United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2005 Decided July 21, 2006
No. 02-3015
UNITED STATES OF AMERICA,
APPELLEE
v.
SAMUEL CARSON, A/K/A CHIN,
APPELLANT
Nos. 02-3016 & 3017
UNITED STATES OF AMERICA,
APPELLEE
v.
VINCENT HILL, A/K/A VITO,
APPELLANT
No. 02-3018
UNITED STATES OF AMERICA,
APPELLEE
v.
WILLIAM KYLE SWEENEY, A/K/A DRAPER,
APPELLANT
2
No. 02-3019
UNITED STATES OF AMERICA,
APPELLEE
v.
JEROME MARTIN, JR., A/K/A PIMP,
APPELLANT
No. 02-3046
UNITED STATES OF AMERICA,
APPELLEE
v.
SEAN COATES, A/K/A BIRDY,
APPELLANT
Appeals from the United States District Court
for the District of Columbia
(No. 98cr00329-01)
(No. 98cr00329-02)
(No. 98cr00329-03)
(No. 98cr00329-04)
(No. 98cr00329-06)
Stephen C. Leckar, appointed by the court for Sean Coates,
Steven R. Kiersh, appointed by the court for William Sweeney,
and Reita P. Pendry, appointed by the court for Jerome Martin,
argued the cause for all appellants. Paul Rosenzweig, appointed
3
by the court for Samuel Carson at the time the brief was filed,
Christopher M. Davis, appointed by the court for Vincent Hill,
Mary E. Davis, appointed by the court for Vincent Hill, and
Jensen E. Barber, appointed by the court for Vincent Hill, were
on the joint brief. Edward Charles Sussman, appointed by the
court for Samuel Carson, entered an appearance.
Mary B. McCord, Assistant United States Attorney, argued
the cause for the appellee. Kenneth L. Wainstein, United States
Attorney, Peter R. Zeidenberg, Attorney, United States
Department of Justice, John R. Fisher, Assistant United States
Attorney at the time the brief was filed, and Roy W. McLeese III
and Anjali Chaturvedi, Assistant United States Attorneys, were
on brief. Elizabeth Trosman and Patricia A. Heffernan,
Assistant United States Attorneys, entered appearances.
Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit
Judges.
Opinion for the court filed Per Curiam.
PER CURIAM: The five appellants challenge their convictions
and sentences on various counts of criminal activity involving
drugs, guns and violence. For the reasons set out below, we
affirm their convictions and their sentences in toto.
I. Facts
This case is a story of mayhem and disorder in and around
the 200 block of K Street, Southwest, in the District of
Columbia from the 1980s until 1998. Underlying the violence
was appellants’ organized and massive business of selling drugs,
for which they stand convicted of participating in a narcotics
conspiracy to distribute over 1,000 kilograms of marijuana.
According to evidence believed by a jury, that drug business led
to an astonishing amount of violence and a seemingly complete
repudiation of civil society and respect for human life.
Individual appellants in this case, sometimes acting in concert,
4
stand convicted of the murders of eleven people: Melody
Anderson, Anthony Fortune, Alonzo Gaskins, Chrishauna
Gladden, Maurice Hallman, Leonard Hyson, Terita Lucas,
Darnell Mack, Teresa Thomas, Donnell Whitfield, and Larry
Wright. Some appellants also were convicted for numerous
attempted murders, crimes of violence, and firearms offenses.
All appellants were convicted for a racketeering conspiracy.
The beginning of the end of the K Street drug network came
in late 1995, when the Federal Bureau of Investigation (“FBI”
or “Bureau”) started a comprehensive investigation into illegal
drug sales in the area. FBI Special Agents set up an observation
post from an apartment overlooking the 200 blocks of K and L
Streets, Southwest, and started videotaping drug transactions,
sometimes taping transactions they initiated through undercover
work but often capturing unsolicited purchases. FBI video
cameras captured appellants Vincent Hill, Jerome Martin,
Samuel Carson, and Sean Coates in the midst of drug
transactions, and an undercover Metropolitan Police Department
(“MPD”) officer made several controlled purchases of marijuana
from appellants Hill and Martin. Appellant William Sweeney
was incarcerated when some of these purchases took place.
The FBI’s investigation lasted three years and suggested a
long history of drug-dealing and an extraordinary breadth of
violent acts. Crucial to the government’s case was testimony
from former associates of appellants and nearby
residents—testimony that was undoubtedly difficult to obtain
given evidence, as discussed below, that some of the appellants
have a history of murdering or attempting to murder potential
witnesses against them. Not every detail is known about
appellants’ lengthy pattern of lawlessness that preceded their
indictment in 1998. Largely recounting the testimony of those
cooperating witnesses, we provide below a chronological
overview of the vast drug activity and violent acts underlying
the jury’s guilty verdicts. Our summary is by no means
5
exhaustive of all facts underlying that activity. It serves to set
the factual background upon which we later build in the analysis
section of our opinion, where we address in greater detail the
facts needed to understand appellants’ specific challenges.
A. Factual Background.
This story begins with the criminal actions of appellant
Vincent Hill. Several associates of appellants, cooperating with
the government either voluntarily or pursuant to plea
agreements, testified at trial that they grew up learning to sell
drugs from Hill beginning as early as ages eleven to fourteen.
One cooperating witness described it as a “big brother/little
brother relationship,” where he would beat up others at age
eleven, get congratulated by Hill, be promoted to the role of
“lookout” where he could protect Hill’s drug activity, and
eventually “graduat[e] into [dealing] drugs as the other guys”
did. Hill would sell drugs in Southwest D.C. and have other
individuals sell drugs for him, providing binoculars and walkie-
talkies so that his underlings could warn him if police were
approaching.
By the 1990s, appellants and a number of individuals
(collectively, the “K Street dealers” or “K Street members”),
were selling marijuana in and around the 200 block of K Street,
Southwest, which continued through 1998. Over time, the K
Street dealers developed an increasingly large and loosely
organized drug-selling network. For example, as one seller
described it, the group would “go in a sequence,” with each
seller taking a turn in serving the next arriving buyer. If a buyer
“was to pull off with somebody’s bag” and without paying, the
dealers would “yell down the street” and “before that car could
get out of the area somebody would have thrown a brick . . . [or]
bottle” and, “[i]f someone had a gun at night . . . they would
actually fire at the car.”
6
The K Street dealers sold marijuana in and around K Street
throughout the morning, afternoon, and evening. During 1994
and 1995, appellant Hill made the most money out of the group,
taking in approximately $200 to $1,000 per day selling drugs.
By 1996, appellant Hill made roughly $3,000 to $4,000 in illicit
profits per week, while appellants Coates, Martin, and Sweeney
made a little less. In addition to dealing marijuana, appellants
Carson and Sweeney would help supply other members of the
group. Perhaps predictably, appellants’ drug-dealing was
surrounded by a culture of violence and intimidation, which,
according to the evidence introduced at trial, grew each year.
i. 1989.
The widespread violence that runs through this case begins
in 1989 with the murder of Larry Wright, a victim in a drug-
dealing turf war. A local dealer, Andre Murray, testified at trial
that he and Tyrone Brawner sold drugs together at First and P
Streets, Southwest, while appellant Hill, along with Wayne
Perry, sold drugs in another part of the K Street neighborhood.
In the beginning of the summer of 1989, Murray testified,
Wright was released from prison and resumed dealing drugs, but
did so on what Murray and Hill viewed as the wrong side of K
Street. A short time later, on the evening of June 29, 1989,
Murray heard gunshots fired and saw Hill at the corner of First
and O Streets, Southwest, running away. Larry Wright had been
murdered.1
1
An eyewitness, Reginald Switzer, testified to seeing Hill stand
behind Wright just before Wright was shot. Another individual
recounted that shortly after the shooting, Hill had blood on the lower
part of his leg, and remarked that “if anybody come looking for me,
I was right here gambling with you all.” In threatening people in the
neighborhood in later years, Hill made various statements suggesting
he had killed Wright.
7
Several murders followed. In late 1989, Carson, along with
another K Street dealer who cooperated with the government,
James Montgomery, murdered Maurice Hallman as revenge for
a previous fight. According to Montgomery, while Montgomery
was “hustling” on Delaware Avenue, Southwest, Hallman
punched him, at first in a playful manner and in an effort to
show off to appellant Hill. Montgomery asked Hallman to stop.
When he did not, Montgomery “put [his] stash down and
. . . came back and . . . hit him . . . to the body hard.” Hallman,
Montgomery testified, “got mad” and hit Montgomery on the
head with a gun. That altercation prompted Montgomery to tell
Hallman, in front of several witnesses, that he was “going to get
him.” Appellant Carson chided Montgomery for having
“threatened [Hallman] in front of other people” and suggested
that “if something happened to [Hallman], then [Montgomery]
would be the first one they would come and get.” Montgomery
then apologized to Hallman in front of “everybody” so
“everybody could see that [they] made up.”
That apology did not go far. Montgomery killed Hallman on
December 19, 1989. According to his own testimony,
Montgomery was in possession of Hallman’s gun and used it to
lure him to an alley—“somewhere where [he] could kill him.”
Carson accompanied Montgomery. Another individual, Leonard
Hyson, was present and would not leave, despite Carson’s
request that Hyson “go ahead about his business.” Montgomery
shot Hallman until he ran out of bullets. When he was done, he
saw Hyson lying on the ground, with Carson walking away.
Montgomery later told Carson that when he was shooting
Hallman, he had not heard Carson’s gun go off. Carson told him
“that’s because he’s sharp” and that “he hit [Hyson] in the head
six times before he hit the ground.”2
2
Another individual, Raymond Washington, repeatedly discussed
with others the death of Hallman and Hyson. Montgomery told
8
ii. 1990.
Norman Yusuf Simmons, then only fifteen years-old, was
kidnapped by appellant Coates and other individuals on April
28, 1990. Simmons was riding a bike in a park when two
individuals approached him with semi-automatic weapons.
They forced Simmons into a car, drove him to a mall, and
eventually to an apartment complex. Simmons was placed into
a trunk, and then into a second car. He was driven to another
apartment, asked at gunpoint for contact information from his
family, and then put in a closet. Simmons was eventually taken
to a wooded area and bound with black electrical tape.
Thereafter, his captors brought him to a parking lot, where he
was informed that his family had paid a ransom.
iii. 1991.
In 1991, appellant Carson stored an AK-47 and other guns
at the home of Teresa Thomas, with whom he was in a romantic
relationship. Seventeen year-old Teresa lived with two infant
daughters, her eighteen year-old sister Terita Lucas, and another
woman, Crystal Bobbitt. Carson asked Thomas to return the
AK-47, but according to Montgomery, Thomas “kept giving
[Carson] excuses” about the gun. Appellant Martin accused
Carson of “going soft over a broad” and suggested that Thomas
was “going to end up letting [Carson] get killed by his own
gun.” The father of one of Thomas’s daughters was a man from
the 5th and O Street neighborhood, and apparently Martin was
concerned that this man would take Carson’s guns from
Carson that Washington was “running his mouth about that situation.”
Montgomery thought “that [they] should kill” Washington, which
Carson did not initially want to do himself. But one day, when
Montgomery believed Washington was “in a good position” such that
he could “hit him where he is now,” Carson told Montgomery: “[i]f
you can do it, then do it.” When Montgomery got his gun,
Washington was gone, and Montgomery “just left it alone” after that.
9
Thomas’s apartment and use them against him. Carson told
Bobbit that he did not “trust” the man having “a gun on him”
and thus “had to stay strapped” when he visited. Bobbit saw
about five guns stored in a bag under Thomas’s bed.3
On March 22, 1991, Bobbitt returned to the apartment after
having spent the previous night with family in Maryland.
Entering with her child, she saw what appeared to be “all this
juice in the room,” and soon discovered that she was, in fact,
seeing not juice, but blood. Bobbitt found Thomas dead, with
Thomas’s daughter still alive under Thomas’s body. Bobbitt ran
to seek help. Police officers arrived to find Thomas and Lucas
dead, with three young children alive in the apartment. There
were no signs of a forced entry. Pictures of Carson that had
been in the apartment were missing.
According to Montgomery, Carson initially denied being
responsible for the double murder. Later, Carson described to
Montgomery what happened. Carson went to Thomas’s
apartment and “kept asking her about the gun,” and Thomas
“kept on saying that she’ll get the gun for him, but she couldn’t
get it right now because it was behind a lot of stuff, and she
didn’t want to wake her kids up.” Thomas “kept giving him
excuses,” and so Carson went to the bathroom, came out, and
“shot her in the head.” Next, he murdered Lucas. Lucas was in
her bed, and as she was “lifting up, and before she opened her
eyes,” Carson “shot her in the head, and she just laid back
down.” Carson then fled to a waiting car driven by Clifton
Edwards.
3
One of Thomas’s friends testified that she spoke with Thomas
the night Thomas was killed. Thomas appeared to be “very fussy” and
“frantic.” Thomas had recently broken up with Carson, and the friend
recalled seeing Thomas, a week earlier, take a “quite heavy” gym bag
from under her bed and run with it downstairs.
10
Carson shot and killed Anthony Fortune in August 1991,
after a dispute between Martin, Carson, and Fortune in a craps
game. Carson described the killing to Montgomery, recalling
that he had shot Fortune and after Fortune fell Carson “went
over top of him [sic] and hit him some more.” A witness saw
Martin and Carson earlier, and heard Martin talking about how
he “didn’t like Tony Fortune robbing people, and [how Fortune]
would kill your mother.” Later that evening, the witness saw
Carson “walking towards Tony Fortune, shooting.” Carson
“then stood over [the] top of him and shot him.”4
Curtis Buchmon, a friend and associate of appellants Martin
and Carson, was murdered on September 3, 1991. Appellants
Martin and Carson, along with others, believed that Buchmon
was killed in retaliation for Fortune’s murder. Martin,
Montgomery, and others engaged in an initial unsuccessful
attempt to, from Montgomery’s perspective, go “shoot
somebody” and “get some get-back for them killing” Buchmon.
They ended up shooting at a white minivan, but fled after the
van sped off. On September 10, 1991, their next attempt to seek
revenge ended in a shootout with the MPD. The group found
two people they were looking for, but their targets began to run
away. Soon thereafter, a car passed the group’s van, and began
shooting at them. But Montgomery saw more shots coming at
them from another direction. Someone who looked like a
security guard was shooting at Martin, and Martin, along with
other occupants of the van, returned fire.
The “security guard” was one of four MPD officers who
witnessed the shoot-out and returned fire into the van. Police
found the van abandoned in the 1300 block of 45th Place,
Southeast, riddled with bullet holes. A D.C. driver’s permit
4
Years later, Arthur Rice indicated to Carson that he had always
thought Martin shot Fortune and had recently heard that it was Carson.
Carson laughed, and responded: “well, now you know.”
11
issued to “Jerome Martle,” apparently belonging to appellant
Jerome Martin, was found in the driver’s side door. Police
found six sets of fingerprints in the van, three of which matched
the known fingerprints of Montgomery and appellants Martin
and Carson.
iv. 1992.
Several months later, there was yet another shooting. When
appellant Coates heard that a man named Michael Jones was
planning to testify against one of Coates’s associates, Coates
told others that “we need to get him.” Coates, along with other
individuals, shot Jones multiple times on June 28, 1992. Jones
survived.
v. 1993.
Coates, Sweeney, and others continued to engage in violent
acts during 1993. At about 2:00 a.m. in the early morning hours
of a day in October 1993, a resident of Oxon Hill, Maryland was
awakened to the sound of four individuals outside. When she
looked out her window, she saw four men arguing with Anthony
Pryor, who was in a truck. The men demanded that Pryor get
out of the truck. When Pryor complied, the men began to fight
him. Pryor started to run, until he was shot twice by one of the
assailants and kidnapped. The witness did not know the identity
of the kidnappers, but saw the door to the trunk of the assailants’
car left in the street after they fled with the victim. A witness
living at the Arthur Cappers housing complex in the District of
Columbia testified that at around 3:00 a.m. he heard noises
outside. He saw a car pull up with appellant Sweeney and other
individuals in it. The car “had no trunk.” Sweeney and others
got out, took off their clothes, and tossed them into a trash can.
Police arrived to find the car without a trunk door and various
items around it. There were bloodstains on the rear bumper, and
clothing items, car parts, and duct tape were scattered all around.
Fingerprints from appellant Coates were found on the car.
12
Coates later told Montgomery that he and others “had robbed
. . . somebody . . . and . . . put them in the trunk” and “the person
they kidnapped” had “ended up breaking the trunk off the car.”5
vi. 1994.
On September 26, 1994, a witness heard several gunshots
fired outside his home on K Street and saw appellant Sweeney
running away from a craps game with a gun in his hand. The
witness went outside and saw Donnell Whitfield dying. Another
government witness talked to Sweeney prior to Whitfield’s
death, and Sweeney indicated that Whitfield had “smacked him”
at a club and that he planned to kill Whitfield because of that
incident. Sweeney told the witness after the shooting that he
had, in fact, killed Whitfield.6
5
Another witness testified that, before Pryor’s kidnapping, he had
heard of a plan, led by appellant Hill, to kidnap Pryor because “[h]e
had plenty of money” and “[t]hey wanted the money.” Sweeney later
suggested to a cell-mate that Hill “kept playing him all the time,”
promising assailants in the Pryor kidnapping, for example, $5,000 for
their participation, yet they received nothing.
6
Montgomery recounted that Sweeney later bragged to
Montgomery and appellants Carson and Coates about having “hit
[Whitfield] a few times” and having gone “over top of him and hit him
some more,” after Whitfield previously “smacked [Sweeney] in the
face.” The term “hit,” Montgomery explained, was usually used by
the group to mean that someone “shot” someone. Two other witnesses
recounted that Sweeney made substantially the same admission to
them. A firearms expert testified that ammunition casings recovered
from the scene of the Whitfield murder matched a gun recovered from
Sweeney’s grandmother’s house. The expert concluded that bullets
recovered from the scene and Whitfield’s body “could have been
fired” from that gun, but was not able to “positively determine” that
this had been the case. The expert noted that the serial number on the
barrel of the gun did not match the serial number on the frame of the
gun, which “suggests that this barrel . . . could have been replaced.”
13
vii. 1995.
K Street member Donald Nichols testified that in 1995
appellant Hill informed appellant Martin, along with Nichols,
Switzer, Paul Franklin, and Gary Price, that James Coulter
“needed to be killed because he was hot.” Coulter was shot in
May 1995. After Coulter was shot, Nichols heard Hill tell
Martin that Martin “should have used two guns” and lament the
fact that Martin’s gun had jammed. Montgomery later heard
Martin telling Coates and Carson, “they keep trying to push it on
me,” and that “they [were] trying to say that [Martin] had
something to do with [Coulter] getting shot.” Martin claimed,
however, that “they can’t prove it” because he “had a mask on.”
Martin attempted to discourage witnesses from testifying about
the shooting of Coulter. Later, Hill told an MPD Detective that
“all your snitches are going to die, including your little buddy
who is over at the hospital now with four holes in him under the
name of John Doe . . . in Room 2299.” Coulter was in the
hospital, registered under the name of John Doe, in what was
supposed to have been an undisclosed room.
viii. 1996.
On June 26, 1996, a witness for the government standing in
the 200 block of K Street saw Carson shoot Ulysses English.
Another witness heard shots fired, saw English fall, and saw
Carson running away. Carson was upset, Montgomery
recounted at trial, that English told Buchmon’s killers where
Carson’s mother resided. Carson told Montgomery that if
Montgomery saw English in the K Street neighborhood, he
should let him know, or, “if [Montgomery] s[aw] him in a good
position, to hit him”—that is, to “kill him.” When English
survived, Carson told Montgomery that he did not think English
“was going to snitch.”
A few months later, on August 30, 1996, Demetrius Hunter
was approached by Carson and Coates about where they could
14
buy approximately seven pounds of marijuana. Hunter took
Carson and Coates, along with Ronald Horns, to an apartment in
Northeast Washington, D.C. The four went into the apartment
and met individuals Hunter referred to as “a Jamaican named
Mark” and “a Jamaican named Joe.” Joe informed the group
that he did not have all the marijuana they needed in the
apartment and offered to get it from another location. Carson
gave Joe $5,000 and left with Joe to retrieve the marijuana. The
residents of the apartment started “playing” with firearms,
according to Hunter, when Coates received a call from Carson.
Carson informed Coates that he had been sitting in front of
another apartment building waiting for Joe to return, but Joe was
nowhere to be found. Carson returned with Raymond
Washington, and Mark asked Carson and Washington to come
back the next day. Mark, whose real name was Popa Mark
Phillip, did not “know what’s up with Joe” because Joe had
“never do[ne] that before.” But as the group began to head out,
Carson pulled out a gun and opened fire on Mark and, Hunter
recounted, “another Jamaican.” Washington pulled out a gun as
well. The group fled the building, but Washington continued to
chase Mark outside and then shot him.
A robbery that year by K Street members resulted in the
triple murders of Alonzo Gaskins, Darnell Mack, and Melody
Anderson. Carson, Sweeney, and other K Street members went
to Las Vegas in 1996 to see the Evander Holyfield/Mike Tyson
boxing match. Carson saw Gaskins win about $50,000 in Las
Vegas. Carson, Montgomery, and Sweeney discussed robbing
Gaskins, hoping to get $250,000 and divide it three ways. They
planned to use money from the Gaskins robbery to kill Thomas
Fields and others from a nearby neighborhood on L Street.
Montgomery explained that the group conducted significant
surveillance on Gaskins in Temple Hills, Maryland. Then, on
the day of the attempted robbery, Sweeney brought a .40 caliber
Glock firearm and a stun gun, and after further preparation, the
15
group arrived at Gaskins’s craps house. Montgomery and
Sweeney jumped out of the group’s van, but Coates stayed
behind. Without attempting to rob Gaskins, Sweeney shot
Gaskins, shot Mack, and then shot Anderson on his way out.
When confronted by Montgomery as to why he started shooting
everyone, Sweeney claimed that Gaskins was reaching for a
weapon, which Montgomery disputed.7
A feud with individuals from L Street also developed in
1996. K Street member Charles Edwards was killed by L Street
member Joey Simmons in July 1996 because Edwards had
publicly expressed, according to a government witness, “where
he could sell his weed,” telling others that “nobody runs no
blocks” and he “can sell this weed anywhere.” Simmons and
Ronald Sowells, another L Street member, were shot in response
to Edwards’s shooting. Appellants Hill and Carson, along with
other K Street members, were also shot during the feud.
On October 30, 1996, Coates shot Sowells at the Anacostia
Metro Station. An associate of Sowells, Eric Gordon,
previously shot Coates’s associate and co-defendant, Hill, and
Sowells was now in the same car that he had used to drive
Gordon to and from that shooting. Carson pulled up to
Sowells’s car and Coates began firing. Sowells returned fire
until his gun jammed. Coates later admitted to Montgomery that
he shot Sowells with Montgomery’s gun.8
7
Police recovered twelve .40-caliber shell casings from the scene.
Sweeney’s fingerprint was found on the storm door of the house.
Sweeney later complained to another inmate that Montgomery “was
telling on them” about “a case that he was in in [sic] Maryland, a triple
homicide.” Sweeney threatened to kill Montgomery if he encountered
him. Carson later complained to another that the triple murders were
about “a money issue, a robbery” and if Montgomery “would never
have opened up his mouth,” they “would have beat the case.”
8
Coates believed that he had killed Sowells because Sowells
16
The year 1996 continued to be violent. K Street members
attempted to kill several witnesses, resulting in one murder.
During this time period, appellant Martin, along with Antonio
Knight, had been arrested for murdering Curtis Edwards, who
had been in a car with Keith Jones and Richard Burton. While
in jail pending trial, Martin kept in contact with Paul Franklin.
According to Franklin, in discussing the Edwards murder,
Martin spoke “of two people, a female by the name of Robin,
and a guy by the name of Flip.” Martin wanted to know where
Robin lived and wanted Franklin to pass that information on to
Carson, which he did. Although Franklin was aware that Martin
“wanted Robin dead” and that Robin was a witness at Martin’s
trial, Franklin testified that he showed Carson where Robin’s
home was. Montgomery also testified that Franklin told him
Martin was trying to get in contact with Montgomery and
needed Montgomery “to get on top of some witnesses for him.”9
Carson enlisted Montgomery’s help in murdering Flip, but they
were ultimately unsuccessful.10
Appellant Carson was concerned, Montgomery recounted,
that they “needed to stay on top” of “getting at these witnesses”
stopped returning fire. Coates and Montgomery fought over who
would get rid of the gun, but eventually Coates showed Montgomery
where the gun was, and Montgomery threw it in the Potomac River by
Fort McNair. Police recovered the gun from where Montgomery
disposed of it.
9
An inmate incarcerated with Martin testified that Martin “said he
wasn’t concerned about [the murder case against him], because he had
someone that was going to take care of that.”
10
After “three or four” attempts to find Flip, they gave up during
their last attempt because they found a crowd of people at the location
Flip was reported to be at, and, according to Montgomery, they “didn’t
know exactly how many people in the crowd had guns.” Carson was
concerned that they “might be outgunned.”
17
and needed to “approach it like a full time job.” One day,
Carson picked up Montgomery, bought some gardening gloves
at Safeway so they would not leave fingerprints, got his gun, and
left to find Robin and one other witness, Chrissy. Carson and
Montgomery went to 37th Place, where they heard Robin and
Chrissy would be at a party, and went inside a vacant house to
wait for their arrival. Chrissy, whose real name was Chrishauna
Gladden, arrived with several friends. According to
Montgomery, about an hour later when Chrissy left the party,
Carson ran out, put his hood on, and fired several shots into
Chrissy. Chrishauna Gladden died that night of October 5,
1996. An FBI Special Agent working on the Edwards case
testified that other witnesses “were scared to death” after the
murder of Gladden and several refused to testify. Martin and
Knight were acquitted.
Around the same time, Maurice Proctor, indicted with
appellants in this case, and Kenneth Adams were charged for a
1994 murder of Phil Clayborne, who was believed to be
testifying against two K Street members. According to Arthur
Rice, an inmate incarcerated with Proctor, Proctor suspected that
now Adams “was cooperating [with the police] because he kept
leaving the jail for no reason.” After Adams was released from
prison, Rice and Proctor got on the phone with Carson, who
believed Adams was living in Northern Virginia.
As described by Montgomery, Carson eventually got
Adams’s phone number and was able to retrieve his address in
Centreville, Virginia. Carson and Montgomery made six to
eight trips to Centreville in planning and attempting to murder
Adams, sometimes accompanied by Sweeney and Coates.
Montgomery testified at trial about various attempts being
thwarted.11 The K Street members’ attempt on Adams’s life
11
For example, because the group was concerned about driving
into and out of Virginia carrying a gun, they buried a gun in the woods
18
eventually ended when a cooperating witness informed the
government that the K Street group knew Adams was in
Centreville and was planning to kill him.
ix. 1997.
K Street members sought to kill yet another government
witness in 1997, but this time proved successful. When the FBI
opened its investigation in 1995, Robert Smith, one of the main
suppliers of marijuana to Southwest, was immediately a focus
of the Bureau’s inquiry. Smith was arrested after a sting
operation and agreed to cooperate, describing for the FBI his
drug-related activities and several crimes of violence committed
by appellant Sweeney, his relative, and Sweeney’s associates.
An FBI Special Agent conducting the investigation testified that
Smith and the Bureau tried “to make sure that nobody on the
street thought that [Smith] was cooperating.” That effort proved
unsuccessful. After Sweeney was arrested for the triple murders
in Temple Hills, he realized, according to Montgomery’s
testimony, that Smith was the only person he told about the
murders. Carson told Montgomery that if the group “hit
[Smith], then [the government] don’t have no case, but
eventually, they was going to come and get us, if we don’t hit”
Smith. After that, Carson and Montgomery would look for
Smith when they were out and about in Southwest. Although
they saw him a number of times, he was never alone.
On June 16, 1997, Carson borrowed Montgomery’s car.
Later, Montgomery heard that Smith had been shot on Half
Street, Southwest. Carson returned that evening and, after
discussing the fact that Smith had been killed, told Montgomery,
“man, trust me, we’re all right,” and returned Montgomery’s car
keys. Carson directed Montgomery to stay away “from up Half
near Adams’s home. But when they returned one day to use it, it was
missing.
19
Street” and “not to drive” the car if he “didn’t have to.” Smith
was shot eleven times, seven of which were in the head.
B. Procedural Background.
On September 18, 1998, appellants and several others were
indicted on counts of narcotics conspiracy, racketeering
conspiracy, murder and other crimes of violence, narcotics
trafficking, and weapons possession. Appellants moved to sever
various counts and defendants, but their motions were denied.
A jury trial commenced on November 15, 2000 and
deliberations began on July 9, 2001. The district court
dismissed pursuant to Federal Rule of Criminal Procedure
23(b)(3) one juror, which appellants challenge on appeal.
Throughout July and August 2001, the jury returned guilty
verdicts against appellants on numerous counts and not guilty
verdicts on several counts, and found some racketeering acts
proven and others not proven. Each appellant moved for a new
trial or sought to join a co-defendant’s motion for a new trial.
The district court denied appellants’ motions. Appellants filed
timely notices of appeal, invoking our jurisdiction to review the
judgments of conviction pursuant to 28 U.S.C. § 1291.
II. Dismissal of Juror During Deliberations
First, each of the five appellants challenges his conviction on
the grounds that the district court erred in dismissing Juror No.
3 during deliberations and in permitting the remaining eleven
jurors to deliberate to verdict pursuant to Federal Rule of
Criminal Procedure 23(b). At the time of the trial, Rule 23(b)
(since amended12) provided in relevant part:
12
The rule was amended in 2002 “as part of the general restyling
of the Criminal Rules to make them more easily understood and to
make style and terminology consistent throughout the rules.” Fed. R.
Crim. P. 23 Advisory Comm. notes to 2002 Amendments. Among the
changes, the term “just cause” was replaced with “the more familiar
20
(b) Jury of Less than Twelve. Juries shall be of 12
but at any time before verdict the parties may stipulate
in writing with the approval of the court that the jury
shall consist of any number less than 12 or that a valid
verdict may be returned by a jury of less than 12 should
the court find it necessary to excuse one or more jurors
for any just cause after trial commences. Even absent
such stipulation, if the court finds it necessary to excuse
a juror for just cause after the jury has retired to consider
its verdict, in the discretion of the court a valid verdict
may be returned by the remaining 11 jurors.
The district court’s decision under this rule to dismiss a juror or
to continue with an eleven-member jury is reviewed for abuse
of discretion. See United States v. Ginyard, 444 F.3d 648, 651
(D.C. Cir. 2006) (dismissal of juror); United States v.
Harrington, 108 F.3d 1460, 1472 (D.C. Cir. 1997) (eleven-juror
verdict). We conclude the district court did not abuse its
discretion in dismissing Juror No. 3 and permitting the
remaining eleven jurors to continue deliberating to verdict.
The jury began deliberations on July 9, 2001 and the district
court dismissed the alternate jurors at that time. On Thursday
July 19, 2001 the judge informed counsel he had learned from
U.S. Deputy Marshall Terry Adams that Juror No. 3 had
“transported himself to the Veterans Administration Hospital
with symptoms of chest pains and a tingling sensation in one
arm, which were to him sufficiently suggestive that he was
having coronary problems.” 7/19/01am Tr. 3. The court also
told counsel that Deputy Adams was going to the hospital to “try
to ascertain more information about the situation” and then
excused the jury until the following Monday, July 23, when
“hopefully they w[ould] be able to resume their deliberations . . .
with Juror Number 3 present.” Id. at 4. He stated that, if Juror
term ‘good cause.’” Id.
21
No. 3 was not present when the jury returned on July 23, he
would ask the parties to stipulate to proceeding with an eleven-
person jury but, “failing such a stipulation,” he would “exercise
[his] prerogative under Rule 23(b) to have the jury of 11
continue to deliberate and take their verdict.” Id. He then
explained the situation to the other jurors and excused them until
Monday morning. On Monday morning, Juror No. 3 was
present and deliberations continued.
On Tuesday July 24, 2001 the judge assembled counsel and
placed Deputy Adams on the witness stand to describe
“difficulties . . . with respect to Juror No. 3.” 7/24/01pm Tr. 4.
Adams testified that, after Juror No. 3 left for the hospital the
previous Thursday, Juror No. 17 informed Adams that “in the
last couple of weeks” Juror No. 3 told her “he had experienced
some mental health issues in the past and had been treated for
them” and that “he was experiencing difficulty with his
supervisor” about not reporting to work on days the jurors were
not in court. Id. at 4-5. Juror No. 3 had also informed Juror No.
17, Adams recounted, that he “bought a ‘thing’ and planned to
do ‘her’—an unidentified ‘her’—and himself.” Id. at 5. She
explained to Adams that she “took the word ‘thing’ to mean
‘gun.’” Id. In response to Adams’s questioning of her, Juror
No. 17 further explained she had not reported the conversation
earlier because she was “scared.” Id. at 6. Later the same day
(the previous Thursday), Adams testified, Juror No. 3 called
Adams from his cell phone and reported he had seen a doctor
and had a “secondary appointment for that afternoon in the same
hospital” in the “mental hygiene unit.” Id. at 6. At the judge’s
request, Adams then drove to the hospital and brought Juror No.
3 back to the courthouse for questioning. At this point the judge
interrupted Adams’s testimony to state on the record that upon
his return to the courthouse on Thursday, Juror No. 3 admitted
he had not experienced chest pains and arm tingling, as he had
informed Adams, but had “personal problems,” which “were, to
a certain extent, being exacerbated by pressure from his
22
supervisor to work when he was not on jury service.” Id. at 7.
Juror No. 3 assured the court, however, he was prepared to
return to deliberate on Monday.
Adams resumed his testimony and stated that earlier that
Tuesday afternoon he received a phone call from a member of
his staff advising that Juror No. 3 wished to see the courthouse
nurse. The nurse checked the juror’s vital signs and reported
they were normal. Later that afternoon, Adams was again
approached by Juror No. 17, accompanied this time by Juror
No. 1, the foreman. The two jurors “relayed some concern
about Juror No. 3’s health and overall well-being” and informed
Adams that “everyone on the jury had the same concern.” Id. at
9. When they asked Adams to relay their concerns to the judge,
he told them they should write a note and he would deliver it to
the judge. They expressed reluctance because they were
“receiving pressure from Juror Number 3 not to do so,”
explaining that he “was making comments referencing
homicide, and suicide and certain violent tendencies.” Id.
Adams repeated that they should communicate to the judge
through a written note, which they did shortly before the judge
summoned counsel. The judge informed counsel that the note
stated “in essence”: “We wish to speak to you directly on a
matter of considerable importance, and we wish to do so right
away.” Id. at 10. It was signed by Juror No. 1 and Juror No. 17.
After informing counsel of the note, the judge brought Juror No.
1 and Juror No. 17 into the courtroom.
The judge asked Juror No. 1 to act as “spokesperson.”
7/24/02pm Tr. 10. Juror No. 1 expressed concern that because
of “external factors, his job and other concerns that are
mounting on him to the point that he is visibly despondent and
is concerned for his safety,” Juror No. 3 was “just not
contributing to the deliberations” and was “not fully there as far
as being involved with the deliberations.” Id. at 11-12. Juror
No. 17 stated in turn that Juror No. 3 admitted he was “having
23
problems staying focused because of problems with his job.” Id.
at 12. Both jurors responded affirmatively when the judge
asked: “If [Juror No. 3] were to be excused from further
deliberations, do you think that you would be able to progress
more rapidly with respect to reaching a verdict?” Id. at 12.
The following morning, Wednesday July 25, 2001, defense
counsel requested that the court “bring Juror Number 3 out
individually and have the court conduct somewhat of an open-
ended voir dire of the juror” to determine whether the testimony
regarding his conduct was accurate. 7/25/01am Tr. 4-5. They
also informed the court that “on the state of this record” they
were “opposing the striking of this juror.” Id. at 5. The
government suggested recalling Adams to put on the record
various disclosures Juror No. 3 had made to him (as recounted
by Adams in a conversation with government counsel the
preceding evening)—specifically that Juror No. 3 had had a
drinking problem, had taken trazodone hydrochloride, a
medication administered for depression, had recently been in
possession of a gun and lived in a neighborhood with a crime
problem—which admissions, the government argued, were
“directly at odds with what he revealed in his jury
questionnaire.” Id. at 6.
Adams returned to the witness stand and confirmed that
Juror No. 3 had made the disclosures the government identified.
He also expanded on his conversation the day before with Juror
No. 1 and Juror No. 17, testifying they told him Juror No. 3 had
warned them they “had better not write a note” to the judge and
“had better not turn him in.” Id. at 10. Juror No. 17, who was
“animated and agitated,” told Adams she took the warning as a
“threat” and was “scared to write a note.” Id. at 11. Adams
further testified that, during his conversation with the two jurors,
Juror No. 3 “kept running back and forth” between the jury
room and where Adams was speaking with the other two jurors,
urging them to continue deliberating. Id. One of the other two
24
jurors—Adams was not sure which—told Juror No. 3 he
“need[ed] to take care of this matter” and Juror No. 3 “started
talking about his supervisor at work,” repeating “she is just
messing, she is just messing with me.” Id. at 11-12. Then,
getting “real agitated,” he said “I just want to hit something” and
made a motion in the air with his arm as if to do just that. Id. at
12.
After questioning Adams, defense counsel sought to
question Juror No. 1 and Juror No. 17 to determine whether the
latter had expressed fear of Juror No. 3, whether Juror No. 3 was
in fact having difficulty participating in deliberations and, if so,
whether the difficulty was the result of a personality conflict or
of differing views of the case. When the judge declined, defense
counsel asked that the judge question Juror No. 3 on whether he
felt he could meaningfully participate in the deliberations. The
judge denied this request as well, explaining that he had
“already asked that of him in chambers when he was brought . . .
from the hospital” and “notwithstanding his own belief to the
effect that he can participate, that, in fact, he cannot.” Id. at 41.
When Juror No. 3 was brought to the courtroom, the judge
questioned him briefly about the subjects earlier noted by the
government. Juror No. 3 acknowledged that (1) “as of last
Thursday” he was “a patient at the mental hygiene unit at the
V.A. Hospital” and that he was taking trazodone prescribed for
him there; (2) “in years past” he had had a “drinking problem,”
(3) he had recently kept a firearm for his brother, who was
homeless, and (4) he lived in “a generally bad neighborhood.”
Id. at 47-49. Juror No. 3 then left the courtroom. After brief
argument by defense counsel opposing dismissal, the judge
announced: “I am going to exercise discretion under Rule 23(b),
and I’m going to excuse Juror Number 3 from further
participation.” Id. at 50. The judge then brought Juror No. 3
into the courtroom and informed him he was dismissed. The
remaining jurors were summoned and told that Juror No. 3 had
25
been excused “for primarily concerns . . . with respect to his
health.” Id. at 54. The judge then expressed the “hope” that the
remaining 11 jurors would, “with a fair degree of alacrity, be
able to reach a verdict.” Id. at 54. The eleven remaining jurors
resumed deliberating and returned verdicts against all of the
defendants (but not on all of the counts) over a ten-day period
from July 26 to August 15, 2001.
Each defendant filed a motion for mistrial based on the
dismissal of Juror No. 3. The court denied the motions in an
order filed August 16, 2001. The order states in part:
Notwithstanding his expressed willingness to continue
his service as juror, in light of his deceptive answers to
voir dire questions the Court was unwilling to credit
Juror No. 3’s assurances that he was able to do so, and in
conjunction with the testimony of the jury foreman and
the female juror in whom Juror No. 3 had confided, the
Court concluded that just cause existed to dismiss Juror
No. 3.
United States v. Hill, Crim. Action No. 98-329, at 4 (D.D.C.
filed Aug. 16, 2001) (8/16/01 Mem. & Order). In the order the
court specifically found that Juror No. 3 had “given incorrect
answers” on his voir dire questionnaire when he answered “in
the negative” questions “about personal or familial alcohol
abuse, mental health medications, firearm possession and
neighborhood crime problems” because the juror had “in the
past, abused alcohol,” had “recently been in possession of a
firearm,” lived in a “crime-ridden neighborhood” and was
“currently taking the anti-depressant medication for a mental
condition that he shares with his brothers.” Id. at 4, 3 & n.4; see
also Joint Appendix 967-71 (Juror No. 3 questionnaire
responses). The appellants offer six grounds for reversing the
district court’s decisions to dismiss Juror No. 3 and proceed with
an 11-member jury under Rule 23. We address and reject each
ground seriatim.
26
First, the appellants argue that the court failed to make an
adequate inquiry into Juror No. 3’s fitness to continue
deliberating, noting specifically that, because the judge
questioned Juror No. 3 in camera, there is no record evidence to
support a finding of “just cause” to dismiss him. In pressing this
challenge, the appellants rely on two decisions which we find
distinguishable.
In United States v. Patterson, 26 F.3d 1127 (D.C. Cir. 1994),
this court held that the district judge erred in dismissing a 68-
year-old juror who had gone to the doctor after complaining of
chest pains and had been absent for 2 ½ hours. There we
concluded that the record revealed no just cause for the
dismissal because the district judge “made no attempt to learn
the precise circumstances or likely duration of the twelfth juror’s
absence.” Patterson, 26 F.3d at 1129. In United States v.
Ginyard, 444 F.3d 648 (D.C. Cir. 2006),13 we found a similar
lapse in the district court’s juror investigation. The judge there
dismissed the juror on the ground that his continued service the
following week might jeopardize an employment opportunity
available to him through a rehabilitation program. We
concluded that “the district court’s reasons for dismissing [the
juror] rested on unexamined uncertainties about the extent of the
juror’s continuing availability” because it “was unclear whether
[the juror] could be available the following week at all, for only
a couple of days, or for a longer period of time.” Ginyard, 444
F.3d at 654. Under the circumstances the district court “was
obliged to make some further effort to resolve the uncertainty
about the risk of loss of the holdout juror’s job in order to find
‘good cause’ necessitated the juror’s dismissal.” Id. at 655. In
contrast to these two cases, the district court here conducted an
extensive examination of Juror No. 3’s fitness. He questioned
13
The appellants cited Ginyard in a letter submitted after oral
argument pursuant to District of Columbia Circuit Rule 28(j).
27
Deputy Marshal Adams, Juror No. 1, Juror No. 17 and Juror No.
3. Although Juror No. 3’s initial examination occurred off the
record, the judge recited its content on the record at the hearing
the following Tuesday. In the end, there were simply no factual
“uncertainties” requiring additional inquiry.14
Second, the appellants claim that there is no basis for the
court’s “finding that Juror No. 3 was, in effect, mentally
incapable of continuing to participate in the deliberative
process,” contending that such a finding requires more detailed
evidence of a juror’s mental condition than exists in this record.
Br. of Appellants 35. The district court, however, did not
dismiss Juror No. 3 based on mental incapacity. The court
relied on a combination of factors—including that Juror No. 3
had lied about his symptoms before visiting the hospital,
provided inaccurate voir dire responses about mental health
treatment and was, according to Juror No. 1 and Juror No. 17,
distracted and unfocused (and even threatening) during
deliberations. These findings are amply supported by the
evidence. See 8/16/01 Mem. & Order.
Third, the appellants claim that the trial judge improperly
dismissed Juror No. 3 because he was impeding conviction. We
reject this contention as well. It is true that the trial court “may
not dismiss a juror during deliberations if the request for
discharge stems from doubts the juror harbors about the
sufficiency of the government’s evidence.” United States v.
Brown, 823 F.2d 591, 596 (D.C. Cir. 1987). As a consequence,
“if the record evidence discloses any possibility that the request
14
It is immaterial that, as the appellants note, Br. of Appellants 34,
the district judge made no finding of just cause to dismiss following
his initial Thursday examination of Juror No. 3—the judge made fully
supported findings after the subsequent dismissal based on
information gleaned both from the initial examination and from later
testimony by Adams and the three jurors.
28
to discharge stems from the juror’s view of the sufficiency of the
government’s evidence, the court must deny the request.” Id.
(citing United States v. Essex, 734 F.2d 832, 843 (D.C. Cir.
1984); United States v. Stratton, 779 F.2d 820, 832 (2d Cir.
1985), cert. denied, 476 U.S. 1162 (1986)). The evidence in this
case supports no such inference notwithstanding the appellants’
contention that “there is a probability—a reasonable
likelihood—that Juror 3’s dismissal for allegedly deceptive
answers on his jury questionnaire was a pretext to obtain a
quicker verdict.” Br. of Appellants 44. The judge plainly stated
his reasons for the dismissal and they had nothing to do with the
juror’s view of the case. The judge did not believe Juror No. 3
could “continue his service as juror” in light of “his deceptive
answers to voir dire questions” and the testimony, described
above, of Adams and the two jurors who were empaneled with
him. 8/16/01 Mem. & Order at 4. There is no evidence the
judge was motivated by Juror No. 3’s “view of the sufficiency
of the government’s evidence.” Brown, 823 F.2d at 596. The
judge was scrupulous to counsel Jurors No. 1 and 17 not to
reveal “how [they] may be split any way on the verdict” or
“anything about [their] deliberations on the merits of the case or
who may have voted what way,” 7/24/01pm Tr. 10-11, and they
did not. Nor is there any suggestion in the record that the judge
had the least inkling of Juror No. 3’s views regarding innocence
or guilt. What the record shows is that Juror No. 3 was viewed
by his fellow jurors as an obstacle to deliberations because he
was “having problems staying focused.” Id. at 12. In Brown, by
contrast, we found that the record “indicate[d] a substantial
possibility that [the dismissed juror] requested to be discharged
because he believed that the evidence offered at trial was
inadequate to support a conviction,” based on his statements that
“his difficulty was with ‘the way [the law is] written and the
way the evidence has been presented’” and that “‘[i]f the
evidence was presented in a fashion in which the law is written,
then, maybe, [he] would be able to discharge [his] duties.’” 823
29
F.2d at 596-97 (emphasis by Brown court; alterations to last
clause added).
Fourth, the appellants object to the court’s finding that Juror
No. 3’s voir dire responses on the questionnaire were
“deceptive.” 8/16/01 Mem. & Order at 4. They argue first that
the United States Supreme Court’s decision in McDonough
Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984),
“requires that there be a showing that the juror failed to answer
honestly a material question arising during voir dire and that a
correct response would have provided a valid basis for a
challenge for cause.” Br. of Appellants 46. The appellants’
reliance on McDonough Power Equipment is misplaced. In that
case the Supreme Court reversed a Tenth Circuit decision that
ordered a new trial in a personal injury case because a juror gave
a “mistaken, though honest response to a question” regarding
injuries suffered by family members.15 464 U.S. at 555. The
Court concluded that “to obtain a new trial” based on a juror’s
voir dire misstatement, a party must “show that a correct
response would have provided a valid basis for a challenge for
cause.” Id. at 556. Here the judge did not rely on the voir dire
misstatements as a basis for dismissal but only to explain, in
part, why he did not credit Juror No. 3’s assurance that he could
continue to deliberate notwithstanding evidence to the contrary.
The appellants also assert the trial court’s “deceptive”
finding is unsupported but the record belies this claim. Adams’s
15
When asked whether he or “any members of [his] immediate
family sustained any severe injury . . . whether it was an accident at
home, or on the farm or at work that resulted in any disability or
prolonged pain and suffering,” 464 U.S. at 550 (ellipsis added), the
juror neglected to mention an injury his son suffered in a truck
explosion because he “apparently believed that his son’s broken leg
sustained as a result of an exploding tire was not such an injury,” id.
at 555.
30
testimony regarding his conversation with Juror No. 3 supports
the judge’s findings that, contrary to his voir dire responses,
Juror No. 3 abused alcohol, handled a gun, lived in a dangerous
neighborhood and had received mental health treatment.
According to Adams, Juror No. 3 disclosed to Adams that he (1)
“used to drink real bad,” “really hit that bottle” and “had a
problem” before he quit drinking 13 years earlier, 7/25/01am Tr.
15; (2) was “on trazodone,” which is “used to treat depression,”
id. at 19-20; (3) “used to have a ‘thing,’” meaning a .44 magnum
revolver, id. at 16; and (4) had the revolver because he “lived in
a real bad neighborhood, and he had been robbed at gunpoint,”
id. Further, the testimony of Juror No. 3 himself confirmed each
of these facts. See id. at. 47-49.16
Fifth, the appellants argue summarily that, even if there was
good cause to dismiss Juror No. 3, the court should have
declared a mistrial rather than proceed with jury deliberations.
We find no error in the judge’s decision to continue. As we
stated in United States v. Harrington, 108 F.3d 1460 (D.C. Cir.
1997): “Rule 23(b) explicitly and without reservation assigns the
stop/go decision to the discretion of the trial court . . . .” 108
F.3d at 1472. Having already concluded the judge acted within
his discretion in dismissing Juror No. 3 for cause, we perceive
no abuse of discretion in his decision to continue with an 11-
16
The appellants attack, in particular, the judge’s determination
that Juror No. 3 had misrepresented his use of mental health drugs,
asserting he admitted to taking trazodone only since his visit to the
V.A. Hospital the Thursday before he was dismissed. Juror No. 3,
however, testified that the medication had “been prescribed for [him]
by the mental hygiene unit,” with no date specified, 7/25/01am Tr. 48,
and Adams testified that security personnel at the V.A. Hospital knew
Juror No. 3 by name and that he “learn[ed] from speaking with
[them]” that Juror No. 3 was “someone who had visited that part of the
hospital, the mental hygiene unit, on prior occasions as a patient,” id.
at 18.
31
member jury, especially given the trial’s length and complexity.
See id. (noting Advisory Committee notes to Rule 23 suggest if
trial is “a relatively short and simple one . . . , a trial court
‘might well’ decide that a mistrial is appropriate, while for
longer and more complex trials courts would be ‘more likely’ to
decide against a mistrial” (quoting Fed. R. Crim. P. 23 Advisory
Comm. note to 1983 amendments)).
Finally, the appellants assert that the judge’s and Adams’s
ex parte contacts with the jurors violated the appellants’ rights
under the United States Constitution’s Fifth Amendment Due
Process Clause and Sixth Amendment’s Confrontation Clause
and under Federal Rule of Criminal Procedure 43. We reject
this argument as well. We are inclined to agree with the
government that these claims are governed by plain error review
because, although defense counsel sought to examine the jurors
further, they made no objection specifically based on the ex
parte nature of the communications between the jurors and
Adams and the judge. See United States v. Yarborough, 400
F.3d 17, 20 (D.C. Cir. 2005) (because defense counsel did not
object to “judge’s ex parte conversation with the deliberating
jurors,” “[p]lain error is . . . the standard of review” (citing
United States v. Lancaster, 968 F.2d 1250, 1254 (D.C. Cir.
1992))). Nonetheless, even if defense counsel can be said to
have properly objected, we find no reversible error. “‘[T]he
mere occurrence of an ex parte conversation between a trial
judge and a juror does not constitute a deprivation of any
constitutional right. The defense has no constitutional right to
be present at every interaction between a judge and a juror, nor
is there a constitutional right to have a court reporter transcribe
every such communication.’” United States v. Gagnon, 470 U.S.
522, 526 (1983) (quoting Rushen v. Spain, 464 U.S. 114, 125-26
(1983) (Stevens, J., concurring in judgment)) (alteration in
original). Counsel’s presence is necessary only if required “to
ensure fundamental fairness or a ‘reasonably substantial . . .
opportunity to defend against the charge.’” Id. at 527 (quoting
32
Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Because
the ex parte conversations were unrelated to the merits of the
case and their substance was reported in open court in the
presence of the defendants and their counsel, they did not
constitute error. In addition, even if the ex parte conversations
with the judge were error, they were harmless and do not
warrant reversal. See United States v. Gordon, 829 F.2d 119,
127 & n.9 (D.C. Cir. 1987) (violation of statutory and
constitutional rights to be present during jury contact “subject to
the harmless error analysis.” (citations omitted)); cf. United
States v. McDonald, 933 F2d 1519, 1525 (D.C. Cir. 1991) (ex
parte communication between judge and juror not plain error
where defense counsel made no objection and hearing was held
at which trial court made full disclosure). This is particularly so
as to Juror No. 3’s conversations as his subsequent dismissal
from the jury ensures that his ex parte contacts with the court
did not taint the verdicts. Cf. United States v. Doherty, 867 F.2d
47, 72 (1st Cir. 1989) (judge’s ex parte conversation with
subsequently dismissed juror “could not have influenced the
excused juror’s further deliberations, for there were none; nor
could it have influenced the remaining eleven jurors, because the
excused juror had no further contact with them”); United States
v. Lustig, 555 F.2d 737, 745-46 (9th Cir. 1977) (finding no
prejudice from judge’s ex parte interview with juror
subsequently dismissed and replaced by alternate).
III. Judicial Bias
The appellants also seek reversal of their convictions on the
ground that the district court’s conduct of the trial proceedings
displayed what they characterize as “an extensive pattern of bias
and lack of even-handedness that infected the entire nine-month
proceeding” and that the judge’s obvious bias prevented them
from receiving a fair trial. Br. of Appellants 51. We disagree.
“The threshold for a showing of bias is high,” United States v.
Edmond, 52 F.3d 1080, 1099 (D.C. Cir.) (per curiam), cert.
33
denied, 516 U.S. 998 (1995), and we do not believe the
appellants have reached it because the conduct they cite does not
“reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible.” Liteky v. United States, 510
U.S. 540, 555 (1994).17 In asserting bias, the appellants identify
three broad categories of conduct. We address each in turn.
First, the appellants object to discrete, allegedly biased
rulings by the trial judge which (1) set the timing of disclosure
of exculpatory material under Brady v. Maryland, 373 U.S. 83
(1963), and of witness statements to the government under the
Jencks Act, 18 U.S.C. § 3500; (2) denied defense motions to
strike jurors for cause; (3) overruled defense objections to
hearsay and opinion testimony of government witnesses and
excluded as hearsay testimony of a defense witness; and (4)
limited the scope of defense cross-examination. But “judicial
rulings alone almost never constitute a valid basis for a bias or
partiality motion.” Liteky, 510 U.S. at 555 (citing United States
v. Grinnell Corp., 384 U.S. 563, 583 (1966)). “Almost
invariably, they are proper grounds for appeal, not for recusal.”
Id. “In and of themselves (i.e., apart from surrounding
comments or accompanying opinion), they . . . can only in the
rarest circumstances evidence the degree of favoritism or
antagonism required when no extrajudicial source is involved.”
Id. The isolated unfavorable rulings the appellants cite in the
17
Liteky “was a statutory case, where the claim was that the trial
judge should have recused himself.” United States v. Donato, 99 F.3d
426, 434 (D.C. Cir. 1996). Here, as in Donato and the other two
decisions from this circuit that we discuss below—United States v.
Edmond and United States v. Logan, 998 F.2d 1025 (D.C. Cir.), cert.
denied, 510 U.S. 1000 (1993)—the claim is not that the judge should
have recused himself but that he displayed such bias that the
appellants did not receive a fair trial. Nonetheless, the same general
principles apply. See, e.g., Donato, 99 F.3d at 435, and Edmond, 52
F.3d at 1101 (both invoking Liteky).
34
course of a trial proceeding lasting some nine months do not
constitute such “rare circumstances.” Nor does the fact that the
judge may have ruled in favor of the government more often
than he did in favor of the defense, as the appellants contend, by
itself show bias. See Edmond, 52 F.3d at 1100 (“Appellants do
not claim that a greater percentage of government requests than
defense requests were granted, but even if that were the case
such a disproportion would be insufficient by itself to establish
bias.” (citing United States v. Pisani, 773 F.2d 397, 402 (2d Cir.
1985) (“[A] trial judge must rule on countless objections, and a
simple numerical tally of those sustained and overruled, one
which here favors the government, is not enough to establish
that the scales of justice were tipped against a defendant.”)).
The record here does not show that the judge did so
disproportionately or unjustifiably.
Second, the appellants cite allegedly biased procedural
decisions by the trial judge during both voir dire and trial.
Initially, we note that the appellants have not appealed any of
the individual procedures as error by itself but instead assert that
cumulatively (and in conjunction with rulings and comments)
they show impermissible bias. We do not agree.
The appellants object to a number of procedures the judge
adopted during voir dire: empaneling an anonymous jury,
having the United States Marshals Service transport jurors to the
courthouse from undisclosed locations, moving the defendants
to distant sites, refusing to permit the defendants to change from
prison garb to civilian dress on the first day of jury selection and
limiting defense counsel’s interrogation of prospective jurors.
Addressing the last first, “‘the trial court retains great latitude in
deciding what questions should be asked on voir dire’” and his
“administration of this process ‘is not easily subject to appellate
review.’” Edmond, 52 F.3d at 1094-95 (quoting Mu’Min v.
Virginia, 500 U.S. 415, 424 (1991)). We will not second-guess
the judge’s decision here to accelerate the jury selection process
35
by abbreviating questioning. As for the first three procedures,
such precautionary steps to safeguard the jury are often taken in
cases such as this involving allegations of racketeering, violence
and, especially, witness or juror tampering. Cf. Holbrook v.
Flynn, 475 U.S. 560, 570-71 (1986) (finding no significant
prejudice in courtroom security force consisting of “four
uniformed state troopers, two Deputy Sheriffs, and six
Committing Squad officers”); Edmond, 52 F.3d at 1091
(upholding use of anonymous jury where defendants were “the
primary participants in a large-scale criminal organization that
distributed massive amounts of cocaine in Washington, D.C.,
and used violent acts to achieve its goals,” “had the capacity to
harm jurors” and “faced penalties that are among the harshest
the law can impose” and the prosecution “attracted substantial
pretrial publicity that the District Court understandably expected
to continue throughout the trial”);18 United States v. Darden, 70
F.3d 1507, 1532-34 (8th Cir. 1995) (upholding anonymous jury,
large number of security personnel in courtroom, two
magnetometers at courtroom entrance, inspections of defense
counsel’s belongings, assembling jury in secret location,
transporting jurors and defendants to and from courthouse in
U.S. Marshal vans and using armed guards along street, convoy
of police vehicles, helicopter surveillance and rooftop snipers).
Further, the record indicates that each of the measures taken by
18
In Edmond, the court stated that an anonymous jury is
“warranted upon a showing of ‘some combination’ of five separate
factors”: (1) “the defendant’s involvement in organized crime, (2) the
defendant’s participation in a group with the capacity to harm jurors,
(3) the defendant’s past attempts to interfere with the judicial process,
(4) the potential that, if convicted, the defendant will suffer a lengthy
incarceration and substantial monetary penalties, and (5) extensive
publicity that could enhance the possibility that jurors’ names would
become public and expose them to intimidation or harassment.” 52
F.3d at 1091 (quoting United States v. Ross, 33 F.3d 1507, 1520 (11th
Cir. 1994)).
36
the district court was motivated by legitimate safety concerns.
See 9/27/00am Tr. 181-82 (anonymous jury necessary to protect
jurors although court was “concerned” about its effect on jury);
11/13/00am Tr. 49 (“events since the last motions hearing”
justified safety concerns generally and jury transport in
particular); 11/17/00pm Tr. 19-21 (testimony of Deputy Marshal
Adams that distant detention was necessitated by “security
concerns” he was “not authorized to disclose”). Finally, we
come to the judge’s directive that the defendants were to remain
in their prison attire if they wished to be present in the
courtroom while the jurors completed their questionnaires on the
first day of voir dire. See 11/15/00am Tr. 4. Although we
discern no explanation for this requirement in the appellate
record, we likewise find no indication it was motivated by bias.19
With regard to the trial itself, the appellants object in
particular to restrictions the court imposed on defense counsel’s
use of testimony of government witnesses, such as limiting
“collateral impeachment” (for bias, prejudice, motive,
inconsistent statements, etc.) to one defense counsel per witness,
2/6/01am Tr. 4-5; permitting only one defense counsel to argue
each objection at the bench, 2/14/01pm Tr. 17; and imposing
short time limits on defense counsel’s cross-examination of two
witnesses, 1/22/01pm Tr. 48-49, 4/26/01am Tr. 34-35. “[A]
district judge has wide discretion in monitoring the flow of a
criminal trial.” United States v. Donato, 99 F.3d 426, 434 (D.C.
Cir. 1996). It is plain that the challenged restrictions (imposed,
19
The appellants did not argue in their briefs that the attire
requirement violated their constitutional right to due process, see
Estelle v. Williams, 425 U.S. 501 (1976), although in arguing that the
prison garb requirement manifested bias, they did cite to Estelle to
support their assertion that “[t]he defendant’s appearance in jail garb,
it has long been recognized, can have a devastating effect on the jury,”
Br. of Appellants 58 & n.143.
37
in the main, outside the jury’s presence) were attempts to
exercise this discretion in order to conduct a lengthy, complex
trial in an orderly, efficient manner, avoiding to the extent
possible repetitious and irrelevant testimony. See 2/06/01am Tr.
5 (collateral impeachment rule designed to avoid repetition);
2/14/01pm 17 (regarding one-counsel-per-objection policy,
explaining judge did not “want everybody up here at the bench”
and if non-arguing counsel had something he wanted co-counsel
“to impart,” he should “whisper it in her ear or his ear”);
1/22/01pm Tr. 49 (regarding 10-minute limit for Martin’s
counsel, judge observed that witness (“the first witness of what
is going to be a long trial”) had given only “summary
testimony” and “most of what [counsel was] interrogating about
. . . has nothing to do with the scope of his direct
examination”20); 4/26/01am Tr. 34, 35 (regarding 15-minute
limit for Hill’s counsel, judge noted counsel’s cross-examination
of hearsay witness related to what happened rather than what
witness heard and was “delaying the proceeding with largely
irrelevant and protracted examination”). While these attempts
to control the trial may have seemed sharp and constraining at
times, they do not manifest bias.
This brings us to the third alleged basis for finding bias:
negative comments by the trial judge. As examples, the
appellants point to a series of comments made during voir dire
that, to them, manifested the judge’s belief that defense counsel
was attempting to disqualify qualified witnesses. See, e.g.,
11/29/00pm Tr. 37 (counsel’s function is not “[t]o badger a
prospective juror into giving answers that would disqualify
her”); id. at 38 (“[S]ome counsel are seriously encroaching upon
improper voir dire. I observe again, your function is not to
20
In fact, the judge permitted Martin’s counsel to continue cross-
examination beyond the limit. See Br. of Appellants 77 n.208;
1/23/01am Tr. 5.
38
intimidate the prospective juror into giving an answer that you
hope will operate to disqualify that juror.”); 11/30/00pm Tr. 47
(characterizing counsel’s question as “inappropriate”);
12/04/00am Tr. 73 (telling counsel he was “arguing with the
juror”); 12/05/00pm Tr. 39 (counsel’s questions “invite[d]
[prospective juror] to take advantage of the possibility of being
excused for this trial by demonstrating bias or prejudice”);
12/05/00pm Tr. 46-47 (telling counsel he was “trying to
deliberately force a juror into disqualifying himself” and had
“made it perfectly clear that [counsel] ha[d] no desire to have
him here, even though he has indicated that he is perfectly
capable of fulfilling his obligations as a juror”). While some of
these utterances may have been “impolitic,” as the appellants
assert, they appear to reflect the judge’s genuine (and not
altogether groundless) perception that defense counsel was
overzealous in questioning specific jurors whom they considered
unfavorable to the defense case. As such, they were legitimate
attempts to control defense counsel and prevent their abuse of
voir dire, however they may have been perceived by defense
counsel. Thus, they do not of themselves establish judicial bias.
See Donato, 99 F.3d at 434 (“It is well within [the trial judge’s]
discretion to rebuke an attorney, sometimes harshly, when that
attorney asks inappropriate questions, ignores the court’s
instructions, or otherwise engages in improper or delaying
behavior. Sharp words spoken by a trial court to counsel do not
by themselves establish impermissible bias.”). Nor do they do
so in combination with judicial comments during the trial.
The appellants complain that the district court improperly
“demeaned” and “threatened” defense counsel during trial when
he cut them off and instructed them to be seated, see, e.g.,
2/01/01am Tr. 63; referred to (and admonished against)
“frivolous” objections, see, e.g., 1/24/01am Tr. 18, 2/5/01pm Tr.
60, 2/14/01pm Tr. 39; suggested they were attempting to delay
the trial or cause a mistrial, see, e.g., 2/5/01pm Tr. 58, 60;
warned of possible contempt citations, see, e.g., id. at 57-58; and
39
in fact cited two defense lawyers for contempt, 2/06/01am Tr.
90; 6/21/01am Tr. 29 (although he vacated the citations after the
trial). The appellants argue that these remarks, taken together,
reveal such bias on the part of the trial judge that they could not,
and did not, receive a fair trial. Again, we disagree.
As the Supreme Court has observed:
[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a
bias or partiality challenge. They may do so if they
reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high
degree of favoritism or antagonism as to make fair
judgment impossible. . . . Not establishing bias or
partiality, however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women,
even after having been confirmed as federal judges,
sometimes display. A judge’s ordinary efforts at
courtroom administration—even a stern and
short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.
Liteky, 510 U.S. at 555-56 (emphasis in original). The judge’s
comments during the trial did not reach a level of hostility that
prevented a fair trial. Like those during voir dire, the trial
comments reflect the judge’s attempt to exercise his discretion
to control the trial. That they may be critical or even harsh does
not demonstrate reversible bias. See Edmond, 52 F.3d at 1101
(“Several supposedly hostile remarks (such as, for example, the
judge’s instruction to counsel that ‘nobody is stopping you
[from asking questions of a witness], as long as you do it
properly’) ‘involved sustaining objections, denying of motions
and ordering the rephrasing of questions to witnesses,’ United
States v. Logan, 998 F.2d 1025, 1029 (D.C. Cir.), cert. denied,
40
510 U.S. 1000 (1993), and were squarely within the District
Court’s discretion in controlling the conduct of the trial.”); id. at
1102 (“[T]he judge’s statement on three occasions that counsel
was ‘in contempt of court,’ fall[s] within the judge’s discretion
to prevent improprieties during the trial and to ‘rebuke counsel
for improper behavior.’” (quoting Logan, 998 F.2d at 1029)
(citations omitted)).
There are other reasons as well to reject the appellants’
claims that the judge’s comments reflected reversible bias.
First, the cited utterances were aimed at defense counsel’s
conduct and not at the defendants themselves or at the merits of
the case. See id. at 1101 (“‘[R]eversal is not mandated where
. . . rebukes of defense counsel reflected not upon the merits of
the case but rather on the way it was being handled.’” (quoting
United States v. DiTommaso, 817 F.2d 201, 220 (2d Cir. 1987))
(ellipsis in original). Second, most of the comments —including
all of the references to contempt—were uttered outside the
jury’s hearing. See id. at 1102 (“We agree with the First and
Second Circuits, that ‘[e]ven if unwarranted, a judge’s
reprimand of counsel furnishes no basis for reversal if made
outside of the jury’s presence.’” (quoting DiTommaso, 817 F.2d
at 221; citing Harris v. United States, 367 F.2d 633, 636 (1st
Cir. 1966), cert. denied, 386 U.S. 915 (1967)). Finally, the
impact of these isolated remarks seems greatly reduced when
viewed in relation to the length of the six-month long trial. See
id. (“Even if one were to conclude—which we do not—that any
of the challenged remarks were themselves prejudicial, the
impact on the jury of such a small number of instances as are
cited here would have been minimal or lost in the course of the
lengthy trial.” (citations omitted)). In these respects, the judge’s
remarks here differ significantly from the judicial comments we
concluded required reversal in United States v. Donato.
In Donato, the court offered two bases to distinguish the
judge’s conduct there from what occurred in United States v.
41
Edmond and United States v. Logan, in which we rejected bias
challenges. The same distinctions hold here. First, the court
observed in Donato that the “negative comments” “were more
concentrated, frequent, and critical than in either of those cases.”
99 F.3d at 435. With regard to concentration, the court observed
that the “relative brevity” of the two-week trial there “ma[de] it
more likely that the judge’s negative comments colored the
entire trial” than they did in Edmond, in which the trial lasted
three months, or Logan, in which the trial was “‘long and
arduous.’” Id. (quoting Logan, 998 F.2d at 1033). The
proceeding here lasted some nine months, six of them consumed
by the trial itself. To illustrate the frequent and negative nature
of the judge’s comments in Donato, the court quoted extensively
from defense counsel’s examination of two crucial
witnesses—including the defendant—during which the trial
judge uttered 65 negative remarks, 55 of them within the jury’s
hearing. The transcript of this trial shows no comparable
frequency. Nor do the comments the appellants cite approach
the belittling quality of the judge’s remarks in Donato. See
Donato, 99 F.3d at 435-37. Second, the Donato court
distinguished Edmond and Logan on the ground that in each
case “this court found it significant that the challenged remarks
of the trial judge had been directed at the attorneys rather than
at the defendants themselves,” while in Donato the defendant
herself came under heavy fire. Id. at 438 (citing Edmond, 52
F.3d at 1101; Logan, 998 F.2d at 1029). Here, as in Logan and
Edmond, the negative comments the district judge uttered in the
jury’s presence were limited to counsel and did not extend to the
defendants themselves.
In sum, considering the challenged rulings, procedures and
comments together in the context of a long and difficult trial, we
are not persuaded that “‘the judge’s behavior was so prejudicial
that it denied [the defendant] a fair, as opposed to perfect, trial.’”
Logan, 998 F.2d at 1029 (quoting United States v. Pisani, 773
F.2d 397, 402 (2d Cir. 1985)) (alteration in original); see
42
Edmond, 52 F.3d at 1099 (“A finding of judicial bias must be
based on ‘an abiding impression left from a reading of the entire
record,’ not from particular comments or rulings considered in
isolation” (quoting Offutt v. United States, 348 U.S. 11, 12
(1954); citing United States v. Twomey, 806 F.2d 1136, 1140
(1st Cir. 1986)). Accordingly, we reject the appellants’
allegation of reversible bias.
IV. Confrontation Clause Challenges
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .”
U.S. CONST. amend. VI. Appellants Sweeney, Carson, and
Coates contend that their rights under this clause were violated
when the district court allowed Special Agent Vincent Lisi to
testify about statements made by Robert “Butchie” Smith.
Before trial, the government moved to admit, through law
enforcement officers and other witnesses, statements made by
persons allegedly murdered by members of the K-Street
organization. Among the statements were Smith’s. Smith was
a main target of the initial investigation into the Southwest
organization in 1995. Law enforcement officers thought he was
a major marijuana supplier in the area. During a June 1996
undercover operation, Special Agent Lisi and other officers
filmed Smith selling drugs to a cooperating witness. The
officers arrested Smith on December 5, 1996, took him to the
FBI’s offices, and showed him the video tape. Smith then
waived his Miranda rights and expressed his willingness to talk
with Special Agent Lisi about various crimes in the Southwest
area.
Smith told Special Agent Lisi about his interactions with
numerous conspiracy members and his conversations with
Sweeney. He first detailed his drug sources and drug operation.
Smith explained that he normally supplied marijuana to three
individuals who in turn sold it on the street. He did this to
43
insulate himself from detection. Smith also sold marijuana
directly to Coates, Hill, and Sweeney, among other conspiracy
members. Smith described the murders and other violent crimes
Sweeney and his associates committed. He then entered into a
plea agreement with the government and was released a day
after his arrest in order to give the impression that he was not a
cooperating witness. He later returned to court and pled guilty
to conspiracy to possess and distribute narcotics.
During his initial detention and then while acting as an
informant for the government, Smith told Special Agent Lisi of
the attempted murder of Michael Jones, the hunt for Kenny
Adams, the kidnapping of Anthony Pryor, the murder of Donnell
Whitfield, and the murders of Alonzo Gaskins, Darnell Mack,
and Melody Anderson. Smith said that he learned of these
events and the details surrounding them from his conversations
with Sweeney. In support of admitting Smith’s and Sweeney’s
statements, the government adduced the following evidence.
While being detained by the Prince George’s County,
Maryland, Police Department for the triple murders of Gaskins,
Mack, and Anderson, Sweeney began to suspect that Smith had
divulged information to the authorities. Prince George’s County
Police Officers apparently aroused Sweeney’s suspicions when
they included in their statement of probable cause, filed at
Sweeney’s initial appearance, information about the triple
murders, information attributed to a confidential FBI source.
The probable-cause statement explained that Sweeney had told
this informant about the murders and that only the investigators
and perpetrators of the offense knew the information.
According to James Montgomery, whose testimony fills in
the remaining details, Sweeney asked Carson and Montgomery
to visit him while in jail. Montgomery did not go, but Carson
visited Sweeney and reported his conversation to Montgomery.
Carson asked Sweeney whom he told about the triple murders;
Sweeney said that he told Smith about it and that Smith was
44
cooperating with the FBI.21 Carson explained to Montgomery
that without Smith the government would have no case against
Sweeney for the triple murders.
In the following months, Carson and Montgomery planned
and attempted several times to track down Smith and kill him.
Montgomery and Carson looked for Smith whenever they
happened to visit an area Smith frequented and would
sometimes drive through those areas for the sole purpose of
tracking him down. They spotted Smith several times in the
open but could “do nothing to him in front of . . . everybody.”
On one occasion, Carson and Montgomery found Smith on Half
Street, Southwest. They hurried to Carson’s house, where
Carson retrieved his sweat suit, gun, and gun belt, and then took
a circuitous route back to Half Street. Carson ran up an alley to
catch Smith from behind, while Montgomery waited in the car,
but the tactic proved unsuccessful.
On June 16, 1997, while Montgomery was selling marijuana
on Second Street, Carson approached Montgomery, took his car
keys, and left in Montgomery’s car. Some time later,
Montgomery learned that Smith had been shot on Half Street.
Montgomery then rode a bicycle to the corner of Half and O
Streets. There he heard that Smith had been killed, which,
according to Montgomery, came as a great relief, because
he—like the other conspirators—was concerned that Smith was
an informant. After learning of Smith’s death, Montgomery
rode back to Second Street, Southwest. Carson returned later
that evening in Montgomery’s car, parking it in an alley. As
21
Other witnesses, who were incarcerated with Sweeney at the
time, confirmed that he had identified Smith as an informant.
Reginald Switzer, for example, overheard Sweeney say that he could
not believe Smith was “snitching.” And Sweeney told Charles Bender
that Smith was “snitching” and that “family or not, he has got to get
dealt with.”
45
soon as Montgomery saw Carson, he said “you know them
peoples got hit,” to which Carson responded “yeah, I know. . .
. [W]e’re all right.” Montgomery asked if Carson knew about
whom he was talking. Carson said “trust me, we’re all right,”
and gave Montgomery his keys back. Carson then instructed
Montgomery to “stay from up Half Street” with his car “and not
to drive it if [he] didn’t have to.” From a prior experience with
Carson, Montgomery understood Carson’s instruction to be a
warning that someone might identify his car in relation to
Smith’s murder if Montgomery took the car near Half Street.
Relying on this evidence, most of which consisted of
Montgomery’s testimony, the government argued that the
appellants forfeited their Sixth Amendment right to confront
Smith. The Confrontation Clause secures a criminal defendant’s
right to confront witnesses against him through cross-
examination. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673,
678 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315-16
(1974)); Pointer v. Texas, 380 U.S. 400, 404-05, 406-07 (1965)
(collecting cases); Mattox v. United States, 156 U.S. 237, 244
(1895); see also Crawford v. Washington, 541 U.S. 36, 49, 53-
54, 57 (2004). But a defendant forfeits this right when, through
his misconduct, he causes the witness to be unavailable. United
States v. White, 116 F.3d 903, 911 (D.C. Cir. 1997) (per curiam)
(collecting cases). The government claimed that these
defendants therefore forfeited their rights under the
Confrontation Clause when their coconspirators murdered
Smith, an act in furtherance of the conspiracy and reasonably
foreseeable. It also claimed that Sweeney’s statements to Smith
were admissible as coconspirator statements in furtherance of
the conspiracy.
The appellants objected on several grounds. They disputed
whether a defendant could forfeit his confrontation rights based
on misconduct committed by a coconspirator and whether there
was a factual predicate for such forfeiture and for the
46
admissibility of Sweeney’s statements to Smith. The district
court overruled the objections, finding that “Smith was a co-
conspirator and that the information imparted to Mr. Smith by
Mr. Sweeney was in furtherance of that conspiracy.” As a legal
matter, the court agreed with the government that a defendant
forfeits his right to confront a witness if his coconspirators
caused the unavailability of that witness through misconduct and
if their action was within the scope and in furtherance of the
conspiracy, as well as reasonably foreseeable to conspirators.
The court found that Sweeney “was directly involved in
procuring the absence of . . . Smith as a witness by . . . inducing
a co-conspirator to kill” him, and that “Carson’s murder of
Smith, either alone or in conjunction with others, made [Smith]
unavailable as a witness for the government in this case.”
“[T]hese co-conspirators,” the district court said, forfeited “their
confrontation and hearsay objections to statements about acts in
furtherance of, within the scope and reasonably foreseeable to
all of them.”
Sweeney, Carson, and Coates argue that the district court
erred in concluding that a defendant may forfeit his rights under
the Confrontation Clause and Federal Rule of Evidence
804(b)(6) when a coconspirator’s misconduct causes a witness’s
absence. They also claim the court’s predicate factual
findings—that Carson or some other conspirator caused Smith’s
absence—were clearly erroneous. The district court was
required to find the necessary facts by a preponderance of the
evidence. White, 116 F.3d at 912. We review the court’s legal
conclusions regarding the Confrontation Clause and Rule
804(b)(6) de novo, see United States v. Cherry, 217 F.3d 811,
814 (10th Cir. 2000), and its factual findings for clear error,
White, 116 F.3d at 911 n.2.
Although the Confrontation Clause secures important rights,
those rights are not absolute. The rule has long been that
defendants through misconduct may forfeit their right to
47
confront witnesses against them. See Snyder v. Massachusetts,
291 U.S. 97, 106 (1934), abrogated on other grounds by Malloy
v. Hogan, 378 U.S. 1 (1964); Diaz v. United States, 223 U.S.
442, 452-53 (1912) (quoting Reynolds v. United States, 98 U.S.
145, 158 (1878)); Reynolds, 98 U.S. at 158-59; see also Illinois
v. Allen, 397 U.S. 337, 343 (1970).22 In United States v. White,
we recognized that there is no more extreme “form of
misconduct . . . than the murder of a potential witness” and held
“that a defendant who wrongfully procures the absence of a
witness or potential witness may not assert confrontation rights
as to that witness.” 116 F.3d at 911. This rule rests on “equity”
and “the need for fit incentives.” Id.; see Crawford, 541 U.S. at
62; United States v. Thompson, 286 F.3d 950, 962 (7th Cir.
2002) (collecting sources); Steele v. Taylor, 684 F.2d 1193,
1202 (6th Cir. 1982). A defendant should not be permitted to
gain an evidentiary advantage through “threats, violence or
murder.” White, 116 F.3d at 911; id. at 912; United States v.
Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982); see also,
e.g., Cherry, 217 F.3d at 815. Rule 804(b)(6) of the Federal
Rules of Evidence also excepts from inadmissible hearsay those
statements “offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure
the unavailability of the declarant as a witness.” This rule is
necessary, according to the advisory committee notes, in order
“to deal with abhorrent behavior ‘which strikes at the heart of
the system of justice itself.’” Fed. R. Evid. 804(b)(6) advisory
committee’s note (quoting Mastrangelo, 693 F.2d at 273).
Appellants do not dispute any of this. Their quarrel is with
allowing the misconduct of a coconspirator to cause the
22
That Smith’s statements were to Special Agent Lisi, and
therefore likely testimonial, is of no moment. See Crawford, 541 U.S.
at 68. The Supreme Court in Crawford approved the forfeiture-by-
misconduct exception even when out-of-court statements are
testimonial. See id. at 62.
48
forfeiture of a defendant’s right—a subject we address in a
moment—and with the district court’s underlying factual
findings. As to the facts, the district court found that Carson
murdered Smith, “either alone or in conjunction with others,”
and that this “made [Smith] unavailable as a witness for the
government.” Ample evidence supported this finding.
Montgomery testified at length about his and Carson’s activities
leading up to Smith’s murder; their motive for killing Smith;
their ongoing hunt for him; their failed opportunities; Carson’s
use of Montgomery’s car just before Smith’s murder; Carson’s
return after the murder; his acknowledgment of Smith’s murder
and his assurance that they were “all right”; his instruction to
Montgomery not to drive near the murder scene; and
Montgomery’s understanding that Carson meant that, if he did
drive near the scene, observers might identify the car in relation
to the murder. The appellants insist that because the
government offered no eyewitness to Smith’s murder,
Montgomery’s testimony was inherently suspect. But no rule of
law required the government to produce an eyewitness,
assuming there was one despite Montgomery’s and Carson’s
desire to eliminate Smith without anyone watching. The district
court evaluated Montgomery’s credibility and credited his
testimony, and there is no basis for our disturbing the court’s
judgment. See United States v. Scriber, 499 F.2d 1041, 1044 &
n.12 (D.C. Cir. 1974); see also United States v. Lewis, 693 F.2d
189, 193 (D.C. Cir. 1982). It follows that there was a factual
predicate to forfeiture and that Carson has forfeited any rights he
may have had. See White, 116 F.3d at 911; see also Fed. R.
Evid. 804(b)(6).
Sweeney and Coates—not Carson, of course—argue that a
defendant’s forfeiture, either under the Confrontation Clause or
Rule 804(b)(6), cannot result from a coconspirator’s causing a
witness to be absent from trial. Yet the reasons why a defendant
forfeits his confrontation rights apply with equal force to a
defendant whose coconspirators render the witness unavailable,
49
so long as their misconduct was within the scope of the
conspiracy and reasonably foreseeable to the defendant, as it
was here.23 Suppose several individuals enter into a conspiracy,
and, as part of the conspiracy, they agree to kill all potential
witnesses against them. All members of the conspiracy would
be criminally responsible for the resulting murder of a witness,
see Pinkerton v. United States, 328 U.S. 640, 647-48 (1946), and
there is no good reason why the murder should give any of them
an evidentiary advantage, see Blumenthal v. United States, 332
U.S. 539, 557 (1947); 2 WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 12.2(a), at 267 (2d ed. 2003). That there is no
direct evidence of an explicit agreement to kill adverse
witnesses in this case is of no moment. The evidence was more
than sufficient to infer the existence of such an agreement and
to conclude that Smith’s murder was in furtherance of the
conspiracy and reasonably foreseeable. See Iannelli v. United
States, 420 U.S. 770, 777 n.10 (1975); Interstate Circuit, Inc. v.
United States, 306 U.S. 208, 221 (1939); United States v.
Childress, 58 F.3d 693, 715 (D.C. Cir. 1995) (per curiam).24
23
Sweeney told several people, while he was in jail, that Smith
was “snitching” and that “family or not, he has got to get dealt with.”
Montgomery testified that while in jail Sweeney asked Carson and
him to visit and that after this visit Carson stated that without Smith
the government would have no case against Sweeney. Carson also
related his conversation with Sweeney about Smith being the likely
informant. Carson and Montgomery immediately formulated a plan
to kill Smith. Montgomery also testified that the other conspirators
worried, as did he, that Smith was an informant for the police. And the
government adduced considerable evidence that members of the
conspiracy, including Sweeney and Coates, regularly murdered or
attempted to kill witnesses or informants who could testify against
them.
24
Our conclusion is consistent with the rulings of other circuits.
See Thompson, 286 F.3d at 963-65; Cherry, 217 F.3d at 818. It is also
50
Carson and Coates have additional arguments. They say that
if Smith had been alive, he would not have been permitted to
testify about the statements Sweeney made to him and that the
district court therefore erred in allowing Smith’s statements
(concerning Sweeney’s) to come in against them through
Special Agent Lisi. Their theory is that Smith was not a
coconspirator and that, even if he were, Sweeney’s statements
to him were not in furtherance of the conspiracy. As they see it,
admitting the statements Sweeney made to Smith violated the
Sixth Amendment rule set down in Bruton v. United States, 391
U.S. 123 (1968), that a co-defendant’s out-of-court statements
implicating other defendants are inadmissible when there is no
opportunity to cross-examine the co-defendant.
Statements satisfying the coconspirator non-hearsay rule
under Federal Rule of Evidence 801(d)(2)(E) may be admitted
against co-defendants without violating the Confrontation
Clause. See Bourjaily v. United States, 483 U.S. 171, 182-84
(1987);25 United States v. Mickelson, 378 F.3d 810, 819 (8th Cir.
generally consistent with decisions that have not addressed this issue
directly, but nonetheless recognized that forfeiture by misconduct may
be imputed to a defendant. See, e.g., United States v. Rivera, 412 F.3d
562, 567 (4th Cir. 2005) (discussing Rule 804(b)(6)); Mastrangelo,
693 F.2d at 273-74, cited approvingly in Fed. R. Evid. 804(b)(6)
advisory committee’s note; Olson v. Green, 668 F.2d 421, 429 (8th
Cir. 1982) (recognizing that “someone acting on a [defendant’s] behalf
may waive or forfeit that [defendant’s] right”).
25
Bourjaily relied on Ohio v. Roberts, 448 U.S. 56 (1980), to reach
its conclusion. See 483 U.S. at 182-83. The Supreme Court,
disapproving of the reasoning in Roberts, recently held that to admit
testimonial hearsay, the declarant must be unavailable and there must
have been a prior opportunity for cross-examination. Crawford, 541
U.S. at 62-69. Crawford does not undermine Bourjaily.
Coconspirator statements in furtherance of a conspiracy are not
typically the type that fall within the definition of “testimonial.” The
51
2004); United States v. Shores, 33 F.3d 438, 442 (4th Cir. 1994);
United States v. DeVillio, 983 F.2d 1185, 1193-94 (2d Cir.
1993). “[A] statement by a coconspirator of a party during the
course and in furtherance of the conspiracy” is not hearsay under
Rule 801(d)(2)(E). To admit such statements, the district court
must find by a preponderance of the evidence that “there was a
conspiracy involving the declarant and the nonoffering party,
and that the statement[s were] made ‘during the course and in
furtherance of the conspiracy.’” Bourjaily, 483 U.S. at 175
(quoting Fed. R. Evid. 801(d)(2)(E)); id. at 176; United States
v. Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996). We review the
district court’s factual findings for clear error. Gatling, 96 F.3d
at 1521 (citing United States v. Edmond, 52 F.3d 1080, 1110
(D.C. Cir. 1995) (per curiam)).
The district court concluded that Smith was a coconspirator
with Sweeney, Carson, and Coates and that Sweeney’s
statements to him were made during the course of and in
furtherance of the conspiracy.26 Rule 801(d)(2)(E) requires that
the declarant be in a conspiracy with those against whom the
statements are offered. Fed. R. Evid. 801(d)(2)(E); see, e.g.,
Bourjaily, 483 U.S. at 175; Gatling, 96 F.3d at 1520. The
evidence was overwhelming that Sweeney, Carson, and Coates
were coconspirators, and the jury so found. Smith’s status as a
coconspirator, while not essential to admissibility, is
nevertheless relevant to whether Sweeney’s statements were
made during the course of and in furtherance of the conspiracy,
as the rule also requires.
Crawford Court recognized as much. Id. at 56.
26
It was unnecessary to conclude that Smith was a coconspirator
in order to admit Sweeney’s statements. See Bourjaily, 483 U.S. at
175; Gatling, 96 F.3d at 1520; United States v. Beckham, 968 F.2d 47,
51 n.2 (D.C. Cir. 1992).
52
Carson and Coates acknowledge that Smith sold drugs to
members of the conspiracy, including Reginald Switzer, Arthur
Rice, Eric Jones, Vincent Hill, Paul Taylor, Sean Coates, Gary
Price, and William Sweeney. They contend, however, that
Smith’s real drug “operation” involved selling drugs to three
individuals27 not connected to the conspiracy who resold the
narcotics in Southwest Washington, D.C., and that this sporadic
“buyer/seller relationship with some of the defendants” did not
make him a coconspirator. Br. of Appellants 104-05. While the
evidence may not have shown that Smith was a principal
member of the conspiracy or that he had a relationship with
every conspiracy member, neither is required to make him a
coconspirator. See Childress, 58 F.3d at 709-10; United States
v. Tarantino, 846 F.2d 1384, 1392-93 (D.C. Cir. 1988) (per
curiam). Smith had only to agree to enter and “knowingly
participate[] in the conspiracy with the intent to commit the
offense”—in this case distribution and possession of narcotics.
Gatling, 96 F.3d at 1518; Childress, 58 F.3d at 707-08. His
status as a conspirator may “be inferred from circumstantial
evidence,” Gatling, 96 F.3d at 1518, especially from his
“knowing participation in a distribution network,” Childress, 58
F.3d at 710. The district court did not clearly err in drawing
such an inference here.
Smith explained to Special Agent Lisi that although he dealt
primarily with three individuals in an attempt to insulate himself
from exposure, “there were people that he did deal with
personally, some people that he knew.” He directly distributed
marijuana to Sweeney, Coates, and Hill, among other members
of the conspiracy. Montgomery said that he believed Smith was
“supplying marijuana to [K Street] Southwest.” As an example,
he discussed an occasion in which Eric Jones, an acknowledged
27
Carson and Coates state that Smith sold drugs to four
individuals. Special Agent Lisi identified only three.
53
coconspirator, intended to purchase ten pounds of marijuana
from Smith. Although Montgomery was not sure whether Jones
actually obtained that amount from Smith, the fact that Smith
sold drugs to conspiracy members—and that he was always an
available source to them—was supported by Arthur Rice,
another coconspirator. Rice explained that, while Smith may
not have been a major “supplier,” members of the conspiracy
“could go to him and get stuff . . . . I mean he had a lot of it. He
could get his hands on a lot of it.” Rice said that Smith had
supplied or helped him obtain drugs “[m]ore than once.” On
one occasion, Smith gave Rice marijuana to help him get
reestablished in the marijuana business after being released from
jail. Smith helped out coconspirators in other ways. While
Sweeney and Rice were in jail together, Smith sent both of them
money orders. He also helped pay for Rice’s legal
representation when Rice was arrested for the murder of a rival
gang member. See Tarantino, 846 F.2d at 1397 (“[N]ot . . .
every act taken in furtherance of the conspiracy [need be]
illegal.”). It was not clearly erroneous for the district court to
conclude that Smith “knew of the nature and scope of the
conspiracy, joined in its aims, and facilitated its success.” Id. at
1396.
United States v. Morris, 836 F.2d 1371 (D.C. Cir. 1988),
does not, as Carson and Coates insist, command a different
result. Morris merely states the quite unremarkable proposition
“that a buyer-seller relationship” consisting of a couple drug
transactions “does not make out a conspiracy.” Id. at 1374. But
the evidence here is on a different plane altogether. Rice
explained that conspiracy members could go to Smith as they
needed and that Rice in fact had done so “[m]ore than once.” It
is also clear that Smith had an ongoing relationship with
conspiracy members, assisting them and supplying them with
drugs as the occasion arose. Smith may not have been a
principal conspiracy member, but he was a coconspirator
nonetheless.
54
We now turn to Carson and Coates’s claim that Sweeney’s
statements to Smith were not made “during the course and in
furtherance of the conspiracy” and, for that reason, are
inadmissible under Rule 801(d)(2)(E). Sweeney’s statements to
Smith about various crimes committed by conspiracy members
did not further the conspiracy, the argument goes, because they
consisted of “idle chatter,” bragging, or mere narratives of past
events. The appellants are correct, as a general matter, that
statements of that sort are usually not “in furtherance” of a
conspiracy. See Tarantino, 846 F.2d at 1411-12; see also
Edmond, 52 F.3d at 1111. But if the statements “‘can
reasonably be interpreted as encouraging a co-conspirator or
other person to advance the conspiracy, or as enhancing a co-
conspirator or other person’s usefulness to the conspiracy,’”
then the statements further the conspiracy and are admissible.
Edmond, 52 F.3d at 1110-11 (quoting Tarantino, 846 F.2d at
1412); accord United States v. Rivera, 22 F.3d 430, 436 (2d Cir.
1994). Such statements include those that keep a coconspirator
updated “on the status of the business,” motivate a
coconspirator’s “continued participation,” Tarantino, 846 F.2d
at 1412; see also Rivera, 22 F.3d at 436, or provide background
information on key conspiracy members, Edmond, 52 F.3d at
1111 (quoting Tarantino, 846 F.2d at 1413); United States v.
Walls, 70 F.3d 1323, 1327 (D.C. Cir. 1995).
Sweeney’s statements to Smith described various
kidnappings, murders, attempts to intimidate witnesses, and
other acts of violence committed by conspiracy members. What
Sweeney said was not, as these appellants assert, mere narrative
or idle chatter. He was updating Smith on the conspiracy’s
status, motivating his continued participation, and providing him
with background information. For example, Sweeney discussed
with Smith the shootings or attempted shootings of Michael
Jones and Kenny Adams. Both Jones and Adams were going to
testify against members of the conspiracy, and Sweeney detailed
the conspiracy members’ attempts to silence them. Though
55
describing events that had transpired, this information could
have served several functions: to update Smith on eliminated
threats—that is, to give the “all clear”; to remind Smith to keep
an ear open for more threats; to encourage him to weed out other
witnesses against them; and to make sure Smith did not consider
turning against the conspiracy (that is, to motivate his continued
participation). All of this served to further the conspiracy’s
goals of selling drugs and evading capture. Other statements
advanced the conspiracy in another way. Sweeney’s
descriptions of Anthony Pryor’s kidnaping and the triple
murders of Gaskins, Mack, and Anderson updated Smith on the
status of conspiracy members. With an understanding of what
conspiracy members faced, Smith could help protect those
members from law enforcement or other dangers. By protecting
the various components of the conspiracy, Smith naturally
would be advancing the conspiracy.
Because the district court properly found that Sweeney’s
statements were in furtherance of the conspiracy, the statements
were non-hearsay coconspirator statements, admissible under
Rule 801(d)(2)(E) without violating the Confrontation Clause.
V. Convictions under 18 U.S.C. § 1959
All five appellants attack their convictions for violating 18
U.S.C. § 1959, the statute prohibiting violent crimes in aid of
racketeering activity. They contend that § 1959 is facially
unconstitutional because it exceeds Congress’s Commerce
Clause authority. Carson and Coates alternatively argue that
even if the statute is constitutional, the evidence at trial was
insufficient to convict them of violating it.
As relevant here, § 1959 prohibits any person from
“murder[ing], kidnap[ping],” or committing any other “crime of
violence” in exchange for “anything of pecuniary value from an
enterprise engaged in racketeering activity” or to “gain[]
entrance to or maintain[] or increas[e] position” in such an
56
enterprise. Id. § 1959(a). “‘[R]acketeering activity’” is defined
as it is in the RICO statute, id. § 1959(b)(1); see id. § 1961, and
“‘enterprise’” is defined to include any “legal entity, and any
union or group of individuals associated in fact although not a
legal entity, which is engaged in, or the activities of which
affect, interstate or foreign commerce,” id. § 1959(b)(2).
Each defendant was indicted for violating § 1959 by
committing various violent crimes in furtherance of the RICO
conspiracy charged in Count 2.28 Carson, Coates, and Sweeney
were each convicted on three counts of violating § 1959 for their
roles in the triple murders of Alonzo Gaskins, Darnell Mack,
and Melody Anderson. Carson was also convicted of violating
this section for the attempted murder of Ulysses English and the
murder of Chrishauna Gladden. Coates and Sweeney were each
convicted under § 1959 for the attempted murder of Anthony
Pryor. Coates was also convicted for the attempted murder of
Ronald Sowells, and Sweeney for the murder of Donnell
Whitfield. Martin was convicted for the attempted murder of
James Coulter in aid of racketeering.
Relying on United States v. Lopez, 514 U.S. 549 (1995), and
United States v. Morrison, 529 U.S. 598 (2000), the appellants
claim that the statute facially exceeds Congress’s Commerce
Clause authority because § 1959 does not regulate commercial
activity and does not contain a jurisdictional provision requiring
that the prohibited conduct have a connection to interstate
commerce.
28
Although Hill apparently challenges the constitutionality of
§ 1959, it does not appear that the jury found him guilty of violating
that section. He was indicted under § 1959 for the attempted murders
of Anthony Pryor, Kimberly Richardson, and Reggie Jones in aid of
racketeering activity. Only the attempted murder of Anthony Pryor
was submitted to the jury, and it found him not guilty.
57
The government correctly points out that the appellant did
not raise this argument below. “It is the general rule, of course,
that a federal appellate court does not consider an issue not
passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120
(1976). This applies to constitutional and nonconstitutional
challenges alike. See, e.g., Piersall v. Winter, 435 F.3d 319, 325
(D.C. Cir. 2006); Manion v. Am. Airlines, Inc., 395 F.3d 428,
432 (D.C. Cir. 2004); United States v. Baylor, 97 F.3d 542, 543
n.1 (D.C. Cir. 1996); United States v. Badru, 97 F.3d 1471, 1476
(D.C. Cir. 1996).
In any event, it is impossible to see how a statute regulating
conduct within the District of Columbia could exceed
congressional authority under the Commerce Clause. As in the
U.S. Territories, Congress has plenary authority in the District
of Columbia. See U.S. CONST. art. I, § 8, cl. 17; U.S. CONST. art.
IV, § 3, cl. 2; see also, e.g., Binns v. United States, 194 U.S.
486, 491 (1904). Within the District, Congress did not need to
rely on its Commerce Clause authority. Even if there were some
doubt about § 1959’s constitutionality outside the District of
Columbia, “we need not find the language of [§ 1959]
constitutional in all its possible applications in order to uphold
its facial constitutionality.” Griffin v. Breckenridge, 403 U.S.
88, 104 (1971).29
Carson and Coates attack some of their § 1959 convictions
for insufficient evidence. We review sufficiency-of-the-
evidence challenges “in the light most favorable to the
government, drawing no distinction between direct and
29
Section 1959(b)(2) defines “enterprise” in terms of the group’s
effect on interstate commerce. But the appellants do not claim that the
K-Street gang had no such effect. Their argument is instead that
§ 1959 exceeds Congress’s Commerce Clause authority because the
provision does not require that each act of violence affect interstate
commerce.
58
circumstantial evidence, and giving full play to the right of the
jury to determine credibility, weigh the evidence and draw
justifiable inferences of fact.” United States v. Dykes, 406 F.3d
717, 721 (D.C. Cir. 2005) (quoting United States v. Foster, 783
F.2d 1087, 1088 (D.C. Cir. 1986)) (internal quotation mark
omitted). If “‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,’” the
conviction must be affirmed. Id. (quoting United States v.
Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002)).
Section 1959 requires a jury to find two elements in
addition to the violent criminal activity. The first is “an
enterprise engaged in racketeering activity.” 18 U.S.C.
§ 1959(a). The second is that a defendant committed the violent
crime with one of three motives: (1) “as consideration for . . .
anything of pecuniary value” from such an enterprise, (2) “as
consideration for a promise . . . to pay” something of value from
such an enterprise, or (3) “for the purpose of gaining entrance to
or maintaining or increasing position in an enterprise engaged in
racketeering activity.” Id. This third element—the only one at
issue here—may be shown if “the defendant committed his
violent crime because he knew it was expected of him by reason
of his membership in the enterprise or that he committed it in
furtherance of that membership.” United States v. Concepcion,
983 F.2d 369, 381 (2d Cir. 1992); accord United States v. Tse,
135 F.3d 200, 206 (1st Cir. 1998); United States v. Fiel, 35 F.3d
997, 1004 (4th Cir. 1994). Carson and Coates do not contest the
jury’s finding that the K-Street enterprise was one engaged in
racketeering activity.30 Instead, they contend that there was
30
“‘[R]acketeering activity’” is defined by reference to 18 U.S.C.
§ 1961. Id. § 1959(b)(1). That statute defines such activity to include
“dealing in a controlled substance or listed chemical (as defined in
section 102 of the Controlled Substances Act), which is chargeable
under State law.” 18 U.S.C. § 1961(1)(A). The enterprise here
regularly engaged in, among other things, the sale of marijuana, a
59
insufficient evidence that their violent crimes were done in order
to maintain or increase their positions in that enterprise.
The subject of Carson’s claim is his § 1959 conviction for
the shooting of Ulysses English. On the morning of June 26,
1994, several people witnessed Carson shoot English while
English sold drugs on K Street. English apparently associated
with the 58th-Street crew, a rival of the K-Street organization.
Before English’s shooting, Carson informed Montgomery that
he “was almost certain that [English] had told Keith Holmes”
and other people from 58th Street, Southeast, “where [Carson’s]
mother live[d].” At trial Montgomery explained the significance
of this: gang members generally kept this type of information
secret to protect themselves and their families from rivals. The
fact that people from 58th Street knew this information
concerned both Carson and Montgomery, who worried that
something might happen to Carson or his family. Carson told
Montgomery to keep an eye out for English and to “hit him” if
he saw “him in a good position.” On the day English was shot,
Carson approached Montgomery, who was selling marijuana,
and told him that “something was about to happen.” Not long
after this, at least two people saw Carson shoot English and run
off.
Carson argues that the shooting of English was done out of
concern for Carson’s safety, that it was “unrelated to possession
with intent to distribute or distribution of drugs,” and that it was
therefore not done to maintain or increase his position in the
enterprise. Br. of Appellants 128. Viewed in the light most
favorable to the government, the evidence proved that English
was a member of a rival organization battling the K-Street
enterprise and that English had potentially put Carson and his
controlled substance. See, e.g., United States v. Feliciano, 223 F.3d
102, 119 (2d Cir. 2000) (quoting, inter alia, United States v. Goodwin,
141 F.3d 394, 399 (2d Cir. 1997)).
60
family in danger. Threatened by a rival gang member, Carson
took the action that “was expected of him by reason of his
membership.” Concepcion, 983 F.2d at 381. It follows that a
reasonable jury could have inferred that Carson shot English to
maintain his position in the K-Street organization. This
conclusion gains more support from evidence that the K-Street
organization intimidated, threatened, or killed people or groups
who threatened it or its members. Carson’s shooting of English
could have been “in part at least in furtherance of the
enterprise’s policy of treating affronts to any of its members as
affronts to all, of reacting violently to them and of thereby
furthering the reputation for violence essential to maintenance
of the enterprise’s place in the drug-trafficking business.”
United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996). The
jury also could have determined that Carson shot English to
maintain or increase his own reputation as an enforcer in the
enterprise. The evidence showed that Carson frequently carried
out violent crimes against those who threatened the organization
or its members.
The subject of Coates’s claim is the triple murders of
Gaskins, Mack, and Anderson. The murders resulted from a
robbery that went sour. After Carson and Sweeney saw Gaskins
win $50,000 in Las Vegas, Carson, Sweeney, and Montgomery
discussed robbing Gaskins of his winnings and using the money
to purchase guns to aid them in their dispute with members of a
rival gang and to supplement the slow-down in marijuana sales.
Gaskins had returned to his home in Temple Hills, Maryland.
Carson, Sweeney, and Montgomery approached the house to
commit the robbery, but did not see Gaskins’s car and did not
know whether he was inside. In light of this, they decided to
pick up Coates, who knew Gaskins, gambled at his house on
occasion, and could enter the house to ensure that Gaskins was
there. When they returned to Gaskins’s house with Coates, they
saw Gaskins and Mack leave with two women. The four
defendants left for Montgomery’s mother’s house, made masks
61
to cover their faces, stole a license plate to put on the rental van
they were using, and returned to Gaskins’s house. Gaskins
arrived with Mack and the two women. The four appellants
circled around to the back of the house and parked the van in the
parking lot. Montgomery and Sweeney jumped out of the van
and rushed up to Gaskins’s place. Coates, who was unarmed,
remained in the van. As Gaskins, Mack, and the two women
entered the house, Sweeney, with a gun, and Montgomery, with
a stun gun, rushed in, pushing everyone inside except Anderson
(one of the women), who remained outside. Gaskins reached for
something and Sweeney shot him. Sweeney then shot Mack and
fled the house, shooting Anderson on his way out.
Like Carson, Coates contends that there was insufficient
evidence that his involvement in the triple murders was for the
purpose of maintaining or increasing his position in the
enterprise. He argues that he did not know of, or share in, the
other appellants’ plan to rob Gaskins in order to buy weapons
for the enterprise or to make up for the organization’s lagging
marijuana sales. Nor was the robbery connected to the
organization’s “core business of drug dealing,” according to
Coates. Br. of Appellants 130. None of these assertions change
the fact that Coates was involved in the triple murders in order
to maintain or increase his position in the K-Street enterprise.
Although the attempted robbery was unlike their other drug
activities, Sweeney, Carson, and Montgomery planned to rob
Gaskins in order to supply the enterprise with arms and
supplement the enterprise’s income. Coates joined Sweeney,
Carson, and Montgomery “because he knew it was expected of
him by reason of his membership in the enterprise.”
Concepcion, 983 F.2d at 381. The jury could fairly infer from
Coates’s willingness to assist his coconspirators that he joined
them because this was expected of him. It makes no difference
whether Coates shared Sweeney, Carson, and Montgomery’s
motive or whether his interest in maintaining his position was
his sole motivation, see id.; see also Tse, 135 F.3d at 206.
62
United States v. Thai, 29 F.3d 785 (2d Cir. 1994), does not,
as Coates urges, dictate a different result. There the Second
Circuit held that the leader of a gang who bombed a restaurant
did not act in furtherance of the gang’s enterprise or attempt to
maintain his status through the bombing. Id. at 818-19.
Although the gang engaged in murder, robbery, and extortion,
the gang leader bombed the restaurant as part of a side
agreement unrelated to the enterprise. Id. at 818. Here the
attempted robbery of Gaskins was not the K-Street enterprise’s
typical business, but it was done to further the ends of the
enterprise. A rational jury could properly find that Coates
accompanied his coconspirators in an effort to maintain his
position in the enterprise—that is, because the other members
expected him to assist them. The other cases Carson and Coates
cite are inapposite because each involved individuals who were
not members of the charged enterprise. See, e.g., United States
v. Ferguson, 246 F.3d 129, 135-36 (2d Cir. 2001); United States
v. Polanco, 145 F.3d 536, 540 (2d Cir. 1998).
VI. Joinder
Carson and Martin claim that several first-degree murder
charges under D.C. Code § 22-2401 (1996) and various criminal
charges related to events that occurred on, or in connection with,
37th Street, Southeast, were misjoined with the broader
narcotics and RICO conspiracy charges. They contend that the
prosecution failed to prove a sufficient relationship between
these joined charges and the broader claims asserted in the
indictment.
The superseding indictment filed on March 25, 1999,31
31
This was the indictment before the court when the defendants
moved to sever. Thereafter a retyped indictment was filed on January
4, 2001, and a second retyped indictment was filed on July 2, 2001.
The charges of which Carson and Martin complain were alleged in
each version. The verdicts relate to the July 2 indictment.
63
contained 101 counts. Among these were charges against
Carson and Martin for first-degree murder in violation of D.C.
Code § 22-2401 (1996). The charges related to Carson’s alleged
murder of Maurice Hallman, Leonard Hyson, Teresa Thomas,
and Terita Lucas, and Carson and Martin’s murder of Anthony
Fortune. Carson participated in the murder of Hallman and
Hyson, according to the government, as retaliation for an attack
on a member of the K-Street organization. The government
alleged that Carson murdered Thomas and Lucas because they
gave a rival drug dealer a bag of guns Carson had stored at
Thomas’s apartment. And according to the government, Carson
and Martin killed Anthony Fortune, who had robbed Martin, to
protect the organization’s violent reputation and ward off future
affronts to it or its members. Fortune’s murder was particularly
important because the organization was trying to move into his
area.
The indictment also charged Carson and Martin with various
racketeering acts underlying the RICO conspiracy charged in
Count 2. These racketeering acts included murdering Anthony
Fortune and Curtis Edward and assaulting with intent to murder
Keith Bradley, Jimmy Thomas, Richard Burton, Keith Jones,
and Officers Adrian Treadwell, Edward McDonald, Marc Little,
and Alvin Ray. All of these counts arose out of events on 37th
Street, which, as the government alleged, became an extension
of the K-Street organization when some conspirators moved
there. Carson and Martin’s murder of Fortune begat a rivalry
between the K-Street organization and a gang from 58th Street,
leading to numerous drive-by shootings. This in turn led, on one
occasion, to a shoot-out between Carson, Martin and police
officers, and, on another occasion, to Martin firing into
Edwards’s car (in which Burton and Jones were riding) on the
mistaken belief that Edwards was part of the 58th-Street gang.
Related to the shoot-out with police was the charge against
Martin for assaulting, resisting, and interfering with a police
64
officer while using a dangerous weapon. See D.C. Code § 22-
505(b) (1996).
Carson and Martin filed a pretrial motion to sever these
counts under Federal Rule of Criminal Procedure 14, contending
among other things that the counts were misjoined under Rule
8 with the other counts, particularly the narcotics and RICO
conspiracy counts. Carson and Martin argued, as they do on
appeal, that the D.C. Code offenses and the charges related to
37th Street were distinct and unrelated to the alleged RICO and
narcotics conspiracies. The district court denied the motion.
The jury returned guilty verdicts on the first-degree murder
counts and on the single count of assaulting, resisting, and
interfering with a police officer. It also found the racketeering
acts proven.
Carson and Martin’s Rule 8 argument here differs from their
pretrial argument in a material respect: rather than arguing that
the counts, as alleged, were misjoined as a legal matter, they
contend that joinder was inappropriate because the evidence at
trial failed to prove a sufficient connection between these counts
and the broader narcotics and RICO conspiracy counts to satisfy
the standards of Rule 8. This change in their argument is
important because Rule 8 governs only the initial joinder of
counts and defendants: “the only issue under Rule 8 is whether
joinder was proper at the beginning of trial.” United States v.
Clarke, 24 F.3d 257, 262 (D.C. Cir. 1994) (discussing Schaffer
v. United States, 362 U.S. 511, 514 (1960)); see also United
States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003); United
States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988). The
propriety of joinder is determined as a legal matter by evaluating
only the “indictment [and] any other pretrial evidence offered by
the Government.” United States v. Spriggs, 102 F.3d 1245,
1255 (D.C. Cir. 1996) (quoting United States v. Wilson, 26 F.3d
142, 153 (D.C. Cir. 1994)) (internal quotation mark omitted);
see also Schaffer, 362 U.S. at 513; United States v. Halliman,
65
923 F.2d 873, 883 (D.C. Cir. 1991).32 After counts are joined,
“subsequent severance [is] controlled by Rule 14.” Schaffer,
362 U.S. at 515. Whereas misjoinder under Rule 8 is
determined according to the propriety of joining offenses before
trial, severance may be warranted under Rule 14 “at all stages of
trial” because the district court has a “continuing duty” to sever
counts if it finds a risk of prejudice. Id. at 516; see also Zafiro
v. United States, 506 U.S. 534, 539 (1993). That Rule 8 and
Rule 14 operate differently is made clear by the standards
governing appellate review of a district court’s decision under
them. Judge Friendly explained:
The question[s] of the propriety of joinder under Rule 8
and of refusal to grant relief from prejudicial joinder
under Rule 14 are quite different in nature . . . . The
former is a question of law, subject to full appellate
review . . . . In contrast, the grant of relief under Rule 14
lies within the discretion of the trial judge and refusal to
sever counts . . . properly joined under Rule 8 will be
reversed only if discretion was abused . . ..
United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980);
accord United States v. Brown, 16 F.3d 423, 426-27 (D.C. Cir.
1994); see also 1A CHARLES ALAN WRIGHT, FEDERAL
PRACTICE & PROCEDURE § 227, at 573 & n.1 (3d ed. 1999).33
32
The government need only allege “the facts necessary to sustain
joinder,” not prove them. Halliman, 923 F.2d at 883; Friedman, 854
F.2d at 561.
33
The joinder and severance of D.C. Code offenses follows these
same standards. The U.S. District Court for the District of Columbia
has jurisdiction over “[a]ny offense under any law applicable
exclusively to the District of Columbia” if the “offense is joined in the
same information or indictment with any Federal offense.” D.C. Code
§ 11-502(3). To be “joined” under § 11-502 means to be “properly
joined under” Rule 8. United States v. Jackson, 562 F.2d 789, 793
66
We have no doubt that the district court correctly permitted
the joinder of the D.C. Code offenses and the charges related to
37th Street under Rule 8(b).34 The indictment alleged that all of
these counts were overt acts in furtherance of the narcotics
conspiracy and predicate acts in furtherance of the RICO
conspiracy. This provided the necessary link to satisfy Rule
(D.C. Cir. 1977) (internal quotation marks omitted); see also United
States v. Richardson, 161 F.3d 728, 733 (D.C. Cir. 1998). Here Rule
8(b) governed the joinder of the D.C. Code offenses because there are
multiple defendants. See Jackson, 562 F.2d at 793-94; see also
Halliman, 923 F.2d at 882-83. Section 11-502 does not, however,
specifically address severance after initial joinder. Rather, it speaks
only to the joining of counts “in the same information or indictment
with any Federal offense.” D.C. Code § 11-502(3). But once they
were joined, the D.C. Code offenses operated like other federal
offenses for purposes of severance. Cf. Jackson, 562 F.2d at 798.
“[T]he trial judge ha[d] a continuing duty,” under Rule 14, “at all
stages of the trial to grant a severance if prejudice d[id] appear.”
Schaffer, 362 U.S. at 516.
34
When multiple defendants are tried together, the joinder of
counts is governed by Rule of Criminal Procedure 8(b), even though
Rule 8(a) would appear exclusively to deal with the joinder of
offenses. See Brown, 16 F.3d at 427; Halliman, 923 F.2d at 882-83;
United States v. Perry, 731 F.2d 985, 989 (D.C. Cir. 1984); Jackson,
562 F.2d at 793-94; see also 1A WRIGHT, supra, § 143, at 22; id
§ 144, at 44. Rule 8(b) states that an
indictment . . . may charge 2 or more defendants if [the
government alleges that they] have participated in the same
act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses. The defendants may be
charged in one or more counts together or separately. All
defendants need not be charged in each count.
Fed. R. Crim. P. 8(b).
67
8(b).35 See Irizarry, 341 F.3d at 289-90; Spriggs, 102 F.3d at
1255-56; Friedman, 854 F.2d at 561; see also Schaffer, 362 U.S.
at 513-14; 1A WRIGHT, supra, § 144, at 53-54.
Carson and Martin’s argument, however, focuses on
evidence at trial. As such, the argument is under Rule 14, not
Rule 8. See Irizarry, 341 F.3d at 286; cf. Clarke, 24 F.3d at 262;
Schaffer, 362 U.S. at 516; 1A WRIGHT, supra, § 144, at 79-80.
Rule 14 provides that “[i]f the joinder of offenses . . . appears to
prejudice a defendant . . . the court may order separate trials of
counts, sever the defendants’ trials, or provide any other relief
that justice requires.” Fed. R. Crim. P. 14(a). As mentioned, the
district court “has a continuing duty at all stages of the trial” to
guard against any risk of prejudice. Schaffer, 362 U.S. at 516.
“The first hurdle in obtaining a severance under Rule 14 is
a showing of prejudice,” United States v. Lane, 474 U.S. 438,
449 n.12 (1986), which the defendant has the burden of
establishing, Spriggs, 102 F.3d at 1256; Brown, 16 F.3d at 427.
A showing that the defendant “may have a better chance of
acquittal in separate trials” is insufficient. Zafiro, 506 U.S. at
35
Appellants suggest that Rule 8(a) governs the joinder of the
D.C. Code offenses under § 11-502(3). For this, they rely on
Richardson, which explained that “joined” under § 11-502(3) “means
‘properly joined in accordance with Rule 8(a).’” 161 F.3d at 733
(quoting United States v. Koritko, 870 F.2d 738, 739 (D.C. Cir.
1989)). Nothing in Richardson, or Koritko upon which it relied,
indicates a departure from Jackson’s explanation of Rule 8 and § 11-
502(3). Both Richardson and Koritko dealt with a single defendant,
and the court therefore looked to Rule 8(a) to determine whether the
joinder of offenses was proper. See Richardson, 161 F.3d at 730, 733;
Koritko, 870 F.2d at 738-39. The statement that Rule 8(a) governed
the issues in each case did not change the conclusion in Jackson that
when there are multiple defendants, Rule 8(b) governs. 562 F.2d at
793-94; see also Brown, 16 F.3d at 427; Halliman, 923 F.2d at 882-
83.
68
540; accord Halliman, 923 F.2d at 884. The Supreme Court
explained that severance is warranted “under Rule 14 only if
there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.”
Zafiro, 506 U.S. at 539; accord Brown, 16 F.3d at 433. This
may be shown, for example, by the presence of evidence
admissible against one defendant but not another or by the
unavailability of exculpatory evidence to a single defendant in
a joint trial that would be available in a single trial. Zafiro, 506
U.S. at 539; see also Halliman, 923 F.2d at 884. Even when a
defendant has demonstrated prejudice, however, severance may
not be required. Our review of a district court’s decision not to
sever is for abuse of discretion. We may uphold the court’s
judgment “even if the circumstances are such that a grant of
severance would have been sustainable,” Brown, 16 F.3d at 427
(citation and internal quotation marks omitted), particularly
since potential prejudice to a defendant may be obviated by jury
instructions, see, e.g., Zafiro, 506 U.S. at 539, 540; Schaffer, 362
U.S. at 516; Spriggs, 102 F.3d at 1256.
Carson and Martin’s first point—that there was a risk of
prejudice from the likelihood of evidentiary “spillover” or juror
confusion—fails to account for the district court’s limiting
instructions to the jury. The district court “was acutely aware of
the possibility of prejudice and was strict in his charge.”
Schaffer, 362 U.S. at 516. The court instructed the jury that it
could “not infer that a defendant is guilty of participating in
criminal conduct merely from the fact that he may have been
present at the time and place a crime was being committed,” nor
could the jury “infer that a defendant is guilty of participating in
criminal conduct merely from the fact that he associated with,
was a family member of or lived with other people who were
guilty of wrongdoing.” The court also explained that the jury
“should give separate consideration and render separate verdicts
with respect to each defendant,” and that “[e]ach defendant is
69
entitled to have his guilt or innocence of the crime . . .
determined from his own conduct and from the evidence that
applies to him as if he were being tried alone.” The court further
instructed that “[e]ach offense and the evidence that applies to
it should be considered separately, and you should return
separate verdicts as to each . . . . [T]he fact that you may find a
defendant guilty or not guilty of any one count of the
indictments should not control or influence your verdict with
respect to any other count of the indictments.” As in Zafiro, 506
U.S. at 540-41, and Schaffer, 362 U.S. at 516, these instructions
cured any possible risk of prejudice. See also United States v.
Thompson, 286 F.3d 950, 968 (7th Cir. 2002); Brown, 16 F.3d
at 433. The jury is “presumed to follow [its] instructions.”
Zafiro, 506 U.S. at 540 (quoting Richardson v. Marsh, 481 U.S.
200, 211 (1987)) (internal quotation mark omitted).
Carson and Martin contend that had they been tried
separately, they could have better defended against the
government’s allegations through more effective cross-
examination and impeachment of various witnesses. This is
insufficient under Rule 14 because “it is well settled that
defendants are not entitled to severance merely because they
may have a better chance of acquittal in separate trials.” Zafiro,
506 U.S. at 540; accord Halliman, 923 F.2d at 884. It follows
that Carson and Martin have failed to show a risk of prejudice
that might warrant severance. Without such a showing, their
Rule 14 argument fails.
Martin has an additional argument—that even if the 37th-
Street counts were properly joined, the evidence proved the
existence of multiple conspiracies, rather than the narcotics
conspiracy alleged in the indictment, and that this variance
between the evidence and the indictment requires reversal. See
United States v. Childress, 58 F.3d 693, 709 (D.C. Cir. 1995).
“Variance is grounds for reversal only if [Martin] can show that
the variance is material and that it substantially prejudiced
70
[him], such as by causing the jury to ‘transfer evidence from one
conspiracy to a defendant involved in another.’” United States
v. Graham, 83 F.3d 1466, 1471 (D.C. Cir. 1996) (quoting United
States v. Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988)).
Whether the prosecution has proven a single conspiracy or
multiple conspiracies is a question for the jury. See Tarantino,
846 F.2d at 1391. As such, we must view “the evidence in the
light most favorable” to the government, asking “whether ‘any
rational trier of fact could have found the essential elements of
[conspiracy] beyond a reasonable doubt.’” Graham, 83 F.3d at
1471 (quoting United States v. Washington, 12 F.3d 1128, 1135-
36 (D.C. Cir. 1994)) (alteration in original); see also United
States v. Mathis, 216 F.3d 18, 23 (D.C. Cir. 2000). To evaluate
the evidence relating to the single-versus-multiple-conspiracies
issue, “we look for several factors, including whether
participants shared a common goal . . .; interdependence
between the alleged participants in the conspiracy; and, though
less significant, overlap among alleged participants.” Graham,
83 F.3d at 1471 (citing Tarantino, 846 F.2d at 1393); accord
Mathis, 216 F.3d at 23 (quoting United States v. Gaviria, 116
F.3d 1498, 1533 (D.C. Cir. 1997)).
Martin contends that his activities related to 37th Street
established a “separate and totally unrelated conspiracy” as
opposed to the narcotics conspiracy alleged in the indictment.
Br. of Appellants 161. We disagree. As the government
suggests, Martin attempts artificially to “split one conspiracy
into two based simply on geographic lines.” Br. for Appellee
164. There was sufficient evidence for the jury to conclude that
Martin’s activities were part of a single conspiracy, not separate
ones. Charles Bender testified that 37th Street and those
associated with it were basically an extension of the K-Street
organization. Others so testified. Martin’s assertions that he
was not involved in the charged conspiracy and that he never
worked in tandem with others in selling drugs is contrary to the
evidence, which showed that he frequently sold drugs on K
71
Street and that he participated in the “rotation” system with
other members. That is, he would alternate between selling
marijuana to customers (sometimes by completing a sale for a
coconspirator and handing over the money) and keeping watch
for police and others who could disrupt the conspiracy’s
activities. This was sufficient for the jury to conclude that
Martin had a common goal with the others, that Martin and
others were interdependent, and that the participants overlapped.
See Graham, 83 F.3d at 1471-72. The violent acts connected
with 37th Street also clearly related to the other goals of the
conspiracy, which, as alleged in the indictment, were:
to enrich the members of the conspiracy; to create,
maintain, and control a market place for the distribution
of its controlled substances; to enforce discipline among
members of the conspiracy; to collect monies owed to
members of the conspiracy; to protect the conspiracy and
its members from detection, apprehension and
prosecution by law enforcement; to intimidate and
prevent persons from testifying as witnesses in criminal
prosecutions against members of the conspiracy; to
prevent, thwart, and retaliate against acts of violence
perpetrated by rivals against the conspiracy and its
members; and to promote and enhance the reputation
and standing of the enterprise and its members.
The evidence at trial did not materially vary from the conspiracy
count alleged in the indictment, and so there is no basis to upset
Martin’s convictions.
VII. Rule 804(b)(1)
Appellants next argue that the district court abused its
discretion by refusing to admit into evidence the transcript
testimony of two witnesses who had appeared before a
Maryland grand jury investigating the triple murders of Alonzo
72
Gaskins, Darnell Mack, and Melody Anderson. Appellants
contend that this testimony would have supported their story that
they were not involved with the triple murders. Because this
hearsay testimony was not within the exception for former
testimony, we conclude that the district court did not abuse its
discretion by barring its use at trial.
On December 10, 1996, less than one month after the triple
murders, the State Attorney for Prince George’s County called
Cheree Owens and her fiancé John Pinkney to testify before a
state grand jury investigating the crime. Owens and Pinkney
testified that they lived down the street from the home where the
triple murders were committed. Owens testified that,
approximately two weeks after the triple murders, she overheard
Dennis Green talking on his cell phone while he was visiting in
her home. Owens heard Green say “that they should have came
[sic] around there . . . because [we] just took three people out of
the street.”36 According to Owens, the person with whom Green
was speaking “must have asked him who is ‘we,’” because
Green responded, “me, California, and Free, and the rest of the
guys.” The conversation scared Owens and, after Green left her
home the next day, she told Pinkney what she heard. Pinkney
testified that after Owens told him about this conversation, he
told Green not to return. For reasons not clear from the
testimony, Green became upset with Owens and Pinkney,
threatened them, and tried to extort money from them. Green
told Owens that after he was “ finish[ed] with you all, a whole
lot of” people were “going to wind up dead around here.”
Around the same time that the Maryland grand jury was
hearing from Owens and Pinkney, federal officials were
36
Although the grand jury transcript states that Owens testified
that Green told the person he was speaking with that “me just took
three people out of the street,” the parties agree that this was a
transcription error.
73
beginning to make a connection between the K Street gang and
the triple murders. After the FBI arrested Robert Smith on
December 5, 1996, for selling four pounds of marijuana, Smith
agreed to tell the FBI what he knew about the K Street group
and at some point during his interviews told Special Agent Lisi
that “Shorty and them” committed the “triple.” “Shorty” was
one of Sweeney’s nicknames. Using this information, the
government began to build its case for the appellants’
involvement in the triple murders. On September 18, 1998, a
federal grand jury in the District of Columbia charged Carson,
Sweeney, and Coates with the three murders and other crimes.
The government filed a superceding indictment on March 25,
1999.
After the United States Marshals Service and an investigator
hired by Sweeney’s attorney could not locate Owens and
Pinkney to call them as witnesses during the trial, Sweeney and
Carson moved to admit into evidence the transcript of the
Maryland grand jury testimony of Owens and Pinkney.
Presumably, Sweeney and Carson hoped that the grand jury
testimony would help show that Dennis Green and his associates
committed the triple murders and not them. Sweeney argued
that the grand jury testimony was admissible under Federal Rule
of Evidence 804(b)(1), which allows for an exception to the
hearsay rule for “former testimony” when the declarant is
“unavailable as a witness” and “the party against whom the
testimony is now offered . . . had an opportunity and similar
motive to develop the testimony by . . . examination.”
The government opposed the motion and argued that the
Rule 804(b)(1) exception did not apply because, although
neither Owens nor Pinkney was available as a witness at trial,
the government—the “party against whom the testimony is now
offered”—would not have had a “similar motive to develop the
testimony” of Owens and Pinkney before the Maryland grand
jury as it had at trial. By the time of the trial, the federal
74
prosecutors believed that Owens and Pinkney were falsely
implicating Green in their grand jury testimony. When they
appeared before the grand jury, in the earliest stages of the
investigation into the triple murders, neither the government nor
Maryland “had [any] reason to believe . . . that the witnesses
were falsely implicating Mr. Green.” It was only much later that
the government came “to believe that [it was] being used by
Pinckney [sic] and Owens.” The government explained:
This belief [that Pinkney and Owens were “using” the
government] was based on the fact that Pinckney [sic]
and Owens were given a considerable amount of money
that was to be used for their relocation and was meant to
last several weeks. The pair went through the funds in
a matter of days and then demanded additional funds.
The police also learned that Pinckney [sic] and Owens
owed Dennis Green—the person they implicated in the
triple murder—money for drugs. After investigating
more fully, the police found nothing to corroborate the
stories of Pinckney [sic] and Owens. A short time later,
Pinckney [sic] and Owens seemingly disappeared.
The district court agreed with the government that the
motive of the State’s Attorney to develop the testimony of
Pinkney and Owens before the grand jury and the government’s
motive to develop their testimony at trial were not “similar” and
therefore denied the appellants’ motion.
The appellants challenge this ruling. We review a trial
court’s refusal to admit grand jury testimony of unavailable
witnesses for abuse of discretion, United States v. Miller, 904
F.2d 65, 68 (D.C. Cir. 1990), and find none here. “The hearsay
rule prohibits admission of certain statements made by a
declarant other than while testifying at trial.” United States v.
Salerno, 505 U.S. 317, 320 (1992); see also Fed. R. Evid.
801(c), 802. In certain circumstances, Rule 804(b)(1) allows an
exception to the rule against hearsay for former testimony:
75
“Testimony given [by a declarant] as a witness at another
hearing of the same or a different proceeding” is not “excluded
by the hearsay rule if the declarant is unavailable as a witness”
and “if the party against whom the testimony is now offered . . .
had an opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination.” Both parties agree
that the failure of the Marshals Service and counsel for Sweeney
to locate Owens and Pinkney made them “unavailable” as
witnesses at trial. See Fed. R. Evid. 804(a)(5) (“‘Unavailability
as a witness’ includes situations in which the declarant . . . is
absent from the hearing and the proponent of the statement has
been unable to procure the declarant’s attendance . . . by process
or other reasonable means.”). The only issue, then, is whether
“the party against whom [their] testimony [would be offered] . . .
had an opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination.”
The district court here held that the Rule 804(b)(1) exception
did not apply, stating that “in the absence of an identity of
motive on the part of the government, that testimony is not
admissible.” We agree. Even were it possible to consider the
United States and Maryland a single party for purposes of Rule
804(b)(1), and, as we discuss below, we do not see how they
could be on these facts, the appellants have failed to show how
the motive to develop the testimony of Owens and Pinkney
before the grand jury was similar to the motive to develop their
testimony at trial. Rule 804(b)(1) provides that “the party
against whom the testimony is . . . offered [must have] had an
opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.” Fed. R. Evid. 804(b)(1)
(emphasis added).
In Salerno, 505 U.S. at 321-22, the Supreme Court addressed
this similarity of motive requirement. In that case, seven
defendants were accused of taking part in a criminal
organization that committed fraud in the New York construction
76
industry. The defendants sought to introduce into evidence
potentially exculpatory testimony of grand jury witnesses who
were unavailable to testify at trial. The Court rejected any
presumption that a prosecutor’s motives to develop testimony
before the grand jury and at trial are similar and held that
respondents could not make use of Rule 804(b)(1), unless they
could “demonstrate” that the government, in fact, had a “similar
motive” to develop the testimony in both proceedings. Id. at
325. On remand from the Supreme Court, the Second Circuit
held that district courts are to make “fact-specific” inquiries into
the motives of the prosecution during these different stages of
the investigation and trial. Instead of remanding to the district
court to conduct this inquiry, the Second Circuit conducted this
inquiry itself in order to “avoid further delay” and “because [the
case was an] unusual case in which it [could] be shown beyond
reasonable dispute that the prosecutor had no interest at the
grand jury in proving the falsity of the witnesses’ assertion.”
United States v. DiNapoli, 8 F.3d 909, 915 (2d Cir. 1993) (en
banc). It stated: “If a prosecutor is using the grand jury to
investigate possible crimes and identify possible criminals, it
may be quite unrealistic to characterize the prosecutor as the
‘opponent’ of a witness’s version. At a preliminary stage of an
investigation, the prosecutor is not trying to prove any side of
any issue, but only to develop the facts to determine if an
indictment is warranted.” Id. It therefore held that the
government did not have a similar motive to develop testimony
at these two stages of the litigation. Id.; see also United States
v. Omar, 104 F.3d 519, 523 (1st Cir. 1997) (“In an ordinary trial,
the positions of the parties vis-a-vis a witness are likely to be
clear-cut: the witness is normally presented by one side to
advance its case and cross-examined by the other to discredit the
testimony. . . . Grand juries present a different face. Often, the
government neither aims to discredit the witness nor to vouch
for him. The prosecutor may want to secure a small piece of
evidence as part of an ongoing investigation.”).
77
We agree with our sister Circuits that district courts should
apply a fact-specific inquiry to determine whether prosecutors
had a similar motive to develop the testimony at the grand jury
proceeding as they would have at trial. Battle ex rel. Battle v.
Mem’l Hosp. at Gulfport, 228 F.3d 544, 552 (5th Cir. 2000)
(district courts are to apply fact-specific inquiry when assessing
similar motive); Omar, 104 F.3d at 523 (same); DiNapoli, 8
F.3d at 914 (“Our point is simply that the inquiry as to similar
motive must be fact specific, and the grand jury context will
sometimes, but not invariably, present circumstances that
demonstrate the prosecutor’s lack of a similar motive.”); see
also Salerno, 505 U.S. at 326 (Blackmun, J., concurring) (“the
similar-motive inquiry, in my view, is inherently a factual
inquiry, depending in part on the similarity of the underlying
issues and on the context of the grand jury questioning.”)
(emphasis in original). The district court made this inquiry here
and we hold that it did not abuse its discretion in finding that the
government did not have a “similar motive” to develop the
testimony at these two stages of the prosecution. Like the grand
jury proceedings in DiNapoli and Omar, the purpose of the
Maryland grand jury proceeding was to investigate a crime and
identify possible criminals. The state prosecutor was not
attempting to prove that the appellants were involved in the
triple murders. In fact, we can find nothing in the record that
suggests that Maryland state authorities at this point even
suspected that the appellants were involved. Rather, the state
prosecutor was either examining Owens and Pinkney to see if
they could provide information that would lead to the
perpetrators of the crime or questioning them to make a case for
indicting Green and his associates. If Owens and Pinkney had
been available to testify at trial, the federal prosecutors’ motives
in questioning them would have been entirely different.
Because the witnesses’ testimony tended to exculpate the
appellants, the prosecutor at trial would not have used his time
questioning the two to elicit testimony that might help the
78
appellants. Rather he would have tried to show that the grand
jury testimony of Owens and Pinkney was false.
Our decision in United States v. Miller, 904 F.2d 65, 68
(D.C. Cir. 1990), does not conflict with our holding here. In that
case, we held that the defendants could introduce at trial the
testimony of an unavailable witness who had testified before a
grand jury. Id. at 66. We did not, as the appellants argue here,
establish a blanket rule that grand jury testimony is always
admissible at trial under Rule 804(b)(1). In fact, it was only
after we “examined [the witness’s] grand jury testimony [to see
if] the government’s position in the second proceeding would
differ from the first” and determined that it would not, that we
concluded that the Rule 804(b)(1) exception applied. Id. at 68
n.3. After examining the grand jury testimony of Owens and
Pinkney, we reach the opposite conclusion here. The position
of the United States in the trial was substantially different from
the position of Maryland before the grand jury. We therefore
agree with the district court that there was no similarity of
motive here.
We further note that the district court could have refused to
admit the evidence for a more simple reason—the “party against
whom the testimony is now offered,” the United States, never
“had an opportunity” to “develop the testimony” of Pinkney or
Owens before the Maryland grand jury. Maryland and the
United States are separate sovereigns and, in the absence of
evidence that the United States controlled the Maryland
investigation, they should not be treated as the same party for
purposes of Rule 804(b)(1). Maryland had the opportunity to
develop the testimony of Owens and Pinkney before the grand
jury. The United States did not. In United States v. Peterson,
100 F.3d 7, 12 (2d Cir. 1996), the Second Circuit analyzed
whether New York and the United States should be treated as
the same party under Rule 804(b)(1). In that case, a New York
grand jury had indicted the defendant for firearm possession.
79
The charges were dropped, but a federal grand jury later indicted
the defendant for possession of a firearm by a felon. During his
federal trial, the defendant sought to introduce into evidence his
state grand jury testimony in which he claimed that the firearm
was not his but that an associate handed it to him as police
officers saw him. Id. at 10. At trial, the defendant declined to
testify, invoking his Fifth Amendment privilege against self-
incrimination. He argued that by doing so, he was “unavailable
as a witness” and that his former testimony should be admitted
under Rule 804(b)(1). Id. at 11.
The Second Circuit held that the defendant could not take
advantage of Rule 804(b)(1) by creating his own unavailability,
id. at 13, but addressing the issue before us, held that the
defendant could not use the “former testimony” exception
because the United States was not a party to the state grand jury
proceedings. Id. at 12. The Court relied upon the reasoning in
Heath v. Alabama, 474 U.S. 82, 88-89 (1985), which held that
Alabama and Georgia could each prosecute a defendant for the
same actions without offending the Double Jeopardy Clause of
the Constitution because they were separate sovereigns. Id.
Applying this logic to Rule 804(b)(1), the Second Circuit held
that because New York and the United States were separate
sovereigns they were separate parties for purposes of Rule
804(b)(1). Peterson, 100 F.3d at 12. The opportunity of New
York to develop testimony before the grand jury could not be
charged against the United States. Id. We see no reason why
the district court could not have used the same reasoning to
reach the same conclusion here. Maryland and the United States
are separate sovereigns, and it was Maryland—and not the
United States—that “develop[ed] the testimony” before the state
grand jury.
In unusual circumstances not present here, separate
sovereigns may be treated as one for the purposes of the Rule
804(b)(1) exception. In United States v. Rashed, 234 F.3d 1280,
80
1281 (D.C. Cir. 2000), the defendant was suspected of placing
a bomb on a commercial flight from Tokyo to Honolulu on an
American-owned airline. An international investigation led to
his arrest by authorities in Greece. The United States sought his
extradition, but the Greek authorities refused and prosecuted
him in Greece, where he was convicted and imprisoned in a
Greek jail for eight and a half years. Id. After his release from
prison, the FBI arrested him, and the United States brought its
own charges against him. Id. The defendant argued that the
Double Jeopardy Clause of the Constitution barred his
prosecution because, although Greece and the United States
would typically be considered separate sovereigns, in this
instance, the Greek prosecution was “a sham and a cover for a
federal prosecution.” Id. at 1282. We agreed that the Double
Jeopardy Clause might preclude his prosecution by the United
States if Greece “had been ‘merely a tool of the federal
authorities’ or [if] its prosecution had been ‘a sham and a cover
for a federal prosecution.’” Id. (quoting Bartkus v. Illinois, 359
U.S. 121, 123-24 (1959)). We held, however, that “extensive”
cooperation between the United States and Greece did not make
his Greek trial a cover for a federal prosecution. Id. at 1283.
“[E]xtensive law enforcement and prosecutorial cooperation
between two sovereigns does not make a trial by either a sham.”
Id. at 1284.
That same reasoning applies here. If federal authorities
control the actions of a state prosecutor before the grand jury, it
may well be that the state and the federal governments should
not be considered separate sovereigns for the purposes of Rule
804(b)(1). But here, the appellants have offered no evidence
that the state authorities who directed the testimony before the
Maryland grand jury were in any way controlled or even used by
federal authorities. The only evidence the defendants point to is
testimony from FBI Special Agent Lisi: “We [the FBI] tried to
keep them [the Prince George’s County Police] involved. Their
primary focus was the triple murder. We tried to let them know
81
everything we [had] on the triple murder.” This showing falls
far short of the mark we set in Rashed. It fails to suggest federal
control over the Maryland prosecutor and providing information
to Maryland authorities does not of itself turn the state grand
jury proceeding into a “tool” for federal authorities.
VIII. Sentencing
Finally, we turn to the appellants’ challenges to their
sentences under United States v. Booker, 543 U.S. 220 (2005),
and United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005).
Appellants argue that the district court erred under Booker when
it imposed their sentences and that our decision in Coles requires
us to remand their case to the district court because, they assert,
the record is insufficient to determine if the district court’s
errors were prejudicial. We conclude that a remand is not
required and affirm each appellant’s sentence.
The district court sentenced the appellants to lengthy terms
of imprisonment. Each received at least a life sentence, which,
for some appellants, was mandated by statute apart from the
United States Sentencing Guidelines (“Guidelines”). Each also
received consecutive sentences beyond life imprisonment, some
again mandated by statute but others set at the trial court’s
discretion. All together, Carson received a life sentence
followed by 220 years of consecutive time, 85 years of which
were mandated by statute.37 Both Sweeney and Coates received
37
The district court sentenced Carson to concurrent life sentences
for each of the federal offenses: narcotics conspiracy, RICO
conspiracy, attempted murder in aid of racketeering, and four counts
of murder in aid of racketeering. It also imposed, consecutively, a
statutorily-mandated 5-year sentence for the federal offense of use of
a firearm during and in relation to attempted murder and 20 years each
on four additional counts of use of a firearm during and in relation to
murder. Finally, the district court imposed consecutive sentences for
each of the D.C. offenses for which he was convicted: 20-years-to-life
82
a life sentence followed by 85 years of statutorily-mandated
consecutive time.38 Hill initially received two consecutive life
sentences. After the district court determined, however, that the
Guidelines did not allow consecutive life sentences on federal
counts, Hill received a life sentence followed by a consecutive
sentence of 20-years-to-life.39 Martin received a life sentence
for each of five counts of first degree murder while armed, 30-years-
to-life on a sixth count of first degree murder while armed, and 5 years
on assault with intent to kill while armed.
38
Sweeney received concurrent life sentences for each of the
federal offenses: narcotics conspiracy, RICO conspiracy, and four
counts of murder in aid of racketeering. Likewise, Coates received
concurrent life sentences for each federal offense of narcotics
conspiracy, RICO conspiracy, and three counts of murder in aid of
racketeering. Each also received a 20-year concurrent sentence for the
federal offense of attempted murder in aid of racketeering, as well as
a statutorily-mandated 5-year consecutive sentence for the federal
offense of use of a firearm during and in relation to attempted murder,
and 20 years each on four additional counts of use of a firearm during
and in relation to murder.
39
The district court sentenced Hill to consecutive life sentences
for the federal offense of narcotics conspiracy and RICO conspiracy.
It also sentenced Hill to a concurrent term of 20-years-to-life for the
D.C. offense of first degree murder and an 80-year concurrent
sentence for 16 counts of the federal offense of possession with intent
to distribute marijuana. Joint Appendix at 3897-98. After
determining that the Guidelines did not allow consecutive life
sentences on federal counts, the court imposed concurrent life
sentences for the narcotics and RICO conspiracies, and then a 20 year
to life sentence for the D.C. offense of first degree murder to run
consecutively to federal life sentences. Finally, the district court
imposed an 80 year concurrent sentence for sixteen federal counts of
possession with intent to distribute marijuana.
83
followed by 28-years-to-life of consecutive time, 5 years of
which were mandated by federal statute.40
In setting these sentences, the district court treated the
Guidelines as mandatory. It made no statements regarding what
it might have done were the Guidelines only advisory, nor did
it provide alternative sentences. None of the appellants
objected. At issue before us is whether the district court’s
sentencing of the appellants is consistent with United States v.
Booker, 543 U.S. 220 (2005), and this Court’s subsequent
application of Booker.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court, concerned about legislative attempts to restrict
a trial court’s discretion in sentencing through the mandated use
of judicial fact finding to enhance sentences, held that the Sixth
Amendment right to trial by a jury requires that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Id.
at 480. Booker applied that rule to the United States Sentencing
Guidelines that had governed sentencing in the federal courts
since 1987 and invalidated those provisions of the Sentencing
Reform Act, 18 U.S.C. §§ 991-998, 3551-3626, that required a
trial court, acting pursuant to the Guidelines, to fix a sentence
that goes beyond the maximum sentence authorized by the facts
40
The district court sentenced Martin to concurrent life sentences
for the narcotics conspiracy and RICO conspiracy, 15 years for
distribution of marijuana, and 5 years for possession with intent to
distribute marijuana. It also imposed a statutorily-mandated 5-year
consecutive sentence for the federal offense of use of a firearm during
and in relation to murder. Finally, the district court imposed
consecutive sentences for each D.C. offense for which he was
convicted: 20-years-to-life for first degree armed robbery and 40 to
120 months for assault of a police officer with a weapon.
84
“admitted by the defendant or proved to a jury beyond a
reasonable doubt.” 543 U.S. at 244, 260. As a result, the
Guidelines are no longer mandatory and are “effectively
advisory.” Id. at 245, 265.
The government acknowledges that the district court applied
the Guidelines to the appellants as if they were mandatory. That
is error under Booker. See Coles, 403 F.3d at 767 (the district
court’s application of “the Guidelines on the assumption that
they were mandatory . . . was [an] error.”)
We have distinguished between those misapplications of the
Guidelines in which a sentencing court increases a “sentence
beyond the maximum that could have been imposed based
solely on the facts reflected in the jury verdict,” which, because
they violate the Sixth Amendment are constitutional Booker
errors, and those cases in which the court’s error was only the
mandatory, as opposed to advisory, treatment of the Guidelines.
See United States v. Simpson, 430 F.3d 1177, 1182-83 (D.C. Cir.
2005). We call these latter errors non-constitutional Booker
errors, and that is the type of post-Booker sentencing mistake
asserted by appellants. Because the appellants did not preserve
their challenge to this error before the trial court, we review the
district court’s decision under the plain error standard set forth
in Coles. Applying this standard, we must determine whether
the district court’s error affected the defendant’s “substantial
rights in a material way.” 403 F.3d at 767.41 In making this
assessment, “we must determine whether there would have been
a materially different result, more favorable to the defendant,
41
In United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir.
2005), we held that preserved constitutional Booker errors are
reviewed for harmless error “beyond a reasonable doubt.” In such
cases, the government has the burden of showing that the error was
harmless. Id.
85
had the sentence been imposed in accordance with the
post-Booker sentencing regime.” Id.
In Coles, we contemplated three potential outcomes of this
review. First, “there undoubtedly will be some cases in which
a reviewing court will be confident that a defendant has suffered
no prejudice” such as where the judge imposes a “sentence at
the statutory maximum and [states] that if he could he would
have imposed an even longer sentence.” Id. at 769 (citation
omitted). In those cases, we affirm the sentence. Second, “there
will be some cases in which we are confident that the defendant
suffered prejudice [such as] where the . . . judge indicated on the
record that, but for the Guidelines, she would have imposed a
lower sentence.” Id. In those cases, we remand for full
resentencing.42 Third, as was the case in Coles, there will be
cases where “the record simply is not sufficient for an appellate
court to determinate prejudice with any confidence.” Id. In
those cases, we undertake the now-familiar Coles remand:
[W]e conclude that, because the record is insufficient
to determine whether the error was prejudicial, we will
remand the record to the District Court so that it may
determine whether it would have imposed a different
sentence materially more favorable to the defendant
had it been fully aware of the post-Booker sentencing
regime. In making this determination, the District
Court need not determine what that sentence would
have been. And while the District Court should obtain
the views of counsel, at least in writing, [it] need not
require the presence of the Defendant.
42
We recently clarified this standard in United States v. Gomez
and held that “if the record establishes a reasonable likelihood that the
sentence would have been lower, we remand for full resentencing.”
431 F.3d 818, 824 (D.C. Cir. 2005) (emphasis added).
86
Id. at 770 (citations and quotation marks omitted).43
The purpose of a Coles remand is to determine whether a
trial court’s non-constitutional Booker error affected a
defendant’s substantial rights. Id. at 767. As the Seventh
Circuit stated, in language we relied upon in Coles: “The only
practical way (and it happens also to be the shortest, the easiest,
the quickest, and the surest way) to determine whether the kind
of plain error argued in these cases has actually occurred is to
ask the district judge.” United States v. Paladino, 401 F.3d 471,
483 (7th Cir. 2005) (quoted in Coles, 403 F.3d at 770).
Appellants’ central argument is that the “record of [their]
sentencing proceeding is the paradigm case for a remand for
redetermination because of its lack of clarity regarding the effect
of a mandatory sentencing scheme on the decision of the district
judge.” We disagree. No remand is needed for Carson, Coates,
and Sweeney because the Violent Crime in Aid of Racketeering
statute (VICAR), 18 U.S.C. § 1959(a)(1), and not the
Guidelines, mandates that each of them receives a life sentence
for their convictions. Booker cannot help them. They would not
receive a “materially different” and “more favorable” sentence
after Booker. See Coles, 403 F.3d at 767. Likewise, we
conclude that no remand is needed for Martin and Hill because
the district court used its discretion to lengthen their terms of
imprisonment beyond what was mandated by the Guidelines.
We are thus confident that Martin and Hill would not have
43
Appellants argue that our “Coles decision is in error and that the
rule followed by the Fourth Circuit in [United States v. Hughes, 401
F.3d 540 (4th Cir. 2005) (on reh’g)] (of automatic remand) is the
proper rule.” That argument is misplaced because we are, of course,
bound to follow circuit precedent absent contrary authority from an en
banc court or the Supreme Court. See Brewster v. Commissioner, 607
F.2d 1369, 1373 (D.C. Cir. 1979).
87
received a more favorable sentence from the district court under
Booker.
A. Samuel Carson, William Sweeney, Sean Coates.
No review of the record on remand is needed to know with
certainty that Carson, Coates, and Sweeney would not have
received materially different and more favorable sentences
under Booker than those imposed by the trial court before
Booker. VICAR itself imposes a mandatory life sentence quite
apart from anything required by the Guidelines. See 18 U.S.C.
§ 1959(a)(1).44 The district court, ruling before Booker,
mistakenly applied the Guidelines as if they were mandatory and
44
Section 1959 provides:
(a) Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of
pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in
racketeering activity, murders, kidnaps, maims, assaults with
a dangerous weapon, commits assault resulting in serious
bodily injury upon, or threatens to commit a crime of violence
against any individual in violation of the laws of any State or
the United States, or attempts or conspires so to do, shall be
punished—
(1) for murder, by death or life imprisonment, or a
fine under this title, or both[.]
18 U.S.C.A. § 1959 (emphasis added). We, like the Second Circuit,
reach the common sense conclusion that the VICAR statute does not
permit a fine to be levied in lieu of imprisonment or death. See United
States v. James, 239 F.3d 120, 127 (2d Cir. 2000) (“We see no basis
for concluding that Congress intended the unlikely result that . . . a
judge was free to reject a death sentence or life imprisonment for a
defendant convicted under 18 U.S.C. § 1959(a)(1), but only by
sentencing that defendant to a fine without prison time.”).
88
sentenced Carson, Coates, and Sweeney each to multiple
concurrent life sentences for their convictions of murder in the
aid of racketeering. That was a mistake without consequence.
No remand is needed because its inevitable outcome would be
the imposition (again) of life sentences, only this time required
by the mandatory language of VICAR instead of the Guidelines.
See id.
Under Coles, a remand is inappropriate in those cases in
which a statute requires the imposition of a sentence that is not
materially different and more favorable than the sentence
announced by the trial court under a mistakenly mandatory
application of the Guidelines. “In assessing whether a district
court committed prejudicial error under Booker, an appellate
court must determine what the sentencing court would have
done had it not committed the error.” Coles, 403 F.3d at 768.
Here, had the district court not erred by treating the Guidelines
as mandatory, it would have still been without discretion to do
anything other than impose a life sentence on each of the
appellants under VICAR. Because we are “confident that the
sentence would not have been lower” for Carson, Coates, or
Sweeney, we affirm their sentences without remand. See
Gomez, 431 F.3d at 824.45
B. Vincent Hill and Jerome Martin.
No remand is needed for Hill and Martin either. The district
court, again applying the Guidelines as if they were mandatory,
sentenced Hill and Martin to life sentences for their federal
convictions. When it came to sentencing the two for their D.C.
45
Coates made two other arguments attacking his sentence: (1) the
district court erred in preventing him from presenting factors outside
the Sentencing Guidelines; and (2) the district court mistakenly
enhanced his sentence based on judge-found facts. Because any
sentencing court would be required to impose a life sentence under
VICAR, these arguments also fail.
89
convictions, the district court had discretion to impose sentences
either concurrent with or consecutive to the life sentences for
their federal convictions. The district court exercised its
discretion and chose the more severe option that added
consecutive sentences onto their life terms. That choice makes
us confident that Hill and Martin would have fared no better had
the district court viewed the Guidelines as only advisory. A
mandatory application of the Guidelines, though mistaken, does
not, by itself, trigger a Coles remand. The touchstone of our
analysis is whether we can, from the record, confidently predict
what the trial court would have done under Booker. Our
decision in United States v. Smith, 401 F.3d 497 (D.C. Cir.
2005), is instructive.
In United States v. Smith, the trial court, treating the
Guidelines as mandatory, twice exercised its discretion to make
an upward departure to impose a prison term that exceeded what
the Guidelines called for.46 Id. at 499. The case reached us on
a Booker challenge to the mandatory use of the Guidelines. We
held that although the trial court erred, there was no need to
remand the case for resentencing because the two discretionary
upward departures made us confident that the trial court was not
compelled by the Guidelines to impose a sentence more severe
than its independent judgment would have determined most
appropriate in a world governed by Booker. Id. If anything, the
mandatory guidelines seemed to have placed a cap on the
defendant’s sentence. We are confident that had the trial court
acted under Booker, the defendant’s sentence would have been
46
The district judge initially imposed a sentence of 46 months by
departing upwards from the Guidelines sentence. Id. at 498-99. That
decision was vacated and the case remanded on grounds other than
Booker. Id. The district judge then imposed a sentence of 21 months
after departing upwards a second time. Id. It was upon appeal of this
sentence that the defendant raised the Booker challenge to his sentence
that led to our decision in Smith.
90
at least as severe as it was before Booker. Where the record
supports that confidence, there is no need for a Coles remand.
Like the upward departures in Smith, the district court’s
decision to impose consecutive sentences for Hill and Martin
tacked on to the sentences they had already received convinces
us that they were not prejudiced by the court’s mistaken view of
the Guidelines. Id. “[C]onfident that the sentence would not
have been lower” for either Hill or Martin in a post-Booker
sentencing regime, we affirm their sentences. See Gomez, 431
F.3d at 832.47
For the foregoing reasons, we affirm all of the appellants’
convictions and the sentences imposed therefor.48
So ordered.
47
Because we affirm Hill’s sentence for his first degree murder
convictions, we need not address his constitutional Booker challenge
to his other convictions. The sentences for those convictions run
concurrent to his life sentence, thus no prejudice would result from a
constitutional Booker error by the district court. See Coles, 403 F.3d
at 767.
48
We summarily affirm the district court as to any issue not
specifically addressed in this opinion.