government failed to lay a foundation by showing that
Ralph had heard the entire tape; the tape contained refer-
ences to inadmissible prior bad acts; the probative value of
the tape was substantially lessened by an offer to stipulate
that the Wilson brothers knew Copeland would be a witness
at James's trial; and the tape should have been excluded
under Federal Rule of Evidence 403. Although the tape
contains brutally frank descriptions of appellants' involvement
__________
12 See, e.g., Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993). But
see United States v. Crosby, 75 F.3d 1343, 1346 (9th Cir. 1996).
13 See Winfield v. United States, 676 A.2d 1, 4 (D.C. 1996) (in
banc); see also United States v. Thomas, 896 F.2d 589, 591 (D.C.
Cir. 1990).
in other criminal matters, we find no abuse of discretion by
the district court. See United States v. Crowder, 141 F.3d
1202, 1210 (D.C. Cir. 1998) (in banc); United States v. John-
son, 970 F.2d 907, 912 (D.C. Cir. 1992); United States v.
Moore, 732 F.2d 983, 992 (D.C. Cir. 1984).
Appellants' foundation argument is seriously flawed. They
maintain that the tape is admissible only insofar as one of the
conspirators heard it, and that in order to admit the entire
tape to show Ralph Wilson's motive, the government was
required to show that he heard the entire tape. Appellants
point to the "conditional fact" requirement to support their
theory. See Fed. R. Evid. 104(b); Huddleston v. United
States, 485 U.S. 681, 689-90 (1988); United States v. Matta-
Ballesteros, 71 F.3d 754, 767-68 (9th Cir. 1995), amended on
denial of reh'g and reh'g in banc, 98 F.3d 1100 (9th Cir.
1996). Having failed to show that any defendant heard the
full tape--the conditional fact--appellants maintain that the
full tape was irrelevant.
Yet appellants ignore two salient facts. First, at the
pretrial conference, the government represented that it could
demonstrate that James, as an unindicted co-conspirator,
read or reviewed the entire transcript of the Lorton tape
recording. James's attorney testified that he "went over" the
transcript with his client and that he would have been "re-
miss" not to share information with his client. In spite of this
testimony, appellants maintain that it would be pure specula-
tion to infer that James, the attorney's client, knew the
contents of the tape in at least as much detail as his wife and
brother. On the contrary, it seems highly unlikely that an
attorney would share information with his client's wife and
brother that has not first been discussed with the client;
thus, it is highly unlikely that Ralph and James's wife learned
before James of Copeland's existence as a witness. In con-
junction with evidence of telephone records between James at
Lorton and the Wilson family, the jury could reasonably infer
that James learned the contents of the tape and relayed the
information to his brothers.
Second, James's attorney provided the necessary founda-
tion. He testified that on March 20, 1996, six days before
James's trial date, he had played portions of the tape for
Ralph and James's wife. He specifically recalled playing
portions of the tape that covered the postal robbery and
where James identified himself, his son, and the family. The
attorney also revealed Copeland's name.
As to appellants' contention under Rule 403, the tape was
relevant evidence of appellants' motive because the incrimina-
ting statements on the tape were elicited by the murder
victim. See Fed. R. Evid. 404(b) & 401; cf. United States v.
DeAngelo, 13 F.3d 1228, 1231-32 (8th Cir. 1994). The tape,
combined with the evidence that the same evening Ralph had
enlisted the assistance of Thomas in locating Copeland be-
cause he would be a government witness at James's trial,
provided the jury with a reasonable basis to infer that
something the attorney told Ralph caused him to act the same
day. In addition, evidence of a nineteen-minute telephone
call from James to Ralph's home on March 22 supports an
inference that the brothers discussed the Lorton tape. So
viewed, the evidence supported the district court's determina-
tion that the tape was discussed by James and Ralph a few
days before the murder.
Appellants, however, take the position, in view of the
testimony by James's attorney that he played only portions of
the Lorton tape during his meeting with Ralph and James's
wife, that only the identified portions actually played were
admissible. Thus, only the portions of the tape reflected on
page 11 of the tape transcript as well as later portions
regarding James's identity, his son, the family, and the "Wil-
son gang" are admissible. There are two problems with
appellants' position. First, some of the more inflammatory
portions of the tape were those that the attorney admitted
playing for Ralph and James's wife. The district court was
therefore on firm ground--under appellants' theory--to ad-
mit these portions of the tape. Second, although James's
attorney was unable to identify specifically what other parts
of the tape he played or what portions of the transcript he
read, he acknowledged relaying the information to Ralph and
James's wife "to let them know what the status of the case
was, and that Mr. Copeland would be called as a witness
regarding those conversations allegedly recorded." With this
testimony, the government met its burden of showing, for
purposes of admission of the tape to show appellants' motive,
that members of the conspiracy heard the tape recording or
learned the contents of the tape transcript. Consequently,
the success of appellants' attack on the admission of the
entire Lorton tape rests on their contention that the jury
heard gratuitously prejudicial portions of the tape that should
have been excluded under a proper Rule 403 balancing.
Tape recordings that are segregable into discrete portions
without engendering confusion or detracting from the govern-
ment's legitimate need to prove its case may include some
portions that are dramatically more prejudicial and less pro-
bative than others. In such circumstances, the proper proce-
dure, as with a live witness testifying about the substance of a
partially admissible conversation, would be to admit only
those portions of the recording that satisfy Rule 403. The
government is entitled to use a tape recording to tell a story,
but not to inflate the narrative into a soap opera. The Lorton
tape recording revealed through the words of brother James
a vivid picture of the Wilson family. At page 11 of the tape
transcript, James described himself as a "beast" and dis-
cussed the details of the postal robbery. In other parts of
the tape, he described himself as a "beast," his son as a
"beast", and the Wilson family as a "family-run organized
gang." He also claimed that "we was robbing banks." In
appellants' not unreasonable view, the tape "implicated them
in other crimes and depicted them in a brutal fashion."
Appellants somehow find support in Old Chief v. United
States, 117 S. Ct. 644 (1997), for their contention that the
Lorton tape should not have been admitted because they
were willing to stipulate that the defendants had a motive to
kill Copeland. Fairly read, however, Old Chief would permit
the government to demonstrate appellants' intent through the
admission of the Lorton tape recording, which "tells a colorful
story with descriptive richness," id. at 653, rather than be
confined to a mere stipulation, see id. at 654-55. The govern-
ment points out that the tape showed not only that Copeland
had betrayed appellants' brother, but also that he had infor-
mation about them. Striking the tape, or at least some
portions, would thus have weakened the government's de-
piction of the depth of Copeland's betrayal and eliminated
this aspect of appellants' motive. The only issue in the
instant case is therefore whether the district court abused its
discretion in permitting the jury to hear the entire story--as
opposed to edited fragments--recounted on the Lorton tape.
It is true that the Lorton tape was not the government's
only means of proving motive. Even if the government could
not be forced to accept the defense offer to stipulate, the
government's discovery letter to James's attorney that was in
evidence disclosed that Copeland would testify against James
and thus sufficed to show a motive and was properly part of
any Rule 403 analysis. See Crowder, 141 F.3d at 1210. Still,
in Crowder this Court made clear that "the Rule 403 inquiry
in each case involving Rule 404(b) evidence will be case-
specific. There can be no 'mechanical solution,' no per se
rule...." Id. Consequently, the fact that this court re-
versed a conviction on the grounds that the prosecutor,
during cross examination of the defendant and another wit-
ness, "by innuendo ... painted a picture of [the defendant
and the witness] as seedy and sinister characters," United
States v. Shelton, 628 F.2d 54, 56 (D.C. Cir. 1980), is not
dispositive in this case.
The district court noted upon reviewing the tape that there
were "some areas of just gratuitous vulgarity," but reasoned
that "just removing gratuitous vulgarity for the sake of
removing it could create a problem." The court explained
that not only did the tape have "descriptive richness" that
was absent from the prosecutor's letter, "[o]nly as the pieces
of the conversation come together can the jury infer, if it
deems it appropriate, its cumulative effect on Ralph Wilson
and Louis Wilson." Nevertheless, the district court did ex-
clude a portion of the tape.14 The court also instructed the
jury that it was to consider the tape for the limited purpose of
__________
14 The district court excluded a reference to a homicide.
deciding whether the defendants had a motive to kill Cope-
land. Although the tape did convey an unsavory impression
of the Wilson brothers and in closing argument the prosecu-
tor relied on the tape,15 it does not follow, given the teaching
of Old Chief, that the district court abused its discretion.
Even under appellants' theory, the government was entitled
to present its evidence to tell the story since Ralph heard key
portions of the tape. Additional portions did not substantially
magnify the unfavorable light already cast by those portions
James's attorney confirmed he played. Under the circum-
stances, the district court could properly conclude, in light of
the nature of the evidence that would be before the jury, that
the Lorton tape recording would not be unduly prejudicial.
We acknowledge however, that appellants' Rule 403 chal-
lenge to the tape presents a close question. The transcript
indicates that about half of the tape is at best only marginally
probative of motive. These portions of the tape illustrate the
relationship between Copeland and James, and thus indicate
why appellants would be upset at the betrayal of this relation-
ship; but they consist solely of vulgar bantering and meaning-
less patter. Although only marginally probative, these por-
tions are prejudicial. Excising these portions seemingly
would not have deprived the government of the "descriptive
richness" or context needed to convey its theory of motive
because the remaining portions impart an accurate flavor of
the Copeland-Wilson relationship.16 Nevertheless, we do not
__________
15 In closing argument, the prosecutor suggested to the jury that
as Ralph listened to the tape, he formed a motive to join the
conspiracy to kill Copeland. In rebuttal closing argument, the
prosecutor argued that the tape implicated Ralph and Louis in
other crimes and provided a motive for them to protect themselves
and James from Copeland. The prosecutor also noted the refer-
ences on the tape to the Wilson brothers as "beasts" and as a
"gang" and to the claim that "[they were] robbing banks."
16 For example, the probative value of the following exchange
eludes us:
W: I is not no bitch.
C: You acting like a bitch.
W: Yous a bitch.
conclude that the district court erred because not only did
appellants fail to request such a parsing of the tape but the
transcript demonstrates that the clearly probative portions of
the tape are no less prejudicial than the more marginally
probative portions. The district court therefore did not abuse
its discretion in finding that editing the tape would have done
more harm, by fragmenting the narrative, than good.
VI.
Appellants challenge the impaneling of an anonymous jury,
two jury instructions, and the provision of transcripts to the
jury. We treat these claims summarily because they lack
merit.
First, in impaneling an anonymous jury, the district court
carefully addressed the considerations set forth in United
States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995). The
indictment itself suggested the need for an anonymous jury,
particularly in light of the eve-of-trial murder of the govern-
ment's key witness in the postal robbery case against James.
See id. at 1091-92; United States v. Riggio, 70 F.3d 336, 340
n.22 (5th Cir. 1995). Moreover, the government had evidence
that still another government witness in the instant case had
been threatened that he would "end up like [Copeland]."
Appellants were facing life sentences, see United States v.
DeLuca, 137 F.3d 24, 32 (1st Cir. 1998), and there was initial
media interest in the trial, see United States v. Paccione, 949
F.2d 1183, 1193 (2d Cir. 1991); United States v. Vario, 943
F.2d 236, 240 (2d Cir. 1991). Given the further evidence that
James viewed his family as a "family-run organized gang,"
the district court could reasonably conclude that an anony-
mous jury was appropriate.
__________
C: You acting like a bitch.
W: Kiss me in the mouth.
To the extent that exchanges like this convey the type of back-
ground flavor necessary to comprehend appellants' motive, such
flavor is evident in other, more clearly admissible, portions of the
tape.
Nor did the district court abuse its discretion by not
conducting an evidentiary hearing on the Edmond factors.
Having heard arguments of counsel, the district court could
reasonably determine that an evidentiary hearing was unnec-
essary inasmuch as the government was relying principally on
the charges in the indictment and the prosecutor's affidavit.
Appellants cite no contrary authority. Finally, the district
court took reasonable precautions, instructing the jury that
an anonymous jury was not out of the ordinary. As required
by Edmond, appellants' fundamental rights were protected
and they show no prejudicial effects. See Edmond, 52 F.3d
at 1090.
Second, Ralph Wilson has shown no plain error in the jury
instructions (to which he did not object).17 The substance of
his challenge to the credibility instruction is that by instruct-
ing the jury to "determine where the truth lies" the district
court deprived him of a verdict of guilt beyond a reasonable
doubt.18 It is true that this court has expressed the view that
__________
17 Although he maintains the failure to object to the instruction on
credibility is excused by the earlier understanding that the district
court would give the modified 1993 version of instruction 2.11, that
view would seriously undermine the contemporaneous objection
rule. See Fed. R. Crim. P. 30; see also Johnson v. United States,
117 S. Ct. 1544, 1548 (1997).
18 The jury instruction contained language deleted in the more
recent, 1993 edition of the "Red Book." The statement "[i]f there is
any conflict in the testimony, it is your function to resolve the
conflict and to determine where the truth lies" was deleted from the
1993 edition of the standard instruction. The Red Book commen-
tary explains that the clause was deleted because it suggested that
the jury was required to determine "historical fact." See Model
Jury Instructions for the District of Columbia, Instr. 2.11 Comment.
The editors concluded that courts should not leave juries with the
impression that they need to "resolve conflict" because, in fact, any
unresolved conflict could simply weigh into the jury's ultimate
determination that the prosecution failed to meet its burden of
proof in a given case. See id. However, the commentary also
notes that "there has been no case law addressing whether such an
instruction is appropriate." Id.
such an instruction is inconsistent with otherwise adequate
burden of proof and reasonable doubt instructions. See Unit-
ed States v. Rawlings, 73 F.3d 1145, 1148 (D.C. Cir. 1996).
Yet not only did the district court here repeatedly and
correctly instruct the jury that the government had the
burden of proof beyond a reasonable doubt, appellant cites no
authority that would require reversal of Ralph's convictions
on this ground. In United States v. Spencer, 25 F.3d 1105,
1110 (D.C. Cir. 1994), the court found no plain error where
the jury was instructed to decide which theory of the case
was correct, meaning the jury needed to decide who was
lying, where there was a genuine conflict in the testimony of
the two sides.19 In contrast, the reversal in Rawlings, 73
F.3d 1145, turned on a combination of errors, one involving an
element of an offense, and another involving the "truth"
instruction in a case where misidentification, not credibility,
was the issue. See id. at 1148. No such combination of
errors exists in the instant case. Moreover, in Rawlings, the
court declined to hold that the "truth" instruction alone
impermissibly shifted the burden of proof to the defendant.
See id. at 1148 n.4.
The challenge to the instruction on conspiracy rests on the
mischaracterization that the instruction permitted the jury to
convict on the basis of an overt act that preceded the exis-
tence of the conspiracy. In fact the evidence showed that the
conspiracy to locate witnesses existed before March 20. Re-
call that in January and February 1996, James's attorney
learned about Copeland's role as a witness and received a
copy of the tape. From that time forward, James's attorney
knew Copeland would be a witness and the likely contents of
his testimony. In the attorney's view, he would have been
"remiss" not to share this information with his client James.
A reasonable juror could thus infer that prior to the attor-
ney's March 20 meeting with Ralph and James's wife, the
Wilson brothers knew that a damaging witness existed and
sought more information at the meeting; thus, hearing the
__________
19 In Spencer, the district court instructed the jury: "As some-
body or both lawyers said, somebody is lying. It is perfectly
obvious." Id. at 1110.
tape was an act "in furtherance" of the conspiracy to prevent
this dangerous witness from testifying. The instruction,
moreover, did not permit the jury to convict merely on the
basis of the receipt of this information, but required the jury
to find that the overt act of obtaining information was com-
mitted "to carry out the conspiracy."
Third, during its deliberations the jury sent a note to the
district court requesting the transcripts of four government
witnesses: Eddings, Hamilton, Young, and Carrington. Ini-
tially, the district court instructed the jurors "to let their
recollection control." The next day, the prosecutor provided
redacted transcripts of the witnesses' testimony (deleting the
bench conferences) and the court, after learning from the jury
that it still wanted them, decided to give the jury two copies
of the transcripts. Defense counsel argued that the jury
should also be provided with the testimony of two FBI agents
who impeached the four government witnesses. The district
court granted the jury's request and denied appellants', not-
ing that the jury had not requested the additional transcripts
and could be trusted to remember the testimony of the
impeaching witnesses. Appellants now contend that this was
an abuse of discretion because the jury received the bulk of
the government's case in written form. See United States v.
Davis, 974 F.2d 182 (D.C. Cir. 1992).
The district court "enjoys broad discretion in responding to
jury questions generally, and especially in deciding whether
to provide requested testimony either in written form, or as
read by a court reporter." United States v. Boyd, 54 F.3d
868, 872 (D.C. Cir. 1995) (citations omitted). While this
discretion is not unlimited as there are "two inherent dan-
gers" in sending transcripts to the jury--the jury "may
accord 'undue emphasis' to the testimony ... [and it] may
apprehend the testimony 'out of context,' "--the provision of
transcripts is not inherently an abuse of discretion. United
States v. Rodgers, 109 F.3d 1138, 1142 (6th Cir. 1997) (cita-
tions omitted); see also United States v. Escotto, 121 F.3d 81,
84-85 (2d Cir. 1997); United States v. Lujan, 936 F.2d 406,
411-12 (9th Cir. 1991). In the instant case, the district court
repeated its instruction that the jurors' recollections should
control, determined the following day that the jury still
wanted the transcripts, and additionally admonished that the
jury remember that the transcripts represented only part of
the evidence. In fact, the jury received the evidence in
context because the transcripts sent to the jury included
damaging cross-examination.
VII.
Finally, Louis challenges his sentence, contending first that
he could not be convicted of two counts of using a firearm in
relation to a crime of violence, see 18 U.S.C. s 924(c), second,
that the District of Columbia code conviction merges with his
federal convictions, and third, that the s 1512 and s 1513
convictions also merge. In the government's view, the merit-
less basis for each challenge is that Louis had only one
impulse to commit a crime. But Louis's first contention is
not so readily disposed of.20
Section 924(c) provides that "[w]hoever, during and in
relation to any crime of violence ... for which he may be
prosecuted in a court of the United States, uses or carries a
firearm, shall, in addition to the punishment provided for such
crime of violence ... be sentenced to imprisonment for five
years...." The fact that the statute appears to provide
__________
20 By contrast, Louis's merger contentions require only summary
treatment. See United States v. Sumler, 136 F.3d 188, 189-90
(D.C. Cir. 1998) (quoting Blockburger v. United States, 284 U.S.
299, 304 (1932)). D.C. Code ss 22-2401, -3202 punishes first
degree premeditated murder while armed. United States Code
s 1512(a)(1)(A) punishes a killing (or attempted killing) of another
person with intent to prevent the attendance or testimony of
that person in an official proceeding. United States Code
s 1513(a)(1)(B) punishes a killing (or attempted killing) of any
person with intent to retaliate against that person for providing a
law enforcement officer with information relating to the commission
of any offense. The D.C. Code section requires premeditation, an
element not present in either of the federal offenses. The federal
offenses require an intent to prevent and an intent to retaliate
respectively--elements not found in each other or in the crime
under the D.C. Code.
prosecutors with a means to tack on multiple counts for a
single event or series of events, or for several firearms was
addressed in United States v. Anderson, 59 F.3d 1323 (D.C.
Cir. 1995) (in banc). In that case, Anderson was charged
with one count of conspiracy to distribute and possess with
intent to distribute cocaine. He was also charged with four
counts of violating s 924(c), one count based on a 9mm pistol
seized in February 1989, a second count based on two weap-
ons seized in March 1989, and the third and fourth counts
based on two weapons seized from different locations on May
16, 1989, the date of Anderson's arrest. Following his convic-
tion and sentences on all counts, Anderson contended that the
multiple s 924(c) convictions could not be linked to only one
underlying predicate offense and this court, sitting in banc,
agreed, reasoning that "at a very minimum, s 924(c)(1) is
ambiguous," and therefore the rule of lenity applies. Id. at
1333. As a result, only one s 924(c) violation may be charged
in relation to one predicate crime.
While the holding in Anderson does not compel that one of
Louis's s 924(c) convictions be vacated, because there are two
predicate offenses that purportedly give rise to two s 924(c)
violations, the reasoning underlying the in banc court's deci-
sion is no less applicable where a single use of a gun results
in more than one offense. In Anderson, the court was
confronted with a situation in which the defendant had been
convicted of multiple s 924(c) charges, stemming from multi-
ple uses and multiple guns, based on what the court conclud-
ed was an ambiguous statute. By contrast to Anderson, in
the instant case there is only one firearm and one use, but
two underlying offenses. Nonetheless, our reasoning in
Anderson and its application of the rule of lenity lead us to
vacate one of Louis Wilson's s 924(c) convictions.
It is undisputed that Louis used his firearm only one time.
Because there is no merger of the multiple offenses, see
supra n.20, the government maintains that each offense can
provide the predicate for a s 924(c) charge. Yet this position
ignores that the reason the offenses do not merge is because
of the different mens rea requirements, not because of dis-
tinct conduct. While there may be circumstances in which
such offenses could support more than one s 924(c) charge--
as where, for example, the evidence shows distinct uses of the
firearm, first to intimidate and then to kill--in the instant
case there is no such distinction in time or place. However
many crimes Louis may have committed by shooting Cope-
land, there was only one use (albeit a repeated use) of a
firearm. The cases from other circuits on which the govern-
ment relies are readily distinguishable, involving distinct con-
duct giving rise to multiple crimes.21 In Anderson the court
reasoned that Congress intended to "penalize the choice of
using or carrying a gun in committing a crime." Id. at 1328
(emphasis omitted). That reasoning limits the number of
s 924(c) counts that may be charged in the indictment arising
out of Copeland's murder. Because there was only one use of
the firearm, the Anderson rationale ineluctably leads to the
conclusion that one of Louis's s 924(c) convictions must be
vacated. Therefore, consistent with the understanding of
congressional intent elucidated in Anderson, we vacate one of
Louis's s 924(c) convictions.22
__________
21 In each case on which the government relies, separate conduct
and uses of firearms by the defendant gave rise to the underlying
offenses charged. In United States v. Andrews, 75 F.3d 552, 557-
58 (9th Cir. 1996), on which the government relies for the proposi-
tion that each substantive conviction can support a separate
s 924(c) charge, two defendants were each charged with four
s 924(c) violations for a series of events where four distinct acts
gave rise to four separate crimes. In United States v. Nabors, 901
F.2d 1351, 1357-58 (6th Cir. 1990), the defendant used weapons in
his home for the purpose of trafficking drugs and used a weapon to
shoot a Federal Bureau of Alcohol, Tobacco, and Firearms Agent
who entered the apartment to execute a search warrant; two
s 924(c) convictions resulted from these distinct uses of firearms.
See also United States v. Romero, 122 F.3d 1334 (10th Cir. 1997)
(upholding two s 924(c) convictions for distinct conduct of carjack-
ing and robbery); United States v. Casiano, 113 F.3d 420 (3d Cir.
1997) (upholding two s 924(c) convictions for distinct conduct of
carjacking and kidnaping); United States v. Floyd, 81 F.3d 1517
(10th Cir. 1996) (same).
22 Deal v. United States, 508 U.S. 129 (1993), does not compel a
different result. Deal addressed the meaning of the word "convic-
Accordingly, we affirm the judgments of conviction in all
respects, except we reverse the convictions of Marcellus Judd
and we vacate one of Louis Wilson's s 924(c) convictions.
__________
tion" in the second clause of s 924(c), which doles out a twenty year
sentence for "second or subsequent" convictions. See id. at 131-37.
By contrast, the instant case concerns not whether a s 924(c)
conviction is second or subsequent, but rather whether more than
one s 924(c) conviction can be sustained by Louis's conduct. In
Deal, the Court assumed that Deal's six robberies could support six
s 924(c) convictions. See id. at 130-31. The only remaining issue
was whether the five convictions beyond the first could count as
second and subsequent convictions for sentencing purposes, and the
Court concluded that they could. See id. at 137. See also, Casiano,
113 F.3d at 424-25 (two s 924(c) convictions upheld where the
defendant carjacked and kidnapped his victim, and thus, as in Deal,
all convictions beyond the first would count as second or subsequent
convictions).