United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2011 Decided January 6, 2012
No. 07-3106
UNITED STATES OF AMERICA,
APPELLEE
v.
LARRY A. GOOCH, JR.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00128-23)
Stephen C. Leckar, appointed by the court, argued the cause
and filed the briefs for appellant.
Elizabeth Gabriel, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, U.S. Attorney, and Roy W. McLeese III, Mary B.
McCord, and John P. Dominguez, Assistant U.S. Attorneys.
Before: GINSBURG,* Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
*
As of the date the opinion was published, Judge Ginsburg
had taken senior status.
2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant, Larry Gooch,
was tried for various crimes arising from his involvement in the
“M Street Crew,” a gang in Washington, D.C. By jury verdict
returned on June 1, 2007, Appellant “was found guilty of a
narcotics conspiracy, participation in a Racketeer Influenced
Corrupt Organization (‘RICO’), drug dealing, four felony
murders, assault with intent to kill while armed, assault on a
police officer, three violent crimes in aid of racketeering activity
(‘VICAR’), and various gun charges.” United States v. Gooch,
514 F. Supp. 2d 63, 64 (D.D.C. 2007).
On appeal, Appellant advances several claims as grounds
for reversal. First, he contends that the District Court clearly
and plainly erred in allowing the Government to use peremptory
challenges to remove qualified blacks from the venire, in
violation of Batson v. Kentucky, 476 U.S. 79 (1986). Second, he
argues that the District Court erred, under Rule 8 of the Federal
Rules of Criminal Procedure, in rejecting his challenge to the
joinder of local and federal charges stemming from the murders
in August 2000 of William Cunningham and Christopher Lane.
Third, he asserts that the District Court erred, under Rule 14 of
the Federal Rules of Criminal Procedure, in denying his motion
for severance of counts relating to the Cunningham/Lane
incident, as well as his motion to vacate judgment as to the
Cunningham/Lane incident. Finally, he maintains that the
District Court erred in denying his motion for judgment of
acquittal on two counts of murder pursuant to the VICAR
statute, 18 U.S.C. § 1959 (2006), arising from the murders of
Calvin Cooper and Yolanda Miller. Because we find no
reversible error, we reject Appellant’s claims and affirm the
judgment of the District Court.
3
I. BACKGROUND
For nearly two years, the Federal Bureau of Investigation
and the Metropolitan Police Department conducted a series of
undercover and surveillance operations in the Northeast area of
Washington, D.C. These law enforcement operations focused
on a gang known by its location as the M Street Crew. In March
2004, law enforcement officials executed a massive “take down”
of the organization. Gooch, along with more than thirty other
persons, was arrested. In October 2005, Gooch and eighteen
others were charged in an 159-count indictment with various
narcotics conspiracy, racketeering conspiracy, murder, narcotics
trafficking, and weapons crimes. The charged parties were
divided into three groups for trial. Gooch was in a group that
included Tommie Dorsey, Jonte Robinson, and Kenneth Dodd.
A superseding indictment was filed on October 19, 2005.
Charges arising from the Cunningham/Lane murders were
joined in the indictment. Offenses related to the murders were
charged as substantive offenses under the D.C. Code.
Superseding Indictment, App. to Appellant’s Br., Vol. IB (“App.
IB”) at 57–63. They were also charged as overt acts in
furtherance of the narcotics and RICO conspiracies. Id. at
14–15, 40.
Jury selection began in January 2007. The record leaves the
matter unclear on this point, but it seems that the jury pool
included either sixty-four or seventy-four people, half of whom
were black. See Tr. of Batson Hearing, Feb. 5, 2007 (“Tr.
2/5/07”), App. to Appellant’s Br. Vol. IIB (“App. IIB”) at
1022–23. During voir dire, the Government appears to have
struck sixteen blacks, five whites, and one Latino from the jury
pool. Appellee’s Br. at 18–19. A jury of eighteen, including six
alternates, was chosen. The jury consisted of eight whites, eight
blacks, one Asian, and one Latino. Id. at 19. On February 5,
after the jury had been selected, Gooch raised a Batson
challenge, claiming that the Government disproportionately used
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its peremptory strikes to remove black persons from the jury
pool. The District Court asked the Government to articulate
reasons for its strikes of black females from the pool of persons
available for jury duty. The Government responded by offering
explanations for each of its peremptory challenges.
Gooch challenged the Government’s explanations with
respect to Jurors 408, 854, and 1940. The District Court denied
his challenges, finding that the Government had “fully explained
in a race neutral way each of its strikes.” Tr. 2/5/07 at 1029.
Counsel for Gooch then requested leave to raise “similarly
situated” objections, indicating that he would like time to
perform a comparative analysis of stricken black jurors with
those who remained in the jury pool and that he would do so that
night. The trial judge granted Appellant’s request but instructed
counsel to be prompt if he intended to raise any similarly
situated objections. Gooch’s counsel never raised the issue
again, so it was not among the Batson claims raised by
Appellant with the District Court.
On January 17, 2007, after the jury had been selected but
before trial, Dodd, Robinson, and Dorsey each entered plea
agreements and were no longer co-defendants. Docket, App. to
Appellant’s Br., Vol. IA at 149. Gooch proceeded to trial as the
sole defendant.
Trial began on February 7, 2007. The evidence adduced at
trial documented Gooch’s role in the gang and implicated him
in two double homicides. Gang members coordinated their
drug-dealing efforts, cooperated with one another to avoid arrest
and imprisonment, and maintained a reputation for violence.
The evidence at trial further established that Gooch served as the
“muscle” for the M Street Crew, enforcing the gang’s rules,
engaging in violence, and punishing disloyalty to the gang.
During trial, a great deal of testimony centered on the
August 1, 2000 robbery and murders of Cunningham and Lane.
5
Herbert Jones (“Jones”), the uncle of Bonita Jones (who was the
mother of Gooch’s child), asked Gooch to rob Cunningham and
Elijah Walker. Jones had heard that Cunningham and Walker
planned to rob him, and he wanted to take preemptive action
against his adversaries. Gooch, along with fellow M Street
Crew members Dorsey and Robinson, picked up Jones in
Gooch’s car. After they arrived at the place where Cunningham
lived, Gooch, Jones, and Dorsey went to the residence while
Robinson waited at the car. When Cunningham came to the
door, Gooch pulled out a gun and told Cunningham to get on the
floor. Cunningham refused and tried to grab the gun. But
Gooch turned Cunningham around and shot him in the head.
Dorsey then shot Lane, who was also in the residence.
After the murders, Robinson entered the residence and stole
money from the bedroom, where Jones instructed him that he
could find it. Gooch, in turn, took crack cocaine from
Cunningham’s dining room table. The next day, Gooch
attempted to give Jones some of the money from the heist, but
Jones refused. Gooch later discussed the incident with Michael
Abney and Carleton Wills, who were either members or
associates of the M Street Crew.
The Government charged the August 1, 2000
Cunningham/Lane incidents (burglary, robbery, and murder) as
substantive offenses under the D.C. Code, as well as overt acts
in furtherance of both the narcotics and RICO conspiracies. In
a pre-trial motion, Appellant claimed misjoinder under Rule 8 of
the Federal Rules of Criminal Procedure and sought severance of
these charges on the grounds that the Cunningham/Lane
incidents had no connection to the larger narcotics and RICO
conspiracies. The District Court denied Gooch’s motion.
In the course of the trial, the Government also presented
evidence on the February 21, 2003 murders of Cooper and
Miller. Apparently, the “word on the street” was that Cooper
and Miller were “snitching” and “stealing stashes.” Trial Tr.,
6
March 27 p.m., 2007 (“3/27/07 p.m.”), App. for Appellee at 58.
Miller even admitted to stealing stashes. Trial Tr., Mar. 22 p.m.,
2007 at 66–67, 69. On the night of the murders, Wills heard
gunshots and witnessed both Gooch and Cooper running out of
an alley onto 17th Street, N.E. Cooper fell to the ground, but
Gooch kept running and disappeared between two buildings.
Officer Keith McAbee also saw two men coming out of the alley.
Officer Duane Davis saw Cooper near the alley and Gooch
running from the scene. Davis testified that he recognized
Gooch, because he had spoken to Gooch in the same alley earlier
that day. Later that night, Gooch told Wills that he had shot
Cooper. Two days after that, Gooch again spoke to Wills,
expressing concern that Cooper had uttered Gooch’s name before
dying and that the police had found the murder weapon. Gooch
also told Abney that he had murdered Cooper and Miller; at trial,
Abney offered details from that conversation which corroborated
Wills’s and Davis’s testimony. The gun was found near the
crime scene, and law enforcement officials retrieved a fingerprint
from the gun that implicated Gooch.
On June 1, 2007, the jury convicted Gooch on a variety of
charges, including narcotics conspiracy, RICO conspiracy,
burglary, felony murder, first- and second-degree murder,
assault, various narcotics and weapons offenses, and the VICAR
counts arising from the Cooper/Miller murders. On August 10,
2007, after the jury returned its verdict, Appellant filed a Motion
to Vacate the Judgment of Guilt, which was opposed by the
Government. Gooch, 514 F. Supp. 2d at 64. On September 11,
2007, the District Court issued an order denying Appellant’s
motion. Id. Appellant’s motion argued that “‘no evidence
connected the Cunningham–Lane crimes and the other alleged
crimes’ other than the commonality of participants,” id. at 65
(citation omitted), and, therefore, the local and federal claims
were misjoined and should have been severed pursuant to Rule
14 of the Federal Rules of Criminal Procedure. Id. at 65–66.
The District Court rejected these contentions, id., and fully
7
explained its denial of Appellant’s Motion to Vacate the
Judgment of Guilt, id. at 64–70.
In his appeal before this court, Gooch raises four grounds for
reversal:
1) The prosecutors engaged in structural error by using their
peremptory challenges to remove well-qualified Blacks
from the venire. The Government used the vast majority of
its strikes – 16 of 22 – to remove minorities under pretextual
reasons. When its proffered reasons for striking many of
these African-Americans (not all, to be sure) are examined,
its explanations collapse. These discrepancies proved true
both for those prospective jurors whom the defense timely
challenged, as well as those whom it failed to challenge,
which latter group is analyzed under a plain error standard
of review.
2) The local and federal charges stemming from the
Cunningham-Lane robbery and murders of August 2000
were misjoined under Rule [8], F. R. Crim. P., and D.C.
Code, § 11-502(3). This event was not related to M Street:
it occurred across town and the Crew didn’t engage in
crimes-for-hire. The fact that two of Gooch’s friends helped
did not transform this isolated episode into an act in
furtherance of the charged conspiracies. Inclusion of these
charges, which were the focus of the last seven days of the
Government’s case, exposed the jury to extraneous evidence
of violence that bore no relationship to the core federal
offenses. That exerted a powerful subliminal effect on the
jury’s ability to compartmentalize the evidence.
3) The district judge’s failure to sever the Cunningham-Lane
charges [under Rule 14, F. R. Crim. P.] was an abuse of
discretion. These charges were not part of a common
scheme or plan. Their retention prejudiced Gooch’s defense
for the same reasons as the misjoinder claim.
8
4) The trial court erred in failing to grant Gooch’s motion
made at the conclusion of the Government’s case in chief
for acquittal of the VICAR charges for the murders of Ms.
Miller and Mr. Cooper. There was no evidence that he shot
them to gain entrance to the Crew or maintain a reputation
or to retaliate against the victims.
Appellant’s Br. at 8–9. We deal with each of these claims in turn
in the following Analysis.
II. ANALYSIS
A. Standard of Review
Batson challenges. In the District Court, Gooch asserted
Batson challenges to the Government’s strikes of several jurors.
The Government then offered an explanation for each of its
strikes. Gooch unsuccessfully challenged the Government’s
explanations for the peremptory strikes of Jurors 408, 854, and
1940. On appeal, he presses his challenges to the Government’s
peremptory strikes of Jurors 408 and 854, but no longer
challenges the strike of Juror 1940. We review the District
Court’s denial of Gooch’s preserved Batson challenges of the
Government’s peremptory strikes of Jurors 408 and 854 under
the clearly erroneous standard. See Snyder v. Louisiana, 552
U.S. 472, 477 (2008) (“[A] trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is clearly
erroneous.” (citations omitted)).
For the first time on appeal, Gooch asserts that, with respect
to the views of Jurors 408, 854, 449, 1891, 3126, and 3400, the
prosecutor failed to strike similarly situated white venire
members. Appellant also challenges for the first time on appeal
the Government’s explanations for striking Jurors 449, 1891,
2556, 2713, 3126, 3172, and 3400. Because he did not raise and
preserve these objections before the District Court, we review
only for plain error. See United States v. Moore, 651 F.3d 30, 43
(D.C. Cir. 2011) (per curiam) (holding that where “the defense
9
did not object to the prosecution’s strike of . . . prospective
jurors[, t]he district court’s rulings on the[] strikes
are . . . reviewed only for plain error” (citing United States v.
Charlton, 600 F.3d 43, 50 (1st Cir. 2010)).
Joinder. We review the joinder of the counts arising from
the Cunningham/Lane murders de novo. See United States v.
Halliman, 923 F.2d 873, 882 (D.C. Cir. 1991). Joinder under
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. 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.
Carson, 455 F.3d 336, 372 (D.C. Cir. 2006) (per curiam)
(alteration in original) (citations omitted) (internal quotation
marks omitted). “The government need only allege the facts
necessary to sustain joinder, not prove them.” Id. at 372 n.32
(citations omitted) (internal quotation marks omitted).
Rule 8 includes two parts, and it states:
(a) Joinder of Offenses. The indictment or information may
charge a defendant in separate counts with 2 or more
offenses if the offenses charged – whether felonies or
misdemeanors or both – are of the same or similar character,
or are based on the same act or transaction, or are connected
with or constitute parts of a common scheme or plan.
(b) Joinder of Defendants. The indictment or information
may charge 2 or more defendants if they are alleged to 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. “The major distinction between subdivisions
(a) and (b) lies in their treatment of offenses ‘of the same or
10
similar character.’ As long as only one defendant is concerned,
Rule 8(a) permits joinder of such offenses, even if they are
entirely unrelated to each other. On the other hand, in the
multiple defendant context, Rule 8(b) forbids joinder, even of
identical crimes, unless those crimes are part of ‘the same series
of acts or transactions.’” United States v. Jackson, 562 F.2d 789,
796 (D.C. Cir. 1977); see also United States v. Perry, 731 F.2d
985, 990 (D.C. Cir. 1984).
The parties have mistakenly suggested that Rule 8(b)
governs here, summarily citing our case law holding that Rule
8(b), not Rule 8(a), applies where both multiple offenses and
multiple defendants are involved. See Appellant’s Br. at 65
(citing United States v. Nicely, 922 F.2d 850, 853–55 (D.C. Cir.
1991)); Appellee’s Br. at 57 (citing United States v. Brown, 16
F.3d 423, 425 (D.C. Cir. 1994)). These cases are inapposite,
however, because they involve situations in which co-defendants
were tried together. A defendant’s Rule 8(b) claim is effectively
mooted when, as here, the co-defendants all plead guilty or are
otherwise dropped from the case before trial. See, e.g., United
States v. Treadwell, 566 F. Supp. 80, 86 (D.D.C. 1983) (“Rule
8(b) applies to cases involving multiple defendants and offenses.
In that defendant Treadwell is the only defendant yet facing
charges in the instant case, Rule 8(b) is inapplicable.”).
Appellant’s claim of misjoinder of defendants was effectively
resolved when his co-defendants pled guilty before the trial. The
only issue before the court, therefore, is whether the joinder of
offenses was proper. That is an issue that is analyzed under Rule
8(a).
“Rule 8 has generally been construed liberally in favor of
joinder.” United States v. Richardson, 161 F.3d 728, 733 (D.C.
Cir. 1998). And a misjoinder under Rule 8 is subject to the
harmless error rule. See United States v. Lane, 474 U.S. 438,
449 & n.12 (1986) (discussing Rule 8(b)). “However, joinder
under Rule 8 is not infinitely malleable: it cannot be stretched to
11
cover offenses . . . which are discrete and dissimilar and which
do not constitute parts of a common scheme or plan.”
Richardson, 161 F.3d at 733. Moreover, the District Court lacks
jurisdiction altogether over D.C. Code offenses if they are not
properly joined with federal offenses. See id. at 733–34.
Severance. We review the District Court’s denial of
Gooch’s motion to sever under Rule 14 of the Federal Rules of
Criminal Procedure for an abuse of discretion. See Carson, 455
F.3d at 373 (noting that “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” (alteration in original) (citations
omitted)). 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). The defendant carries the burden of demonstrating
prejudice resulting from a failure to sever, Carson, 455 F.3d at
374, but such a showing does not result in an automatic grant of
the motion, see Lane, 474 U.S. at 450 n.12 (“The first hurdle in
obtaining a severance under Rule 14 is a showing of prejudice,
and if shown, it remains in the district court’s discretion whether
to grant the motion.”). Severance is proper “only if there is a
serious risk that a joint trial would . . . prevent the jury from
making a reliable judgment about guilt or innocence.” Zafiro v.
United States, 506 U.S. 534, 539 (1993) (discussing Rule 8(b)).
Motion for Acquittal. Finally, we review the denial of
Gooch’s motion for acquittal of his VICAR convictions de novo.
See United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001).
The court must determine whether the evidence, considered in
the light most favorable to the Government, is “sufficient to
permit a rational trier of fact to find all of the essential elements
of the crime beyond a reasonable doubt.” Id. (citations omitted).
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B. Appellant’s Batson Challenges
A Batson challenge is premised on the principle that
“[p]urposeful racial discrimination in selection of the venire
violates a defendant’s right to equal protection because it denies
him the protection that a trial by jury is intended to secure.”
Batson, 476 U.S. at 86. Race-based exclusion also harms the
community at large by undermining confidence in the judicial
system, id. at 87, as well as the jurors themselves by precluding
their participation in the administration of justice, thereby
“foreclos[ing] a significant opportunity to participate in civic
life,” Powers v. Ohio, 499 U.S. 400, 409 (1991).
The pursuit of a Batson challenge typically proceeds in three
steps. First, the defendant must make a prima facie showing that
a peremptory challenge was exercised on the basis of race.
Snyder, 552 U.S. at 476. Second, if that showing is made, the
prosecution must respond with a race-neutral basis for the strike.
Id. at 476–77. Third, the trial court must determine whether the
defendant has shown purposeful discrimination. Id. at 477.
Once the prosecution has offered a race-neutral explanation and
the trial court has ruled, the issue of the prima facie showing
becomes moot. Hernandez v. New York, 500 U.S. 352, 359
(1991) (plurality opinion).
The Supreme Court has made it clear that appellate review
of the trial court’s findings is limited.
On appeal, a trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is clearly
erroneous. The trial court has a pivotal role in evaluating
Batson claims. Step three of the Batson inquiry involves an
evaluation of the prosecutor’s credibility, and the best
evidence [of discriminatory intent] often will be the
demeanor of the attorney who exercises the challenge. In
addition, race-neutral reasons for peremptory challenges
often invoke a juror’s demeanor (e.g., nervousness,
13
inattention), making the trial court’s firsthand observations
of even greater importance. In this situation, the trial court
must evaluate not only whether the prosecutor’s demeanor
belies a discriminatory intent, but also whether the juror’s
demeanor can credibly be said to have exhibited the basis
for the strike attributed to the juror by the prosecutor. We
have recognized that these determinations of credibility and
demeanor lie peculiarly within a trial judge’s province, and
we have stated that in the absence of exceptional
circumstances, we would defer to [the trial court].
Snyder, 552 U.S. at 477 (alterations in original) (citations
omitted) (internal quotation marks omitted).
There are no exceptional circumstances requiring reversal
here. Appellant argues that the prosecution engaged in a pattern
of race-based peremptory challenges, Appellant’s Br. at 10, and
that the District Court’s finding to the contrary was clearly
erroneous. Appellant points out that “the aggregate
discrepancies in [the prosecution’s] strikes of Blacks compared
with Caucasians suggest that something was skewed. The
64-member jury pool was divided equally on racial lines. Yet
the Government used 16 of its 22 strikes (73%[]) against
African-Americans and other minorities and 6 against
Caucasians.” Id. at 15 (footnote omitted). It is true, as Appellant
points out, that “[d]iscriminatory purpose may be inferred from
a disproportionate ‘challenge rate,’ when a party exercises a
disproportionate share of its total peremptory strikes against
members of a cognizable racial group compared to the
percentage of that racial group in the venire.” Id. at 15 n.28
(citations omitted). But a Batson analysis requires consideration
of “all of the circumstances that bear upon the issue of racial
animosity,” Snyder, 552 U.S. at 478 (citation omitted), and the
statistics offered by Appellant do not paint a complete picture.
While the ratio of black jurors stricken by the prosecution to
total jurors stricken by the prosecution (16:22) is conspicuous,
14
the ratio of stricken black jurors to total potential black jurors in
the venire (16:32 or 16:37) is not as dramatic. And of the
eighteen sitting and alternate jurors ultimately selected from a
jury pool that divided equally along racial lines, eight were
white, eight were black, one was Asian, and one was Latino.
Appellee’s Br. at 19. When the “jury composition mirror[s] the
make-up of the venire” and “the prosecutor’s strikes [do] not
skew the racial composition of the resulting jury,” “[t]he
circumstances . . . are a far cry from the facts of cases in which
the Supreme Court has found a Batson violation.” Moore, 651
F.3d at 41 (citations omitted).
Appellant relies heavily on the Court’s decisions in
Miller-El v. Dretke, 545 U.S. 231 (2005), and Snyder v.
Louisiana in support of his claim that the Government engaged
in a pattern of race-based peremptory challenges. Miller-El and
Snyder are tellingly different from this case, however. In Miller-
El, for example, the Court relied in part on the “widely known
evidence of the general policy of the Dallas County District
Attorney’s Office to exclude black venire members from juries.”
545 U.S. at 253. And, as the Government notes:
In Miller-El, a capital murder case, the prosecutors used
their peremptory strikes to exclude [more than 90] percent
of the eligible black venire members, misrepresented some
. . . [juror] statements, and failed to strike similarly situated
white venire members. 545 U.S. at 241–252. Furthermore,
the evidence of racial discrimination went “beyond these
comparisons to include broader patterns of practice during
the jury selection,” including “[t]he prosecution’s shuffling
of the venire panel” when a predominant number of black
jurors were seated in the front of the panel. Id. at 253–254.
The prosecution also engaged in disparate questioning of
black jurors about their views on the death penalty and
minimum acceptable sentences in an effort to solicit
responses that would justify a strike. Id. at 255–263.
15
Appellee’s Br. at 24–25 (fourth alteration in original) (footnote
omitted).
In Snyder, “[e]ighty-five prospective jurors were questioned
as members of a panel. Thirty-six of these survived challenges
for cause; 5 of the 36 were black . . . ; and all 5 of the prospective
black jurors were eliminated by the prosecution through the use
of peremptory strikes.” 552 U.S. at 475–76. The Court also
rejected as incredible the prosecution’s strike of a black juror
because the prosecution believed the juror might be inclined to
find the defendant guilty of a lesser offense so that he could
avoid the penalty phase of trial and thereby minimize the amount
of school work that he would miss due to jury service. Id. at
482. The Court held that “[t]he implausibility of this explanation
is reinforced by the prosecutor’s acceptance of white jurors who
disclosed conflicting obligations that appear to have been at least
as serious as [the black juror’s].” Id. at 483.
In viewing the record as a whole, we find that Appellant has
failed to support his claim that the Government engaged in a
“pattern” of race-based peremptory challenges. However,
although the circumstances of this case do not indicate that the
prosecution used its peremptory strikes to discriminate on the
basis of race, “those facts alone are not dispositive. The
dismissal of even a single prospective juror on the basis of race
violates equal protection principles.” Moore, 651 F.3d at 42
(citing Snyder, 552 U.S. at 478). We therefore must review the
District Court’s denial of Appellant’s Batson challenges to Jurors
408 and 854. These challenges were properly raised before the
trial court and preserved for appeal, so our review is pursuant to
the clearly erroneous standard.
1. Appellant’s Preserved Challenges
Juror 408: The Government offered two race-neutral
reasons for its strike of Juror 408, a black female:
(1) she “ha[d] some opposition to the death penalty,” and (2)
16
based on her work as a youth minister, her experience
counseling drug addicts, and her work conducting mediation
in Superior Court, the government believed she would show
“sympathy towards the idea of rehabilitation and sympathy
towards people that use crack, wanting to be able to sort of
reconcile and forgive.”
Appellee’s Br. at 28 (alteration in original) (citation omitted).
Before the District Court, Appellant contended that the
Government had no legitimate grounds upon which to justify its
peremptory strike of Juror 408. Tr. 2/5/07 at 1028. The District
Court rejected Appellant’s challenge. The trial judge found that
Juror 408 “indicated significant hesitation which [was] really
against the death penalty.” Id. The judge also found that “the
fact that [Juror 408] spends her ministry with troubled youth in
this city where troubled youth are often a synonym for poverty,
drugs and guns and that’s her calling,” suggested that “she might
be more sympathetic to the defendant than the government
would prefer.” Id. The judge thus concluded “that is not a race
base[d] but rather race neutral response to what she does with her
energies and her time and her devotion.” Id. The District
Court’s findings are supported by the record and not clearly
erroneous.
Juror 854: We also hold that the District Court’s
determination rejecting Appellant’s challenge to the
Government’s peremptory strike of Juror 854 was not clearly
erroneous. This juror, a black female, wrote on her questionnaire
that law enforcement agencies “should be more committed to the
cause and not think they are above the law[.] [M]ost cops are
good. [A]ll are not.” Juror Questionnaires, App. to Appellant’s
Br., Vol. IIA at 183. She also wrote that “[r]acial profiling
happens and clouds people[’s] judgment.” Id. at 184. When
asked by the trial court judge to elaborate, Juror 854 said:
I have been pulled over a couple of times, something like
17
that. I have brothers in, you’re a black man you’re driving
you’re going to get pulled over, you know. And having to
tell my nephews these are the procedures when you get
pulled over because you never know who is going to do
what. And you never know if you are going to have a good
cop or a cop that’s having a bad day, you know. And they
are armed, you know. So you have to be careful.
Voir Dire Tr., Jan. 24, 2007 (“1/24/07”), App. IIB at 917.
The Government’s reasons for striking Juror 854 and
Appellant’s challenge are concisely summarized in Appellee’s
brief:
The government explained that it struck Juror 854
because she “laughed many times during the course of the
conversations with the court,” and appeared to “try[] to
ingratiate herself with the court.” Furthermore, based on the
juror’s statement that “she had to tell her nephew the
procedures for when he got pulled over by the police,” the
government believed that Juror 854 might “espouse the view
of the driving while black theory.” “[T]hat coupled with the
way that she responded to the court’s questions coupled with
her age” led the government to conclude that Juror 854
“would not be sympathetic to the government’s position.”
Appellant challenged the government’s reasons,
asserting that Juror 854 never mentioned “driving while
black,” and that, even if she did, that was not a race-neutral
reason to strike her. Appellant argued that neither that nor
the juror’s laughter during voir dire was a “particularly good
reason[] to strike anybody.”
Appellee’s Br. at 32 (alterations in original) (citations omitted).
The trial judge accepted the Government’s reasons for
striking Juror 854. The judge explained that she “remembere[d]
very well” the juror’s laughs, which “probably don’t show up on
18
the transcript anywhere, but were at the wrong times.” Tr. 2/5/07
at 1029. The judge also construed the juror’s discussion of being
pulled over “as a statement about whether or not that juror would
be inclined to credit police officers or would automatically not.”
Id.
The District Court’s determination regarding Juror 854 is
not clearly erroneous. The Government could have reasonably
viewed inappropriate laughter as indicating a higher risk that
Juror 854 would not be a serious trier of fact. Deference to the
District Court’s finding on this point is “especially appropriate,”
because the “trial judge has made a finding that an attorney
credibly relied on demeanor in exercising a strike.” Snyder, 552
U.S. at 479. Furthermore, the Government could have perceived
the juror’s statements regarding police as another valid reason to
strike. The Government’s strike cannot be seen to have been
discriminatory, merely because the Juror referenced race in
expressing concerns about blacks’ being pulled over by the
police. We have no good reason to disagree with the District
Court’s finding that the Government may have been reasonably
concerned about the Juror’s apparent distrust of the police.
2. Appellant’s Unpreserved “Similarly Situated”
Challenges
Appellant contends for the first time on appeal that the
views of Jurors 408, 854, 449, 1891, 3126, and 3400 resemble
those expressed by several seated whites, signaling that
something was amiss. These challenges lack merit.
In Snyder, the Court noted that, in cases in which a
defendant’s Batson challenges rest on comparative-analysis
(“similarly situated”) claims,
a retrospective comparison of jurors based on a cold
appellate record may be very misleading when alleged
similarities were not raised at trial. In th[ese] situation[s],
an appellate court must be mindful that an exploration of the
19
alleged similarities at the time of trial might have shown that
the jurors in question were not really comparable.
552 U.S. at 483. In Snyder, however, the Court allowed a
retrospective comparison of jurors, because “the shared
characteristic [of the jurors], i.e., concern about serving on the
jury due to conflicting obligations, was thoroughly explored by
the trial court when the relevant jurors asked to be excused for
cause.” Id. There was only one alleged shared characteristic at
issue in Snyder – jurors’ concerns over having to commit to jury
duty in the face of conflicting obligations. It was easy for the
Court to sort out this one shared characteristic even on a cold
appellate record. The same is not true here.
Appellant argues that the views of a number of black jurors
– on issues such as the death penalty, rehabilitation, and trust of
police officers – resemble the views expressed by several seated
white jurors. The array of issues and comparisons would make
a retrospective comparison of jurors based on a cold appellate
record farcical. The record in this case does not, as in Snyder,
allow for easy comparisons of jurors’ views. For example, the
jurors’ views on the death penalty covered a wide spectrum, and
several jurors wavered on that topic during questioning.
Appellant does not contend that his “similarly situated”
arguments were in any way explored by the District Court. This
is not surprising, because the similarly situated challenges were
abandoned by Appellant in the District Court. In other words,
this is not a case in which counsel inadvertently overlooked a
possible objection. Counsel for Gooch affirmatively requested
leave to raise similarly situated objections, indicating that he
would like time to perform a comparative analysis of stricken
black jurors with those jurors who remained in the jury pool and
that he would do so that night. The trial judge granted counsel’s
request, but asked him to be prompt in submitting any objections.
Gooch’s counsel, however, never raised the matter again, so the
issue was effectively dropped and never pursued before the
20
District Court.
The situation here does not come close to resembling the
situation faced by the Court in Snyder. Rather, this is a case in
which “a retrospective comparison of jurors based on a cold
appellate record” would be “very misleading,” because “an
exploration of the alleged similarities at the time of trial might
have shown that the jurors in question were not really
comparable.” Snyder, 552 U.S. at 483. In these circumstances,
our inclination might be to hold that “a ‘similarly situated’
argument is untimely and cannot be made if it is raised for the
first time on appeal rather than at the trial level.” United States
v. Gibson, 105 F.3d 1229, 1232 (8th Cir. 1997) (citation
omitted). The issue is a bit more complicated than this, however,
so we must amplify.
In United States v. Moore, the court made it clear that the
appellate court should be loath to overturn trial court
determinations regarding Batson challenges in instances in which
“‘[a]ppellate judges cannot on the basis of a cold record easily
second-guess a trial judge’s decision.’” 651 F.3d at 42
(alteration in original) (quoting Rice v. Collins, 546 U.S. 333,
343 (2006) (Breyer, J., concurring)) (citing Snyder, 552 U.S. at
483). Moore indicates that this is especially inappropriate in
situations in which the court is asked to assess the demeanor of
seated jurors. See id. We think that it is also inappropriate in
situations in which the defense seeks for the first time on appeal
to pursue challenges based on retrospective comparisons of
jurors based on alleged “shared characteristics.” When the
challenges are not properly raised with the District Court, the
appellate court loses the benefit of the trial judge’s assessments
of the prosecutor and prospective jurors. See Snyder, 552 U.S.
at 477.
We recognize that in Moore, the defense did not object in
the District Court to the Government’s strike of several
prospective jurors, and this court nevertheless reviewed the
21
challenges on appeal pursuant to the plain error standard. See
651 F.3d at 43–44. In applying the plain error standard, the
Moore court referenced United States v. Charlton, in which the
First Circuit held:
“We . . . apply plain error review to unpreserved Batson
claims. . . .” In applying this standard of review, we have
observed a Supreme Court ruling that, “[u]nless a
discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race
neutral.”
600 F.3d at 50 (alterations in original) (citations omitted). The
court in Charlton did not explicitly explain what it meant by
“inherent”; however, in the context of unpreserved Batson
challenges, we take it to mean “manifest,” “patent,” or
“unmistakable.”
Pursuant to plain error review, an appellant must
demonstrate (1) that there was an error, (2) that the error was
clear or obvious, (3) that it affected the appellant’s substantial
rights, and (4) that it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. See United States
v. Olano, 507 U.S. 725, 732–37 (1993). In United States v.
Brown, 352 F.3d 654 (2d Cir. 2003), the Second Circuit,
adhering closely to the Supreme Court’s definition of plain error
in United States v. Olano, ruled that, “[i]n the Batson context,”
when strikes are evaluated for plain error,
it is normally the case that the only complicated question is
whether the second prong [of Olano] is satisfied – that is,
whether the error at issue is “plain.” For if we decide that
the district court’s approval of a challenge based on [race]
is error under the first prong, the third and fourth prongs of
the Olano test are also generally met.
Brown, 352 F.3d at 664. The Brown decision holds that error is
plain if it is “so egregious and obvious as to make the trial judge
22
and prosecutor derelict in permitting it, despite the defendant’s
failure to object.” Id. at 664–65 (citations omitted) (internal
quotation marks omitted).
In the context of unpreserved Batson claims, we agree with
the Charlton and Brown conceptions of the plain error standard.
Under Olano, “‘[p]lain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’” 507 U.S. at 734 (citations omitted). If
a defendant cannot carry the burden of showing that
discriminatory intent was manifest in the Government’s use of a
peremptory strike, we cannot imagine how the alleged error can
be “plain” as required by Olano. It seems axiomatic, then, that in
a case like this, in which the Government offers race-neutral
reasons to justify peremptory strikes, the District Court credits the
Government’s submissions, the defendant fails to object, and
then, on appeal, the defendant fails to show that the Government’s
actions were manifestly discriminatory, there is no plain error. In
these circumstances, the appellate court has no basis upon which
to second-guess the trial judge’s determinations.
In this case, in raising “similarly situated” arguments for the
first time on appeal, Appellant points to nothing in the record to
indicate that discriminatory intent was manifest in the
Government’s peremptory strikes of the cited jurors. We
therefore find no plain error.
3. Appellant’s Other Unpreserved Batson Challenges
As noted above, Appellant for the first time on appeal also
challenges the Government’s explanations for striking Jurors 449,
1891, 2556, 2713, 3126, 3172, and 3400. Our bottom-line
judgment is simple: Appellant points to nothing in the record to
indicate that discriminatory intent was inherent in the
Government’s strikes of these Jurors. Nor does Appellant point
to any peremptory strike that was so egregious and obvious as to
make the trial judge and prosecutor derelict in permitting it,
despite Appellant’s failure to object. We therefore find no plain
23
error.
Juror 449: The Government struck Juror 449, a black
female, because “[s]he said that she did not believe that the death
penalty was the right choice” and “voiced moral opposition” to
the penalty. Tr. 2/5/07 at 1024. The Government’s explanation
might have been imprecise – the juror did dispute whether she had
a “moral opposition to the death penalty,” Voir Dire Tr., Jan. 22,
2007 (“1/22/07”) at 869 – but it was not wholly incorrect. Juror
449 often expressed opposition to the death penalty, explaining
during voir dire that she was “not really for the death penalty,”
that “[k]illing someone isn’t justification because they did it to
someone else,” id. at 861, that there were no crimes for which she
could vote to impose death, id., and that the number of murders
would not make a difference, id. at 862.
Juror 1891: The Government, referencing the questionnaire
of Juror 1891, a black female, explained that she had written that
“punishment for life would have more of an impact than the death
penalty[,] [a]nd so [the Government] took her at her word that she
really could not give meaningful consideration to the death
penalty” despite the fact that, in response to the trial judge’s
questions, she qualified her apparent rejection of the death
penalty. Tr. 2/5/07 at 1027. While this is technically
incorrect – Juror 1891 explained in her questionnaire that she was
merely “unsure” about whether she could meaningfully consider
the penalty in some instances, Juror Questionnaires at
352–53 – she did indicate in her questionnaire that she was
“somewhat opposed to the death penalty,” id. at 351. She also
consistently indicated, in both her questionnaire and at voir dire,
a preference for life imprisonment. See id. at 352, 353; Voir Dire
Tr., Jan. 25, 2007 at 979.
Juror 2556: Juror 2556, a black male, stated that he
“honestly” thought the death penalty would be “too harsh,” Voir
Dire Tr., Jan. 19, 2007 at 836, that his experience being
handcuffed left him with a “bad impression that . . . [the police]
24
falsely accused me,” id. at 832, and that he would be inclined to
believe a defendant who took the stand and claimed innocence, id.
at 829. These statements support the Government’s three reasons
for striking him: He said that the death penalty was too harsh; he
indicated that he really could not believe the police; and he stated
that he would consider a testifying defendant to be innocent. Tr.
2/5/07 at 1024.
Juror 2713: Both parties struck Juror 2713, and Appellant
agreed to “skip” the explanation for this strike. See id. at
1026–27. By “acquiesc[ing] in a ruling,” Appellant waived his
argument as to this strike. United States v. Rogers, 918 F.2d 207,
212 (D.C. Cir. 1990) (citations omitted).
Juror 3126: Juror 3126, a black female, indicated serious
reservations about the death penalty, stating at voir dire that she
did not “like it” or “believe in it.” Voir Dire Tr., 1/24/07 at 929.
When asked if the penalty could ever be warranted, she replied
that she might consider it if a family member were murdered. Id.
However, she also said that while she did “not support the death
penalty 100%” she “would consider it,” Juror Questionnaires at
664, and could give it meaningful consideration and vote for it,
Voir Dire Tr., 1/24/07 at 933. Accepting the Government’s
reasons to strike – that it was concerned about, first, the fact that
she did not believe in the penalty and did not “support it a
hundred percent,” and, second, the fact that her family member
was not a victim in the case, Tr. 2/5/07 at 1026 – was not plain
error.
Juror 3172: Juror 3172, a black male, worked in mental
health and drug rehabilitation. Juror Questionnaires at 697; Voir
Dire Tr., 1/22/07 at 886–87. His sister was addicted to crack, and
he was in the process of adopting her child. Voir Dire Tr.,
1/22/07 at 877. However, he maintained that he could be
impartial as to drug allegations. Id. at 877, 888. He also
indicated on his questionnaire that his roommate had been shot.
Juror Questionnaires at 696. However, during questioning, he
25
stated that he did not have any family or friends who had been the
victim of a gunshot. Voir Dire Tr., 1/22/07 at 878. He then said
he had “forgot[ten] all about” the incident with his roommate,
before going on to explain that his roommate had died from the
gunshot wound. Id. at 888. The Government gave two race-
neutral reasons for the strike: The juror might be sympathetic to
drug users; and his apparent failure to remember a roommate
being shot to death suggested there was “something not right
about that juror.” Tr. 2/5/07 at 1025. Certainly both
considerations were relevant, race-neutral reasons to strike.
Juror 3400: The Government struck Juror 3400, a black
female, because she had “served on a previous jury and found the
person not guilty,” and because she demonstrated a moral
opposition to the death penalty, as shown by the fact that she
indicated that she could uphold the death penalty only after
repeated questioning by the court. Id. at 1026. Actually, Juror
3400 stated that she had served on a jury in which no verdict was
reached. Juror Questionnaires at 752. This mistake is hardly
suspicious. And the juror did indicate that she was “disappointed
or dissatisfied with our criminal justice system” as a result of this
prior jury experience, in which the prosecution had failed to
produce “enough evidence.” Id.; see also Voir Dire Tr., 1/24/07
at 809–10. At voir dire, the juror initially indicated hesitation
about the death penalty. Voir Dire Tr., 1/24/07 at 813–14. After
further questioning, however, she changed course to state that she
could vote for the penalty. Id. at 814. The Government obviously
was wary of the juror’s inconsistent positions on the death
penalty. This is a moot point, however, because the
Government’s first reason for striking the juror – her
dissatisfaction with the criminal justice system – was enough to
sustain its strike without running afoul of Batson.
In sum, we reject Appellant’s unpreserved Batson challenges.
As noted above, if the Government offers race-neutral reasons for
a peremptory strike, and the defendant cannot carry the burden of
showing that discriminatory intent was inherent in the
26
Government’s action, the alleged error cannot be “plain” under
Olano. Nothing in the record indicates that discriminatory intent
was inherent in the Government’s peremptory strikes of Jurors
449, 1891, 2556, 2713, 3126, 3172, or 3400.
C. Joinder
As we have already explained, joinder is an ex ante, pre-trial
consideration governed by Federal Rule of Criminal Procedure 8.
See Carson, 455 F.3d at 372–73. Rule 8(a) provides that there
may be a “joinder of offenses” if they “are of the same or similar
character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.”
FED. R. CRIM. P. 8(a). The District Court has jurisdiction over
“[a]ny offense under any law applicable exclusively to the District
of Columbia which offense is joined in the same information or
indictment with any Federal offense.” D.C. CODE § 11-502(3)
(2001). “Joined” in this context means “properly joined” under
Rule 8. Carson, 455 F.3d at 373 n.33 (citations omitted) (internal
quotation marks omitted).
Joinder analysis does not take into account the evidence
presented at trial. See Moore, 651 F.3d at 69 (“[T]rial evidence
cannot render joinder [under Rule 8(b)] impermissible and is thus
irrelevant to our inquiry.” (citations omitted)); Carson, 455 F.3d
at 372. Instead, a court applying Rule 8 focuses solely on the
indictment and pre-trial submissions. And the Government need
merely allege, not prove, the facts necessary to sustain joinder.
Carson, 455 F.3d at 372 n.32. Therefore, in this case, the
Government needed only to allege facts showing that the acts or
transactions described in Rule 8(a) “are of the same or similar
character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.”
FED. R. CRIM. P. 8(a).
Our de novo review of the indictment and pre-trial
submissions convinces us that joinder was appropriate. The
indictment charged Gooch with narcotics and RICO conspiracies,
27
Superseding Indictment at 10–42, as well as the
Cunningham/Lane burglary, robbery, and murders, as separate
acts, id. at 57–63, and as overt acts in furtherance of both
conspiracies, id. at 14–15, 40. With respect to the RICO
conspiracy, the indictment also alleged that “[a] principal goal of
the organization was to obtain money and other things of value”
and that “[i]t was a further goal . . . to traffic in controlled
substances, . . . [and] to commit acts of murder, . . . robbery, [and]
burglary, . . . [in order] to enrich the enterprise and its
members . . . and to promote and enhance the reputation and
standing of the enterprise and its members.” Id. at 38.
The Government’s pre-trial representations additionally
explained that the Cunningham/Lane incident arose “in
conjunction with a plan to steal money and drugs” from the
victims and that the robbery and murders were “done by members
of the enterprise, to enrich the enterprise and each defendant’s
position in the enterprise was both benefitted by and enhanced by
his participation in the robbery and the execution style killing.”
Gov’t’s Supplemental Mem., App. for Appellee at 6. Where an
indictment alleges that the defendant and others participated in a
conspiracy “with the shared goal of ‘enriching themselves,’” and
pre-trial submissions allege a common scheme, joinder is proper
under Rule 8(a). Cf. United States v. Spriggs, 102 F.3d 1245,
1255–56 (D.C. Cir. 1996) (per curiam) (holding that “joinder
[under Rule 8(b)] is appropriate if there is a logical relationship
between the acts or transactions so that a joint trial produces a
benefit to the court” (citations omitted) (internal quotation marks
omitted)). In addition, as noted above, Rule 8(a) permits the
joinder of offenses of the same or similar character, “even if they
are entirely unrelated to each other.” Jackson, 562 F.2d at 796.
Taken together, the indictment and the pre-trial
representations alleged that the Cunningham/Lane murders were
in furtherance of the conspiracies and that participation in the
conspiracy enriched the enterprise’s members. These pre-trial
submissions were sufficient to justify the joinder of the local and
28
federal charges at issue in this case.
D. Severance
Although we have found no error in the pre-trial joinder of
the local and federal counts against Appellant, we still must
consider whether the District Court later erred in denying
Appellant’s motion under Rule 14 of the Federal Rules of
Criminal Procedure to sever the counts. Rule 14 states that if
“joinder . . . appears to prejudice a defendant . . . the court may
order separate trials of counts . . . or provide any other relief that
justice requires.” FED. R. CRIM. P. 14(a). The discussion in
Carson explains the interplay between Rule 8 and Rule 14:
After counts are joined, subsequent severance [is] controlled
by Rule 14. 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. 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 . . . .
455 F.3d at 372–73 (alterations in original) (citations omitted)
(internal quotation marks omitted).
The defendant carries the burden of demonstrating prejudice
resulting from a failure to sever. Id. at 374. Severance is proper,
however, “only if there is a serious risk that a joint trial would . . .
29
prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro, 506 U.S. at 539.
We have noted that, in assessing motions to sever under Rule
14 when there has been no misjoinder under Rule 8(a),
[t]hree kinds of prejudice warrant relief under Rule 14: 1) the
jury may cumulate evidence of the separate crimes; 2) the
jury may improperly infer a criminal disposition and treat the
inference as evidence of guilt; 3) the defendant may become
“embarrassed or confounded” in presenting different
defenses to the different charges.
Blunt v. United States, 404 F.2d 1283, 1288 (D.C. Cir. 1968)
(citation omitted). On the record before us, Appellant has failed
to demonstrate any such prejudice resulting from the joinder of
the local and federal charges. Therefore, the District Court did
not abuse its discretion under Rule 14.
There are several considerations that influence our judgment.
First, in a case involving joinder under Rule 8(b), the Supreme
Court has cautioned that if “the charge which originally justified
joinder turns out to lack the support of sufficient evidence, a trial
judge should be particularly sensitive to the possibility
of . . . prejudice.” Schaffer v. United States, 362 U.S. 511, 516
(1960). The same concern applies with respect to joinder under
Rule 8(a). In this case, however, the concern is of little moment,
because the evidence against Appellant was compelling on the
charges at issue.
Second, the trial court gave limiting instructions at both the
start and close of trial. At the beginning of trial, the court
explained that the jury was not to infer guilt from the fact of the
indictment, the number of charges alleged, or the type of charges
brought. At the end of trial, the jury was instructed that its
finding as to one offense “should not control [its] verdict as to any
other offense charged, except as [otherwise instructed],” Excerpt
Instructions, App. IB at 290, and that it must not allow the
30
“character of any charge itself to [a]ffect” arrival at a verdict,
Trial Tr., May 3 a.m., 2007 at 16. The court also cautioned the
jury that “[e]ach offense and the evidence pertaining to it should
be considered and decided separately” and that the “indictment is
not evidence.” Id. Such limiting instructions are sufficient to
address prejudice. See, e.g., Zafiro, 506 U.S. at 540–41; Carson,
455 F.3d at 374–75; Spriggs, 102 F.3d at 1256. Furthermore, we
may presume that the jury followed those instructions. Brown, 16
F.3d at 430. It is also noteworthy that the jury acquitted Gooch
of the VICAR counts based on the Cunningham/Lane murders
and of another murder and its related charges. Verdict Findings,
App. IB at 298, 300–01. This outcome affords “some evidence
that the jury did follow the instructions and was able to
discriminate among charges and evidence.” Brown, 16 F.3d at
430.
Third, Appellant asserts that the Government presented the
offenses related to the Cunningham/Lane incident last in trial,
even though they occurred first in real time. This, says Appellant,
was highly prejudicial. Chronological presentation may be
relevant to the issue of prejudice, see Spriggs, 102 F.3d at 1256,
but it is hardly dispositive. Indeed, in this case, the presentation
of the Cunningham/Lane murders last may have helped to avoid
prejudice by keeping these murder charges separate and discrete
from other charges.
Finally, Appellant argues that the Cunningham/Lane
evidence would not have been admissible at a separate trial. Even
assuming, arguendo, that he is correct – and we need not decide
this – there is “no prejudicial effect from joinder when the
evidence of each crime is simple and distinct, even though such
evidence might not have been admissible in separate trials.” Drew
v. United States, 331 F.2d 85, 91 (D.C. Cir. 1964) (citations
omitted); see also Jackson, 562 F.2d at 794 (“[Joinder of offenses
under] Rule 8(b) is not limited to situations in which proof of the
other criminal transaction would be admissible in a separate trial.”
(alteration in original) (citation omitted)). The offenses arising
31
from the Cunningham/Lane incident were relatively “simple and
distinct,” so it does not matter whether the evidence would have
been admissible in a separate trial.
In sum, even where “the counts [are] misjoined, or the
severance motion improperly denied, the district court’s rulings
must be upheld” where an appellant fails to “demonstrate[] any
prejudice resulting from them.” Spriggs, 102 F.3d at 1256
(citations omitted). We may affirm, “even if the circumstances
are such that a grant of severance would have been sustainable,
particularly since potential prejudice to a defendant may be
obviated by jury instructions.” Carson, 455 F.3d at 374 (citations
omitted) (internal quotation marks omitted); Zafiro, 506 U.S. at
539 (“When the risk of prejudice is high, . . . less drastic
measures, such as limiting instructions, often will suffice to cure
any risk of prejudice.” (citation omitted)). The presentation of the
evidence, the content of the jury instructions, and acquittal on
some charges all indicate that prejudice was obviated here, such
that the jury was not prevented from making a reliable judgment
about guilt or innocence. See Carson, 455 F.3d at 374.
E. VICAR Murders
The VICAR statute criminalizes murder related to
racketeering activity committed by a defendant
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.
Carson, 455 F.3d at 369 (alternations in original) (quoting 18
U.S.C. § 1959(a)) (internal quotations marks omitted). Whether
Gooch acted with the third motive is at issue here.
The motive of maintaining or increasing one’s position in an
enterprise may be reasonably inferred where the defendant
32
commits the crime “in furtherance of” enterprise membership or
where the defendant “knew it was expected of him by reason of
his membership in the enterprise.” Carson, 455 F.3d at 369
(citations omitted). Such a motive has been found where the
defendant murdered individuals on suspicion that they were
cooperating with police and thereby jeopardizing the enterprise,
see United States v. Dhinsa, 243 F.3d 635, 672 (2d Cir. 2001), or
murdered individuals to “maintain or increase his own reputation
as an enforcer in the enterprise,” where the defendant “frequently
carried out violent crimes against those who threatened the
organization,” Carson, 455 F.3d at 370.
A jury could determine beyond a reasonable doubt that the
murders charged to Gooch were committed in furtherance of his
gang membership. The jury heard that there were rumors that
Cooper and Miller stole drug stashes; and the jury heard that
Miller had admitted doing so herself. There was also testimony
that Miller and Cooper were snitches. Stealing and snitching
clearly posed a threat to the gang. And the jury heard testimony
that a response to such threats would be violent. One witness
explained that someone who stole drug stashes ran the risk of
being shot. Another witness described the gang’s reputation
simply as “f**k with one you f**k with all, it’s over.” Trial Tr.,
Mar. 29 a.m., 2007 at 35. Indeed, Abney testified that after the
Cooper/Miller murders, Gooch stated, “You know I had to kill
[them].” See Trial Tr., 3/27/07 p.m. at 59 (emphasis added). That
Gooch would describe the murders as somehow required of him
is supported by the social structure of the gang as detailed by
evidence at trial – a structure built on the premise that threats to
the gang were met with violence. And that violence was often
executed by Gooch himself, who was the “muscle” of the M
Street Crew. The evidence in this case thus far exceeds that in
United States v. Thai, 29 F.3d 785 (2d Cir. 1994), the case upon
which Gooch most heavily relies. See id. at 818–19 (reversing
conviction under VICAR statute because jury’s finding of intent
would have been based upon “pure speculation” and
33
“guesswork”).
Gooch testified that he paid Cooper with crack for fixing his
cars. He also testified that he knew about the rumors that Miller
stole stashes but did not know whether the rumors were true. He
further stated that he knew Miller dealt in the neighborhood, but
he had not heard rumors that she had cooperated with police.
Considered in the light most favorable to the Government, the
jury could have inferred that Gooch knew about the rumors
regarding both Cooper and Miller and found those rumors to be
sufficient to justify murder in furtherance of the gang’s code. The
testimony indicated that the rumors were widely discussed and
that gang members formed a tight-knit group. Given this
evidence, the jury could have discredited Gooch’s testimony that
he had not heard rumors that both Cooper and Miller were
stealing stashes and collaborating with police.
In short, the jury had ample evidence to return a verdict
against Gooch. Given that Gooch was well known as a gang
enforcer, the jury was free to decide that he was expected to
retaliate against those who violated the gang’s code. Because the
evidence is sufficient to sustain a finding that Gooch committed
the murders in order to maintain or improve his reputation within
the gang, we reject Appellant’s claim that the District Court erred
in denying his motion to acquit.
III. CONCLUSION
For the foregoing reasons, the judgment and rulings of the
District Court are affirmed.
So ordered.