United States v. Keith McGill , 815 F.3d 846 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2015 Decided March 1, 2016
No. 06-3190
UNITED STATES OF AMERICA,
APPELLEE
v.
KEITH B. MCGILL,
APPELLANT
Consolidated with 06-3193, 07-3001, 07-3003, 07-3065,
07-3124
On Appeals from the United States District Court
for the District of Columbia
(No. 02cr00045-01)
(No. 00cr00157-12)
(No. 00cr00157-18)
(No. 00cr00157-19)
(No. 00cr00157-20)
(No. 00cr00157-21)
Gregory Stuart Smith, Dennis M. Hart, Richard K.
Gilbert, Manuel J. Retureta, David B. Smith, and Mary E.
Davis, all appointed by the court, argued the causes for
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appellants. With them on the briefs was Kristen Grim
Hughes, appointed by the court.
Leslie A. Gerardo, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney at the time of the filing, and
Elizabeth Trosman and Chrisellen R. Kolb, Assistant U.S.
Attorneys. Mary B. McCord, Assistant U.S. Attorney, entered
an appearance.
Before: SRINIVASAN and MILLETT, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
PER CURIAM: In November 2000, a grand jury returned a
158-count superseding indictment against sixteen defendants.
The indictment alleged that, during the late 1980s and
throughout the 1990s, those defendants conspired to run a
large-scale and violent narcotics-distribution business
centered in Washington, D.C. The defendants were charged
with an array of offenses including narcotics conspiracy and
racketeering conspiracy, as well as numerous counts of first-
degree murder, assault with intent to murder, tampering with
a witness or informant by killing, continuing-criminal-
enterprise murder, and violent crime in aid of racketeering
conspiracy.
Many of the indicted defendants pleaded guilty to the
charges, while the others went to trial in two separate groups.
“Group One” consisted of six defendants, including the
conspiracy’s alleged leaders, Kevin Gray and Rodney Moore.
The Group One trial culminated in guilty verdicts and
substantial sentences for each defendant. We affirmed most
of those verdicts and sentences in United States v. Moore, 651
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F.3d 30 (D.C. Cir. 2011), aff’d in part sub nom. Smith v.
United States, 133 S. Ct. 714 (2013).
“Group Two” consisted of five defendants from the
November 2000 indictment: Deon Oliver, Franklin Seegers,
Kenneth Simmons, James Alfred, and Ronald Alfred. Before
their trial, the government obtained a separate six-count
indictment against Keith McGill arising from his participation
in the same conspiracy. The district court joined McGill for
trial with the other Group Two defendants.
On October 16, 2003, the Group Two trial commenced.
Nearly six months later, on March 31, 2004, the jury began its
deliberations. In April and May 2004, the jury found Oliver,
Simmons, James Alfred, Ronald Alfred, and McGill guilty on
all counts and found Seegers guilty on seven of the charged
counts. After denying their posttrial motions, the district
court sentenced all defendants to lengthy prison terms. Each
received at least one term of life imprisonment, with the
exception of Seegers, whose combined sentence of
imprisonment amounted to forty years to life.
The six Group Two defendants now appeal. Appellants
challenge the sufficiency of the evidence against them on
many of the charges. They also raise various claims
concerning the conduct of the trial, including challenges to the
district court’s dismissal of a juror during deliberations and to
certain of the court’s evidentiary rulings. Appellants also
allege prosecutorial misconduct and ineffective assistance of
counsel, and one appellant (McGill) challenges his sentence.
Upon review, we conclude that the evidence was
sufficient to convict on all of the challenged counts. We also
reject most of the claims of error or find that the alleged errors
were harmless under the appropriate standard of review. We
reverse the convictions on two counts against Seegers,
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however, and we also remand to the district court to
determine whether any of appellants’ conspiracy convictions
must be vacated because of a Confrontation Clause violation.
Certain of McGill’s sentencing arguments have merit,
moreover, and we remand for examination of claims by
Simmons and Ronald Alfred that they received ineffective
assistance of counsel before the district court.
Appellants’ consolidated briefing to this court is
organized under discrete issue headings designated by Roman
numerals. Our section headings conform to appellants’
presentation of the issues (although we omit those section
numbers denoting instances in which one appellant merely
joined other appellants’ arguments). Detailed discussions of
the facts, evidence, and proceedings will be set forth as
necessary to address each issue appellants raise.
We now proceed to address each issue raised by
appellants. While certain of their arguments on each issue do
not merit separate discussion, any arguments not directly
addressed were fully considered and their disposition is so
directly dictated by precedent as to not merit individualized
discussion.
I. Removal of Juror
In their first joint argument, appellants challenge the
district court’s dismissal of a juror for misconduct during
deliberations. Appellants argue that the dismissed juror was
inclined to vote for acquittal and that his dismissal violated
their Sixth-Amendment right to conviction only by a
unanimous jury. We find no error. We review the
circumstances giving rise to the juror’s dismissal in some
detail because the facts bear substantially on our review of the
district court’s decision and our rejection of appellants’
challenge.
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A.
1.
The circumstances leading to the juror’s dismissal are as
follows. On April 1, 2004, one day after its deliberations
began, the jury sent a note to the district court indicating that
it was experiencing some difficulties with one juror. The note
reported that “[o]ne juror has stated categorically that he does
not believe in any testimony from any of the cooperating
witnesses.” J.A. 1049. That juror had also told the others
“that there is no other evidence presented by the prosecution
either direct, circumstantial, non-cooperating [witnesses],
et[c]. that would likely lead to an unanimous decision.” Id.
The district court instructed the jury to continue its
deliberations.
After the next day of deliberations, the jury sent another
note to the court relating to “one juror.” Id. at 1052. That
note relayed that the juror “ha[d] stated from the beginning of
our deliberation that he does not believe any testimony of or
by the prosecution, defense or any law enforcement witness.”
Id. Once again, the district court told the jury to continue its
deliberations.
On April 8, the jury sent a third note to the court, stating
that it had “had serious and productive discussion.” Id. at
1064. The note further reported that “[o]ne juror continues to
refuse to accept any evidence and discuss or consider any
verdict but not guilty or not proven for any count or charge
for any defendant.” Id. In response, the court instructed the
jury that, although “each juror is entitled to his or her
opinions[,] [e]ach juror should . . . exchange views with his or
her fellow jurors[,] . . . discuss and consider the evidence, . . .
consult with one another, and . . . reach an agreement based
solely and wholly on the evidence.” Id. at 1076.
 6
On April 14, the jury sent back two more notes in quick
succession. The first note requested portions of the trial
testimony. It also stated: “In addition, we have one juror #9,
that refuses to participate in any and all deliberations for this
trial.” Id. at 1078.
The second April 14 note raised a separate issue
concerning the same juror (Juror #9). It stated:
On April 13, 2004, I Juror [#12] observed
Juror #9 throughout deliberations writing notes
or things out of his jury book [with] all
defendants[’] charges, then at (April 13) the
end [of] deliberations he pull[ed] 3 pieces of
paper from that tablet (yellow)[,] fold[ed] them
in half and placed them in his eye glass case.
Id. at 1079. Another paragraph followed in different
handwriting:
Note as Foreman [Juror #10] I am very
disturb[ed] and concern[ed] by th[ese] actions
on Juror #9. If an alternate is available that
would make me feel safer.
Id.
The district judge read the notes aloud when defense and
government counsel gathered in the courtroom that day. The
judge also shared additional information about what had
transpired the previous evening. The judge stated that, as the
jurors exited the van that transported them to a secure location
at the end of each day, the foreman, Juror #10, took aside the
accompanying marshal and told him that Juror #12 had
witnessed Juror #9 removing notes from the jury room.
According to the judge, Juror #10 spoke with the marshal
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because the jurors had received instructions to take nothing
out of the jury room. Juror #10 suggested that the marshal
search Juror #9, which the marshal declined to do. Later that
night, Juror #10 called the marshal on his cell phone,
expressing fear “[t]hat the jurors might be compromised by
whatever it was that was taken out of the room.” Id. at 5547-
48.
The court asked the two sides for their views on how to
proceed. The government expressed concern about Juror #9’s
potential misconduct in removing notes from the jury room
and the fact that Juror #9 had apparently made the foreman
“feel unsafe”; the government also worried that Juror #9 may
have “given the impression to the jurors that their anonymity
ha[d], perhaps, been compromised.” Id. at 5539-40. The
government suggested that the court conduct individual voir
dires of the three jurors involved: Juror #12, who claimed to
have witnessed Juror #9 writing and hiding the notes; Juror
#10, whom Juror #12 had told about the incident; and Juror
#9. The government stressed the heightened security
precautions the court had employed for the trial and explained
that maintaining a “continued sense of safety, security, and
anonymity . . . is all important as [the jurors] move forward in
their deliberations.” Id. at 5564. In addition, the government
argued that the first April 14 note provided more evidence
that one juror—most likely Juror #9—had continuously
refused to deliberate with the others. But the government
suggested that the court defer consideration of that issue for
the time being and instead focus on Juror #9’s alleged
removal of notes from the jury room.
The defendants, for their part, moved for a mistrial. They
argued that the jury’s notes had established that Juror #9 was
a holdout for the defense on at least some charges. In
addition, counsel for Simmons asked the district court
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whether it had specifically instructed “the jurors not to take
any paper out of the jury room.” Id. at 5554. The court
responded, “The marshals informed them they could not
remove anything from the room.” Id. The court further
explained that “their own notes have to be sealed. The room
is locked each night after they leave, and they are told they
can’t take anything out,” including notes. Id. Counsel asked,
“That wasn’t an instruction given by the Court, that was
something given by the marshals?” Id. at 5554-55. The court
answered, “Right. It’s a standard instruction from the
marshals, don’t take anything out of the room.” Id. at 5555.
The district court decided to conduct individual voir dires
of Jurors #12, #10, and #9. The court first questioned Juror
#12. Juror #12 described witnessing Juror #9 “taking notes
out of” and “copying stuff” from his juror notebook, which
contained the indictments, the jury instructions, and the
verdict forms. Id. at 5572. Juror #12 recounted that, after the
conclusion of deliberations for the day, Juror #9 took three
pieces of paper from his notepad containing “whatever he
wrote,” “folded them up,” and “slid them in his eyeglass
case.” Id. Juror #12 admitted that he did not know what
Juror #9 had written on those pieces of paper. But when the
court asked whether Juror #9 may have written “a grocery list
or something like that,” Juror #12 said he “d[id]n’t think it
was,” because he had observed Juror #9 “going through . . .
the middle of the [juror note]book, and he was just taking
little segments out of the book and just jotting them down,
taking little segments out of the book, jotting them down,
taking little segments out of the book, jotting them down.” Id.
at 5576.
Juror #12 also told the court that, when Juror #9 folded
the pieces of paper and put them in his eyeglass case, he was
“kind of looking out the side of his eye to see if anybody saw
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him.” Id. at 5578. “That’s what made me suspicious,” Juror
#12 said, “because he concealed it.” Id. Juror #12 also stated
that he was in the best position to observe Juror #9’s actions
because Juror #12 was sitting beside Juror #9. Finally, Juror
#12 mentioned that he reported Juror #9’s actions because
they contravened the court’s “instructions that we were not
supposed to take anything home.” Id. at 5579.
Next up was Juror #10, the foreman. The court asked
Juror #10 to “walk [it] through” Juror #12’s statements to
Juror #10 and the events leading up to the latest note. Id. at
5580. After doing so, Juror #10 explained that he and Juror
#12 had safety concerns because “[w]e don’t know what
[Juror #9] [is] doing. He’s not participating.” Id. at 5581.
When the court pressed further on why Juror #9’s
nonparticipation created a safety issue, Juror #10 responded,
“Well, because he’s distant. He’s been very distant, and I
don’t know what’s in his mind. He’s been kind of stand-
offish, and, again, everybody, to a certain degree, I think,
feeling for the rest of the ten jurors, they’re very uneasy
because they don’t know what to expect from that individual.”
Id. at 5582. Juror #10 added that he “didn’t sleep too well last
night” and was “disturbed” by Juror #9’s removing his notes
because the jurors received “firm instructions not to remove
any of the evidence or our notes. If he’s taking notes and
putting it in his eyeglass case, that’s a problem and that’s
against the rules.” Id. at 5585-86. “That brings a red flag to
me,” Juror #10 continued, “and I’m concerned about, you
know, the other jurors [and] myself as it relates to this case.
We don’t know what he’s doing. We don’t know what his
intentions are.” Id. at 5586.
The court next questioned Juror #9. Juror #9 readily
admitted that he had put something from his juror notepad
into his eyeglass case. He stated, however, that it was a single
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sheet of paper containing a “grocery list.” Id. at 5598. When
asked about the list, Juror #9 said he had written “‘[m]ilk,
eggs, bread’ and ‘fruit.’” Id. at 5598-99. Juror #9 confirmed
that he had been sitting at the back of the room and away
from the juror table when he wrote the note, though he denied
that he had been trying “to be secretive about it in any way.”
Id. at 5604. When the court asked whether he still had the
note, Juror #9 answered that he had thrown it away.
The district court also told Juror #9 that there had been
“some concern about the way deliberations are going” and
asked whether Juror #9 wanted to disclose anything in that
regard. Id. at 5599-5600. The court made clear, however,
that it did not want Juror #9 to discuss matters such as “guilty
or not guilty, nothing like that.” Id. at 5600. Juror #9 told the
court that “whenever someone expresses an opinion that’s not
the majority, they get shouted down. They don’t get a chance
to express their opinion.” Id. Juror #9 also stated that he had
been looking at the evidence and expressing his opinions
about the case to the others, but that “[t]hey don’t want to
hear it. . . . They don’t want to listen.” Id. at 5605.
After the court concluded its questioning of Juror #9, it
again heard from both sides about how to proceed. Defense
counsel renewed their requests for a mistrial. No one
suggested that the court should voir dire additional jurors.
2.
The next day, on April 15, the court orally granted the
government’s motion to remove Juror #9 for good cause
under Federal Rule of Criminal Procedure 23(b). The court,
at the time, based its dismissal of Juror #9 solely on his
refusal to deliberate. The court’s statement from the bench
referenced our court’s decision in United States v. Brown, 823
F.2d 591 (D.C. Cir. 1987), which held that the dismissal of a
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juror on the basis of the juror’s views about the government’s
evidentiary case had infringed the defendants’ Sixth-
Amendment right to be convicted only by a unanimous
verdict. The district court understood Brown to require it to
make a factual finding, beyond a reasonable doubt, that Juror
#9 had refused to consider the law and the evidence at all (as
opposed to considering the evidence and forming a decision
in favor of acquittal). Based on the facts reported in the jury’s
notes and the jurors’ voir dire testimony, the court concluded
that Juror #9 had been totally unwilling to consider the
evidence or discuss the case with the others, in violation of his
oath as a juror and the court’s instructions.
The court also observed that its decision to remove Juror
#9 was not based on his removal of notes from the jury room.
The court stated that, while it found it “likely that [Juror #9]
was writing some notes,” the court could not “resolve[]
beyond a reasonable doubt” whether “it was a grocery list” or
“something about the case.” J.A. 5623. The government
asked the court to reconsider its decision, arguing that the
note-removal incident afforded an independent basis to
remove the juror for misconduct. The government also
offered its understanding that the factual findings underlying
that ground for dismissal need not be made beyond a
reasonable doubt. The court responded, “If the standard is
preponderance of the evidence, I would agree with you.” Id.
at 5625. But the court at the time was “not clear that that is
the proper standard. If that’s the proper standard, then I think
you’re right.” Id.
When the jury returned the next day, on April 16, the
court informed the jurors that Juror #9 had been excused for
reasons not relevant to their deliberations and that an alternate
would be joining them. The court told the reconstituted jury
to begin its deliberations anew.
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One week later, on April 23, following a motion by the
government, the court issued an order determining that Juror
#9’s removal of notes from the jury room constituted an
independent basis to remove the juror for good cause. While
the court had previously been uncertain whether it needed to
make findings supporting that ground for dismissal under a
more stringent standard than a preponderance standard, it now
“found by a preponderance of the evidence that Juror #9’s
misconduct of removing notes” afforded a “basis to remove
him for good cause.” Id. at 1088.
The court made factual findings concerning the note-
removal incident in which it credited Juror #12’s
“observations of the conduct of Juror #9.” Id. at 1087. The
court thus found, consistent with Juror #12’s account, that
Juror #9 had “cop[ied] passages from his juror notebook onto
his note pad” and had “then removed three pages from his
note pad and placed them in his eyeglass case.” Id. The court
also credited Juror #12’s testimony that Juror #9 had acted in
a “secretive, covert manner, attempting to avoid being seen by
other jurors.” Id. The court observed that it did “not believe”
and did “not credit the testimony of Juror #9 regarding this
incident.” Id. at 1088. And the court stated that Juror #9’s
actions were “a violation of the court’s instructions to the
jurors that they must not remove anything from the jury
room.” Id. at 1087.
The court noted that safety considerations also informed
its finding of good cause to excuse Juror #9 based on his
removal of notes from the jury room. “Needless to say,” the
court explained, “the safety and security of the jurors are
matters that are of the utmost importance in this case,”
especially given the unique “security procedures that are in
place in this trial and the nature of the charges.” Id. at 1088.
The court recounted Juror #10’s statement that “this incident
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‘disturb[ed]’ him” and his resulting request that Juror #9 be
replaced with an alternate so that he would “feel safer.” Id.
The court concluded “that Juror #9’s misconduct of
removing notes from the jury room constitutes an alternative
and independent basis to remove him for good cause.” Id.
The court explained that “[t]his misconduct, standing alone,
would have required his removal from the jury panel, even
absent the evidence of his refusal to deliberate.” Id.
On April 26, the reconstituted jury returned guilty
verdicts on all counts for four of the defendants—Oliver,
Simmons, James Alfred, and Ronald Alfred. On May 4 and
10, the jury returned its verdicts for the remaining two
defendants, McGill and Seegers, finding McGill guilty on all
counts and Seegers guilty on six counts.
B.
Federal Rule of Criminal Procedure 23(b) provides that,
“[a]fter the jury has retired to deliberate, the court may permit
a jury of 11 persons to return a verdict, even without a
stipulation by the parties, if the court finds good cause to
excuse a juror.” Fed. R. Crim. P. 23(b)(3). Here, instead of
proceeding with eleven jurors, the district court replaced Juror
#9 with an alternate and instructed the reconstituted jury to
begin its deliberations anew. See Fed. R. Crim. P. 24(c)(3) &
advisory committee’s note to 1999 amendment. Appellants
challenge the dismissal of Juror #9 as a violation of their
Sixth-Amendment rights (but do not separately challenge the
decision to replace him with an alternate rather than proceed
with eleven jurors).
A variety of issues that may arise in the course of jury
deliberations can constitute “good cause” to excuse a juror
under Rule 23(b), including illness, family emergency, or, as
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here, jury misconduct. See United States v. Vartanian, 476
F.3d 1095, 1098 (9th Cir. 2007). “Jury misconduct” consists
of “action by jurors that is contrary to their responsibilities.”
6 Wayne R. LaFave et al., Criminal Procedure § 24.9(f) (4th
ed. 2004). “Much of the jury behavior considered to be
misconduct is prohibited specifically in preliminary
instructions,” such as removing materials, discussing the
merits of the case with a coworker or family member, giving
false testimony during voir dire, or refusing to deliberate. Id.
“[A] district court, based on its unique perspective at the
scene, is in a far superior position than [a court of appeals] to
appropriately consider allegations of juror misconduct.”
United States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006); see
United States v. Sobamowo, 892 F.2d 90, 95 (D.C. Cir. 1989).
As a result, we review a district court’s decision to excuse a
juror only for an abuse of discretion. United States v.
Ginyard, 444 F.3d 648, 651 (D.C. Cir. 2006).
In certain circumstances, the Sixth Amendment
constrains the district court’s discretion to remove a juror
under Rule 23(b). In United States v. Brown, we held that “a
court may not dismiss a juror during deliberations if the
[juror’s] request for [his or her own] discharge stems from
doubts the juror harbors about the sufficiency of the
government’s evidence.” 823 F.2d at 596. Dismissal of a
juror on grounds of her unwillingness to convict based on the
evidence, we reasoned, would plainly violate a defendant’s
Sixth-Amendment right to be convicted only by a unanimous
jury. Id. But we noted “the problem” that the precise reason
for a juror’s request to be dismissed—or, equivalently, for one
juror’s suggestion that another juror be dismissed, see United
States v. Symington, 195 F.3d 1808, 1086 (9th Cir. 1999)—
“will often be unclear.” Brown, 823 F.2d at 596. The high
premium our system puts on the secrecy of jury deliberations
15
precludes a trial court from “delv[ing] deeply into a juror’s
motivations.” Id.; see Symington, 195 F.3d at 1086. A court
thus may “prove unable to establish conclusively the reasons
underlying” a juror’s request to be dismissed. Brown, 823
F.2d at 596.
The Brown court adopted an approach erring on the side
of Sixth-Amendment caution. “[I]f the record evidence
discloses any possibility that the request to discharge stems
from the juror’s view of the sufficiency of the government’s
evidence,” we stated, “the [trial] court must deny the request.”
Id. Applying that approach to the facts before us, we found
that the record revealed a “substantial possibility” that the
juror in question had “requested to be discharged because he
believed that the evidence offered at trial was inadequate to
support a conviction.” Id. In light of that possibility, we
concluded that the juror should not have been dismissed, and
we reversed the convictions. And although Brown dealt
specifically with a juror’s own request to be discharged, our
court and other courts applying Brown’s approach (or a
variant thereof) have adhered to the same analysis when a
juror’s removal stems from another juror’s allegations or from
circumstances that otherwise come to the court’s attention.
See United States v. Carson, 455 F.3d 336, 352 (D.C. Cir.
2006) (per curiam); Symington, 195 F.3d at 1085-87; United
States v. Kemp, 500 F.3d 257, 304-05 (3d Cir. 2007); United
States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001); United
States v. Thomas, 116 F.3d 606, 622 (2d Cir. 1997).
Appellants contend that Brown controls this case and
mandates a new trial. They argue that, by the time of the
jury’s April 14 notes to the district court—and certainly after
the court completed its individual voir dires of Jurors #12,
#10, and #9—the record revealed a likelihood that Juror #9
was a holdout for the defense. They further submit that there
16
was a possibility that the other jurors’ allegations about Juror
#9’s refusal to deliberate stemmed from Juror #9’s substantive
view of the government’s case—that is, when the other jurors
accused Juror #9 of nonparticipation in deliberations, they in
fact were condemning him for his inclination to acquit based
on the evidence. In those circumstances, appellants conclude,
Brown obligated the district court either to keep Juror #9 or to
declare a mistrial.
The government, on the other hand, argues that Juror #9
could be dismissed notwithstanding Brown because, rather
than form a conclusion about the sufficiency of the
government’s evidence, he refused to deliberate altogether.
An outright refusal to deliberate, the government submits,
constitutes a valid basis for dismissal notwithstanding Brown.
In the alternative, the government contends that the dismissal
of Juror #9 can be sustained based on what the district court
explained was an “alternative and independent basis” for the
juror’s discharge, J.A. 1088—viz., that Juror #9 had removed
case-related notes from the jury room in violation of the
court’s instructions.
We agree with the latter argument and rest our decision
exclusively on that ground. We therefore have no occasion to
assess whether, had the district court based its good-cause
dismissal solely on Juror #9’s refusal to deliberate, its
decision would have run afoul of our decision in Brown.
In resting our decision on the district court’s “alternative
and independent” finding that Juror #9’s removal of case-
related notes from the jury room constituted misconduct
justifying his dismissal, we take guidance from our decision
in United States v. Ginyard, 444 F.3d 648. Ginyard clarified
that Brown does not stand in the way of dismissing a known
17
holdout juror for reasons independent of his views about the
evidence. Id. at 652.
The jurors in Ginyard told the trial court that their
deliberations had been “heated” and that they were
“deadlocked.” Id. at 650 & n.1. One note asked the court
how they should handle “a juror who has stated that they do
not believe the testimony of several witnesses and does not
offer reasons based on evidence.” Id. The next day, Juror
429 asked to be relieved from service to pursue a job
opportunity through his rehabilitation program that might
soon elapse. Id. After briefly questioning Juror 429 about the
employment issue, the court announced that it would dismiss
Juror 429 for good cause—i.e., to assure preservation of his
job opportunity. Id. at 651. But before the court implemented
the dismissal, it received information revealing that Juror 429
was likely the holdout referenced in the earlier
communications and might have doubts about the
government’s evidentiary case. Id. at 651-52. The court
proceeded to dismiss him anyway, and the remaining jurors
found the defendants guilty. Id.
On appeal, the government conceded that Juror 429’s
dismissal was in error under Brown because the court
discharged the juror despite learning that he may have been a
holdout for the defense. Notwithstanding the government’s
concession, we found that Brown “does not control.” Id. at
652. We acknowledged that, by the time of Juror 429’s
dismissal, the record revealed a “‘possibility that’ Juror 429
believed that ‘the government had failed to present sufficient
evidence to support a conviction.’” Id. (quoting Brown, 823
F.3d at 597) (brackets omitted). We explained, however, that
the Sixth-Amendment interests safeguarded by Brown do not
always preclude a district court from exercising its discretion
to dismiss a known holdout juror for good cause. “Were a
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holdout juror to request dismissal because he was
experiencing a heart attack,” for instance, “Brown would not
prevent a district court from excusing that juror under Rule
23(b) for good cause, even if the record suggested that the
juror independently had doubts about the sufficiency of the
evidence.” Id.
Instead, Brown bars a juror’s dismissal “only [in] those
situations where the ‘request for discharge stems from doubts
the juror harbors about the sufficiency of the government’s
evidence.’” Id. (quoting Brown, 823 F.2d at 596). We found
“no evidence that Juror 429 sought dismissal, or was
dismissed, because of his doubts about the government’s
evidence.” Id. Rather, “the record indicate[d] that his request
stemmed entirely from an employment-related need.” Id. We
nonetheless ultimately vacated the convictions because we
concluded that the district court had conducted an inadequate
inquiry into whether Juror 429’s employment needs in fact
rendered him unable to continue. Id. at 653-55. But what is
critical for present purposes is our explanation that “Brown is
not implicated” unless “there is some causal link between a
juror’s holdout status and the juror’s dismissal.” Id. at 652.
Ginyard thus establishes that, even if a trial court knows
a juror may harbor doubts about the government’s evidentiary
case, the Sixth Amendment does not always insulate the juror
from removal. See id.; accord United States v. Edwards, 303
F.3d 606, 634 (5th Cir. 2002). Rather, if the court forms an
independent, good-cause justification for removing the juror
that bears no “causal link” to the juror’s “holdout status,” the
court may excuse the juror even if the juror “independently
had doubts about the sufficiency of the evidence.” Ginyard,
444 F.3d at 652. That understanding applies here.
19
Initially, the district court based Juror #9’s dismissal
solely on his refusal to deliberate. Regardless of whether that
ground would have involved the sort of “causal link between
[the] juror’s holdout status and the juror’s dismissal” that
would implicate Brown, id., the court later found that Juror
#9’s misconduct in taking notes from the jury room
“constitute[d] an alternative and independent basis to remove
him for good cause.” J.A. 1088. Because that distinct ground
bore no “causal link” to Juror #9’s “holdout status,” the court
could dismiss the juror on that basis even if he “independently
had doubts about the sufficiency of the evidence.” Ginyard,
444 F.3d at 652. As we explained in another juror-dismissal
case, “[t]he judge plainly stated his reasons for the
dismissal”—Juror #9’s secreting notes out of the jury room in
violation of the court’s instructions—and those reasons “had
nothing to do with the juror’s view of the case.” Carson, 455
F.3d at 352.
That kind of misconduct—unlike a juror’s refusal to
deliberate or a juror’s intent to nullify—poses no inherent
potential for confusion with a juror’s evidence-based
inclination to acquit. Like the juror’s job-related availability
at issue in Ginyard, 444 F.3d at 562, or the juror’s mental
condition and possible deception at issue in Carson, see 455
F.3d at 350-52, the dismissal of Juror #9 for clandestinely
taking case-related notes out of the jury room bears no
connection to any ideas he might have formed about the
strength of the government’s case. That misconduct instead
“was a violation of the court’s instructions to the jurors,” and,
the court noted, also raised safety concerns in the minds of the
other jurors who knew about it. J.A. 1087-88. The court thus
concluded that “[t]his misconduct” independently justified
Juror #9’s “removal from the jury panel,” regardless of Juror
#9’s refusal to deliberate with other jurors. Id. at 1088.
 20
Of course, if an ostensibly independent basis for a juror’s
dismissal in fact amounts to a pretext, and the actual ground
for dismissal involves the juror’s views about the adequacy of
the government’s evidence, our decision in Brown would be
directly implicated. See Carson, 455 F.3d at 352 (considering
defendants’ argument that the district court’s good-cause
finding was pretextual). Here, appellants suggest such a
pretext by seeking to cast doubt on the district court’s reliance
on Juror #9’s removal of notes from the jury room as a “post
hoc rationalization.” Appellants’ Br. 102. We are
unpersuaded.
It is true that, when the court initially announced its
decision to dismiss Juror #9 in an oral ruling from the bench,
the court declined to rely on the note-removal ground, instead
relying solely on Juror #9’s refusal to deliberate. But even at
that time, the court indicated its inclination to “agree” with
the government that Juror #9’s taking of notes provided an
“independent” ground for “remov[ing] him from these
deliberations.” J.A. 5625. The court observed that, if its
factual findings supporting that ground for dismissal could be
made by a “preponderance of the evidence,” it “would agree”
that Juror “Number 12, over Number 9,” has the correct
“version of the facts” and that Juror #9’s misconduct would
justify his dismissal. Id. But the court was “not clear” at that
time whether it would need to choose Juror #12’s version of
the incident over that of Juror #9 under a more stringent,
“beyond a reasonable doubt” standard, in which event the
court could not definitively resolve the factual dispute in
favor of Juror #12’s account. Id. By the time of the court’s
written ruling several days later, however, the court concluded
that preponderance-based findings would be adequate,
enabling it to make “additional findings” that “credit[ed] the
testimony of Juror #12,” and ultimately to determine that
“Juror #9’s misconduct of removing notes from the jury room
21
constitute[d] an alternative and independent basis to remove
him for good cause.” Id. at 1087-88.
We see no basis for questioning the court’s determination
in that regard—or its good faith in reaching that conclusion—
based merely on the sequence of events. The court was
plainly concerned about Juror #9’s alleged removal of notes
from the outset—as soon as it first heard about the incident
from the marshal and from the jury’s second April 14 note
describing what Juror #9 had done. The allegations about
Juror #9’s removal of notes, not his alleged nonparticipation
in deliberations, provided the impetus for the court’s decision
to conduct voir dires of the jurors aware of the incident. As in
Ginyard, “there is no evidence that Juror [#9] . . . was
dismissed” on this independent ground “because of his doubts
about the government’s evidence.” Ginyard, 444 F.3d at 652.
“On the contrary, the record indicates that” this basis for Juror
#9’s dismissal “stemmed entirely” from his removal of case-
related notes from the jury room. Id. The district court
accordingly found that “[t]his misconduct, standing alone,”
justified “his removal from the jury panel, even absent the
evidence of his refusal to deliberate.” J.A. 1088 (emphasis
added). That was because “[t]his misconduct”—entirely
independent of his refusal to deliberate with the other jurors—
amounted to “a violation of the court’s instructions to the
jurors” and also raised safety concerns in the minds of those
jurors who knew about it. Id. at 1087-88.
Nor do we think the district court erred in reaching its
factual conclusions underlying that ground for dismissal—in
particular, in crediting Juror #12’s account of the note-
removal incident instead of Juror #9’s own version—under a
preponderance standard. Because our decisions have
established no explicit standard-of-proof threshold for factual
findings undergirding a court’s dismissal of a juror for
22
misconduct, the district court’s initial uncertainty is
understandable. But the court was correct in ultimately
concluding that it could find that Juror #9 had committed the
misconduct of removing notes from the jury room under a
preponderance standard rather than some more stringent
standard. When a juror’s alleged misconduct justifying her
dismissal is unconnected to her possible “doubts about the
government’s evidence,” Ginyard, 444 F.3d at 652—the only
situation we have occasion to consider here—there is no
cause for requiring the court to conclude that the misconduct
occurred by any heightened evidentiary threshold beyond the
usual preponderance standard. See, e.g., Bourjaily v. United
States, 483 U.S. 171, 175 (1987).
To be sure, even in cases involving a potential ground for
a juror’s dismissal that is fully independent of her known
status as a possible holdout for the defense, the court must
still conduct an adequate inquiry before finding the existence
of the independent basis warranting her discharge. As we
explained in Ginyard, while “[o]ur holding in Brown may not
control the outcome” when there is no connection between the
ground for dismissal and a juror’s “view of the evidence, the
district court, upon having reason to believe the juror is a
holdout, has an enhanced duty to determine the precise
circumstances of the juror’s availability lest the action of the
court interfere with a defendant’s Sixth Amendment right to a
unanimous verdict.” 444 F.3d at 654 (internal citation
omitted). And in Ginyard, we ultimately reversed the
convictions because the district court had “never determined”
the “precise circumstances” of the juror’s potential inability to
serve due to employment-related reasons—i.e., whether the
juror in fact would relinquish an employment opportunity if
he continued his service. Id. We noted that the juror himself
“had indicated that he might be able to serve several
additional days without losing the job opportunity.” Id. “Yet
23
the district court made no attempt to ascertain whether or not
this was true.” Id. The court, we concluded, should have
inquired into the matter further. Id. at 654-55.
Here, by contrast, the district court did not “rely on an
unexamined state of uncertainty to draw the inference” that
Juror #9 had committed disqualifying misconduct by
removing case-related notes from the jury room. Id. Rather,
the court conducted a fully adequate factual inquiry. Upon
receiving Juror #10’s (the foreman’s) written account of what
had transpired, the district court questioned every juror with
information about the incident. Juror #10 testified that he had
no reason to believe any other juror saw what Juror #9 was
doing, and nothing said by the other two jurors—Jurors #9
and #12—called that assertion into doubt. Under those
circumstances, the court reasonably decided against asking
additional jurors about the episode. Any such inquiry ran the
risk of fueling rumors or further unsettling or distracting the
jury. Based on the court’s voir dire of the three jurors, it
found that Juror #9 copied “passages from his juror notebook
onto his note pad” and then removed those notes in a
“secretive, covert manner, attempting to avoid being seen,” in
“violation of the court’s instructions to the jurors that they
must not remove anything from the jury room.” J.A. 1087.
The court’s findings to that effect, by necessity, were
based on its credibility determinations about the voir dire
testimony of the three jurors. And we have emphasized that
“[t]he district court, having observed the demeanor of [a]
juror [during voir dire questioning], is in the best position to
determine the credibility of” the juror’s statements. United
States v. Gartmon, 146 F.3d 1015, 1029 (D.C. Cir. 1998). For
that reason, we are highly reluctant “to second guess the
conclusion of [an] experienced trial judge,” when, as here,
that conclusion was “based in large measure upon personal
24
observations that cannot be captured on a paper record.”
United States v. Ruggiero, 928 F.2d 1289, 1300 (2d Cir.
1991).
That is particularly so when nothing in that paper record
calls the court’s credibility assessments into question. The
district court was under no obligation to accept Juror #9’s
account that he merely wrote down “[a] grocery list”
containing only the words “[m]ilk, eggs, bread” and “fruit.”
J.A. 5598-99. Juror #12 described Juror #9 as repeatedly
copying down information for some period of time from his
jury notebook and then removing three pieces of paper from
his notepad while attempting to avoid detection, all of which
would be inconsistent with merely jotting down a short,
innocuous grocery list. That testimony directly conflicted
with Juror #9’s statements that he wrote down just four
words, removed but one piece of paper, and made no attempt
to conceal what he was doing. Keeping in mind that the
district judge was in a position to observe the jurors’
demeanor, we cannot say that the judge was wrong to
“credit[] the testimony of Juror #12 regarding his observations
of the conduct of Juror #9,” and to “not credit the testimony
of Juror #9 regarding this incident.” Id. at 1087-88.
Perhaps recognizing the difficulty of questioning the
district court’s credibility determinations, appellants argue
that, even if Juror #9 had furtively removed case-related
notes from the jury room, that conduct should not have led to
his dismissal. Appellants initially contend that the district
court (as opposed to the marshals) never instructed the jurors
that their notes must remain in the jury room. Assuming that
a distinction between an instruction from the district court and
one from the marshals should matter, it is true that the court,
in an exchange with counsel immediately preceding its voir
dire of the jurors, stated that the marshals were the ones to
25
instruct the jury that they could not remove materials from the
jury room. But regardless of the court’s recollection at that
moment, the court in fact had told the jury at the outset of trial
that, “[a]t the end of each day, you will take [any notes] with
you to the jury room and seal them” and that those items
would be kept in the locked jury room overnight. Id. at 1824-
25. The instructions also explained that “[n]o one . . . will
ever look at any of your notes” and that the materials would
“be destroyed” following the jury’s delivery of the verdict, id.
at 1825—making all the more clear that the prohibition’s aim
was to preserve the notes’ secrecy. Indeed, two other jurors
shared their (unprompted) understanding that Juror #9’s
removal of case-related notes violated the judge’s
instructions.
We are also unpersuaded by appellants’ contention that
the prohibition itself was misguided because a juror’s removal
of notes from the jury room is no different than her retention
of her own memories of the evidence. A trial court can
readily conclude that a juror’s removal of written material
from the jury room carries a greater risk that the material
could be inadvertently seen by—or intentionally shared
with—someone else. Even assuming Juror #9 did nothing
more than copy passages out of his juror notebook verbatim,
“[a]llowing the jury to take home the indictment or the jury
instructions ‘leaves the deliberative process needlessly
vulnerable to a variety of potential problems’ by ‘increasing
the chances that individual jurors may want to discuss these
matters with family members or friends’ and by ‘making it
easier for jurors to research legal issues on their own.’”
United States v. Esso, 684 F.3d 347, 354 (2d Cir. 2012)
(quoting State v. Morgan, 33 A.3d 527, 539 (N.J. Super. Ct.
App. Div. 2011)). Moreover, appellants’ effort to challenge
the need for a bar against removing notes from the jury room
disregards that Juror #9 not only violated the court’s
26
instruction to that effect, but then compounded his
misconduct by also giving false testimony about the incident
under oath.
Appellants further argue that, even if Juror #9 committed
misconduct, the court should have re-instructed the jurors not
to remove their notes rather than dismiss the juror
straightaway. We are unable to conclude that the court
abused its discretion under Rule 23(b) by choosing the latter
course. A trial court’s zone of discretion under Rule 23(b)
includes considerable leeway to determine the appropriate
response to a finding of juror misconduct based on the court’s
firsthand assessment of the nature and degree of misconduct
and the effect on the trial proceedings.
In that regard, the circumstances here are unlike those in
Ginyard. There, we found fault in the district court’s failure
to conduct a further inquiry before discharging the juror,
especially given that the juror himself suggested that he could
continue to serve without losing his job opportunity. See 444
F.3d at 654-55. Whether he should be dismissed turned on a
factual question warranting further examination—i.e.,
whether the juror’s employment opportunity in fact would be
relinquished if he were to continue to serve. Here, by
contrast, whether Juror #9’s misconduct should lead to his
dismissal did not turn on any such factual question warranting
further inquiry. Instead, it turned on the district court’s
contextual assessments about the gravity of the misconduct
and the consequences of allowing him to continue to serve.
We see no abuse of discretion in the court’s determination
that, by removing jury notes in violation of the court’s
instructions and then giving false testimony about the
incident, Juror #9 committed misconduct warranting his
dismissal. See, e.g., United States v. Vega, 72 F.3d 507, 512
(7th Cir. 1995) (finding no abuse of discretion in a court’s
27
dismissing a juror who disobeyed instructions, including by
removing notes from the jury room); United States v. Fryar,
867 F.2d 850, 853 (5th Cir. 1989) (finding no abuse of
discretion in a court’s dismissing a juror who lied to the judge
under oath).
Moreover, the court noted that its decision to discharge
Juror #9 for good cause was additionally informed by the
incident’s implications for the jurors’ sense of safety and
security. As the court referenced in its written findings, the
scale of the criminal enterprise and the nature of the charges
against the defendants—including murder, attempts to
intimidate potential witnesses through killings, and RICO
conspiracy involving multiple acts of violence—caused the
court to employ unusually stringent security measures to
protect the jurors. The court had empaneled an anonymous
jury, which entailed a conclusion that “there is a strong reason
to believe the jury needs protection.” Moore, 651 F.3d at 48
(quoting United States v. Edmond, 52 F.3d 1080, 1090 (D.C.
Cir. 1995)). The jurors were seated behind a locked
bulletproof wall during trial, and they were assembled and
dropped off in private locations, escorted each way by the
marshals. Even with those protections in place, some
potential jurors expressed fear during jury selection about
being picked for duty and worried that their anonymity could
be compromised.
Those concerns came to the fore once Juror #9’s
misconduct came to light. Neither the district court nor the
jurors knew exactly what Juror #9 had written down or what
he had done with it. But Juror #12 observed that, whatever it
was, Juror #9 had tried to hide it. And the district court
credited the observation that Juror #9 had acted “in a
secretive, covert manner, attempting to avoid” detection. J.A.
1087. As a result of Juror #9’s behavior, Juror #10 felt
28
“disturbed” and expressed concerns for his and other jurors’
anonymity and safety; he shared that he had lost sleep over
the incident. Id. at 5585-86.
The court considered that testimony against the backdrop
of prior incidents raising concerns about the security and
independence of the jurors. Previously, the court had learned
that the supervisor of one of the alternate jurors had been
regularly attending the trial and maintaining contact with the
alternate juror; the supervisor had grown up with one of the
defendants, Ronald Alfred, knew him well, and was seen
gesturing to Alfred during trial. The court dismissed that
alternate juror. There was also a likely instance of witness
intimidation (discussed in greater detail below) involving a
defense witness’s receipt of a folder containing a photo of his
murdered son shortly before the witness was to take the stand
at trial. In that context, the district court understandably noted
that “the safety and security of the jurors are matters that are
of the utmost importance in this case” when it ruled that Juror
#9’s removal of notes from the jury room warranted his
dismissal. J.A. 1088.
In the end, subject to constitutional limitations, a “trial
court has a great deal of discretion in deciding to excuse a
juror for cause,” and “[a]n appellate court ordinarily will not
second-guess such a determination.” United States v. Essex,
734 F.2d 832, 845 (D.C. Cir. 1984). We find that the district
court’s alternative rationale for Juror #9’s dismissal based on
his removal of jury notes amounted to a good-cause ground
for his discharge. We thus perceive no abuse of discretion in
the court’s dismissal of Juror #9 under Rule 23(b).
II. Government Overview Testimony
In reviewing the trial of the Group One defendants in
Moore, we condemned the government’s use of an FBI agent
29
as an “overview witness.” See 651 F.3d at 54-61. In
appellants’ trial—which took place before we released our
decision in Moore—the government used that same FBI agent
in substantially the same manner. We reiterate Moore’s
disapproval of such an overview witness and its conclusion
that overview testimony might be, in certain circumstances,
sufficiently prejudicial to warrant reversal of a defendant’s
convictions. Those circumstances are absent here, however.
Appellants forfeited their objections to the overview witness’s
testimony by failing to raise them at trial, leaving us to review
only for plain error. As in Moore, we discern no reversible
error under that forgiving standard of review.
A.
As in the Group One trial reviewed in Moore, the
government began its case-in-chief in the Group Two trial
with the testimony of FBI Agent Daniel Sparks, the lead agent
investigating the narcotics conspiracy at issue in both cases.
Agent Sparks testified as an overview witness, presenting
background information in support of the government’s case.
Sparks highlighted the crucial role that cooperating
witnesses can perform in unraveling a conspiracy. Narcotics
conspiracies, Sparks explained, are in large part “based on
everybody keeping quiet.” J.A. 1862. “[O]nce you penetrate
that conspiracy” with cooperating witnesses, Sparks stated,
“you get an inside[r] that can tell you what’s going on.” Id.
At that point, a conspiracy is “like a house of cards[.] [I]t
begins to crumble.” Id. Sparks also testified that, due to their
value to the prosecution, cooperating witnesses may be
threatened by their coconspirators and often require witness
protection.
A basic “ground rule[]” for cooperating witness
testimony, Sparks explained, is that the cooperator must
30
provide “[t]ruthful information.” Id. at 1866-67. Though
cooperators are assured that any information provided will not
be used against them—a rule designed to make them “feel
comfortable to provide the information”—Sparks noted that
law enforcement still works to vet any cooperating witness for
truthfulness. Id. at 1865, 1867. Officers do not “take
[information] at face value,” Sparks explained; rather, they
work to “corroborate or verify” that information by cross-
referencing it with police reports, historical homicide files,
and testimony from other witnesses. Id. at 1867-68. He then
further described how cooperators may earn leniency in
exchange for their cooperation, including via “5(K)” letters
(requests for sentencing departures under U.S.S.G. § 5K).
The sentencing judge would be the one to evaluate “the full
extent” of a witness’s cooperation, Sparks observed. See id.
at 1874-76.
At the close of his testimony, Sparks presented two
exhibits designed to tie the facts of the case together for the
jury. He first showed the jury an exhibit with pictures of
twenty-two individuals under indictment for the alleged
conspiracy and identified which individuals (i) were on trial
in the instant proceeding; (ii) were on trial in separate
proceedings; and (iii) had pleaded guilty and would serve as
cooperating witnesses in the current trial. Finally, Sparks
introduced a map of the District of Columbia showing the site
of each murder and attempted murder allegedly connected to
the conspiracy.
B.
In Moore, the government used Agent Sparks in
essentially the same fashion. Sparks “testified as the first
witness in the government’s case-in-chief,” and “[h]is
testimony provided an overview of the government’s case,
31
setting forth for the jury the script of the testimony and
evidence the jury could expect the government to present in
its case-in-chief.” Moore, 651 F.3d at 54-55. “Further,
[Sparks] expressed his opinion, based on his training and
experience, about the nature of the investigation conducted in
th[e] case.” Id. at 55.
Of particular relevance, Agent Sparks testified in the trial
of the Group One defendants “that it was important, in his
view, to use cooperating witnesses in this case because it was
‘the only way’ to gain ‘access to the inside information.’” Id.
at 59. While acknowledging that cooperating witnesses are
“criminals,” he also testified that those witnesses “know
what’s going on,” and that their testimony is “the only way to
put these kinds of cases together.” Id. (brackets omitted).
Sparks further noted that cooperating witnesses were
debriefed “to ‘get complete and truthful information,’” and
that the FBI worked “to ‘try and verify’ the information ‘just
to make sure the person is truthful.’” Id. (brackets omitted).
At trial and on appeal, the Moore defendants objected to
Sparks’s testimony. They argued that his overview testimony
“improperly permitted the government . . . to elicit FBI Agent
Sparks’s opinions about the charged crimes, the reasons for
appellants’ actions in various circumstances, the nature of the
charged conspiracy and the relationships between co-
conspirators, including the cooperating co-conspirators who
testified as government witnesses, and the strength of the
evidence—all before the government had presented such
evidence.” Id. at 55.
We agreed. Sparks’s testimony, we found, “crossed the
line in a number of instances.” Id. at 59. While he “could
properly describe, based on his personal knowledge, how the
gang investigation in this case was initiated, what law
32
enforcement entities were involved, and what investigative
techniques were used,” what “he could not do was present lay
opinion testimony about investigative techniques in general,”
“opine on what generally works and what does not,”
“anticipate evidence that the government would hope to
introduce at trial,” or “express an opinion, directly or
indirectly, about the strength of that evidence or the
credibility of any of the government’s potential witnesses,
including the cooperating co-conspirators.” Id. at 61. We
noted that the “clear implication” of Sparks’s testimony “was
that the government had selected only truthful co-conspirator
witnesses for the pre-indictment investigation, from whom the
jury would hear during the trial.” Id. at 59-60.
We found that result to be highly problematic, and we
therefore joined the other courts of appeals “that have
addressed the issue in condemning” the government’s use of
overview witness testimony. Id. at 60. We noted that there
were several “obvious” problems posed by the government’s
use of an overview witness. Id. at 56. “First, the jury might
treat the summary evidence” from the overview witness “as
additional or corroborative evidence that unfairly strengthens
the government’s case.” Id. Second, the overview witness
might serve as a conduit for the introduction of “otherwise
inadmissible evidence.” Id. And third, an overview witness
“might permit the government to have an extra [opening]
argument.” Id. We also determined that the “[a]voidance of
those dangers is largely beyond the ability of the district
court, much less the defense.” Id. at 60.
Ultimately, however, we found no reversible error. We
concluded that “the prejudice resulting from the admission of
FBI Agent Sparks’s overview testimony, to the extent it was
inappropriate, was ameliorated.” Id. at 61. We noted several
mitigating factors, including that “[e]ach instance of FBI
33
Agent Sparks’s improper testimony identified by appellants
was later confirmed by admissible evidence at trial”; that the
district court employed limiting instructions; and that the trial
produced “overwhelming evidence of appellants’ guilt.” Id.
Accordingly, we concluded that “the error did not ‘affect the
outcome of the district court proceeding,’ and hence
appellants are not entitled to reversal of their convictions
because of improper overview testimony by FBI Agent
Sparks.” Id. (quoting United States v. Sumlin, 271 F.3d 274,
281 (D.C. Cir. 2001)) (internal citation and brackets omitted).
In a subsequent decision, we again noted the problems
associated with overview testimony (again by Agent Sparks),
but we concluded that the admission of the testimony was
harmless error due to the lack of prejudice. United States v.
Bostick, 791 F.3d 127, 145-47 (D.C. Cir. 2015).
C.
Both parties agree that Moore establishes the appropriate
framework for our review today. Given that appellants raise
on appeal substantially the same objections made at trial in
Moore, to what was substantially the same testimony by the
same witness, we agree. In Moore, we recognized that
challenges to overview witness testimony could be framed as
objections to the introduction of otherwise-inadmissible
evidence or as assertions of prosecutorial misconduct. See
651 F.3d at 55. We assume that appellants make both claims,
though—as in Moore—our conclusions are unaffected by any
distinctions between the two. Id.
Our standard of review depends on whether appellants
properly preserved any objections to Sparks’s overview
testimony. Failure to raise an objection at trial results in the
forfeiture of the objection, yielding review only under the
more forgiving “plain error” standard. United States v.
34
Wilson, 605 F.3d 985, 1022 (D.C. Cir. 2010). Appellants
argue that they preserved their challenge to Sparks’s overview
testimony by lodging a number of objections during the
course of Sparks’s testimony. But the objections identified by
appellants were not objections to Sparks’s testimony qua
overview witness. They instead were objections to various
discrete pieces of Sparks’s testimony—for instance, an
objection to Sparks’s testimony about his military
background. Accordingly, appellants’ objections at trial
“gave ‘no indication to the judge that the defense was
claiming that the entire line of questioning was improper.’”
United States v. Ramirez-Fuentes, 703 F.3d 1038, 1042 (7th
Cir. 2013) (quoting United States v. McMahan, 495 F.3d 410,
418 (7th Cir. 2007)) (brackets omitted). Our review thus is
for plain error only.
The first two elements of the plain-error standard are
met—i.e., that a “legal error” exists and that the error is
“clear.” United States v. Brown, 508 F.3d 1066, 1071 (D.C.
Cir. 2007) (quoting United States v. Sullivan, 451 F.3d 884,
892 (D.C. Cir. 2006)). The key hallmarks of Sparks’s
testimony—in particular, his opining on the truthfulness of
cooperating witnesses as a whole—mirrored the testimony we
condemned in Moore. But plain-error inquiry does not end
there. To satisfy the third prong of the plain-error standard—
i.e., that appellants’ “substantial rights” were violated—“the
Supreme Court has indicated that ‘in most cases’” appellants
must show that the error “affected the outcome of the district
court proceedings.” Id. (quoting United States v. Olano, 507
U.S. 725, 734 (1993)). That inquiry hinges on “the centrality
of the issue affected, the severity of the [error], the steps taken
to mitigate the [error], and the closeness of the case.” Id.
(quoting United States v. Venable, 269 F.3d 1086, 1091 (D.C.
Cir. 2001)). In Moore, we likewise asked whether the errors
from Sparks’s testimony affected the outcome of the Group
35
One defendants’ trial. 651 F.3d at 61. We concluded that it
did not. We ask the same question today, and we reach the
same conclusion.
Initially, we note that several of appellants’ challenges to
purportedly inadmissible evidence introduced via Sparks’s
testimony were not, in fact, part of Sparks’s overview
testimony. They instead came later in the trial, when Sparks
testified about the execution of a specific search warrant. For
example, appellants note that, “while explaining items seized
during a search of R. Alfred’s apartment, [Sparks] testified,
over objection, that he seized what he thought to be crack
cocaine. . . . [T]he substance was never confirmed by the
DEA to be narcotics.” Appellants’ Br. 112 (citing J.A. 4029-
31). But in Moore, we of course did not condemn the
government’s use of any testimony by FBI agents; rather, we
cast doubt on the permissibility of such testimony only when
presented as overview testimony raising the concerns we
highlighted in our discussion. See 651 F.3d at 60. Sparks’s
testimony about the seizure of crack cocaine, given later in
the trial and in connection with a specific search, was plainly
not part of his overview testimony.
Second, as in Moore, to the extent that appellants identify
problematic parts of the actual overview testimony,
admissible evidence later confirmed many of those portions of
Sparks’s testimony. For example, appellants take issue with
his assertion that law enforcement worked to “corroborate or
verify” any information from cooperating witnesses. J.A.
1867. Appellants argue that Sparks’s assertion amounted to
impermissible vouching for the government’s witnesses. We
too recognize the problem: those statements might well
suggest that a “highly trained FBI agent had determined that
the cooperating co-conspirators who would testify at trial
were to be treated as credible witnesses.” Moore, 561 F.3d at
36
59. But the cooperating witnesses also testified that they were
required to tell the truth in their FBI debriefings and detailed
the government’s efforts to verify their testimony. For
example, cooperating witness Omar Wazir agreed that law
enforcement agents told him they “would investigate the
information that [he] provided . . . [t]o find out if it was
factual or not,” J.A. 2443-44, and further noted that “[t]hey
did a good job investigating.” Id. at 2419. Similar scenarios
played out with many cooperating witnesses. Overview
testimony can wrongly suggest to jurors that they should
“place greater weight on evidence perceived to have the
imprimatur of the government,” Moore, 651 F.3d at 57
(quoting United States v. Casas, 356 F.3d 104, 120 (1st Cir.
2004)), but the testimony to the same end by the witnesses
themselves mitigated much of that potential prejudice here.
Finally, as in Moore, the jury was presented with
overwhelming evidence of appellants’ guilt, some of which
we outline below in assessing appellants’ challenges to the
sufficiency of the evidence supporting their convictions. See
Parts XV, XX, XXII-XXV, XXVIII, XXX, infra. While
appellants argue that “the government’s case, built as it was
upon cooperating witnesses, could hardly be called
‘overwhelming,’” Appellants’ Br. 114, we must disagree. In
Moore as well, the government’s case was built on an “almost
exclusive reliance on co-conspirator cooperators’ testimony.”
651 F.3d at 60. And in that case, we could not conclude that
any error associated with Sparks’s overview testimony
“affect[ed] the outcome of the district court proceeding.” Id.
at 61 (quoting Sumlin, 271 F.3d at 281). We reach the same
result today.
Under plain-error review, we find that “appellants are not
entitled to reversal of their convictions because of improper
overview testimony by FBI Agent Sparks.” Id. While an
 37
overview witness might well trigger reversal in a future case
presenting circumstances less favorable to the government, it
does not do so here.
III. The Admission of “Other Crimes” Evidence
Convictions are supposed to rest on evidence relevant to
the crime charged, not on evidence of other, unrelated bad
acts suggesting nothing more than a tendency or propensity to
engage in criminality. All six appellants in this case argue
that the prosecution crossed that line by introducing extensive
evidence of prior criminal activity, which is generally barred
by Federal Rule of Evidence 404(b). The bulk of the
evidence to which appellants object, however, was admissible
because it documented activities intrinsic to the charged
conspiracy or proved “motive, opportunity, intent,
preparation, plan, knowledge, [or] identity[.]” Fed. R. Evid.
404(b)(2). But appellants are correct that some evidence of
prior criminal conduct was wrongly admitted. Those
admissions, while erroneous, were harmless given the
overwhelming weight of admissible evidence against
appellants.1
A.
Rule 404(b) generally bars the admission of “[e]vidence
of a crime, wrong, or other act . . . to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid.
1
While Rule 404(b) applies to all manner of prior bad acts and not
just prior crimes, this case largely involves evidence of prior
criminal activity, and for that reason the opinion frequently uses
“other crimes” evidence as a shorthand reference to Rule 404(b)’s
operation.
38
404(b)(1). That same evidence, however, may “be admissible
for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). That
means that, in practice, Rule 404(b) “does not prohibit
character evidence generally, only that which lacks any
purpose but proving character.” United States v. Bowie, 232
F.3d 923, 930 (D.C. Cir. 2000). A prosecutor seeking to use
evidence of other criminal or bad acts for one of those
permitted purposes must, upon request, provide the defendant
with reasonable notice, usually pretrial, of the anticipated
evidence. Fed. R. Evid. 404(b)(2).
A threshold question in determining the admissibility of
evidence of other crimes and bad acts is whether the evidence,
in actuality, relates to acts unconnected with those for which
the defendant is charged, or instead is intertwined with the
commission of charged crimes. Acts “extrinsic” to the crime
charged are subject to Rule 404(b)’s limitations; acts
“intrinsic” to the crime are not. See Bowie, 232 F.3d at 927;
see also United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir.
2010). In other words, Rule 404(b) only applies to truly
“other” crimes and bad acts; it does not apply to “evidence
. . . of an act that is part of the charged offense” or of
“uncharged acts performed contemporaneously with the
charged crime . . . if they facilitate the commission of the
charged crime.” Bowie, 232 F.3d at 929.
In conspiracy prosecutions, the prosecution is “usually
allowed considerable leeway in offering evidence of other
offenses ‘to inform the jury of the background of the
conspiracy charged . . . and to help explain to the jury how the
illegal relationship between the participants in the crime
developed.’” United States v. Mathis, 216 F.3d 18, 26 (D.C.
Cir. 2000) (quoting United States v. Williams, 205 F.3d 23,
39
33-34 (2d Cir. 2000)). In addition, “where the incident
offered is a part of the conspiracy alleged[,] the evidence is
admissible under Rule 404(b) because it is not an ‘other’
crime.” United States v. Hemphill, 514 F.3d 1350, 1357
(D.C. Cir. 2008) (quoting United States v. Mejia, 448 F.3d
436, 447 (D.C. Cir. 2006)). We have also permitted the
introduction of “other acts” evidence in conspiracy cases (i) to
link a defendant to other defendants and drug transactions for
which the conspiracy was responsible, United States v.
Gaviria, 116 F.3d 1498, 1532 (D.C. Cir. 1997); (ii) to show
the nature of a conspiracy and “the kind of organizational
control” a defendant exercised, Mahdi, 598 F.3d at 891; and
(iii) to show the defendants’ intent to act in concert, Mathis,
216 F.3d at 26; see also United States v. Straker, 800 F.3d
570, 590 (D.C. Cir. 2015) (evidence of uncharged hostage
takings was “relevant to . . . how those defendants started to
work together as kidnappers”).
However, in defining the contours of intrinsic evidence
that is not subject to Rule 404(b), we have rejected the rule
embraced by some of our sister circuits that evidence is
intrinsic if it “complete[s] the story” of the charged crime.
Bowie, 232 F.3d at 928 (citing United States v. Hughes, 213
F.3d 323, 329 (7th Cir. 2000); United States v. Carboni, 204
F.3d 39, 44 (2d Cir. 2000)). That is because “all relevant
prosecution evidence explains the crime or completes the
story” to some extent, and the fact that “omitting some
evidence would render a story slightly less complete cannot
justify circumventing Rule 404(b) altogether.” Bowie, 232
F.3d at 929. Instead, if the government wishes to introduce
such “other crimes” evidence, we “see no reason to relieve the
government and the district court from the obligation of
selecting from the myriad of non-propensity purposes
available to complete most any story.” Id.
40
Beyond Rule 404(b)’s specific limitations on the
admission of prior bad acts, Federal Rule of Evidence 403
permits a court to exclude otherwise-relevant evidence “if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. As relevant here,
this court has recognized that “[e]vidence of other crimes or
acts having a legitimate nonpropensity purpose,” and thus
unaffected by Rule 404(b), may nevertheless “contain the
seeds of a forbidden propensity inference.” Bowie, 232 F.3d
at 931. As a result, Rule 403’s balancing of prejudice and
probativeness may still bar the introduction of evidence, even
if Rule 404(b) by itself would not. Id.; see also Mathis, 216
F.3d at 26.
We review the district court’s admission of evidence
under both Rule 403 and Rule 404(b) for an abuse of
discretion. See United States v. Johnson, 519 F.3d 478, 483
(D.C. Cir. 2008) (Rule 404(b)); United States v. Clarke, 24
F.3d 257, 265 (D.C. Cir. 1994) (Rule 403). This court is
“extremely wary of second-guessing the legitimate balancing
of interests undertaken by the trial judge” in this context.
United States v. Ring, 706 F.3d 460, 472 (D.C. Cir. 2013)
(quoting Henderson v. George Washington Univ., 449 F.3d
127, 133 (D.C. Cir. 2006)). An erroneous admission of “other
crimes” evidence must be disregarded as harmless error
unless it had a “substantial and injurious effect on the jury’s
verdict.” United States v. Clark, 747 F.3d 890, 896 (D.C. Cir.
2014) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)) (ellipsis and brackets omitted).
41
B.
Prior to trial, each Appellant filed a motion under Rule
404(b)(2) seeking notice of any evidence of other crimes or
prior bad acts that the government intended to introduce
against them. In addition, the Alfreds filed motions in limine
seeking to exclude evidence relating to the murder of Kairi
Ball, a crime in which they had allegedly participated prior to
joining the charged conspiracy. Ronald Alfred also moved to
dismiss a portion of the indictment relating to a 1989 drug
possession charge that preceded his entry into the conspiracy.2
The district court denied the motions. With respect to
Alfred’s preconspiracy possession charge, the court ruled that
the preconspiracy timing was not dispositive, although the
government would ultimately have to demonstrate the
incident’s relevance. J.A. 863-64. The court also ruled that
evidence relating to the Kairi Ball murder was admissible
because the government argued that the crime was an impetus
for the Alfreds’ entry into the conspiracy. Id. at 874-75.
Other than that, the government represented that it did not
intend to introduce any evidence under Rule 404(b), but rather
would introduce only evidence directly relating (intrinsic) to
the conspiracy itself. Id. at 873-74.
The government subsequently filed its own motion in
limine seeking permission to introduce evidence of Seegers’s
preconspiracy conviction for possession of cocaine with intent
to distribute. The district court granted the motion,
concluding that the conviction helped show both that Seegers
was “able and ready to enter into the charged conspiracy,”
2
Additional objections to the treatment of this incident are
addressed in Part III(C)(3), which addresses Ronald Alfred’s
individual challenges.
42
and that he was geographically linked to locations at which
alleged crimes in the conspiracy were committed. Id. at 937.
The conviction thus was admissible for a permissible Rule
404(b) purpose: to show Seegers’s “intent, plan and
knowledge as it related to the distribution of cocaine and other
narcotics in a particular area of Washington, D.C.” Id. at 939.
In a separate order, the court denied Ronald Alfred’s motion
to exclude evidence relating to a 1994 firearms charge. Id. at
946.
Ronald Alfred, Oliver, and Seegers each filed posttrial
motions for a new trial arguing that, contrary to its pretrial
representation, the government had introduced extensive
“other crimes” evidence barred by Rule 404(b). The district
court denied the motions, concluding in each case that the
evidence either was direct evidence of the conspiracy and
appellants’ entry into it, or was so inextricably intertwined
with such direct evidence as to be “intrinsic” evidence of the
charged offenses. United States v. Simmons, 431 F. Supp. 2d
38, 58, 63, 72 (D.D.C. 2006).
C.
The government’s representation that it did not intend to
rely on any Rule 404(b) evidence and certain aspects of the
district court’s rulings both relied on an overly capacious
understanding of what can be introduced as intrinsic evidence.
Nevertheless, even when viewed through the proper analytical
lens, the bulk of the evidence was properly admitted, and the
evidence that was wrongly admitted was harmless.3
3
We limit our review to those challenges actually identified by
appellants on appeal, notwithstanding their efforts to claim that the
objections presented are merely illustrative. Appellate judges are
not bloodhounds who need only be put on the scent to go hunting
43
1. Direct Evidence of the Charged Crimes
Much of the evidence to which appellants object did not
trigger Rule 404(b) at all because it qualified as direct
evidence of the crimes charged, including acts of violence
committed or threatened by appellants during their
participation in the conspiracy. As a general matter, “[w]hen
[the] indictment contains a conspiracy charge, uncharged acts
may be admissible as direct evidence of the conspiracy itself.”
United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994). The
conspiracy charged in this case had a broad scope that
encompassed acts of violence for multiple purposes, such as
enriching the conspiracy’s members, enhancing their
reputations, safeguarding them from apprehension by law
enforcement or prosecution, protecting them from violence
threatened by third parties, collecting debts, and enforcing
internal discipline.
Admission of evidence bearing on such violence
accordingly was admissible as direct evidence of the
conspiracy, without Rule 404(b) coming into play. Properly
admitted on that ground then was evidence that (i) James
Alfred tried, with the aid of other conspiracy members, to
shoot individuals who had been threatening him and his
brother; (ii) McGill sought to enlist other conspiracy members
to help him kill an individual to protect his reputation and to
prevent interference with his drug dealing; (iii) Simmons
attempted to have Oliver kill two individuals in retaliation for
their involvement in the murder of Oliver’s brother; and (iv)
Oliver asked other conspiracy members to kill different
individuals, in at least one instance to forestall retaliation.
for errors on their own. See United States v. Laureys, 653 F.3d 27,
32 (D.C. Cir. 2011) (“It is not our duty to sift the trial record for
novel arguments a defendant could have made but did not.”).
44
Simmons also objects to the introduction of evidence
suggesting that he had attempted to have James Alfred killed
because of an unpaid debt. While Simmons does not appear
to have tried to enlist other conspiracy members in that
attempt, it was not an abuse of discretion to admit the
evidence because the use of violence to collect debts and
enforce discipline was specifically alleged to be a goal of the
conspiracy.
Also admissible as intrinsic to the conspiracy itself was
evidence of violence committed during the course of the
conspiracy and involving multiple individuals linked to the
conspiracy. That included evidence showing that Oliver
purportedly had “somebody in the . . . trunk of [a] car,” J.A.
3268, had his gun jam when he attempted to shoot someone,
and offered to commit acts of violence for Walter Fleming, a
coconspirator turned government cooperator.4
Another goal of the charged conspiracy was the
acquisition and distribution of cocaine, crack cocaine, heroin,
and marijuana. Evidence relevant to such drug trafficking
thus also fell outside Rule 404(b)’s operation. That includes
evidence of preconspiracy drug dealing as long as it continued
after appellants entered into the charged conspiracy, because
such evidence became direct evidence of the drug dealing
4
To the extent that appellants’ objections turn on witnesses
interpreting things that had been said to them or that they had
overheard, a participant to a conversation may provide his or her
own interpretation of that conversation if there is a nonspeculative
basis for doing so. See United States v. Murphy, 768 F.2d 1518,
1535 (7th Cir. 1985); cf. Wilson, 605 F.3d at 1026 (lay witness
testimony on terminology used in drug operations may be
permissible where witness had firsthand experience with the drug-
dealing group in question).
45
within the conspiracy. There was thus no Rule 404(b) bar to
the admission of testimony suggesting that James Alfred
supplied heroin to Omar Wazir, or that Simmons supplied
crack cocaine to Bethlehem Ayele.
Finally, while the Alfreds, Simmons, and McGill object
to evidence of their failure to pay taxes during the course of
the conspiracy, “[i]t is well settled that in narcotics
prosecutions, a defendant’s possession and expenditure of
large sums of money, as well as his or her failure to file tax
returns, are relevant to establish that the defendant lacked a
legitimate source of income and that, in all probability, the
reason for the failure to report this income is due to the
defendant’s participation in illegal activities.” United States
v. Briscoe, 896 F.2d 1476, 1500 (7th Cir. 1990); see also
United States v. Chandler, 326 F.3d 210, 215 (3d Cir. 2003)
(same).
That rationale holds true here. Simmons, McGill, and
Ronald Alfred all suggested that they were operating a
business or otherwise supporting themselves through
legitimate means. Their failure to pay taxes thus was relevant
to show that they were in fact getting income from illicit
activities like drug trafficking that they assuredly did not want
to report to the IRS. With respect to James Alfred, he failed
to object to the tax-filing evidence in district court, and the
court’s failure to sua sponte exclude that evidence of his lack
of a licit income source while in the drug conspiracy was not
plain error. See United States v. Spriggs, 102 F.3d 1245, 1257
(D.C. Cir. 1996) (“Because appellants did not make a timely
objection to [admitting evidence], we review its admission for
plain error.”).
46
2. Evidence Admissible for a Nonpropensity Purpose
Other evidence, while not direct evidence of the charged
conspiracy, was nevertheless properly admitted for a
nonpropensity purpose expressly permitted by Rule 404(b).
a. Evidence of the Kairi Ball murder
The government offered evidence that Ronald Alfred,
with the help of his brother James Alfred, orchestrated the
killing of Kairi Ball for robbing Ronald Alfred’s store. Kevin
Gray, an associate of Ball’s and a key participant in the
charged conspiracy, then sought to retaliate against Ronald
Alfred for his role in Ball’s killing. Evidence showed,
however, that Gray and Ronald Alfred agreed to meet after
the killing to sort out their differences, and out of that meeting
came an agreement to deal drugs together. The government
argues that this evidence was admissible because “[t]he
murder of Kairi Ball in 1995 was the catalyst for the Alfreds’
membership” in the drug conspiracy with Gray.
The district court admitted the evidence of Kairi Ball’s
murder as “intrinsic to the conspiracy, rather than extrinsic
‘other crimes’ evidence under 404(b).” That was error.
Intrinsic evidence is limited to acts that are “part of the
charged offense” itself or that are “performed
contemporaneously with the charged crime . . . if they
facilitate the commission of the charged crime.” Bowie, 232
F.3d at 929. The Kairi Ball murder was not itself part of the
charged conspiracy, and the murder occurred before the
charged conspiracy began, not contemporaneously with it. To
be sure, the murder may have some relevance to showing a
conspiracy, but “it cannot be that all evidence tending to
prove the crime is part of the crime.” Id.
47
That mislabeling of the basis for admission is of no
moment because the underlying rationale is sound: evidence
of the murder was relevant for the nonpropensity purpose of
showing the Alfreds’ motive for joining the conspiracy, which
was to help heal the rift caused by the murder of Gray’s
friend. Establishing motive has long been recognized as a
permissible purpose for the introduction of “other crimes”
evidence. See United States v. Edmonds, 69 F.3d 1172, 1175-
76 (D.C. Cir. 1995); see also Fed. R. Evid. 404(b)(2)
(“proving motive” is a permissible nonpropensity purpose).
The Kairi Ball murder was also relevant because it tied the
Alfreds to the murder of Joseph Thomas, an act that occurred
during the conspiracy and that was specifically charged in the
indictment. Thomas was an associate of Ball who attempted
to retaliate for his murder. The bad blood engendered by
Ball’s murder thus provided motive evidence for the Thomas
murder as well.
To be sure, once appellants raised the objection, Federal
Rule of Evidence 403 separately required the district court to
balance the probativeness of the evidence of the Kairi Ball
murder and the resulting Thomas feud against the risk of
unfair prejudice to appellants. See United States v. Lavelle,
751 F.2d 1266, 1279 (D.C. Cir. 1985) (requiring a district
court “to make an on-the-record determination” of whether
the probative value of other-bad-acts evidence outweighs its
prejudicial impact). The district court did not explicitly do so
here. That failure, however, does not require reversal because
“the factors upon which the probative value/prejudice
evaluations were made are readily apparent from the record,
and there is no substantial uncertainty about the correctness of
the ruling.” Id. (internal quotation marks omitted). In
particular, the direct causal relevance of the evidence of the
Kairi Ball murder to the Alfreds’ decision to join the
conspiracy and to murder Thomas outweighed any unfair
48
prejudice that may have resulted from its introduction. That
is especially true because the trial already included admissible
evidence of the Alfreds’ involvement in other acts of
violence, thereby dissipating any prejudice associated
specifically with this evidence.
b. Impeachment evidence
“[O]ther crimes” evidence may properly be introduced to
impeach a witness. See United States v. Brawner, 32 F.3d
602, 604 (D.C. Cir. 1994). During the cross-examination of
defense witness Larry Steele, the government introduced
evidence that Steele previously attempted to shoot someone
on Simmons’s behalf. Simmons did not raise any Rule 404(b)
challenge to that cross-examination. Since it is reasonable to
think that a witness who conspired with a defendant to
commit murder might be inclined to slant his testimony in that
defendant’s favor, the court did not commit plain error in
allowing the government to expose that potential bias. See
United States v. Boone, 279 F.3d 163, 175 (3d Cir. 2002)
(“Evidence that Moore and Weston had been drug dealing
partners was relevant to Moore’s possible bias in favor of
Weston.”).5
c. Preconspiracy drug dealing
Much of the evidence of preconspiracy drug dealing by
various appellants was properly admitted. Seegers’s previous
conviction for possession of crack cocaine with the intent to
distribute was admissible to show that, at least for the crack
cocaine found on his person when he was arrested during the
conspiracy, he intended to distribute it. See United States v.
5
McGill’s challenge to the use of “other acts” evidence to impeach
him is addressed in Part X, infra.
49
Douglas, 482 F.3d 591, 597 (D.C. Cir. 2007).6 The past
conviction was also relevant to rebut Seegers’s claim that
drugs found in an area where he was sleeping belonged to his
brother. See id.; see also United States v. Latney, 108 F.3d
1446, 1448 (D.C. Cir. 1997) (“Given Latney’s involvement in
the crack cocaine trade in May 1995, it was less likely that he
was merely a bystander in the September 1994 transaction, as
his counsel sought to persuade the jury.”). Given that
evidentiary value, the district court’s decision that the
probative value of this evidence outweighed its prejudicial
impact was not an abuse of discretion. Because we affirm on
that basis, we need not decide whether the district court’s
additional rationale for admitting this evidence—that it tied
Seegers to a particular neighborhood—also represents a
permissible nonpropensity purpose.
We note, though, that the district court also concluded
that this evidence was admissible to show Seegers’s
“readiness and ability to join the conspiracy.” J.A. 1341.
That, however, is just forbidden propensity evidence by
another name. See United States v. Daniels, 770 F.2d 1111,
1116-17 (D.C. Cir. 1985) (Rule 404(b) “bar[s] the
introduction of evidence of prior misconduct to prove that an
accused was likely as a matter of disposition to have
committed the offense for which he or she is on trial”)
(emphasis added). Presumably that is why the government
makes little effort to defend that basis for the district court’s
ruling on appeal.
6
A similar rationale permits the admission of evidence that
Oliver—who was arrested in 1997 with 75 ziplock bags of crack
cocaine hidden on his person—was seen by witness Bethlehem
Ayele making hand-to-hand drug sales in the early 1990s.
50
Evidence of preconspiracy drug dealing was also
admissible for the nonpropensity purpose of proving the
relationships among coconspirators. See, e.g., Gaviria, 116
F.3d at 1532 (prior drug transactions relevant to “link” the
defendant to other conspirators); see also United States v.
Burwell, 642 F.3d 1062, 1067 (D.C. Cir. 2011), reh’g en banc
granted, judgment vacated (Oct. 12, 2011), opinion reinstated
and aff’d 690 F.3d 500 (D.C. Cir. 2012) (“Because evidence
of the three carjackings, the stolen cars, the use of false
names, and the marijuana cultivation and distribution was
relevant to prove Appellants’ association, we see no error in
admitting this evidence under Rule 404(b).”).
That rationale supports the admission of evidence of
Simmons’s drug-trafficking relationship with Walter Fleming,
and James Alfred’s preconspiracy sales of crack cocaine to
Frank Howard.7 It also includes the evidence of McGill’s
drug dealing in the 1980s to the extent that it showed
McGill’s relationships with his coconspirators.
d. Lack of advance notice
Finally, for several pieces of evidence admissible under
Rule 404(b), appellants fail to make any showing of prejudice
resulting from the government’s failure to provide them with
the requisite notice below. That eliminates any basis on
which to predicate error. See United States v. Watson, 409
F.3d 458, 465 (D.C. Cir. 2005) (“Even assuming arguendo
7
Evidence of Simmons’s close relationship with Fleming also
helped to establish Simmons’s motive for having Richard Simmons
(no relation) killed. The evidence at trial indicated that Simmons
commissioned that murder because he believed that Richard
Simmons was spreading a rumor that Fleming was cooperating with
the police.
51
that the prosecution failed to bear its Rule 404(b) notice
obligation, . . . [the defendant] failed to show prejudice from
the error.”).
3. Improperly Admitted “Other Acts” Evidence
While much of the challenged evidence was admissible,
we agree with appellants that, on a handful of occasions,
“prior bad acts” evidence should have been excluded.
First, the government has conceded that evidence of
McGill’s involvement in the 1980s in a shooting into the
home of a rival’s relative was wrongly admitted. The district
court also erroneously allowed in some evidence of 1980s
drug dealing and other misconduct by McGill that went far
beyond what could plausibly be argued as demonstrating
McGill’s intent, knowledge, or relationships with other
conspiracy members. For instance, the district court wrongly
admitted evidence that McGill “knew how to cook coke” in
the “early eighties,” and was “out on 15th place in the late
eighties” selling drugs.
Similarly, some testimony regarding McGill’s
preconspiracy interactions with other conspirators may have
been admissible to establish their relationship at the time
McGill joined the conspiracy. See, e.g., Gaviria, 116 F.3d at
1532. But the government makes no serious effort to defend
testimony from a witness who had grown up with McGill
stating that they had stolen things from a nearby shopping
mall years before McGill joined the charged conspiracy.
Given its inability to articulate any plausible defense for this
evidence, the government had no business using it in the first
instance.
Second, the district court allowed in evidence of Ronald
Alfred’s drug dealing that took place long before the
52
conspiracy, including both an alleged possession of a
kilogram of cocaine in 1989 and a cocaine trafficking
relationship with Alberto Martinez that ended in 1991. The
government’s theory for admission was, in part, that Alfred
“brought a lot to the table” entering the conspiracy as a drug
supplier. But the evidence the government used showed at
most that Alfred previously had access to a supply of cocaine,
which came to an abrupt end when Martinez went to jail in
1991, four years before Alfred’s alleged entry into the
charged conspiracy. To contend that Alfred was a cocaine
supplier in 1995 because he had cocaine dealings years earlier
is precisely the type of naked propensity argument that Rule
404(b) forbids.
Third, the government also admitted evidence showing
that Ronald Alfred had been convicted on firearms charges in
1991 and 1994. As to the 1994 charge, the government’s
theory was that Alfred had told his probation officer that he
was carrying a gun to protect himself because of robberies at
his place of business. The government argued that those
robberies were linked to the Alfreds’ feud with Kairi Ball and
his associates. And from that, the government surmised, the
evidence of the 1994 firearms charge would somehow explain
Alfred’s motive for murdering Ball and Thomas.
That pushes the logical limits of what even our
deferential abuse-of-discretion review can stomach. To make
matters worse, the district court did not conduct any express
balancing of the probativeness of that tangential evidence
against its unfair prejudice, and we are hard-pressed to see
how the balance could come out in favor of admission.
The explanation for admitting the 1991 firearm charge
fares still worse. It is hard to even discern what the
government’s theory of admissibility is. The government
53
simply wraps the charge up with its discussion of Alfred’s
1989 arrest in which he was found with a kilogram of cocaine.
Beyond that, the government makes no effort to link the
firearm charge with Alfred being a drug supplier in 1991,
much less four years later when he was alleged to have
entered the charged conspiracy. Nor does the government
even hint that any hypothetically probative value of such stale
and remote evidence could outweigh the unfair prejudice
arising from a gun charge.
Wrongly admitted evidence, however, does not always
compel reversal. In evaluating the impact of those errors on a
six-month trial, the test is “not whether evidence was
sufficient to convict notwithstanding the error, but whether
the court can say that the error did not affect the jury’s
verdict.” United States v. Watson, 171 F.3d 695, 700 (D.C.
Cir. 1999) (quoting Kotteakos, 328 U.S. at 764-65). If the
record leaves a judge “in grave doubt as to the harmlessness
of an error,” reversal is warranted. United States v. Smart, 98
F.3d 1379, 1392 (D.C. Cir. 1996) (quoting O’Neal v.
McAninch, 513 U.S. 432, 437 (1995)).
While we strongly disapprove of the government’s
overreaching arguments and tactics under Rule 404(b), we are
confident that the erroneously admitted evidence did not
affect the jury’s verdict. “The most significant factor that
negates the error’s impact is the weight and nature of the
evidence against [the defendant].” United States v. Williams,
212 F.3d 1305, 1311 (D.C. Cir. 2000). Here, the wrongful
admissions against McGill formed a small part of what was
otherwise an overwhelming case against him, including
extensive testimony from numerous cooperating witnesses of
his involvement in the charged acts of violence and narcotics
trafficking, as well as wiretap evidence linking McGill to drug
transactions.
54
Though the improperly admitted evidence against Ronald
Alfred was more substantial, the previously admitted,
extensive, and powerful evidence against him overwhelmed
those wrongful admissions. At least four separate witnesses
linked Alfred to drug trafficking in significant quantities over
the course of the conspiracy, while corroborating accounts
from at least two cooperating witnesses linked Alfred to the
three murders for which he was convicted. The record thus
does not permit the conclusion that the jury’s judgment was
“substantially swayed by the error” made in wrongfully
admitting “other crimes” evidence. Williams, 212 F.3d at
1310. But going forward the government would do well to
step more carefully when introducing prior bad acts evidence.
D.
Appellants also object to the instructions explaining to
the jury how it could permissibly use the “other crimes”
evidence, as well as the use the government made of such
evidence in its closing arguments.
1. Rule 404(b) Jury Instructions
At numerous points over the course of the trial, the
district court gave the jury a limiting instruction after the
admission of “other crimes” evidence that told the jury to
consider that evidence only for a purpose permitted by Rule
404(b). For example, after one witness testified about prior
bad conduct by McGill and the Alfreds, the district court told
the jury that the testimony about “some of the defendants’
alleged conduct prior to the time periods when they [we]re
charged with joining the alleged conspiracy” was “admitted to
explain why and how those defendants joined the alleged
conspiracy and their relationships with other members of the
alleged conspiracy.” J.A. 2318-19. The court then reminded
the jurors that, to find appellants guilty of the alleged
55
conspiracy, they “must find that [the Defendants] participated
in the conspiracy during the time period as charged in the
indictment,” highlighting the relevant timeframe. Id. at 2319.
Similar instructions, occasionally referencing the specific
“prior acts” evidence to which the judge was referring,
followed the testimony of several other witnesses. Appellants
did not object to those midtrial instructions.
For the final jury instructions, Seegers (joined by McGill
and both Alfreds) requested that, in cautioning the jury about
permissible uses of the evidence, the instruction specifically
catalogue the preconspiracy conduct that was at issue. The
district court denied that request on the ground that such a
listing would be unduly burdensome, and that a general
instruction would suffice. The final jury instruction provided:
You have heard testimony of criminal acts
purportedly committed by one or more of the
defendants with which they are not formally charged
in these indictments. That evidence was admitted for
various collateral purposes, such as to show the
relationship between the defendants and others
involved in their activities, or to show motive,
opportunity, intent, preparation, planning,
knowledge, identity or absence of mistake or
accident with respect to those crimes with which a
defendant is actually charged here.
You are instructed that if you find that a
defendant did engage in criminal activity not charged
to him here, you are not to draw an inference from
such a finding that the defendant is a person of bad
character and that he must therefore be guilty of the
crimes with which he is charged.
56
In other words, the fact that a defendant broke
the law on other occasions not charged in these
indictments is not by itself evidence that he
committed any offense for which he is now on trial.
J.A. 5451-52. The instruction then referenced several specific
examples of other crimes evidence, including the Kairi Ball
murder, Ronald Alfred’s two previous firearms convictions
and 1989 drug possession charge, and Seegers’s pre-1996
conduct. The final instruction explained that the evidence
was introduced to help the jury determine whether the Alfreds
became members of the charged conspiracy and to explain
“how and why Mr. Seegers joined the alleged conspiracies.”
Id. at 5452-53.
In reviewing a challenge to jury instructions, the central
question is “whether, taken as a whole, they accurately state
the governing law and provide the jury with sufficient
understanding of the issues and applicable standards.” United
States v. Washington, 106 F.3d 983, 1002 (D.C. Cir. 1997). A
claim that the court improperly omitted an instruction is
reviewed de novo, United States v. Hurt, 527 F.3d 1347, 1351
(D.C. Cir. 2008), while a challenge to the language of an
instruction is reviewed for abuse of discretion, United States
v. Dickerson, 163 F.3d 639, 641 n.3 (D.C. Cir. 1999).
Finally, “[o]ur review of allegedly improper prosecutorial
arguments is for substantial prejudice where the defendants
lodged an objection, but we apply the plain error standard
where they failed to object.” Moore, 651 F.3d at 50.
With respect to Seegers’s and Ronald and James Alfred’s
requests for a jury instruction that listed all of the Rule 404(b)
evidence point by point, we find no reversible error. The
court’s final instruction did specifically identify the majority
of the Rule 404(b) evidence—including the most potentially
57
prejudicial evidence like the Kairi Ball murder. Taken as a
whole, that instruction, combined with the midtrial
instructions cautioning the jury as evidence was introduced,
adequately guided the jury’s consideration. Cf. Ring, 706
F.3d at 465 (“In reviewing challenges to instructions, our task
is to determine whether, taken as a whole, the instructions
accurately state the governing law.”) (internal quotation
marks omitted, alterations adopted).8
McGill, however, does have more substantial grounds for
complaint. While midtrial limiting instructions given after the
testimony of Maurice Andrews and Frank Howard
specifically referenced that testimony, the final instruction
makes no mention at all of any of the preconspiracy conduct
evidence introduced against him. That wholesale omission is
troubling. Because the dividing line between direct or
intrinsic conspiracy evidence and “other crimes” evidence
was far from self-evident in this case, the selective
identification of “other crimes” evidence pertaining to other
appellants risked confusing the jury about Rule 404(b)’s
limitations with respect specifically to the evidence
introduced against McGill. Indeed, a “limiting instruction
given for some but not other ‘bad acts’ evidence may enhance
[the] latter’s influence on [the] jury.” Williams, 212 F.3d at
1311 (citing United States v. Spinner, 152 F.3d 950, 961-62
(D.C. Cir. 1998)). We accordingly hold that the district court
8
While Simmons and Oliver claim to have made the same jury-
instruction request, they cite nothing in the record to corroborate
that claim. Because no circuit precedent mandated a point-by-point
enumeration of all of the Rule 404(b) evidence employed in a case,
we find no plain error in the court’s failure to sua sponte reference
the evidence of their preconspiracy drug dealing in its jury
instructions, given both the midtrial and final jury instructions.
58
abused its discretion in how it formulated this aspect of the
Rule 404(b) instruction.
That error, however, is not reversible error. Such an
instructional error is harmless if it appears “beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman v. California,
386 U.S. 18, 24 (1967). In this case, the “other crimes”
evidence played a bit role in the powerful case against
McGill. See Part III(B)(3), supra. We thus have no doubt
that the error did not sway the jury’s deliberations.
The problems with the Rule 404(b) instruction did not
stop there, unfortunately. The court’s final jury instruction
identified a litany of potentially relevant purposes for the Rule
404(b) evidence (such as absence of mistake or accident) that
had never previously been mentioned and that were not at
issue in the case. See J.A. 5451-52 (stating that this evidence
could be used “to show the relationship between the
defendants and others involved in their activities, or to show
motive, opportunity, intent, preparation, planning, knowledge,
identity or absence of mistake or accident with respect to
those crimes with which a defendant is actually charged”).
That inclusion of irrelevant purposes for Rule 404(b) evidence
risked confusing the jury as to the proper purpose for which it
might consider such evidence. See United States v.
Merriweather, 78 F.3d 1070, 1076-78 (6th Cir. 1996). For
that reason, we have repeatedly noted with approval jury
instructions that identify the specific purpose for which a
particular piece of “other crimes” evidence has been admitted.
See, e.g., Douglas, 482 F.3d at 601; United States v. Cassell,
292 F.3d 788, 796 (D.C. Cir. 2002). As a general rule, then, a
proper Rule 404(b) jury instruction should identify the
evidence at issue and the particular purpose for which a jury
could permissibly use it, rather than providing an incomplete
59
description of the evidence at issue and an undifferentiated
laundry list of evidentiary uses that may confuse more than it
instructs.
Appellants, however, did not challenge this particular
aspect of the jury instructions. Because the midtrial
instructions identified with more targeted specificity and
relevance the uses to which the evidence could be put, and the
final instructions admonished that the evidence could not be
employed for propensity purposes, the wrongfulness of the
instruction was not plain error. See Clarke, 24 F.3d at 266
(“To be sure, the court’s later substitution of ‘intent’ for
‘credibility’ as the purpose of allowing this testimony was
confusing, but whatever error inhered in its handling of the
matter was not so serious as to engender a miscarriage of
justice or to seriously affect the fairness or integrity of the
trial.”) (internal quotation marks omitted); see also United
States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995) (no
error in failing to provide unrequested limiting instruction
regarding permissible purpose for which evidence may be
used).
2. Prosecution’s Use of Rule 404(b) Evidence in
Closing Arguments
In the government’s closing arguments, the prosecutors
referenced several pieces of the “other crimes” evidence,
including (i) drug dealing and acts of violence committed by
McGill in the 1980s, (ii) Ronald Alfred’s involvement in the
Kairi Ball murder and preconspiracy drug dealing and other
criminal conduct, and (iii) Seegers’s earlier drug-related
conviction. In so doing, the government highlighted the
concededly improperly admitted evidence that McGill had
been involved in shooting into a house in the 1980s. That was
error.
60
The government also argued that Ronald Alfred’s
preconspiracy drug dealing and Seegers’s preconspiracy
conviction showed that those two appellants were “ready,
willing, and able to join the conspiracy.” J.A. 5307-08. But
the use of “other crimes” evidence to prove that appellants
were “ready, willing, and able” to commit the charged crimes
is a barefaced appeal to propensity-based decisionmaking,
flatly forbidden by Rule 404(b). Indeed, the prosecution’s
formulation echoes the phrasing used to prove predisposition
when an entrapment defense is raised. See United States v.
Burkley, 591 F.2d 903, 916 (D.C. Cir. 1978) (establishing
predisposition requires showing that the defendant is
“presently ready and willing to commit the crime”); see also
id. at 922 (“Admittedly, proving disposition to commit a
crime is very close to proving ‘criminal propensity,’ the very
type of prejudice against which the general prohibition on
admission of evidence of other crimes is directed.”).
The problem for appellants is that they did not raise this
argument below, so it is reviewed under the exacting plain-
error standard. Given (i) the district court’s specific direction
to the jury that it could not use “other crimes” evidence as
indicating a propensity to commit the charged crimes, (ii) the
instruction that counsel’s arguments were not evidence, and
(iii) the overwhelming weight of properly admitted and
argued evidence establishing McGill’s, the Alfreds’, and
Seegers’s roles and participation in the conspiracy, appellants
cannot show that wrongfully allowing the government to
reference the “other crimes” evidence affected the outcome of
the proceedings.
IV. Confrontation Clause Challenges
The trial court admitted some drug analysis reports and
autopsy reports accompanied only by testimony from
61
witnesses other than the reports’ authors—a Drug
Enforcement Administration (“DEA”) chemist for the drug
analyses and a medical examiner from the D.C. Office of the
Chief Medical Examiner for the autopsy reports. Appellants
argue that the admissions violated the Confrontation Clause of
the Sixth Amendment, as construed in Crawford v.
Washington, 541 U.S. 36 (2004).
At trial appellants objected on the basis of United States
v. Smith, 964 F.2d 1221 (D.C. Cir. 1992), a decision that long
antedated Crawford and that approved the admission of
somewhat similar testimony against a hearsay objection. Id.
at 1223. The government argues that, because appellants
didn’t object on Confrontation Clause grounds, the court’s
rulings are reviewable under plain-error standards, and
appellants don’t contest that view. Plain error is thus the
standard.
On the merits, the government appears to “assum[e]” that
the admissions clearly violated the Confrontation Clause,
Appellee’s Br. 118, an assumption that seems sound in light
of Moore, 651 F.3d 30. There, reviewing convictions of
appellants’ coconspirators, we found Confrontation Clause
violations in the admission of similar reports through the
same DEA chemist and through a medical examiner who had
not conducted the autopsies. Id. at 69-74 (citing Bullcoming
v. New Mexico, 131 S. Ct. 2705 (2011)). The government
argues nonetheless that, except in one instance, appellants fall
short of showing plain error in that they haven’t established
that the reports “affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734.
The exception acknowledged by the government is
Seegers’s convictions for possessing with intent to distribute
drugs found in his apartment. The government concedes that
62
those convictions depended on a specific quality and quantity
of narcotics and that no evidence other than the drug analysis
reports existed to establish the character and quantity of the
substances in question. See Moore, 651 F.3d at 74. We
therefore reverse Seegers’s convictions relating to the drugs
found in his apartment.
There is a second asserted Confrontation Clause violation
that need not detain us. Seegers maintains that Dr. Gertrude
Juste’s testimony about Diane Luther “improperly bolstered
the credibility” of Lincoln Hunter, who witnessed Luther’s
killing and was himself shot in the course of that incident.
Appellants’ Br. 165. Dr. Gertrude Juste’s testimony about the
report, which included a photograph of Luther’s hand with
intact nails, agreed with Hunter’s testimony in a key detail—
the view that Luther had not struggled before her murder. But
the jury reached no verdict on the charges against Seegers for
this murder. Accordingly, no prejudice resulted from the
admission of the expert opinion or Dr. Juste’s
characterizations of that opinion with regard to the Luther
murder. See United States v. Williams-Davis, 90 F.3d 490,
502-03 (D.C. Cir. 1996) (finding that no prejudice resulted
from evidence relating only to counts on which the defendants
were acquitted).
Seegers also suggests—obliquely in the opening brief and
more clearly in the reply brief—that Dr. Juste’s testimony,
despite referring to Luther’s death, also supported Hunter’s
testimony that Seegers shot him. Seegers was convicted of
two counts related to shooting Hunter, unlike the murder of
Luther, so we cannot dismiss the testimony as not prejudicial
on the same basis as above. At oral argument, however, the
government represented that the photograph of Luther’s hand
was independently authenticated by Luther’s daughter, Shelly
Dabney, a representation Seegers has not contested. Thus,
63
even assuming the bolstering argument might have had
traction across murder episodes, Seegers cannot meet the
burden of showing that Dr. Juste’s testimony prejudiced him
with respect to the Hunter shooting.
Ronald Alfred and James Alfred similarly argue that the
improperly admitted autopsy reports on Thomas and Walker,
and the associated testimony of Dr. Juste, “bolstered the
credibility” of the cooperating witnesses who linked
appellants to the killings. Appellants’ Br. 165. But the
defense in no way claimed that Thomas or Walker had died
accidentally or otherwise than through homicide. Maurice
Andrews testified that he witnessed Bernard Franklin
(“Gangster”) shoot Thomas (“Froggy”) multiple times.
Walker’s brother testified that he heard a gunshot and saw his
brother lying dead on the floor, and an officer described
seeing Walker lying on his back with a gunshot wound to his
head. The evidence of appellants’ roles was of course sharply
drawn into question by defense counsel. In some remote
sense, of course, the autopsy reports and testimony “bolstered
the credibility” of the cooperating witnesses: the persons
described as having been murdered were indeed dead, and
dead through gunfire. But these were not cases of the sort
beloved by detective story writers, where outsiders are unsure
whether there was a killing at all. The question was who did
the killing, and on that the autopsies had nothing to say and
the cooperating witnesses everything.
Finally, appellants argue that the erroneous admission of
the drug report evidence—consisting of “DEA-7” drug
analysis reports, testimony regarding the analyses, and a chart
showing drugs seized from members of the conspiracy—
requires vacatur of their narcotics and RICO conspiracy
convictions. Appellants contend that they “were prejudiced
because the nature and quantity of the drugs were elements of
64
the charged conspiracies,” and, apart from the improperly
admitted drug report evidence, “there was no tangible proof,
other than testimony by highly impeached cooperating
witnesses, as to the nature and scope of the conspiracies at
all.” Appellants’ Br. 164.
As we are reviewing for plain error, the question is
whether appellants have demonstrated that the improperly
admitted DEA reports violated their “substantial rights.”
Olano, 507 U.S. at 734. The burden is on appellants to show
“a reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different.” United
States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)) (internal
quotation marks omitted). See also Olano, 507 U.S. at 734
(in most cases, an error affected “substantial rights” if it was
prejudicial, that is, if it “affected the outcome of the district
court proceedings”).
Appellants have not carried this burden as to any
elements except (possibly) drug quantity. At trial cooperating
witnesses testified to appellants’ participation in the
conspiracy and drug dealing in depth and at length. For
example, there was testimony that Simmons engaged in drug
transactions with Moore, Gray, Deon Oliver, Fleming, and
James Alfred; that Ronald Alfred supplied Gray with drugs
and vice-versa; that Seegers was employed as PeeWee
Oliver’s “overseer” or “bodyguard,” J.A. 2818; that Deon
Oliver sold drugs he obtained from Simmons and Moore; and
that McGill assisted Gray in cooking powder cocaine into
crack cocaine. Appellants argue that these cooperators were
“highly impeached,” Appellants’ Br. 164, as indeed they
were. But unless the jurors believed the cooperators (in
which case they would have had little choice but to convict),
the inadmissible evidence would have seemed to them to have
65
come from another planet, unconnected to appellants.
Further, given the nature of the behavior described by the
cooperating witnesses, the jurors could not have believed that
appellants were going through the elaborate transactions and
precautions described, and exchanged the funds described, for
any reason other than conspiracy to distribute and possess
narcotics.
However, we remand to the district court to determine
whether the admission of the drug report evidence affected
the jury’s findings as to the quantities of drugs involved in the
charged conspiracies and, if so, which counts or quantity
findings (if any) must be vacated with respect to each
appellant. See United States v. Fields, 251 F.3d 1041, 1043
(D.C. Cir. 2001) (under Apprendi v. New Jersey, 530 U.S. 466
(2000), drug quantity is an element of the offense where it
triggers a higher statutory maximum sentence). Here, in
addition to convicting appellants of conspiracy to distribute
“detectable amounts” of various drugs, the jury attributed to
appellants specific quantities of drugs triggering higher
statutory maximum sentences. On remand the burden will be
on appellants to show, perhaps through additional briefing,
that there is a reasonable probability that, but for the
improperly admitted evidence, the jury’s quantity findings
would have been different. See Dominguez Benitez, 542 U.S.
at 82.
In sum, we reverse Seegers’s two convictions for
possession with intent to distribute cocaine and heroin, and
remand to the district court to determine whether appellants
can demonstrate that the improperly admitted drug report
evidence affected the jury’s drug quantity findings. We find
that the Confrontation Clause violations were not prejudicial
in any other respect. On remand, depending on which counts
or quantity findings (if any) are vacated with respect to each
66
appellant, the district court shall determine in the first instance
whether resentencing is appropriate.
V. Stun Belt Revelation by McGill
All of the appellants except McGill object to the district
court’s handling of an incident in which, in the presence of
the jury, McGill made reference to and displayed a stun belt
that he was required to wear. We hold that if any error
occurred at all, it was not reversible.9
A.
Prior to trial, the district court granted the prosecution’s
request that appellants all be required to wear stun belts in
court, given the heightened security concerns in the case.10
The stun belts were worn under appellants’ clothes secretly
and without incident for most of the trial.
On March 29, 2004, McGill engaged in a verbal dispute
with the judge in front of the jury. When the court ordered
McGill’s removal from the courtroom, McGill lifted his shirt
to reveal his stun belt and proclaimed:
9
A stun belt is a device worn under clothing around a defendant’s
waist that allows a courtroom security officer to remotely deliver an
electric shock to disable the defendant temporarily if his or her
actions pose a security risk.
10
Among other things, appellants were involved in organized crime
and acts of violence including multiple counts of murder and
attempted murder; they were each facing sentences of up to life
imprisonment if convicted; they had conspired to kill, attempted to
kill, or participated in actually killing witnesses; and they had made
belligerent comments and threats of physical violence to the U.S.
Marshals.
67
Tell them I have a—I’m wearing a belt right here,
50,000 watts—what they’re doing to us, illegal,
that’s what I want. Six months, you never knew it,
everyday I been here, everyday. . . . Six months y’all
never knew that this belt everyday 50,000 Watts
because you allow it. Don’t let them peoples keep
lying on me. Lying, man.
J.A. 5419. The district court immediately instructed the jury,
“Don’t hold that outburst against any other defendant. That’s
solely Mr. McGill. Consider misconduct only in connection
with Mr. McGill, not any other defendant.” Id.
Following that incident, all of the appellants (except
McGill) moved for a mistrial and severance from McGill’s
case. The district court denied the motion. The next day,
over objections from Ronald Alfred and Seegers, the district
court instructed the jury that:
Mr. McGill displayed and made reference to a
security device that he was wearing. As you know,
during the course of this trial, the Court has
determined that it was necessary to take certain
security precautions. However, the Court has never
found it necessary to actually activate the device Mr.
McGill was wearing.
I instruct you that you are not to consider Mr.
McGill’s outburst in any way as evidence in this
case, either with respect to him or with respect to the
other defendants. Further, the Court’s decision to
adopt certain security precautions is not evidence in
this case. You may not consider these measures at all
in reaching your verdicts.
Id. at 5454-55.
 68
Seegers subsequently filed a motion for a new trial in
part on the basis of this incident. See Simmons, 431 F. Supp.
2d at 71. The district court denied the motion, finding “no
basis for defendant Seegers’s claim that the jury assumed he
was wearing a stun belt, simply because they observed
defendant McGill’s.” Id.
B.
On appeal, appellants claim both that McGill’s outburst
prejudicially revealed to the jury that each Appellant was
wearing a stun belt and that the revelation amounted to
structural error, or at the least an error so serious as to warrant
a mistrial. We review the decision not to declare a mistrial
and to deny a new trial for an abuse of discretion. See United
States v. Foster, 557 F.3d 650, 654-55 (D.C. Cir. 2009)
(denial of mistrial); United States v. Pettiford, 517 F.3d 584,
591 (D.C. Cir. 2008) (denial of new trial).
In Deck v. Missouri, 544 U.S. 622 (2005), the Supreme
Court held that a defendant’s Fifth and Fourteenth
Amendment rights to a fair trial “prohibit the use of physical
restraints visible to the jury absent a trial court determination,
in the exercise of its discretion, that they are justified by a
state interest specific to a particular trial.” Id. at 629. In
Moore, we recognized that the wearing of stun belts was the
sort of inherently or actually prejudicial government practice
that requires the district court to consider, for each individual
defendant, whether the practice serves an essential interest in
the trial. See 651 F.3d at 45-46.
Appellants argue that the feared revelation that they were
wearing stun belts amounted to a “structural” error and thus is
not subject to harmless error analysis. That is not correct. A
structural error is a “structural defect[] in the constitution of
the trial mechanism.” Arizona v. Fulminante, 499 U.S. 279,
69
309 (1991). Where a defendant has suffered, for example, a
total deprivation of the right to counsel at trial or a similar
error “affecting the framework within which the trial
proceeds, rather than simply an error in the trial process
itself,” harmless error analysis is inappropriate. Id. at 310.
Structural error involves the type of “basic protections”
without which “a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence,
and no criminal punishment may be regarded as
fundamentally fair.” Id. (quoting Rose v. Clark, 478 U.S.
570, 577-578 (1986)). By contrast, constitutional errors that
do not require automatic reversal of a conviction constitute
“‘trial error’—error which occurred during the presentation of
the case to the jury, and which may therefore be quantitatively
assessed in the context of other evidence presented in order to
determine whether its admission was harmless beyond a
reasonable doubt.” Id. at 307-08.
Appellants cite no case, and we are aware of none,
holding that the disclosure of stun belts amounts to structural
error. That is unsurprising. In Deck, even as the Supreme
Court recognized that the use of visible restraints was an
“inherently prejudicial” practice, it applied harmless error
analysis under Chapman v. California, 386 U.S. 18 (1967).
Deck, 544 U.S. at 635. As a result, even if a restraint were
visible to the jury and even if it had not been justified by a
sufficient governmental interest, reversal would not be
required as long as the government could demonstrate
“beyond a reasonable doubt that the . . . error complained of
did not contribute to the verdict obtained.” Deck, 544 U.S. at
635 (quoting Chapman, 386 U.S. at 24).
Appellants do not challenge the district court’s initial
decision to require the use of stun belts, which was premised
on the assertion that the belts would not be visible to the jury.
70
See also United States v. Durham, 287 F.3d 1297, 1305 (11th
Cir. 2002) (stun belts are “not readily visible to the jury,”
although it is at least possible that they may be visible if they
“protrude[] from the defendant’s back to a noticeable
degree”).11 Appellants argue instead that McGill’s outburst
and its supposed revelation that all the appellants were
wearing stun belts changed the calculus. We disagree for
three reasons.
First, the argument fails at the starting gate because
appellants offer no meaningful answer to—and certainly
identify no clear error in—the district court’s factual finding
that no such revelation occurred. See Simmons, 431 F. Supp.
2d at 71. The only suggestion in McGill’s outburst that all the
appellants were wearing stun belts was an elliptical reference
to “what they’re doing to us.” J.A. 5419. The district court’s
instructions to the jury following the incident made specific
reference only to McGill’s stun belt. The record thus does not
clearly compel the factual conclusion that any juror was
aware that the other appellants were also wearing stun belts.
See United States v. Collins, 109 F.3d 1413, 1418 (9th Cir.
1997) (no prejudice to due process rights where there was “no
evidence the jury was aware that [the defendant] was shackled
or restrained”).
Second, and in any event, any potential prejudice arising
from McGill’s fleeting reference was mitigated by the district
court’s curative instructions. Those included both the
immediate instruction to the jury following McGill’s outburst
not to consider that conduct with respect to any other
defendant, and a further instruction the following day that the
11
In the earlier Moore trial involving several of appellants’
coconspirators, the district court acknowledged some risk that the
stun belts would be visible. See Moore, 651 F.3d at 47.
71
jury should consider neither McGill’s conduct nor the fact
that he was wearing a stun belt to be evidence in the case.
The record provides no basis for concluding that those
cautionary instructions were ineffective or that the jury was
otherwise not able to make individualized determinations of
guilt based on the evidence presented at trial. See United
States v. Sheehan, 512 F.3d 621, 632 (D.C. Cir. 2008) (in
undertaking harmless-error analysis, a reviewing court
considers, among other things, whether “effective steps were
taken to mitigate the effects of the error”) (quoting In re
Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996)); see also
United States v. Hall, 610 F.3d 727, 742 (D.C. Cir. 2010)
(“The jury is presumed to follow the instructions.”).
Third, the overwhelming weight of evidence against
appellants reinforces the harmlessness of any error. See
Wilson v. United States, 344 F.2d 166, 167 (D.C. Cir. 1964)
(per curiam); see also United States v. Cazares, 788 F.3d 956,
966 n.1 (9th Cir. 2015) (“[T]he unconstitutional shackling of
a defendant results in prejudice only if the evidence of guilt is
not overwhelming[.]”) (internal quotation marks omitted).
We thus conclude that, even assuming error occurred, it
would have been harmless beyond a reasonable doubt.
For those same reasons, the district court did not abuse its
discretion in declining to declare a mistrial. “A mistrial is a
severe remedy—a step to be avoided whenever possible, and
one to be taken only in circumstances manifesting a necessity
therefor.” United States v. McLendon, 378 F.3d 1109, 1112
(D.C. Cir. 2004) (quoting Clarke, 24 F.3d at 270). No
mistrial would be warranted in the absence of unfair and
irremediable prejudice. To make that determination, “we
consider a number of factors, including the force of the
unfairly prejudicial evidence, whether that force was
mitigated by curative instructions, and the weight of the
72
admissible evidence that supports the verdict.’” Id. Those
factors foreclose any determination of material prejudice in
this case, leaving us with the “fair assurance that the judgment
was not substantially swayed by the error.” Foster, 557 F.3d
at 655 (quoting Spinner, 152 F.3d at 961).
VI. References to the Convictions of Nontestifying
Former Codefendants
Appellants argue that their convictions must be reversed
because two government witnesses briefly referenced the
convictions of codefendants that occurred in the earlier Moore
trial. The government concedes error, but argues that the
error was harmless. We agree. The two references to the
outcome of the Moore trial should not have been made, but
they were indirect and fleeting, and the government did not
draw the jury’s attention to them. The district court also took
prompt curative measures to mitigate any potential harm.
Those measures, combined with the overwhelming evidence
of appellants’ guilt, establish that the error was harmless
beyond a reasonable doubt.
A.
This trial commenced on October 16, 2003, and lasted
nearly six months. Over fifty witnesses testified, and the
transcripts of that testimony span nearly ten thousand pages.
Appellants object to brief comments made by two government
witnesses, Steve Graham and Frank Howard, during their
testimony.12
12
The extent to which appellants sufficiently objected below is
debated by the parties. For the appellants who did not object
below, we review the statements only for plain error. However, in
73
Steve Graham was an associate of Gray’s who had
previously been convicted of participating in a narcotics
conspiracy in a separate trial. Following that conviction,
Graham agreed to testify for the government under a
cooperation agreement in the hope of reducing his sentence.
During the government’s direct examination, the prosecutor
questioned Graham about a shooting involving Graham, Gray,
and John Raynor, another member of the conspiracy who was
tried separately in the Moore proceeding. The following
exchange occurred:
Q. Okay. And just tell the ladies and gentlemen a
little bit about the statement that you gave to John
Raynor’s investigator about the shooting into the
green Cadillac.
...
A. When I came down – I was at the jail initially,
and they moved me down to Lorton, to Center, in
preparation to be moved to the federal system.
Q. This is after you were convicted and sentenced?
A. Yes.
Q. Go ahead.
A. And the indictment which Kevin and them was
convicted on and John Raynor was convicted on had
this case, the harmlessness of the error beyond a reasonable doubt
resolves the issue regardless of the standard of review.
74
come out, or it had superseded, rather, and when it
superseded, it charged the incident in there and it
stated that on September 26th, A and B were in a
vehicle, speaking about Kevin Gray, with an
unindicted – with an unknown coconspirator – an
unindicted coconspirator, and it charged them two
with the September 26 event.
Q. Them two meaning?
A. Kevin and John.
J.A. 3760-61. McGill’s counsel objected to the mention of
the codefendants’ convictions. Id. at 3762. The district court
agreed that the reference was impermissible and asked
counsel if she wanted the court to instruct the jury to
disregard it. Id. at 3763. Counsel declined that offer,
reasoning that such an instruction would only highlight the
reference for the jury. Id. at 3763, 3768. Counsel then moved
for a mistrial, which the court denied. Id. at 3768.
The next day, at the end of Graham’s testimony and with
the input of other defense counsel, the court issued the
following curative instruction:
All right ladies and gentlemen, at one point during
Mr. Graham’s testimony he made a reference to the
outcome of prior proceedings. The outcome of those
proceedings has not been finally determined, and I
instruct you to disregard that testimony by Mr.
Graham. Motions and other proceedings still remain
to be decided, so you should just ignore that
testimony.
Id. at 3826.
 75
The second challenged reference to codefendant
convictions occurred almost a month later during the
testimony of Frank Howard. Id. at 4174. Howard, a
coconspirator, had been charged in the same indictment as
appellants, but he pled guilty to RICO conspiracy and related
offenses under a cooperation agreement with the government.
During Howard’s cross-examination, defense counsel
tried to expose Howard’s self-interested motive for testifying
by pressing Howard about how his testimony could benefit
him in an unrelated, pending criminal proceeding in Prince
George’s County, Maryland. Id. at 4168-74. The federal
prosecutors had written a letter to the Maryland prosecutors
describing Howard’s plea agreement and cooperation, and
representing that the federal government would not be taking
action for or against Howard in the Maryland case:
Q. And [the letter] tells them that you are assisting
law enforcement in the District of Columbia in a
significant federal case, right?
A. Right.
Q. And we don’t know what is going to happen in
Prince George’s County, the outcome of that case,
right?
A. Right.
...
Q. You don’t think that if things don’t go well in
Prince George’s County your defense lawyers are
going to mention that?
76
A. I’m not even worried about Prince George’s
County right now. I’m worried about this.
Q. Right.
A. I’m not worried about Prince George’s County.
Q. Oh, I understand that. But we are talking about
the outcomes in Prince George’s County.
A. We talked about that during the whole trial.
You all keep on asking me the same thing. I’m
repeating the same thing. Just like they tried to use
that in the first trial, repeating the same thing about
the Maryland case.
Mr. Daniel: Objection.
The Witness: And look what happened in the first
trial.
Id. at 4172, 4173-74. Defense counsel again objected and
moved to strike Howard’s last comment. The district court
ordered the comment to be struck from the record. Id. at
4174.
At the close of the trial, the court’s final jury instructions
reminded jurors of their obligation to disregard testimony and
other evidentiary matters for which the court had sustained an
objection because such matters “are not evidence and you
must not consider them.” Id. at 5451.
 77
B.
The law is well-settled that a codefendant’s guilty plea or
conviction may not be introduced as substantive evidence of
another defendant’s guilt. See Brown, 508 F.3d at 1073
(quoting United States v. Tarantino, 846 F.2d 1384, 1404-05
(D.C. Cir. 1988)).13 For good reason: Upon learning that one
codefendant has admitted guilt or has been convicted, the jury
“may possibly infer that the defendant on trial is more likely
to be guilty, as well.” Johnson, 26 F.3d at 677; see Blevins,
960 F.2d at 1260 (“[I]ntroduction of such [information] raises
the concern that a defendant might be convicted based upon
the disposition of the charges against the co-defendants, rather
than upon an individual assessment of the remaining
defendant’s personal culpability.”). As a consequence,
“courts and prosecutors generally are forbidden from
mentioning that a co-defendant has either pled guilty or been
convicted,” Johnson, 26 F.3d at 677, unless the information is
admitted for another strictly limited purpose, such as
impeaching a testifying codefendant or aiding the jury in
assessing the codefendant-witness’s credibility, see DeLoach,
34 F.3d at 1003-04; Johnson, 26 F.3d at 677.
Those reasons for preclusion compound when a
nontestifying codefendant’s guilty plea is introduced because
the defendant on trial lacks the ability to cross-examine the
codefendant who entered the plea and to probe his
motivations. That, in turn, undercuts the defendant’s right to
have the jury’s verdict based only on evidence presented in
13
See also, e.g., United States v. DeLoach, 34 F.3d 1001, 1004
(11th Cir. 1994); United States v. Johnson, 26 F.3d 669, 677 (7th
Cir. 1994); United States v. Blevins, 960 F.2d 1252, 1260 (4th Cir.
1992); United States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990),
cert. denied, 501 U.S. 1207 (1991).
78
open court, subject to the truth-testing crucible of cross-
examination. See Blevins, 960 F.2d at 1260.
The parties agree that Graham’s and Howard’s references
to the outcome of the Moore trial constituted error, and that
this error was one “of constitutional dimension,” Blevins, 960
F.2d at 1262; accord Johnson, 26 F.3d at 677-79. The
question then is whether that error “was harmless beyond a
reasonable doubt.” Chapman, 386 U.S. at 24; see Johnson,
26 F.3d at 677 (constitutional harmless error analysis applies
to the erroneous admission of a guilty plea of a nontestifying
codefendant); Blevins, 960 F.2d at 1262 (same). The error
would not be harmless if there were a “reasonable possibility
that the evidence complained of might have contributed to the
conviction.” Chapman, 386 U.S. at 23; see also Blevins, 960
F.2d at 1263 (“[W]e must ask whether it is clear beyond a
reasonable doubt that the jury would have returned verdicts of
guilty against appellants even if the evidence concerning the
co-defendants’ [convictions] had not been introduced.”).
There is no reasonable possibility that those two fleeting
references contributed to the verdicts in this case. First, the
content of Graham’s and Howard’s statements was oblique,
leaving unsaid who was convicted of what. Howard did not
even mention convictions; he just cryptically stated “look
what happened in the first trial.” The jury thus never
specifically heard that any former codefendants were
convicted after trial on charges similar to those appellants
faced. Nor did the government draw attention to the
statements or attempt to use them in any way. Cf. United
States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993) (error was
not harmless where “the prosecution made multiple references
to [the coconspirator’s] conviction”).
79
Second, the two references were fleeting and isolated,
occupying a few seconds and two dozen words in a nearly
six-month marathon of a trial. See Johnson, 26 F.3d at 679
(references to codefendant’s guilty plea harmless beyond a
reasonable doubt because the forbidden references were
“relatively innocuous in that they occurred solely during the
opening statements of a trial that produced nearly 1500 pages
of testimony”); Blevins, 960 F.2d at 1260-65 (same
conclusion where guilty pleas of six nontestifying
codefendants were briefly referenced three times during a
seven-day trial).
Third, the district court timely responded to the improper
statements, instructing the jury to disregard Graham’s
statement the day after it happened (refraining from doing so
earlier only at the request of defense counsel), and
immediately striking Howard’s statement. See Carter v.
United States, 281 F.2d 640, 641-42 (D.C. Cir. 1960)
(reference to guilty plea of codefendant was harmless in part
because the trial court immediately struck the remark and
instructed the jury to disregard it). The court, moreover,
reinforced those specific curative measures with a general
instruction at the close of trial admonishing the jury to
disregard stricken testimony in reaching its verdict. We
presume that juries follow the court’s curative instructions
unless there is reason to doubt compliance in a particular case.
See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); McLendon,
378 F.3d at 1114 & n.6. There is no such reason here.
Fourth and finally, given the strength and breadth of the
evidence against appellants, it is implausible that those two
obscure comments made in passing had any impact at all on
the jury’s deliberations. See Johnson, 26 F.3d at 677 (The
“general principle” that mention of a prior conviction is
reversible error “gives way when the evidence against the
80
defendant(s) is so overwhelming that any error is rendered
harmless beyond a reasonable doubt.”); Blevins, 960 F.2d at
1264 (finding harmless error where the evidence was
overwhelming). Accordingly, “in light of the overwhelming
evidence of guilt in this case, any prejudice which may have
remained despite the judge’s admonition to the jury may be
said to be harmless.” Carter, 281 F.2d at 641.
Appellants argue that the error could not have been
harmless because it effectively established—and thus took
from the jury—the element of the existence of a criminal
enterprise headed by Gray and Moore. That element was
necessary for all of the appellants’ RICO conspiracy
convictions and for James and Ronald Alfred’s convictions
for the continuing criminal enterprise murder of Joseph
Thomas. In support of their argument, appellants point to the
jury’s note during deliberations inquiring why, to convict the
Alfreds of the continuing criminal enterprise murder, it
needed to “determine” that Gray and Moore ran a continuing
criminal enterprise. J.A. 5502. That note, appellants posit,
meant that the jury was confused because it already knew that
Gray and Moore had been convicted of running such an
enterprise.
That vastly overreads the note. Neither Graham nor
Howard mentioned the crimes for which Gray and Moore had
been convicted so the jury could not have been confused by
something they knew nothing about.
In short, Graham’s and Howard’s Delphic references to
other convictions did nothing to relieve the government of its
burden to prove the existence of the criminal enterprise and,
on this record, those two testimonial missteps were harmless
beyond a reasonable doubt.
81
VII. Right to Be Present (McGill)
After the incident in which McGill, in front of the jury,
displayed the stun belt he was required to wear, see Part V,
supra, the trial judge ordered that McGill be removed from
the jury’s presence for the remainder of the trial. McGill
argues that his continued exclusion compromised his right to
be present at his trial. Our review is for abuse of discretion,
and we find that the trial judge acted within his discretion in
excluding McGill from the jury’s presence for the remainder
of the trial.
A.
A defendant has a right to be present at many stages of
his trial. That right springs from multiple sources: from the
Sixth Amendment’s Confrontation Clause when confronting
witnesses, and from the Due Process Clauses in other
situations. See United States v. Gagnon, 470 U.S. 522, 526
(1985). It is also guaranteed by the Federal Rules of Criminal
Procedure “at . . . every trial stage, including jury
impanelment and the return of the verdict.” Fed. R. Crim. P.
43(a)(2).
That right, however, is subject to waiver. See id.
43(c)(1). For example, a defendant may waive the right by
disruptive courtroom behavior. See Illinois v. Allen, 397 U.S.
337, 343 (1970); Fed. R. Crim. P. 43(c)(1)(C). The Federal
Rules of Criminal Procedure provide that, should “the
defendant waive[] the right to be present, the trial may
proceed to completion, including the verdict’s return and
sentencing, during the defendant’s absence.” Fed. R. Crim. P.
43(c)(2). Waiver of the right to be present is not necessarily
permanent: “Once lost, the right to be present can, of course,
be reclaimed as soon as the defendant is willing to conduct
himself consistently with the decorum and respect inherent in
82
the concept of courts and judicial proceedings.” Allen, 397
U.S. at 343.
After the incident in which McGill displayed his stun belt
to the jury, the court immediately ordered him removed from
the courtroom and the presence of the jury for the remainder
of the trial. McGill challenges neither that initial exclusion
nor his exclusion from closing arguments the following day.
After closing arguments, however, McGill’s counsel asked
that McGill be allowed to be present for the jury instructions
that same day. Counsel represented she believed that McGill
would “remain entirely quiet during the course of the
instructions.” J.A. 5442. The court refused, stating, “I made
the mistake of believing that before. I won’t believe it again.”
Id. The court further observed that it “ha[d] never had a
defendant in 16 years as a Judge pull what he pulled, and he’s
not doing it again.” Id.
The following day, counsel renewed McGill’s request.
The district court again denied the motion, noting that counsel
was unable to give any “assurance” that McGill “won’t act
improperly.” Id. at 5478. Two weeks later, McGill’s counsel
again asked that McGill be permitted to observe the
individual voir dires of Jurors #9, #10, and #12. See Part I,
supra. The court again denied the request. After the court
concluded the voir dires but before it dismissed Juror #9,
McGill requested a brief audience with the judge to apologize
for his previous outbursts. The judge responded that the
apology could happen “at a later time,” as he had “enough on
[his] plate for the moment” in dealing with the potential juror
dismissal. Id. at 5614.
Nearly two weeks later, when the jury returned its
verdicts for McGill’s codefendants, McGill’s counsel
renewed her request for McGill’s return. The district court
83
summarily denied the motion. After another two weeks, the
jury returned a verdict against McGill. McGill’s counsel
moved for a mistrial due to his continued exclusion, and the
district court denied the motion.
B.
McGill argues that, at each of those junctures, he
“represented [that] he would restrain himself,” and that his
continued exclusion therefore violated his constitutional right
to be present. Appellants’ Br. 182. McGill’s counsel
repeatedly objected to his continued exclusion, properly
preserving the issue for our review. We review the district
court’s decision to suspend a disruptive defendant’s right to
be present for an abuse of discretion. See Allen, 397 U.S. at
343. We find no abuse of discretion here.
A district court has broad discretion to control trial
proceedings and protect the “dignity, order, and decorum” of
the court from “disruptive, contumacious, [and] stubbornly
defiant defendants.” Id. In exercising that discretion, the
court may remove and exclude disruptive defendants as
necessary. See Fed. R. Crim. P. 43(c)(1)(C); accord Allen,
397 U.S. at 344. While the court must allow an excluded
defendant to return to the proceedings if he has “satisfactorily
demonstrated that he would not be violent or disruptive” upon
his return, that determination is committed to the court’s
sound discretion. Jones v. Murphy, 694 F.3d 225, 240-41 (2d
Cir. 2012); accord Allen, 397 U.S. at 343. “[C]aution is
appropriate in assessing the trial judge’s response to”
disruptive outbursts, as “a cold transcript provides no insight
into tone of voice, body language, or possible overtly
threatening behavior that might cast mere spoken words in a
different light.” Jones, 694 F.3d at 238. Especially given that
deference, we have little trouble concluding that the district
84
court acted within its discretion to exclude McGill for a
relatively brief period at the close of the six-month trial.
McGill argues that he is unaware of any prior case in
which it was “one strike and you’re out.” Oral Arg. Tr. at
135. But even assuming removal for “one strike” might
amount to an abuse of discretion in certain circumstances,
McGill engaged in a pattern of repeated disruptions. McGill
himself concedes that the stun belt incident was not his only
outburst in court. Appellants’ Br. 186. His own testimony in
his defense was “characterized by . . . outbursts,” id., and he
engaged in repeated back-and-forths with the judge that
required the court to issue corrective instructions. The
prosecutor also informed the court that McGill “would be
cussing” on “a number of occasions when the Court would
leave the bench,” and that “this [wa]s a pattern that’s been
ongoing throughout this trial with Mr. McGill openly and
vigorously cursing at the Court [and] at the government.”
J.A. 5638-39.
The pattern continued even after the court ordered
McGill removed for the stun belt incident. The court observed
on the record that, when the marshals removed McGill from
the courtroom, “he was making so much noise” in the holding
cell behind the courtroom by “screaming and hollering” that
“the Court next door was disrupted.” Id. at 5445. And
following the court’s ruling dismissing Juror #9—which came
after counsel’s representation that McGill would “remain
entirely quiet,” id. at 5442—McGill created yet another
disturbance: depending on the account, he either threw his
chair and swore at the judge, or he knocked over his chair as
he quickly stood up to complain about the unfairness of the
trial. Neither would be consistent with the “dignity, order,
and decorum” of the courtroom. Allen, 397 U.S. at 343.
85
McGill also argues that the district court abused its
discretion because “it did not afford him the opportunity to
reclaim his right to be present by either accepting counsel’s
representations” that he would behave or “directly inquiring
as to his intentions.” Appellants’ Br. 188. We discern no
error. McGill’s long pattern of misbehavior was sufficiently
egregious to permit the district court to conclude that any
apology or subsequent promise to behave would be of little
value. See United States v. Munn, 507 F.2d 563, 568 (10th
Cir. 1974). His actions throughout the trial indicated that he
had little ability to control himself.
Additionally, McGill’s behavior left the trial judge with
no perfect options. Allowing McGill to return to the
courtroom without reliable assurances of future good behavior
could have risked a mistrial—indeed, his codefendants had
already moved for a mistrial following the stun-belt
revelation. See J.A. 5425-26. McGill’s conduct put the trial
court in the position of having to balance the competing
constitutional rights of McGill and his codefendants. We
perceive no abuse of discretion in the court’s resolution of
that balance in favor of a continued suspension of McGill’s
presence in the courtroom.
VIII. Voice-Identification Expert (McGill)
McGill argues that the district court erred by failing to
conduct a Daubert hearing and make findings under Federal
Rule of Evidence 702 before excluding McGill’s proffered
voice-identification expert. We find no reversible error.
A.
The government introduced into evidence three
wiretapped phone calls that, according to a government
witness, contained McGill’s voice. During McGill’s defense
86
case, the district court was informed for the first time that
McGill intended to call an expert in voice-spectrographic
analysis to contradict the testimony identifying McGill’s
voice as to two of the three calls. The government made clear
its opposition to the use of voice-spectrographic analysis,
arguing that such testimony would be inadmissible under our
court’s decision in United States v. McDaniel, 538 F.2d 408,
413 (D.C. Cir. 1976). The judge asked counsel whether she
had a “contrary cite” to counter the government’s reliance on
McDaniel, to which counsel responded “not yet” and asked
for “some time to check on the case law.” J.A. 4881.
A few days later, the district court again brought up the
subject of McGill’s proffered expert and asked McGill’s
counsel to “[t]ell [him] more about what this is about.” Id. at
4911. Counsel told the court that she had not had time to
research the admissibility issue after the government’s
objection the previous week, but that she would like to
prepare the expert for a Daubert hearing. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). In response
to the judge’s questions, counsel outlined the expert’s
credentials and requested a Daubert hearing because “it ha[d]
been a very long time since [voice-spectographic] analysis
ha[d] been examined in this jurisdiction.” Id. at 4912-15.
The government reiterated its view that any such testimony
would be inadmissible in this circuit.
Roughly three weeks later, on March 10, 2004, counsel
for McGill asked the court when the expert should be ready to
testify at a Daubert hearing. The court refused to hold a
Daubert hearing and told counsel that it wanted a written
proffer of the expert’s testimony by the next day, together
with case law supporting its admissibility. The court
explained its aversion to “stop[ping] a trial in the middle of it
[to] have a Daubert hearing” “on something that’s been
87
settled for years,” id. at 5096-97, adding that McGill’s
counsel “has not given me [the expert’s] proposed testimony,
. . . she has not given me anything. She just comes up and
says I want a hearing. I don’t stop a trial for a hearing like
that.” Id. at 5098. Instead, the court stated, “Once [counsel]
gives me something, I’ll look at it.” Id. Counsel promised to
file a written proffer.
Five days later, on March 15—with one defense witness
left to testify—McGill’s counsel told the court that she had
filed a motion in limine that morning addressing the
admissibility of voice-identification testimony. That motion
is not in the appellate record. But defense counsel’s
responses to the court’s questioning indicate that McGill’s
filing contained no proffer of the substance of the expert’s
testimony—counsel instead “t[ook] the position that the best
person to articulate the [ins] and outs of the science is the
expert,” and she said that the expert would “testify as to the
methodology” at an in-court hearing. Id. at 5125. The district
court again expressed opposition to stopping the trial “to
spend my time listening to [the expert] when she hasn’t even
written it down,” especially because holding a hearing would
require the court to “send the jury home and . . . waste all this
time.” Id. at 5126. The court denied McGill’s motion to
admit the expert’s testimony. Counsel again promised to
produce a written proffer, but the court said that it was “too
late.” Id. Two days later—after the government had
concluded its rebuttal case—counsel filed a motion for
reconsideration, this time containing a written proffer of the
expert’s testimony. The court denied the motion.
B.
The district court has a gatekeeping responsibility to
ensure that any expert testimony is based on “scientific
88
knowledge” that “will assist the trier of fact to understand or
determine a fact in issue.” Daubert, 509 U.S. at 592 (quoting
Fed. R. Evid. 702). When faced with a request to admit
expert testimony, the court therefore must undertake “a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue.” Id. at 592-93.
We review a district court’s decision to admit or exclude
expert testimony for an abuse of discretion. United States v.
Day, 524 F.3d 1361, 1367 (D.C. Cir. 2008). Courts have
“considerable leeway . . . about how to determine reliability”
and their “ultimate conclusion[s]” in that regard. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999); see Fed. R.
Evid. 702, advisory committee’s note to 2000 amendment
(Rule 702 imposes “no . . . procedural requirements for
exercising the trial court’s gatekeeping function”). The
proponent of the expert testimony bears the burden to
establish the admissibility of the testimony and the
qualifications of the expert. Meister v. Med. Eng’g Corp.,
267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001).
McGill argues that the district court erred in rejecting his
expert’s testimony without conducting any hearing. But the
court excluded McGill’s expert because defense counsel,
despite the court’s clear request, failed to timely produce a
written proffer of the expert’s testimony. See Simmons, 431
F. Supp. 2d at 74 (district court explaining that “McGill’s
failure to make a proffer upon request of this Court itself
justified denial of the testimony”). In light of the
government’s identification of circuit case law holding that
voice-identification expert testimony was inadmissible, see
McDaniel, 538 F.2d at 413, and the long duration of the trial
to that point, the district court was understandably reluctant to
89
send the jury home and convene a hearing to explore an issue
of questionable merit. The court acted well within its
discretion in insisting on seeing a written proffer of the
expert’s testimony and the legal basis for its admissibility
before any hearing. When McGill failed to provide one, the
court decided it would not consider the matter further. That is
a trial-management decision that we are loathe to disturb on
appeal.
McGill’s arguments to the contrary are unpersuasive.
First, he contends that the government did not disclose the
existence of the calls containing McGill’s voice until after the
trial commenced. The government disputes that
representation, maintaining that it provided all of the
wiretapped recordings to the defense years before trial.
Regardless, there is no dispute that McGill knew of the calls’
existence at least as of October 2003. See J.A. 1817. Yet
McGill told the court that he intended to offer expert
testimony only months later, in mid-February, and even then
only after the government brought the matter to the court’s
attention. Although the district court appeared open to
considering a proffer of the expert’s testimony even at that
late date, McGill offered no written response to the
government’s concerns about admissibility until mid-March
and, even then, his motion failed to include a proffer. No
proffer was filed until the district court had already ruled the
expert’s testimony inadmissible and the government had
completed its rebuttal. McGill’s failure to make a timely
proffer thus cannot be excused on grounds that he was caught
off guard. McGill notes that he put the government on notice
that he intended to call the voice expert and passed along the
expert’s reports to the government. But the fact that McGill
made information about his expert available to the
government is not determinative of whether he made an
adequate and timely proffer to the court—and the court bears
90
responsibility to assure that the expert’s testimony is based on
scientific knowledge and will assist the trier of fact.
Even if we did not sustain the district court’s decision on
those timeliness grounds, we can say with fair assurance that
any error was harmless because it “did not have a ‘substantial
and injurious effect or influence in determining the jury’s
verdict.’” United States v. Powell, 334 F.3d 42, 45 (D.C. Cir.
2003) (quoting Kotteakos, 328 U.S. at 776). The government
introduced three wiretapped calls purportedly containing
McGill’s voice. While McGill took the stand and denied that
he was speaking on two of the calls, he acknowledged that he
was speaking on the remaining call. We therefore agree with
the government that, in light of the undisputed identification
of McGill’s voice on one call and the five days the jurors
spent listening to McGill while he testified at trial, the jurors
were in a very good position to determine for themselves
whether McGill truthfully denied speaking on the other
recordings. “Voice identification . . . does not depend on
specialized expertise. Juries may listen to an audiotape of a
voice and determine who is speaking even though the voice
has been authenticated only by a lay witness rather than an
expert.” Tyson v. Keane, 159 F.3d 732, 738 (2d Cir. 1998).
The testimony of McGill’s expert also would have been
subject to extensive cross-examination by the government
about the science of voice-spectrographic analysis—as the
government made clear during bench discussions of the
subject—further diluting the testimony’s persuasive value.
See United States v. Drones, 218 F.3d 496, 504 (5th Cir.
2000).
For those reasons, we reject McGill’s claim of reversible
error based on the court’s exclusion of his voice-identification
expert.
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IX. Joinder (McGill)
McGill next asserts that the district court erred in joining
his case with the other five appellants for trial. We reject
McGill’s argument.
A.
In November 2000, the grand jury returned the
indictment charging seventeen individuals—including the five
appellants here—with numerous offenses. The trial of the
Group One defendants began on March 1, 2001. On January
30, 2002, a defendant-turned-cooperator, Frank Howard,
testified before the grand jury. Two days later, on February 1,
2002, McGill was indicted for tampering with a witness by
killing and felon in possession of a firearm. A superseding
indictment filed on March 13, 2002, added further counts
against McGill, including drug conspiracy, RICO conspiracy,
and violent crime in aid of racketeering activity.
The superseding indictment named Group One
codefendants Kevin Gray and Rodney Moore as the heads of
the RICO conspiracy in which McGill allegedly participated.
The indictment also alleged that McGill joined the enterprise
in 1996, distributed cocaine on Gray’s behalf, and committed
acts of violence—including the attempted murder of a
witness—in order to further the purposes of the enterprise.
On March 18, the government moved to join McGill’s
indictment with the broader indictment and to try McGill with
the Group Two defendants (appellants here). The
government’s motion stated that the evidence at trial would
show that “McGill was part of the identical drug and
racketeering conspiracy as was engaged in by Gray and his
co-defendants.” J.A. 700.
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Meanwhile, the Group One trial continued. On July 17,
2002, Howard testified in the Group One trial about McGill’s
participation in the overarching conspiracy—specifically,
about how Gray supplied McGill with cocaine between 1996
and 1999 and how McGill shot a government witness (named
Charles Shuler) because McGill believed Shuler was
responsible for Gray’s arrest. The government made
Howard’s testimony available to the district court in
responding to McGill’s opposition to joinder. On November
8, 2002, after holding a hearing on the matter, the district
court granted the government’s joinder motion.
B.
Under Federal Rule of Criminal Procedure 13, a district
court “may order that separate cases be tried together as
though brought in a single indictment . . . if all offenses and
all defendants could have been joined in a single indictment”
pursuant to Federal Rule of Criminal Procedure 8. Fed. R.
Crim. P. 13; see Burkley, 591 F.2d at 918-19. Rule 8(b), in
turn, allows charging defendants together 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.” Fed. R. Crim. P. 8(b). “Rule 13 is permissive
rather than mandatory,” and in deciding whether to
consolidate cases for trial, “the court should weigh the
efficiency and convenience of a single trial against the risks of
prejudice to the defendant from a single proceeding.” 1A
Charles Alan Wright et al., Federal Practice and Procedure §
216, at 558-59 (4th ed. 2008); see Fed. R. Crim. P. 14.
In determining whether joinder is appropriate, district
courts in our circuit may consult the indictment along with
any pretrial submissions offered by the government. United
States v. Wilson, 26 F.3d 142, 153 (D.C. Cir. 1994). The
93
government therefore satisfied its Rule 8 burden by
explaining, in its motion to join the indictments, that “McGill
is a participant in the same narcotics and racketeering
conspiracy” alleged in the broader indictment, J.A. 699, and
by offering Howard’s testimony from the Group One trial.
In objecting to the joinder, McGill relies heavily on the
fact that the government did not indict him until after Howard
testified before the grand jury. McGill claims that “he [wa]s
shoehorned into a massive drug conspiracy at the last minute
on the questionable claims of a desperate cooperator.”
Appellants’ Br. 196. Howard’s credibility, however, is beside
the point. “[T]he Government need merely allege, not prove,
the facts necessary to sustain joinder.” United States v.
Gooch, 665 F.3d 1318, 1334 (D.C. Cir. 2012). And in ruling
on the motion pretrial, the district court must assume the truth
of all the facts in the superseding indictment. See Moore, 651
F.3d at 69. Moreover, the Group Two trial began well over a
year after the government moved to join McGill’s trial with
the other defendants—his inclusion was hardly an eleventh-
hour development. Because McGill offers no other reasons
that prejudice concerns should have counseled against joinder,
and because “[j]oint trials are favored in RICO cases,” United
States v. Richardson, 167 F.3d 621, 624 (D.C. Cir. 1999), we
uphold the district court’s decision to consolidate the trials.
X. Impeachment with Prior Bad Acts (McGill)
McGill took the stand at trial. He now argues that the
district court erred by permitting the government to introduce
evidence of prior instances of his misconduct to impeach him
during cross-examination. Our review is for abuse of
discretion. See United States v. Edwards, 388 F.3d 896, 899
(D.C. Cir. 2004); United States v. Baylor, 97 F.3d 542, 544
(D.C. Cir. 1996). We find that any error was harmless.
94
McGill first takes issue with the government’s
introduction of evidence relating to two prior Maryland
convictions. Both cases involved robberies that took place in
April 1989. The first case went to trial in 1989. McGill was
found guilty of assault with intent to rob and use of a handgun
in the commission of a felony, but he was acquitted of
robbery with a deadly weapon. The second case went to trial
in 1990. McGill was found guilty of theft and robbery with a
deadly weapon, though he was acquitted of assault and battery
of the robbery victim and attempted murder and assault of a
police officer at the scene.
McGill concedes that the government could cross-
examine him about the fact that he had been convicted of the
Maryland crimes under Federal Rule of Evidence 609, which
enables a party to introduce evidence of a witness’s prior
conviction to attack the witness’s character for truthfulness.
See Fed. R. Evid. 609(a)(1)(B). But McGill argues that the
government delved too deeply into the facts surrounding those
earlier crimes. Specifically, he maintains that the government
was wrongly permitted to introduce: (i) a statement by McGill
denying any involvement in the first April 1989 robbery; (ii)
witness testimony from a Prince George’s County police
officer about a statement made by McGill’s accomplice,
William Little, regarding the second April 1989 robbery;
(iii) the entire transcript from the 1990 trial of the second
robbery; and (iv) the Maryland Court of Appeals judgment
affirming McGill’s 1990 conviction. Those admissions,
McGill contends, contravened the understanding that, “when
evidence of a prior conviction is admitted for purposes of
impeachment, cross-examination is usually limited to the
essential facts rather than the surrounding details of the
conviction.” Baylor, 97 F.3d at 544.
95
McGill is correct insofar as he argues that the prosecution
may not dwell on the facts of a defendant’s prior unrelated
convictions just for the sake of it. But “under certain
circumstances details concerning a conviction may be
elicited.” Id. at 544. One such circumstance is when the
defendant “open[s] the door” to impeachment about the
details of his convictions “by attempting to minimize” his
misconduct in his testimony. Id. at 545; see United States v.
Butler, 924 F.2d 1124, 1130 (D.C. Cir. 1991); United States v.
White, 222 F.3d 363, 370 (7th Cir. 2000).
Here, the government offered each of the above items of
evidence in order to contradict self-serving portions of
McGill’s testimony. For instance, McGill testified that he had
readily admitted his participation in the first April 1989
robbery and pleaded guilty, but that the Maryland prosecutor
refused to make a plea deal unless he also pleaded guilty to a
second robbery. In response to McGill’s claim that he had
admitted the first robbery, the government introduced his
statement denying his involvement. McGill also told the jury
that he did not participate in the second robbery, and his
counsel emphasized his claims of innocence by asking McGill
how he felt about being wrongly imprisoned for a crime he
did not commit. In addition, McGill testified that he was
implicated in the second robbery because the Maryland police
officers tricked his codefendant, Little, into falsely confessing
that McGill was his accomplice, and further testified that the
Maryland prosecutor and the trial judge prevented Little from
testifying as to McGill’s innocence. In response, the
government introduced testimony from the Prince George’s
County police officer about Little’s statement to establish that
investigators had not, in fact, tricked Little into implicating
McGill, and the government also introduced the transcript
from the 1990 trial to show that McGill’s attorney never made
that argument in McGill’s defense or attempted to call Little
96
to the stand. Similarly, because McGill claimed that the 1990
trial court had made its ruling barring Little from testifying
off the record, the government introduced the Maryland Court
of Appeals judgment to demonstrate that McGill’s attorney
never made an argument to that effect in appealing McGill’s
convictions. McGill also testified that his 1990 robbery trial
was a farce that lasted “twenty minutes,” with a transcript that
was “like four sentences, three pages.” J.A. 4957; see id. at
5040. The government then introduced the 1990 trial
transcript to establish that the trial and jury deliberations had
actually lasted three days.
McGill next argues that the district court wrongly
allowed the government to introduce extrinsic evidence of
three other alleged incidents of wrongdoing for which McGill
was not convicted. Specifically, the government inquired
into, and offered extrinsic evidence of, McGill’s participation
in two additional Maryland thefts—at a Walmart and a Zales
jewelry store—in 2001. In addition, McGill challenges the
government’s introduction of documents showing that he had
been accused of forging his GED certificate while in prison in
1994, including the certificate itself. He argues that Federal
Rule of Evidence 608(b) prohibits a party from introducing
extrinsic evidence of a witness’s prior bad acts in order to
attack the witness’s character for truthfulness, even if the
witness denies the acts during questioning.
McGill is right that, under Rule 608(b), the government
could not resort to extrinsic evidence of specific instances of
misconduct in order to attack McGill’s character for
truthfulness. See Fed. R. Evid. 608(b). But Rule 608(b)’s bar
against extrinsic evidence does not apply when the evidence
is used to contradict a statement made by a witness during her
testimony. See United States v. Fonseca, 435 F.3d 369, 374-
75 (D.C. Cir. 2006). Such “impeachment by contradiction” is
97
subject only to the constraints of Federal Rules of Evidence
401, 402, and 403. Id. at 375; see Fed. R. Evid. 608, advisory
committee’s note to 2003 amendment. “And evidence that
would contradict [a witness’s] trial testimony, even on a
collateral subject” is relevant under Rule 401 “because it
would undermine her credibility as a witness regarding facts
of consequence.” Fonseca, 435 F.3d at 375. Accordingly, as
long as the evidence was used to contradict McGill’s
testimony, the only issue is whether the district court erred in
determining that the probative value of the evidence of
McGill’s alleged participation in the 2001 Maryland thefts
and the GED forgery was not “substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, [or] wasting time.” Fed. R.
Evid. 403; see Fonseca, 435 F.3d at 375.
The evidence at issue here was introduced in response to
McGill’s contrary statements during his testimony. McGill
testified at length about the college-level courses he took and
the accreditations he acquired while in prison for the
Maryland convictions. His counsel introduced several of
McGill’s course certificates into evidence. McGill also
testified about how he had been living a clean, hardworking,
and generally commendable life since his release. The
government introduced evidence of McGill’s multiple run-ins
with the law in 2001 in order to contradict McGill’s testimony
that he had been a model citizen since his release and had
forsaken all criminal endeavors. And to mitigate McGill’s
account of all the college courses he had taken while in
prison, the government offered evidence that he was charged
with a prison infraction for forging his GED certificate to take
those courses.
Some of the admitted evidence, however, pushed the
limits of acceptability. “The open door does not give the
98
prosecution license to dwell on the details of the prior
conviction and shift the focus of the current trial to the
defendant’s prior bad acts,” and “the prosecution’s response
must be tailored to the statements made by the defendant.”
White, 222 F.3d at 370. In that regard, introducing the entire
transcript from the second Maryland trial may have been
overkill, especially because that trial also concerned conduct
of which McGill was acquitted. And even the government
admits that evidence about the GED-certificate forgery “did
not contradict any specific statement” that McGill made
during his direct testimony. Appellee’s Br. 173 n.145.
Even if the government’s impeachment should have been
kept within tighter bounds, however, we find that any error
was harmless because it did not have a “substantial and
injurious effect or influence in determining the jury’s
verdict.” Powell, 334 F.3d at 45 (quoting Kotteakos, 328 U.S.
at 776). McGill was an extremely difficult witness whose
testimony proved more belligerent and incoherent than
informative. He persistently refused to answer the
government’s questions, instead volunteering inadmissible
information and accusing the government of illegality in
rambling speeches. He similarly ignored the district court’s
repeated admonitions to stop bringing up extraneous
information and answer properly. In addition, he often
contradicted himself from one sentence to the next, evaded
giving answers to questions obviously designed to catch him
in a contradiction, and generally used his time on the stand to
fight with the prosecutor and the court rather than answer
questions.
We see no reasonable possibility that limiting the
government’s impeachment of McGill regarding past
misconduct could have caused the jury to think he was
credible, especially considering that much of the evidence the
99
government used against him was unquestionably legitimate
impeachment evidence. We therefore find no reversible error
in the government’s cross-examination.
XI. Sentencing (McGill)
The district court sentenced McGill on the following six
counts: (i) Count One, conspiracy to distribute narcotics; (ii)
Count Two, RICO conspiracy; (iii) Count Three, assault with
intent to commit murder; (iv) Count Four, violent crime in aid
of racketeering; (v) Count Five, tampering with a witness or
informant by killing; and (vi) Count Six, unlawful use of a
firearm. The court sentenced McGill to four concurrent
sentences of life imprisonment on Counts One, Two, Four,
and Five; a concurrent term of thirty years to life on Count
Three; and a consecutive term of ten years on Count Six.
McGill lodges various challenges to those sentences.
Because we find merit in certain of McGill’s challenges, we
vacate his sentences on Counts One, Two, Four, and Five and
remand for resentencing consistent with this opinion. We
note that other appellants summarily purport to join McGill’s
sentencing arguments. But those appellants give no
indication in their opening brief of which arguments are
applicable to them, include no explanation of how their
individual sentences would be affected by McGill’s
arguments, give no record citations concerning their
sentences, and include no documents or transcripts pertaining
to their sentences in the appellate record. Those appellants’
woefully underdeveloped arguments are forfeited. See
Moore, 651 F.3d at 93.
A.
McGill first raises several challenges to the district
court’s application of the Sentencing Guidelines. Those
100
arguments affect his sentencing only as to Counts One, Two,
Four, and Five. The Sentencing Guidelines did not affect
McGill’s sentence on Count Three (assault with attempt to
commit murder under the D.C. Code, a nonfederal offense).
The Guidelines also did not affect his sentence on Count Six
(unlawful discharge of a firearm), which carries a mandatory
minimum term of ten years served consecutively to any other
term. 18 U.S.C. § 924(c)(1)(A)(iii). The district court
imposed the minimum sentence of ten years. Any errors in
the application of the Guidelines would therefore be harmless
as to his sentences on Counts Three and Six.
With regard to the remaining counts, the Presentence
Report (PSR) applied the 2000 edition of the Guidelines. No
party challenges the PSR’s use of the 2000 Guidelines. And,
while the record is unclear on the issue, all parties present
their arguments under the assumption that the district court
adopted the PSR’s Guidelines calculation. We therefore
proceed on the understanding that the district court relied on
the PSR in imposing McGill’s sentence. See United States v.
Kennedy, 722 F.3d 439, 442 (D.C. Cir. 2013).
The PSR calculated a combined base offense level of 32
for Counts One, Two, Four, and Five. J.A. 1641-43. From
that base level of 32, the PSR added two levels pursuant to
U.S.S.G. § 2D1.1(b)(1) (2000), “because the defendant
possessed a dangerous weapon” in the commission of the
offense. J.A. 1643. The PSR then added another two levels
for obstruction of justice under U.S.S.G. § 3C1.1 (2000),
bringing McGill’s adjusted offense level to 36. The PSR then
applied the career offender provisions set out in U.S.S.G.
§ 4B1.1 (2000), under which McGill qualified as a “career
offender,” meaning that his total offense level was at least 37.
Id. Using the career offender provisions, the PSR also
assigned McGill a criminal history category of VI. J.A. 1644;
101
see U.S.S.G. § 4B1.1 (2000). Based on an offense level of 37
and a criminal history category of VI, the Guidelines provided
for an imprisonment range of 360 months to life on Counts
One, Two, Four, and, Five. See U.S.S.G. Ch. 5 (2000), Pt. A.
1.
At sentencing, McGill asked the district court to depart
from the Guidelines in its application of the drug quantity
guidelines, U.S.S.G. § 2D1.1(c)(4) (2000), and also to depart
from the applicable career offender guidelines, U.S.S.G.
§ 4B1.1 (2000). He argued for a departure based on the
disparity in sentencing for crack and powder cocaine and
based on his objections to the application of career offender
status. The district judge did not directly respond to either of
those arguments. We find error.
While “a court of appeals may apply a presumption of
reasonableness to a district court sentence that reflects a
proper application of the Sentencing Guidelines,” Rita v.
United States, 551 U.S. 338, 347 (2007), “[t]he [district]
court, at the time of sentencing,” must “state in open court the
reasons for its imposition of the particular sentence.” 18
U.S.C. § 3553(c). We do not “insist[] upon a full opinion in
every” sentencing, but “[t]he appropriateness of brevity or
length, conciseness or detail, when to write, [and] what to say,
depends upon circumstances.” Rita, 551 U.S. at 356.
Although a court issuing a sentence within the Guidelines
range need not give any “lengthy explanation,” it may be
required to do more if a party “argues that the Guidelines
reflect an unsound judgment . . . or argues for departure.” Id.
at 356-57.
While our review is for abuse of discretion, based on the
record here, we cannot tell that the district court “considered
the parties’ arguments and ha[d] a reasoned basis for
102
exercising [its] own legal decisionmaking authority,” or that it
“listened to each argument” or “considered the supporting
evidence.” Id. at 356, 358. That is not to say that the court
did not, in fact, do so, but the government provides no record
citations or arguments to that end on appeal. Accordingly, we
agree with McGill that his sentences on Counts One, Two,
Four, and Five should be vacated and remanded for
resentencing.
2.
McGill additionally challenges the application of a two-
level increase for firearms possession under U.S.S.G.
§ 2D1.1(b)(1). He argues that he was already subject to a
separate mandatory minimum sentence for use of the same
firearm under Count Six and that such a double penalty runs
afoul of the Guidelines. Because McGill failed to raise that
objection at trial, our review is for plain error. See Wilson,
605 F.3d at 1034.
We agree with McGill that the application of the two-
level increase constituted error. Section 2D1.1(b)(1) of the
Guidelines provides that, “[i]f a dangerous weapon (including
a firearm) was possessed” during the commission of the
offense, the offense level increases by two levels. U.S.S.G.
§ 2D1.1(b)(1) (2000). But Application Note 2 (Note 4 in the
current version of the guidelines) of Guidelines Section 2K2.4
(2000) further provides that, if a sentence under 18 U.S.C.
§ 924(c) “is imposed in conjunction with a sentence for an
underlying offense,” the court is “not [to] apply any specific
offense characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining the
sentence for the underlying offense.” U.S.S.G. § 2K2.4 n.2
(2000) (emphasis added). Application Note 2 aims to prevent
double-counting, as § 924(c)’s special mandatory minimum
103
sentences—which run consecutively to the sentence for the
underlying offense, see 18 U.S.C. § 924(c)(1)(A)—already
“account[] for any explosive or weapon enhancement for the
underlying offense.” U.S.S.G. § 2K2.4 n.2 (2000).
Here, the PSR added a two-level, specific-offense
characteristic for firearms possession to the calculation of
McGill’s offense level for Counts One, Two, Four, and Five.
Because McGill was sentenced on Count Six—a § 924(c)
firearms offense—at the same time and for the same conduct,
Application Note 2 forbids that additional two-level
enhancement.
The government argues that the Count Six sentence was
based on the underlying conduct embodied in Counts Four
and Five only, whereas the two-level enhancement under
U.S.S.G. § 2D1.1(b)(1) for a dangerous weapon was imposed
only in connection with Count One. That is incorrect. The
PSR assigned a combined offense level for Counts One, Two,
Four, and Five. While Count One, as the most serious
offense, served as the starting point for that calculation, “[t]he
other counts determine whether and how much to increase the
offense level” from Count One. See U.S. Sentencing Comm.,
An Overview of the Federal Sentencing Guidelines at 2.
http://www.ussg.gov/sites/default/files/pdf/about/overview/O
verview_Federal_Sentencing_Guidelines.pdf. So while
Count One was the starting point, the offense-level
calculation reflected Counts One, Two, Four, and Five in
combination.
The government further argues that any error was not
“plain” for purposes of the plain-error standard. We disagree.
The government contends that our court upheld the use of the
§ 2D1.1 enhancement in similar factual circumstances in
United States v. Thomas, 114 F.3d 228 (D.C. Cir. 1997). But
104
the defendant in that case—unlike McGill—was not
convicted of a separate § 924(c) firearms offense. Id. at 237,
270. As we have observed elsewhere, “an enhancement under
§ 2D1.1(b)(1) and sentencing on a § 924(c) conviction are
mutually exclusive.” United States v. Rhodes, 106 F.3d 429,
432 (D.C. Cir. 1997).
Under the plain-error standard, an appellant must
demonstrate prejudice to his “substantial rights,” and that the
error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Bolla,
346 F.3d 1148, 1152 (D.C. Cir. 2003) (quoting United States
v. Cotton, 535 U.S. 625, 631 (2002) (brackets omitted).
“[O]ur application of plain error review in the sentencing
context allows a somewhat relaxed standard for showing
prejudice under the third prong of the plain error test.” Id.
(citing United States v. Saro, 24 F.3d 283, 288 (D.C. Cir.
1994)). We have explained that “it is a miscarriage of justice
to give a person an illegal sentence that increases his
punishment, just as it is to convict an innocent person,” and
that “leaving in place an error-infected sentence that would
have been materially different absent error and that could be
readily corrected would ‘seriously affect the fairness,
integrity[,] or public reputation of judicial proceedings.’
Indeed, it would seriously affect all three.” United States v.
Coles, 403 F.3d 764, 767 (D.C. Cir. 2005) (quoting United
States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005); United
States v. Williams, 399 F.3d 450, 461 (2d Cir. 2005)) (internal
citations and brackets omitted).
That understanding applies here. Following the two-level
upward adjustment under § 2D1.1(b)(1) (and the two-level
upward adjustment for obstruction of justice under U.S.S.G.
§ 3C1.1), McGill’s adjusted offense level stood at 36. The
PSR then applied the career offender provisions, which
105
stipulated that McGill’s adjusted offense level could be no
less than 37. See U.S.S.G. § 4B1.1 (2000). If the district
court properly applied the career offender provisions, McGill
then suffered no prejudice resulting from the erroneous, two-
level upward adjustment based on § 2D1.1(b)(1)—his
adjusted offense level would still be 37, regardless of that
error. But we have already held that we must remand for the
district court adequately to explain its decision to hew to the
career offender provisions. While the district court might
well continue to apply the career offender provisions—
earning McGill an adjusted offense level of 37, regardless of
the application of § 2D1.1(b)(1)—we can be confident that
the court’s application of § 2D1.1(b)(1) did not prejudice
McGill only if the court chooses to persist in applying the
career offender provisions and adequately explains its
decision. Accordingly, we find that McGill has shown a
reasonable likelihood that the error affected the outcome of
his sentencing, see Wilson, 605 F.3d at 1032, and we remand
for resentencing on Counts One, Two, Four and Five in a
manner consistent with our decision.
B.
The district court sentenced McGill to life imprisonment
on Counts Four and Five. As the government concedes,
however, the maximum sentence available under Count Four
is ten years, and, at the time of McGill’s sentence, the
maximum sentence available under Count Five was 20 years.
We have already vacated McGill’s sentence on Counts Four
and Five. On remand, the district court can correct these
errors as well.
C.
The district court sentenced McGill to a term of ten years
on Count Six for violating 18 U.S.C. § 924(c)(1)(A). That
106
provision mandates a five-year minimum sentence for
carrying a firearm, but it increases the penalty to a ten-year
mandatory minimum if the firearm is discharged in the
commission of the crime. 18 U.S.C. § 924(c)(1)(A)(i), (iii).
In Alleyne v. United States, 133 S. Ct. 2151 (2013), the
Supreme Court held that “any fact that increases the
mandatory minimum” applicable to a crime “must be
submitted to the jury.” Id. at 2155. McGill argues on appeal
that the district court’s ten-year sentence on Count Six ran
afoul of Alleyne because the jury did not find that the firearm
was, in fact, discharged. Because McGill failed to raise that
Alleyne objection before the district court, our review again is
for plain error.
The verdict form represents the facts found by the jury,
see United States v. Fields, 242 F.3d 393, 396, and those
forms did not require the jury to find that McGill discharged a
firearm. The language of the jury verdict asked the jury to
find only that McGill had “use[d]” a firearm. J.A. 1151. We
therefore agree with McGill that there was an Alleyne error.
But to qualify for relief under the plain-error standard, that
error must also have “seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” Henderson, 133
S. Ct. at 1130.
Our decision in United States v. Johnson, 331 F.3d 962
(D.C. Cir. 2003) demonstrates that McGill cannot make that
showing. In Johnson, the district court failed to submit an
element of the offense—that the conspiracy involved at least
50 grams of cocaine base—to the jury, in violation of the rule
in Apprendi v. New Jersey, 530 U.S. 466 (2000). Johnson,
331 F.3d at 966-67. Nevertheless, we explained, the appellant
had “offered the jurors no scenario under which they could
have convicted him of unlawful possession with intent to
distribute cocaine base”—which they did—“yet found that the
107
quantity involved was less than 50 grams.” Id. at 969. As a
result, we found that any error did not affect the fairness,
integrity, or public reputation of the judicial process. Id. at
968 (citing Cotton, 535 U.S. at 632-33).
The same is true here. Count Four charged that
McGill, “while armed with a firearm, attempted to murder
Witness #6.” J.A. 695. Count Five alleged that McGill
“attempt[ed] to kill Witness #6 by shooting Witness #6 with a
firearm.” Id. And Count Six charged that McGill “carr[ied]
and possess[ed] a firearm” in connection with “Counts Four
and Five.” Id. at 696. Witness #6 (Charles Schuler) was shot,
and McGill was convicted on Counts Four and Five in
connection with that shooting. McGill offered no defense
beyond, “I didn’t do it.” The logical implication of those
facts is unavoidable: if the jury found McGill guilty on
Counts Four and Five—which it did—the jury necessarily
found that a firearm was discharged in connection with
Counts Four and Five. McGill therefore is not entitled to
relief from his sentence on Count Six under the plain-error
standard. See Johnson, 331 F.3d at 968; accord United States
v. Webb, 255 F.3d 890, 901-02 (D.C. Cir. 2001).
D.
By this point, we have vacated McGill’s sentences on
Counts One, Two, Four, and Five, and we have identified
errors in those sentences for correction on remand. Because
McGill’s sentence is yet to be determined, we do not reach his
challenges to the overall reasonableness of his sentence under
18 U.S.C. § 3553(a) at this time. Cf. United States v. Locke,
664 F.3d 353, 357 & n.3 (D.C. Cir. 2011).
McGill urges us to instruct the district court that it should
conduct its resentencing analysis on remand de novo.
Consistent with our usual practice, we decline to issue that
108
instruction. See United States v. Whren, 111 F.3d 956, 959-
60 (D.C. Cir. 1997); see also United States v. Taylor, 937
F.2d 676, 684 (D.C. Cir. 1991). “De novo resentencing is in
essence a license for the parties to introduce issues,
arguments, and evidence that they should have introduced at
the original sentencing.” Whren, 111 F.3d at 959. We
therefore remand for the district court to “consider only such
new arguments or new facts as are made newly relevant by
[our] decision—whether by the reasoning or by the result,” id.
at 960, in addition to any “facts that did not exist at the time
of the original sentencing,” United States v. Blackson, 709
F.3d 36, 40 (D.C. Cir. 2013).
XIII. Cross-Examination (Oliver)
Oliver claims that the district court erred in allowing the
prosecution, on cross-examination, to read to him testimony
of government witnesses and ask him for his position on the
events recounted. Oliver’s theory is that the government’s
procedure forced him to state that government witnesses were
lying and to explain why they would lie, contrary to the rule
that a prosecutor may not “induce a witness to testify that
another witness, and in particular a government agent, has
lied on the stand.” United States v. Boyd, 54 F.3d 868, 871
(D.C. Cir. 1995); see also United States v. Schmitz, 634 F.3d
1247, 1268 (11th Cir. 2011). Although courts have found
such questions objectionable on several grounds, perhaps the
most obvious are that they ask the defendant-witness to speak
on a matter of which he has no personal knowledge and that
they may put him in a position, unless he is verbally agile,
where he must either call another witness a liar or be seen as
accepting that witness’s account. See id. at 1268-69.
Oliver mischaracterizes the government’s line of
questioning, and, to the extent that he did comment on other
109
witnesses’ veracity, he did so on his own initiative, in answers
broader than what the government’s questions had invited.
We therefore reject his challenge.
The government did not pose “were-they-lying”
questions of the type prohibited by Schmitz and Boyd, but
instead read (or summarized) other witnesses’ accounts of
events and asked for Oliver’s account. For example, a
prosecutor summarized Cheryl Pinkard’s testimony that
Oliver was present at the shooting of Richard Simmons, and
then asked Oliver whether he was indeed at the scene; Oliver
responded, “No, sir.” J.A. 4692. Similarly, the prosecutor
summarized Frank Howard’s testimony that he and Kevin
Gray had come over from Southeast Washington to Northeast
to engage in drug dealing with Oliver and asked Oliver
whether such a thing had happened, to which he responded,
“No way.” Id. at 4698.
The questioning here falls on the permissible side of the
line we and other courts have drawn. While we have held that
asking a defendant “point-blank” why witnesses would
“‘make up’ a story about him” is improper, we have
distinguished such questioning from “unobjectionable”
examination designed to compare the defendant’s factual
account with other witnesses’ and allow jurors to draw their
own conclusions. Boyd, 54 F.3d at 871-72. It is likewise
permissible to “focus a witness on the differences and
similarities between his testimony and that of another
witness,” so long as “he is not asked to testify as to the
veracity of the other witness.” Schmitz, 634 F.3d at 1269.
The government’s questioning met these standards.
Insofar as Oliver did comment that certain witnesses
were lying or speculate as to their motives, he did so
spontaneously, of his own accord. For example, in response
110
to the government’s presentation of Pinkard’s testimony
placing him at the scene of the Simmons shooting, the
testimony of Walter Fleming (“Biggums”) that he shared a
stash house with Simmons, and Victoria Robles’s testimony
that Oliver and Timothy Handy had come into the apartment
with guns, Oliver claimed they were all “lie[s].” J.A. 4747,
4787-88, 4756. Oliver also volunteered a theory as to why
Robles would lie—namely, that the government agreed, in
exchange for her cooperation, not to prosecute her for killing
her daughter.
XIV. Evidence Regarding Murder of Green (Oliver)
Deon Oliver (we’ll henceforth call him simply “Oliver,”
reserving the complete given name and family name for his
cousin Taron Oliver) argues that the government deceived the
jury by telling it that certain evidence supported Oliver’s
involvement in the Richard Simmons murder despite knowing
that the evidence actually related to a different murder, that of
Demetrius Green. Though framing the issue mainly as a
matter of prosecutorial misconduct, the defense also indirectly
claims district court error in admission of the evidence and
failure to correct the misconduct.
The evidence in question was Robles’s grand-jury
testimony, introduced at trial during Robles’s direct
examination. The government initially used the grand-jury
testimony to refresh Robles’s recollection that she had
testified about hearing Timothy Handy (“Dog”) and Oliver
discuss a murder. When Robles said her recollection was not
refreshed, the government then moved to admit the testimony.
The defense objected, but evidently not on any ground other
than illegitimate intermingling of the two murders, the issue
we now address. (In a pre-Crawford case we said that “the
Confrontation Clause is not violated by admitting a
111
declarant’s out-of-court statements, as long as the declarant is
testifying as a witness and subject to full and effective cross-
examination.” Powell, 334 F.3d at 45 (quoting California v.
Green, 399 U.S. 149, 158 (1970)).)
Before the grand jury Robles said that she had overheard
Handy and Oliver discuss Handy’s having shot and killed a
“little boy” in front of his mother, and that Oliver had said,
“You got to get her, too. Because she will snitch.” J.A. 1706-
07. Robles also told the grand jury that the “little boy” was
15 or 16 years old, and that the murder occurred on Forrester
Street.
If Robles’s account to the grand jury was a story of a
single murder, it didn’t very well match the killing of
Simmons, specifically as to the victim’s age and the site of the
murder. First, Oliver testified that Simmons was “not a little
boy,” J.A. 4805, and the government doesn’t contest defense
counsel’s claim at trial that Simmons was “in his twenties or
thirties,” Appellee’s Br. 197, and thus not a “little boy” in
ordinary parlance, let alone a little boy of 15 or 16. Second,
the government does not claim that the Simmons murder
occurred on Forrester Street. In fact, Demetrius Green, a boy
of 15 or 16, was murdered on Forrester Street, and Handy has
been convicted for that murder. See Moore, 651 F.3d at 98.
The trial court admitted the elements of Robles’s grand-
jury testimony that were logically consistent with the
Simmons murder but excluded those portions that were flatly
at odds with that murder and in fact seemed to link Robles’s
account to the Demetrius Green murder. Though on appeal
Oliver does not highlight his objection at trial to the
admission of this truncated testimony, that admission is of
course temporally prior and logically necessary to the alleged
later prosecutorial abuse.
112
The court initially questioned whether admitting the
grand-jury testimony “would do anything other than confuse
the jury.” J.A. 3367-68. But the government advanced a
theory linking the testimony to the Simmons murder. The
prosecutor candidly acknowledged that Robles “may very
well be mixing a couple of different conversations” and that
the reference to “Forrester Street” was incorrect (as to the
Simmons murder). Id. at 3368-69. The prosecutor
nonetheless argued that the conversation must have related at
least in part to the Simmons murder, because other than the
street name, the evidence “smack[ed]” of that murder. Id. at
3367. Specifically, the prosecutor said, Simmons’s mother
had witnessed her son’s murder, consistent with Robles’s
testimony. The parties agree that a mother was also present at
the scene of the Green murder, though they dispute whether it
was the victim’s mother or a bystander’s. Oliver testified that
Green’s mother witnessed Green’s murder, but Oscar Veal
testified that Scorpio Phillips and his mother Phyllis were
witnesses to that murder. Additionally, Robles testified that
Oliver had spoken as if he had been “actually present” at the
murder, id. at 3374, and Oliver does not suggest that he was
involved in the Green murder.
After the government explained its theory, the court
agreed to change its ruling and admit a version of the grand-
jury testimony omitting the references pointing to the Green
murder (the victim’s age and the murder site). Given the
court’s concern with jury confusion, it may be that it reasoned
that the material specific to the Green murder was irrelevant.
Of course, since Robles delivered that material as part of an
integrated account of a single conversation that she said she
overheard, its omission before the jury greatly enhanced the
apparent force of the government’s theory. The jury
confusion of the sort that the trial court evidently feared
113
would have arisen from Robles’s apparent confusion between
the two murders.
The government’s inference was highly contestable and
the admitted excerpt one-sided. But Oliver had an
opportunity to offer the missing portion of grand-jury
testimony under the rule of completeness. See United States
v. Washington, 12 F.3d 1128, 1137-38 (D.C. Cir. 1994). Why
he failed to do so is unexplained. Introduction of only the
inculpatory part of a statement is not error so long as the
defendant is able to “present the allegedly exculpatory
material during cross-examination,” United States v.
Washington, 952 F.2d 1402, 1404 (D.C. Cir. 1991), as Oliver
was here. Oliver’s counsel cross-examined Robles about the
specifics of the conversation she had heard. Robles
acknowledged that she had heard from people she knew that a
15- or 16-year-old had been killed and that his mother had
witnessed the murder, but she claimed not to remember being
told the location of the murder. Counsel did not confront her
with the omitted grand-jury testimony.
Oliver’s direct examination also put his theory before the
jury: he testified that Robles, Handy, and Taron Oliver (Deon
Oliver’s cousin) had all discussed (in Deon’s presence) a
“little dude” named Demetrius Green who was 15 or 16 years
old and who was murdered on Forrester Street with his
mother as an eyewitness. J.A. 4807-08. Oliver said that this
was the incident about which Robles had testified. Oliver
also confirmed that Simmons was not a “little boy.” Id. at
4805. Given Oliver’s opportunities to correct mistaken
inferences from the partial submission, and the existence of a
theory under which the Robles testimony was probative, we
cannot say that the trial court abused its discretion. See
Mahdi, 598 F.3d at 891-92 (citing Gartmon, 146 F.3d at
1020).
114
Oliver maintains that the government intentionally misled
the jury: it knew that Robles had been referring to the Green
murder and “tailor[ed]” the testimony to “leave out” the facts
relevant only to Green and not to Simmons. J.A. 3368.
Oliver sees the offense as compounded by the government’s
argument in closing that Robles’s grand-jury testimony
supported its claim that Oliver participated in the Simmons
murder.
A prosecutor’s failure to correct a witness’s
misrepresentations during cross-examination may warrant a
new trial, United States v. Iverson, 637 F.2d 799, 803 (D.C.
Cir. 1980), and closing arguments must be confined to “facts
which are in evidence and the reasonable inferences
therefrom,” United States v. Jones, 482 F.2d 747, 753 (D.C.
Cir. 1973). But the prosecutor may “draw inferences from
evidence that support the government’s theory of the case so
long as the prosecutor does not intentionally misrepresent the
evidence.” Moore, 651 F.3d at 53. The government drew
such an inference here.
The government fully vetted the potential ambiguity,
explained its reasoning before the district court, and suggested
that the dispute would be an area “ripe for cross-examination
and argument.” J.A. 3369. Its theory—that Robles overheard
at least one conversation about the Simmons murder and
confused two conversations when testifying before the grand
jury—is not such a stretch as to support an inference of
misrepresentation. We therefore find that the government’s
behavior in cross-examination and closing was within bounds.
A final note: during a break in summations, Oliver’s
counsel protested that the jury had not heard anything about
the Green murder, such that the jury was unequipped to
decide which murder was the subject of Robles’s testimony.
115
As the district court responded, however, Oliver’s counsel had
had the opportunity to put before the jury whatever he wanted
to clarify that issue—in addition to what he had raised during
Robles’s cross-examination and Oliver’s direct examination.
Oliver has no answer to that.
XV. Floyd Murder Conviction (Oliver)
Oliver next claims that his conviction for the Floyd
murder under the D.C. Code must be reversed because the
evidence linking him to the murder—testimony that he
provided the gun used by Raynor to kill Floyd—was
insufficient. We review the evidence de novo and consider it
in the light most favorable to the government, and we will
affirm a guilty verdict where “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Wahl, 290 F.3d 370, 375
(D.C. Cir. 2002) (emphasis in original).
Much of Oliver’s argument is directed at whether the
evidence sufficed on an aiding-and-abetting theory of
liability. But even assuming sufficiency of the evidence, the
district court’s use of a “natural and probable consequence”
instruction for aiding and abetting was plain error for a D.C.
Code violation. See Moore, 651 F.3d at 91 (quoting Wilson-
Bey v. United States, 903 A.2d 818, 835-39 (D.C. 2006) (en
banc)). The jury therefore was not entitled to convict Oliver
of the Floyd murder on that theory.
But the jury was also instructed on a Pinkerton theory,
under which it was required to find that Raynor killed Floyd
“in furtherance of the conspiracy” and that the murder was
“reasonably foreseeable” to Oliver. Gordon v. United States,
783 A.2d 575, 582 (D.C. 2001) (citing Pinkerton v. United
States, 328 U.S. 640, 647-48 (1946)). On that basis, the
evidence was adequate under D.C. law.
116
First, a rational jury could find that Floyd’s murder was
“in furtherance of the conspiracy,” Gordon, 783 A.2d at 582,
specifically the conspiracy’s goal—as charged in the
indictment and shown through trial evidence—to promote and
enhance the reputation and standing of the enterprise and its
members. Floyd had challenged Raynor to fight; Raynor was
angry and told Andrews and Gray that he wanted to kill Floyd
because he was embarrassed that the much-younger Floyd had
“chumped John [Raynor] up” in front of others, including
drug dealers working for Raynor. J.A. 2101-02. The next
day, Raynor murdered Floyd. Andrews testified that Raynor
killed Floyd “because he [Raynor] said Little Willie [Floyd]
disrespected him,” and that Raynor demonstrated to other
members of the conspiracy that “nobody around there can
mess with him [Raynor]. You mess with me, you get killed.
That’s the reason he killed Little Willie [Floyd].” Id. at 2300-
01. This evidence—especially the evidence that Floyd had
embarrassed Raynor before men who worked for him—
supported the conclusion that Raynor murdered Floyd to
protect his reputation and to further the conspiracy.
Citing United States v. Roshko, 969 F.2d 1, 7 (2d Cir.
1992), Oliver maintains that the murder did not further the
conspiracy’s “principal objective,” which was narcotics
trafficking and racketeering, not promoting Raynor’s image.
But as in Moore, the indictment and evidence support a
finding that “killing to enhance the conspiracy’s power [and]
protect the reputation of the conspiracy and its members” was
among the major purposes of the conspiracy. 651 F.3d at 94
(“[T]he superseding indictment and evidence at trial make
clear that one of the principal goals of the drug conspiracy
was. . . .”). In any event, all that D.C. law requires is that the
act be “in furtherance of the conspiracy,” not necessarily of
its principal objective. Gordon, 783 A.2d at 582 (emphasis
added). Although Oliver points to Andrews’s testimony that
117
Floyd’s shooting was the result of personal pique rather than a
benefit to Gray’s group, Andrews said of his associates, “All
of us was one big family. . . . [I]f one of us had a problem, all
of us had a problem.” J.A. 2108. Viewed in the light most
favorable to the government, that evidence was enough to find
that the shooting was in furtherance of the conspiracy. See
Wahl, 290 F.3d at 375.
On the second prong of Pinkerton, the evidence was also
sufficient that Raynor’s shooting of Floyd was “reasonably
foreseeable” to Oliver. Gordon, 783 A.2d at 582. After the
murder, Raynor told Andrews that Oliver had given Raynor
the gun, and Oliver himself confirmed to Robles that he had
given Raynor the gun; Oliver could thus have foreseen the use
of that gun. Oliver could also have foreseen the specific
crime: Robles testified that on the night of the murder Oliver
told her that Raynor shot Floyd because
A. . . . [T]he younger boys around there was playing
with him [Raynor] and they wouldn’t stop playing
with him.
Q. Playing with him how?
A. Like I guess disrespect, like when you tell
somebody “Stop playing with me.”
J.A. 3361-62. There was also testimony that Raynor watched
Floyd (“Willy”) and his friend Albino Buck “for a few
minutes” “ducking,” “flashing like they had something,” and
“putting their hands down their pants, you know, like they
was pulling guns out,” apparently at approximately the time
that Oliver handed Raynor a gun. Id. at 3728-29. To be
sufficient, the evidence “need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” United States v. Maxwell,
118
920 F.2d 1028, 1035 (D.C. Cir. 1990). A rational jury could
thus infer that Oliver had seen these events and that the
murder of Floyd was reasonably foreseeable to him when he
gave Raynor the gun. (Although the “pulling guns out”
testimony might have supported a claim that the killing was in
self-defense, that possibility did not preclude the jury from
finding a purpose to advance the conspiracy’s goal of
promoting its reputation.)
Oliver claims that reversal is nevertheless necessary since
a verdict must “be set aside in cases where the verdict is
supportable on one ground, but not on another, and it is
impossible to tell which ground the jury selected.” Yates v.
United States, 354 U.S. 298, 312 (1957), overruled on other
grounds, Burks v. United States, 437 U.S. 1 (1978). Oliver
contends that we cannot tell whether the jury convicted him
by following the improper aiding-and-abetting instruction or
by following the Pinkerton instruction, which he does not
challenge. We need not address this argument, however,
because Oliver forfeited it by raising it only in his reply brief.
See Moore, 651 F.3d at 93 n.22 (dismissing the same Yates
argument, which was raised there without citation in a
footnote of the opening brief); United States v. Van Smith,
530 F.3d 967, 973 (D.C. Cir. 2008) (dismissing an argument
raised in the reply brief).
XVII. Prosecutorial Misconduct During Closing and
Rebuttal Arguments
Appellants claim that they are entitled to a new trial
because of improper prosecutorial remarks during closing and
rebuttal arguments. While we strongly disapprove of the
prosecution’s theme in its rebuttal closing argument, we
ultimately find no reversible error.
119
We review improper prosecutorial argument for
substantial prejudice if defendants objected, and review only
for plain error if they did not. See Moore, 651 F.3d 50.
Under either standard, the question whether improper
prosecutorial argument caused sufficient prejudice to warrant
reversal turns on: “(1) the closeness of the case; (2) the
centrality of the issue affected by the error; and (3) the steps
taken to mitigate the error’s effects.” Id. at 50-51 (quoting
United States v. Becton, 601 F.3d 588, 598 (D.C. Cir. 2010)).
“When, as here, the alleged prosecutorial misconduct forms
the basis for an unsuccessful motion for a mistrial, our review
of the district court’s denial of that motion is for abuse of
discretion.” Moore, 651 F.3d at 50.
“The sole purpose of closing argument is to assist the
jury in analyzing the evidence[.]” Moore, 651 F.3d at 52
(quoting United States v. Bailey, 123 F.3d 1381, 1400 (11th
Cir. 1997)). Accordingly, counsel may not make factual
assertions during closing argument if there is no evidentiary
basis for them. See, e.g., United States v. Maddox, 156 F.3d
1280, 1282 (D.C. Cir. 1998) (“[I]n closing argument counsel
may not refer to, or rely upon, evidence unless the trial court
has admitted it.”) (collecting similar cases).
Counsel also may not offer personal opinions on which
witnesses are telling the truth or on the defendants’ guilt or
innocence; those matters are solely for the jury to determine
from the evidence. See Brown, 508 F.3d at 1075; see also
MODEL RULES OF PROFESSIONAL CONDUCT R. 3.4(e) (2013)
(lawyers may not “allude to any matter that the lawyer does
not reasonably believe is relevant or that will not be supported
by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal
opinion as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt or
120
innocence of an accused”). Nor may counsel “make
comments designed to inflame the passions or prejudices of
the jury.” Moore, 651 F.3d at 51 (quoting United States v.
Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000)).
Appellants complain about numerous prosecutorial
statements made during closing and rebuttal arguments. We
find deeply troubling one significant aspect of the
government’s rebuttal argument—what it dubs “the
‘playbook’ theme[.]” Appellee’s Br. 221. We find no merit
to the other challenges that appellants raise.
A.
The prosecutor who presented the government’s closing
rebuttal argument made up the “playbook theme” by referring
to letters found in the cell of Patrick Andrews, a defense
witness for Ronald Alfred. J.A. 5372, 5373. Those letters
discussed ways to distort and falsify evidence in a criminal
prosecution. The prosecutor implied that appellants, their
counsel, and certain defense witnesses had consulted those
letters—the “playbook”—to collude on presenting a false
defense in this case:
What [Andrews] showed you through his letters
were a series of propositions that helped defendants
put together false defenses, and I’m going to use this
as a guide, and hopefully we’re going to talk about
how it is a number of the defendants and some of the
defense attorneys took advantage of Patrick
Andrews’ playbook on how to put together a false
defense.
Id. at 5372.
 121
After that aspersion of the defense’s entire courtroom
effort, the prosecutor repeatedly read from more of Andrews’s
letters, calling them “chapters” in appellants’ “playbook” that
were purportedly manifested in the defense’s efforts.
According to the prosecutor, those “chapters” covered, among
other topics, intimidating witnesses, deliberately misleading
the jurors, and following a false script. See, e.g., id. at 5372
(“Chapter one. . . . What’s the goal regarding you folks, the
jurors? Well, the playbook tells us, ‘It’s all about convincing
them twelve people that it could have been anybody but
you.’”); id. at 5373 (“Chapter two. It’s about identifying who
the cooperating witnesses are.”); id. at 5374 (“Here’s chapter
three . . . [:] ‘I want you to know, if you cross me [by
cooperating], it’s not ever going to be over. I’m warring with
your family and my family is warring with you,’ close quote.
That’s what you tell the cooperating witnesses.”); id. at 5377
(reading from the “playbook” and arguing that the playbook’s
strategy was seen in this case); id. at 5378 (“false script”); id.
at 5380 (“I pulled out this page from the playbook.”).
The government’s rebuttal argument lasted three hours,
circling back a number of times to the defendants-are-putting-
on-a-false-defense narrative. Id. at 5394-95 (arguing about a
witness memorizing a false script and pointing to a “circle of
collusion” resulting from “[f]ollowing the play book”); id. at
5401-02 (arguing that a witness was following a script and
stating: “Sort of brings us right to the play book doesn’t it,
brings us right to the play book. . . . Right to the play book. .
. . Talk about the play book.”); id. at 5409 (“Of course, Deon
actually wrote his own chapter in the play book didn’t he.”);
id. at 5414 (“That’s Deon Oliver taking a chapter out of
Patrick Andrews’ play book. . . . [T]aking Chapter III out of
the play book, Patrick Andrews’ play book[.]”); id. at 5416
(“Tried that, tried to follow the play book, but again, lies are
122
easy to expose.”); id. at 5417 (“He took a page right out of the
play book didn’t he.”).
The government now concedes that the playbook theme’s
implication “that appellants, their counsel, or the defense
witnesses had consulted the letters seized from Andrews’ cell
in formulating the defense strategy . . . was without any
factual basis,” Appellee’s Br. 221-22, and the argument was
“in some respects, ill-advised,” id. at 221.
“Ill-advised” indeed. The prosecution’s argument theme
and statements were entirely improper, unprofessional, and
wholly unbefitting of those who litigate in the name of the
United States of America. There was no evidentiary basis for
even inferring, let alone repeatedly trumpeting, that appellants
knew anything about Andrews’s letters. See United States v.
Valdez, 723 F.3d 206, 209 (D.C. Cir. 2013) (prosecutor’s
remarks were improper where there was “no factual basis” for
them). Worse still, under our Constitution, prosecutors have
no business in gratuitously maligning as lies, falsehoods, and
corruption, without any evidentiary basis, the defendants’
exercise of their Fifth and Sixth Amendment rights to present
a defense in court. Cf. United States ex. rel. Macon v. Yeager,
476 F.2d 613, 615 (3d Cir. 1973) (prosecutor may not seek to
raise in the jurors’ mind an inference of guilt from the
defendant’s exercise of his Sixth Amendment rights).
Prosecutors “ha[ve] an obligation ‘to avoid making
statements of fact to the jury not supported by proper
evidence introduced during trial,’” Moore, 651 F.3d at 51
(quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C.
Cir. 1969)), and this court expects prosecutors to litigate with
the recognition that they represent “a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all,” Berger v. United States, 295 U.S.
123
78, 88 (1935). A just outcome obtained through a fair, even-
handed, and reliable process should be the government’s goal;
it is not to win at any cost.
District courts, too, must remain vigilant. While counsel
may be afforded a long leash in closing argument, they should
not be given free rein. Courts must stand in the gap to protect
defendants and the judicial process from abusive arguments
like this. That did not happen here. Appellants repeatedly
objected, and “[w]hy the district court refused to sustain the
defense objection[s] is beyond us,” Maddox, 156 F.3d at
1283. “When a prosecutor starts telling the jury” that the
defendants, their lawyers, and some of their witnesses all
consulted the same letters—a so-called playbook for a false
defense—without any factual basis to support that argument,
“it is time not merely to sustain an objection but to issue a
stern rebuke and a curative instruction, or if there can be no
cure, to entertain a motion for a mistrial.” Id. Instead, the
district court wrongly, and without explanation, denied
appellants’ repeated objections to this blatantly impermissible
closing argument.
While we find the closing argument to be deeply
troubling, we cannot conclude on the record of this case that it
actually resulted in substantial prejudice. “[T]here was
overwhelming evidence of appellants’ guilt,” Moore, 651
F.3d at 53; the “case was not close,” Becton, 601 F.3d at 599.
In addition, the playbook theme was not mentioned in the
government’s initial closing argument, and was primarily
confined to the first hour of the three hour rebuttal argument.
The misconduct was thus limited “to relatively small portions
of lengthy . . . closing [and rebuttal] arguments.” Moore, 651
F.3d at 54. Just as a short and simple trial can make a
“prosecutor’s improper remarks all the more potent,”
Maddox, 156 F.3d at 1283, here the length of the trial (nearly
124
six months) and the relatively cabined nature of the improper
conduct mitigated any possible prejudice to appellants.
Finally, the district court specifically instructed the jury
right before it began deliberating that “[t]he opening
statements and closing arguments of counsel are also not
evidence,” J.A. 5450; see Moore, 651 F.3d at 53-54. Such an
instruction “is usually a strong ameliorative consideration”
when evaluating “prosecutorial misconduct during . . . closing
argument[.]” Id. at 54 (citations omitted).
B.
Appellants challenge several other statements made
during the government’s closing and rebuttal arguments.
Those challenges fall into three general categories.14
First, appellants point to several statements that they
claim were designed to inflame the passions and prejudices of
the jury. The prosecutor, for example, began closing
argument by describing one alleged victim as having “his
whole life ahead of him,” J.A. 5256, while another was
unaware “that these are the last steps he will ever take,” id. at
14
Appellants objected to most, but not all, of the statements that
they challenge on appeal. We would ordinarily review the
unobjected-to statements only for plain error. But because
prejudice is required to warrant reversal under either substantial-
prejudice or plain-error review, and the absence of prejudice is
dispositive here, we need not differentiate between those two
standards to resolve this case. See Moore, 651 F.3d at 50–51
(factors guiding prejudice inquiry under either standard are (i) the
closeness of the case, (ii) the centrality of the issue affected by the
error, and (iii) the steps taken to mitigate the error’s effects).
125
5257. Later in the closing argument, the prosecutor referred
to the incalculable “devastation and grief” appellants had
caused “[i]n their relentless pursuit of money and power,”
including the “[k]ilos and kilos of poison being released onto
the streets.” Id. at 5311. Those “days of power and money,”
the prosecutor declared, “are over[.]” Id.
Second, appellants contend that the prosecutors
impermissibly opined on key issues by vouching for a witness
and offering personal views on who actually shot Lincoln
Hunter. In particular, the prosecutor who gave the
government’s closing argument commented on the credibility
of Eugene “Weetie” Williams, a cooperating witness who
testified against Seegers, by stating that “[y]ou know . . .
Weetie was telling you the truth.” Id. at 5272-73. And the
prosecutor who gave the government’s rebuttal argument
stated: “We all know . . . [w]ho shot Lincoln. Loud mouth
knuckle head that he is Franklin Seegers.” Id. at 5407.
Third, appellants object to the prosecutor’s improper
comments on defense tactics, such as the assertion during
rebuttal that defense counsel’s vigorous cross-examination of
cooperating witnesses evidenced appellants’ fear of those
witnesses. Id. at 5367-69. They also object to that same
prosecutor’s statement that the PowerPoint slide show used
during closing argument by Seegers’s counsel was a “slick”
presentation designed to divert the jury’s attention from the
evidence. Id. at 5401.
Even assuming all of those statements were improper,
they do not warrant reversal even when viewed cumulatively
alongside the improper playbook theme. Most of the
statements were fleeting, and few touched on issues central to
the case. The district court instructed the jury that the
arguments of counsel are not evidence. Id. at 5450. The
126
lengthy deliberations suggest that the jury took that
instruction to heart and weighed the evidence, unswayed by
whatever passions and prejudices the prosecutors’ statements
might have attempted to stoke. And, as we have noted before,
the evidentiary case against appellants was truly
overwhelming. We are confident beyond any reasonable
doubt that appellants did not suffer substantial prejudice from
the alleged prosecutorial misconduct, and for that reason, the
district court did not abuse its discretion in denying their
motion for a new trial.
XVIII. Brady/Giglio Disclosures (Seegers)
The Constitution’s “fair trial guarantee,” United States v.
Ruiz, 536 U.S. 622, 628 (2002), requires the prosecution to
timely turn over any information in the government’s
possession that is materially favorable to a criminal
defendant, Brady v. Maryland, 373 U.S. 83 (1963), including
evidence that could be used to impeach government
witnesses, Giglio v. United States, 405 U.S. 150 (1972).
Whether the government violated its obligations under Brady
or Giglio is a question of law that we review de novo. See
Johnson, 519 F.3d at 488 (Brady); United States v. Celis, 608
F.3d 818, 836 (D.C. Cir. 2010) (Giglio).
Seegers requested pretrial that the government disclose
all Brady/Giglio information. The government, however, did
not disclose seventeen-year-old copies of a psychological
evaluation and a prison disciplinary report for a key
government witness, Lincoln Hunter. Hunter testified against
Seegers for the crimes of assault with intent to murder Hunter
and of murdering Diane Luther. Seegers discovered the
records during the trial, but after Hunter had testified. In
Seegers’s view, those undisclosed documents evidence that
Hunter was a violent man and a threat to society. Seegers
127
argues that that information was important to the jury’s
assessment of his defense that Hunter murdered Luther and
that Seegers shot Hunter in self-defense while trying to break
up that fight. Seegers contends that the government’s failure
to disclose the impeachment evidence violated Brady and
Giglio.
The district court initially denied Seegers’s motions for a
mistrial, to reopen Hunter’s cross-examination, and to call
Hunter as a defense witness without any accompanying
explanation. On Seegers’s motion for reconsideration, the
district court explained that the documents were not
admissible because the psychological report’s “probative
value is totally outweighed by the danger of unfair prejudice,”
and the dated disciplinary report was “not evidence of a trait
or character; it’s just a specific instan[ce].” J.A. 4909-10.
Accordingly, those reports “would not be admissible.” Id. at
4910.
To prevail, Seegers must demonstrate “a reasonable
probability that an earlier disclosure” of the records “would
have changed the trial’s result.” United States v. Bell, 795
F.3d 88, 101-02 (D.C. Cir. 2015) (quoting United States v.
Andrews, 532 F.3d 900, 907 (D.C. Cir. 2008)). Seegers has
failed in that task for two reasons.
First, the government’s failure to disclose the records
could not have had any effect on the outcome of the criminal
trial because the district court ruled that the records were
inadmissible under Federal Rule of Evidence 403. Seegers
has not challenged that evidentiary ruling on appeal or
presented any argument that would demonstrate either an
abuse of discretion or plain error in the district court’s
determination that the reports were inadmissible. United
128
States v. Mejia, 597 F.3d 1329, 1334 (D.C. Cir. 2010) (“We
review admissibility rulings for abuse of discretion.”).15
Second and in any event, the nondisclosure could not
have resulted in any cognizable prejudice. To begin with, the
jury was unable to reach a verdict on Seegers’s alleged role in
Luther’s murder, so there is no conviction to overturn for that
charge. With respect to the charge of assault with intent to
murder Hunter, the nearly two-decades-old reports were far
too stale to have any probative bearing on the issue of
Hunter’s aggressive character, J.A. 4909-10, and at best
would have been “merely cumulative” of the more potent and
contemporary evidence of Hunter’s jealous and violent
character that Seegers did introduce, United States v. Brodie,
524 F.3d 259, 269-70 (D.C. Cir. 2008). See United States v.
Oruche, 484 F.3d 590, 599 (D.C. Cir. 2007) (same, where
witness was “thoroughly impeached” at trial).
XIX. Motions for Severance and Mistrial (Seegers, J.
Alfred)
Seegers argues that the district court erred in refusing
before trial to sever his case from that of his codefendants.
15
At most, Seegers mentions in passing in his reply brief that the
reports would have been admitted had they been disclosed earlier.
Appellants’ Reply Br. 112. That will not suffice to preserve the
argument for appellate review. See DiBacco v. United States Army,
795 F.3d 178, 193 (D.C. Cir. 2015) (“We do not ordinarily consider
arguments raised for the first time in a reply brief, and we see no
good reason for doing so here.”); Payne v. District of Columbia
Government, 722 F.3d 345, 354 (D.C. Cir. 2013) (mentioning the
First Amendment in a brief’s table of authorities and argument
heading, and in a single sentence describing claims in district court,
did not preserve a First Amendment claim for review).
129
Together with James Alfred, Seegers also argues that the
court erred in denying subsequent motions for severance filed
during trial following the misbehavior of their codefendants.16
A.
Prior to trial, Seegers moved to sever his case from his
codefendants, citing the allegedly limited nature of his
participation in the charged conspiracy. While the district
court denied severance, the court did divide appellants into
two groups for trial, with the leaders of the conspiracy tried
separately in the Moore proceeding. In the court’s view, that
division was “a reasonable compromise between the
competing interests.” United States v. Gray, 173 F. Supp. 2d
1, 18 (D.D.C. 2001).
At trial, McGill, Simmons, Ronald Alfred, and Oliver all
engaged in various courtroom conduct that Seegers and James
Alfred cite as unfairly prejudicing them. That conduct
included inappropriate comments before the jury, testimony
and allegedly one-sided interactions suggesting that the other
defendants knew Seegers and James, verbal disagreements
with the district court’s rulings, alleged witness intimidation
by Oliver, and the March 29th outburst that led to McGill’s
16
To the extent Seegers purports to adopt additional arguments
made only in his district court briefs, we reject that effort and
conclude that any such argument made on appeal without citations
to the record or relevant authority is forfeited. See Moore, 651 F.3d
at 97. For similar reasons, we reject the conclusory efforts by
Simmons, Ronald Alfred, and Oliver to adopt Seegers’s and James
Alfred’s severance and misjoinder arguments, particularly since the
arguments addressed in this section rely on the specific charges
brought and evidence presented against Seegers and James Alfred
and their own nondisruptive behavior at trial.
130
forcible removal from the courtroom. Seegers and James
Alfred both renewed their motions for severance at trial on
multiple occasions, which the district court denied.
In the final jury instructions, jurors were specifically
directed not to consider McGill’s outburst in their
deliberations. The district court also instructed them that:
Unless I have instructed you otherwise, you should
consider each instruction that the Court has given to
apply separately and individually to each defendant
on trial. Likewise, you should give separate
consideration and render separate verdicts with
respect to each defendant. Each defendant is entitled
to have his guilt or innocence of the crime for which
he is on trial determined from his own conduct and
from the evidence that applies to him, as if he were
being tried alone. The guilt or innocence of any one
defendant should not control or influence your
verdict as to the other defendants. You may find any
one or more of the defendants guilty or not guilty on
any one or more of the counts in the indictment. At
any time during your deliberations, you may return
your verdict of guilty or not guilty with respect to
any defendant on any charge, after which you will
resume your deliberations as to the other remaining
defendants and charges.
J.A. 5456.
The district court denied Seegers’s posttrial motion
repeating his argument that a mistrial and severance should
have been granted based on his codefendants’ misbehavior.
The court held that its instructions cured any prejudice and
further noted that ordering a new trial on such a basis would
allow defendants, through their misbehavior, to prevent joint
131
trials from ever going forward. See Simmons, 431 F. Supp. 2d
at 69-70.
B.
We review the denial of a motion for severance or a
mistrial for abuse of discretion. Moore, 651 F.3d at 95;
McLendon, 378 F.3d at 1112. “The trial court has great
discretion in severance matters,” though, “with the balance
generally to be struck in favor of joint trials.” United States v.
Slade, 627 F.2d 293, 309 (D.C. Cir. 1980) (internal quotation
marks omitted). The presumption in favor of joinder “is
especially strong where the respective charges require
presentation of much the same evidence, testimony of the
same witnesses, and involve . . . defendants who are charged,
inter alia, with participating in the same illegal acts.”
Richardson, 167 F.3d at 624 (quoting United States v. Ford,
870 F.2d 729, 731 (D.C. Cir. 1989)) (ellipses omitted). A
district court’s refusal to grant a severance will “be affirmed
even if the circumstances are such that a grant of severance
would have been sustainable.’” United States v. Brown, 16
F.3d 423, 427 (D.C. Cir. 1994).
No abuse of discretion occurred here. The Federal Rules,
it bears noting, expressly countenance that joinder may result
in some prejudice to a defendant; severance becomes
mandatory only “where the failure to sever denies the
defendant a fair trial.” United States v. Wright, 783 F.2d
1091, 1095 (D.C. Cir. 1986). Severance may also be
warranted when “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.” Carson, 455 F.3d at 374 (quoting Zafiro v.
United States, 506 U.S. 534, 539 (1993)).
132
Otherwise, “[a]bsent a dramatic disparity of evidence,
any prejudice caused by joinder is best dealt with by
instructions to the jury to give individual consideration to
each defendant.” Moore, 651 F.3d at 95 (quoting Slade, 627
F.2d at 309); see also id. at 96 (“[W]hen there is ‘substantial
and independent evidence of each defendant’s significant
involvement in the conspiracy,’ severance is not required.”)
(brackets omitted) (quoting Tarantino, 846 F.2d at 1399).
Seegers first argues that the district court should have
granted his pretrial motion for severance. We disagree.
Seegers participated in the same narcotics and RICO
conspiracies for which all six defendants were charged. In
fact, the evidence presented at trial suggested that, for at least
some time period in 1996, Seegers served as an “overseer”
within the conspiracy. J.A. 2818. That active participation in
the jointly charged conspiracy “functioned as the ‘connective
tissue’” that made joinder appropriate. See Richardson, 167
F.3d at 625. Seegers stresses the violent nature of the
conspiracy generally. But that argument overlooks that
Seegers himself was charged with murder and was convicted
of attempted murder for his own actions within the
conspiracy.
In addition, much if not all of the evidence introduced in
this case would also have been admissible even had Seegers
been tried individually because it could have been used to
demonstrate the nature of the conspiracy he joined. See
United States v. Gbemisola, 225 F.3d 753, 761 (D.C. Cir.
2000) (no prejudice resulting from joinder because “[a]ll of
the evidence admitted at the joint trial could properly have
been admitted at a separate trial to show the nature of the drug
distribution scheme in which [the defendant] was an active
participant”); see also Mathis, 216 F.3d at 26 (noting the
“considerable leeway” the government has to offer evidence
133
of other offenses in conspiracy cases). As we explained in
Moore, whatever the differential between the number of
crimes Seegers was charged with and the extent of his
involvement in the conspiracy, the disparity in the evidence
was not so great as to mandate severance. See 651 F.3d at 96.
Furthermore, the district court gave the same instructions
that we upheld in Moore, directing the jury to undertake an
individualized consideration of the guilt of each defendant.
See Moore, 651 F.3d at 96; see also Mejia, 448 F.3d at 446
(no abuse of discretion in denying severance where “jury
could reasonably compartmentalize the evidence introduced
against each individual defendant”) (quoting United States v.
Halliman, 923 F.2d 873, 884 (D.C. Cir. 1991)). And the jury
must have heeded that instruction because it did not convict
Seegers of Diane Luther’s murder. Cf. United States v.
Chandia, 514 F.3d 365, 375 (4th Cir. 2008) (verdict
acquitting defendant on one substantive count “suggests that
the jury conducted a rational evaluation of the evidence in
reaching its verdict and was not misled by emotion”).
Seegers and James Alfred also challenge the denial of
severance or a mistrial as the case progressed and, in their
view, as actual prejudice manifested itself. They are correct
in arguing that, even if severance is properly denied pretrial,
the district court has “a continuing duty at all stages of the
trial to grant a severance if prejudice does appear.” United
States v. Perry, 731 F.2d 985, 992 (D.C. Cir. 1984) (quoting
Schaffer v. United States, 362 U.S. 511, 516 (1960)). But
they are not correct that severance was later required in this
case.
To a large extent, Seegers’s and James Alfred’s
arguments echo those made for a mistrial based on McGill’s
conduct. But the “single most important consideration in
134
ruling on a motion for a mistrial is the extent to which the
defendant was unfairly prejudiced.” McLendon, 378 F.3d at
1112. The relevant factors include “the force of the unfairly
prejudicial evidence, whether that force was mitigated by
curative instructions, and the weight of the admissible
evidence that supports the verdict.” Id. Those factors favor
the district court’s judgment here.
Both the nature of McGill’s outburst and the prompt
curative instructions dissipated any potential prejudice from
that incident. The other instances of misconduct by
codefendants, such as speaking out of turn, were far less
disruptive than McGill’s outburst and often were followed by
an instruction to the jury to disregard the misconduct. In one
instance, a codefendant’s testimony introduced inadmissible
facts, including that some coconspirators were potentially
facing the death penalty. The references, however, were
fleeting. In any event, only McGill objected—and there
certainly was no plain error as to Seegers and James Alfred.17
Seegers and James Alfred also object to the impression of
familiarity that Oliver’s one-sided interactions with them in
front of the jury might have created. But severance is rarely
required even when codefendants pursue conflicting defenses.
See Zafiro, 506 U.S. at 538 (“Mutually antagonistic defenses
17
To be clear, in some circumstances, a codefendant’s misbehavior
could be so extreme as to give rise to prejudice that could not be
mitigated by curative instructions, and then a mistrial or severance
would be required. See United States v. Mannie, 509 F.3d 851, 857
(7th Cir. 2007) (prejudice warranting mistrial resulted from a jury’s
exposure to a codefendant “garbed in prison attire verbally
assaulting his attorneys, a campaign of intimidation by members of
the gallery, [and] a violent courtroom brawl”). Nothing so likely to
produce incurable prejudice happened here.
135
are not prejudicial per se.”); see also id. at 540 (“A defendant
normally would not be entitled to exclude the testimony of a
former codefendant if the district court did sever their
trials.”). So those conflicting atmospherics will not suffice
either.
Finally, Seegers and James Alfred argue that they were
prejudiced by the introduction of evidence of Oliver’s
attempts to intimidate a witness (Willie Fears) that Seegers
had called at trial. Oliver’s unilateral misconduct, in other
words, impeached one of Seegers’s witnesses. The problem
with this argument is that, once the intimidation occurred, the
witness’s testimony was impeachable on that basis no matter
who presented it and in which trial. There is thus no basis for
concluding that the impeachment would have been different
had Seegers been tried separately.18
In short, while their codefendants’ misbehavior was
unfortunate, the incidents complained of were just a small part
of a long trial, in which overwhelming evidence of James
Alfred’s and Seegers’s guilt was presented. The addition of
curative and limiting instructions prevented any remaining
prejudice from rising to the high level required to warrant a
mistrial or severance.
18
While Seegers and James Alfred add an objection to the
“playbook themed” government rebuttal argument in their reply
brief, that argument duplicates appellants’ joint challenge to the
government’s closing argument. Any severance-specific dimension
to the argument is forfeited by the failure to present it in the
opening brief. See Van Smith, 530 F.3d at 973.
136
XX. Conspiracy and Attempted Murder Convictions
(Seegers)
Seegers also argues that the evidence introduced at trial
was insufficient to convict him of narcotics conspiracy, RICO
conspiracy, and three charges relating to the attempted murder
of Lincoln Hunter. We disagree.
The parties have a preliminary argument over what
evidence is relevant on the sufficiency issue. The
government, though conceding that evidence of drugs found
in Seegers’s home was admitted in violation of the
Confrontation Clause, nonetheless maintains that in reviewing
sufficiency we must consider all admitted evidence,
regardless of whether its admission was error. For this it cites
United States v. Alexander, 331 F.3d 116, 128 (D.C. Cir.
2003), which in turn cites Lockhart v. Nelson, 488 U.S. 33,
39-42 (1988). But the observation in Alexander was clearly
dictum, as we expressly held that the evidence in question had
been properly admitted. See id.
We do not, however, read Lockhart as addressing
whether erroneously admitted evidence may be considered on
a standalone insufficiency claim. It considered a nuance of
jurisprudence under the Double Jeopardy Clause. The Court
had already held that the clause permits retrial where a court
of appeals has overturned a conviction for a garden-variety
trial error such as mistakenly admitting evidence. United
States v. Tateo, 377 U.S. 463, 466 (1964). In Burks v. United
States, 437 U.S. 1 (1978), the Court limited that principle,
declining to allow retrial where the trial error was failure to
grant a motion for judgment of acquittal for insufficiency of
evidence. Lockhart considered whether, in drawing the line
between these two situations, a case where the evidence
would have been insufficient in the absence of erroneously
137
admitted evidence should be treated as an insufficiency case,
where retrial would be impermissible. The Court held that it
should not: even if the erroneously admitted evidence was
essential to put the government over the top, retrial is allowed.
Lockhart, 488 U.S. at 40-42. There was no discussion of
whether in reviewing a claim of insufficient evidence we may
consider erroneously admitted evidence.
Here, disregard of the erroneously admitted evidence
does not leave the prosecution’s case so weak that a jury
could not reasonably convict. In such a case, the distinction
drawn in Lockhart makes no difference. Accordingly we do
not reach the issue. (We note, however, that if sufficiency is
decided without the erroneously admitted evidence, then the
two instances distinguished in Lockhart tend to merge: where
disregard of erroneously admitted evidence leaves the
government’s case insufficient, there has been both error and
insufficiency.)
Here, completely disregarding the material admitted in
violation of the Confrontation Clause, we find the evidence
sufficient to convict Seegers of the narcotics and RICO
conspiracy charges. Seegers argues that the evidence linked
him to the conspiracy only before 1996, whereas the
indictment charged him with joining the conspiracies in 1996.
For example, Williams testified that Seegers would come to
Williams’s home to assist in dealing drugs in “late ’95.” J.A.
2817-18. Other parts of Williams’s testimony, however,
linked Seegers to the conspiracy in 1996. For instance,
Williams testified that Seegers was serving as PeeWee
Oliver’s “enforcer or overseer” when Luther was killed in
“October or November” of 1996, id. at 2820-21, and said that
Seegers was selling drugs supplied by Moore after Luther’s
murder. (Because this evidence placed Seegers in the
conspiracy in the fall of 1996 and later, the parties’ dispute
138
over whether the evidence must reflect his membership in
“1996” as in the indictment, id. at 1832, or in “November
1996” as in the jury instructions, id. at 5453, is irrelevant.)
We also find that a rational jury could convict Seegers of
the charges relating to the attempted killing of Hunter.
Hunter testified that Seegers shot him. Seegers provides what
he says are reasons to doubt Hunter’s credibility, such as
medical records supposedly contradicting Hunter’s testimony
and Hunter’s grand-jury testimony absolving Seegers of
responsibility for the Luther shooting. But it is the jury’s
responsibility to determine credibility and weigh the evidence,
not ours. United States v. Clark, 184 F.3d 858, 863 (D.C. Cir.
1999). The jury here apparently credited Hunter’s testimony
in convicting Seegers, and we do not disturb its finding.
XXII. Narcotics Conspiracy Conviction (Simmons)
Appellant Kenneth Simmons challenges his narcotics
conspiracy conviction. (We will refer to appellant Simmons
by his last name; when we mean to refer to one of the
conspiracy’s victims, Richard Simmons, we will so specify.)
Simmons argues that, although the indictment charged him
with participation in a single, large narcotics conspiracy, the
evidence at trial at most established the existence of multiple,
ad hoc conspiracies rather than one overarching conspiracy.
Whether the prosecution’s evidence at trial proves a
single conspiracy or multiple conspiracies is a question of fact
for the jury. Carson, 455 F.3d at 375. Here, the jury
concluded that a single conspiracy existed. Our role therefore
is limited. We review the evidence in the light most favorable
to the government and ask only whether “any rational trier of
fact” could have found the elements of a single conspiracy
beyond a reasonable doubt. United States v. Graham, 83 F.3d
139
1466, 1471 (D.C. Cir. 1996) (quoting Washington, 12 F.3d at
1135). We find that standard satisfied.
The jury found Simmons guilty of narcotics conspiracy in
violation of 21 U.S.C. § 846. Simmons argues that, while
“the indictment alleged a single overarching conspiracy in
which [he] was claimed to have played a major role over a
long period of time,” the evidence at trial instead “established
multiple ad hoc conspiracies composed of different members
playing different roles over different periods of time and with
differing purposes.” Appellants’ Br. 253. According to
Simmons, he was “sometime[s] a member of these varied
conspiracies,” but “at other times he was a competitor.” Id.
To secure reversal of his conspiracy conviction under that line
of argument, Simmons would need to show both (i) that the
evidence introduced at trial established only multiple
conspiracies rather than the one conspiracy alleged in the
indictment, and (ii) “that because of the multiplicity of
defendants and conspiracies, the jury was substantially likely
to transfer evidence from one conspiracy to a defendant
involved in another.” Tarantino, 846 F.2d at 1391. We reject
Simmons’s challenge at the first step.
“In determining whether a single conspiracy existed, as
opposed to separate unrelated activities or multiple
conspiracies, 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. Considering those factors in this
case, we conclude that the government introduced ample
evidence from which the jury could infer the existence of the
single, large conspiracy charged in the indictment.
140
As alleged in the indictment and supported by the
evidence at trial, one purpose of the conspiracy was to “obtain
money and other things of value” through the distribution of
illegal drugs. J.A. 482. All of the allegedly “ad hoc”
conspiracies Simmons identifies shared that same purpose:
“possession and distribution of narcotics for profit,” Graham,
83 F.3d at 1471 (quoting Tarantino, 846 F.2d at 1393). And
the testimony at trial showed significant overlap and
interdependence among those ostensibly separate
conspiracies. Although Simmons argues that he and Fleming
combined to form their own separate conspiracy, the jury
heard evidence that Simmons engaged in an interlocking web
of drug transactions geared toward the common purpose of
possession and distribution of narcotics for profit with other
key players. For example, at various times Simmons bought
and sold drugs to or from Moore, Gray, James Alfred, and
Oliver. The government’s evidence also showed that
Simmons owned a store that acted as a meeting place for the
large conspiracy’s drug deals: Fleming testified that drug
transactions occurred in the store “[b]asically every day,” and
that “[e]verybody used to come through” the store, including
Moore, Gray, Oliver, and Fleming. J.A. 2992-93. From that
evidence, the jury could reasonably infer that those players
and transactions were part of one larger conspiracy.
Simmons argues, however, that the foregoing evidence
indicates only that he was an occasional buyer or seller of
controlled substances from the larger conspiracy, rather than a
member of that conspiracy. Of course, an agreement to
participate in the larger conspiracy is necessary to sustain
Simmons’s conspiracy conviction, see Graham, 83 F.3d at
1471, and “[t]he relationship of buyer and seller absent any
prior or contemporaneous understanding beyond the mere
sales agreement does not prove a conspiracy,” United States
v. Kimmons, 917 F.2d 1011, 1016 (7th Cir. 1990) (quoting
141
United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.
1978)). But the jury was presented with sufficient evidence
from which to infer that Simmons agreed to join the large
conspiracy, as opposed to engaging in a series of
unconnected, ad hoc transactions.
We have previously observed that evidence of two
deliveries of wholesale quantities of drugs suffice to sustain a
conspiracy conviction because the pattern “suggest[s] a
continuity of relationship between [the buyer and seller] and
support[s] the inference that [the defendant] knew that the
organization to which he was delivering such a sizeable
amount of drugs must involve a substantial distribution
network.” United States v. Childress, 58 F.3d 693, 714 (D.C.
Cir. 1995). That sort of evidence exists here. Fleming
testified that Simmons served as his intermediary with Moore
and frequently brokered transactions between Moore and
Fleming. The evidence showed that those transactions
involved wholesale quantities, with street values just shy of
$30,000 apiece. Evidence that Simmons facilitated multiple
transactions of wholesale drug quantities “permits an
inference that [he] had knowledge of the conspiracy and
intended to join.” United States v. Miranda-Ortiz, 926 F.2d
172, 176 (2d Cir. 1991). That is enough to permit a rational
jury to find a single conspiracy.
XXIII. RICO Conspiracy Conviction (Simmons)
Simmons also challenges the sufficiency of the evidence
supporting his RICO conspiracy conviction. “The RICO
statute, 18 U.S.C. § 1962(d), makes it unlawful to conspire to
violate § 1962(c), which, in turn, provides that it is unlawful
for anyone ‘employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or
142
indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity or collection of unlawful
debt.’” United States v. Eiland, 738 F.3d 338, 360 (D.C. Cir.
2013) (quoting 18 U.S.C. § 1962(c)).
Simmons raises two arguments for reversal of his RICO
conspiracy conviction. First, he contends that the government
failed to prove the existence of a RICO “enterprise.” Second,
he argues that the government’s evidence failed to
demonstrate the requisite “pattern of racketeering activity.”
We ask only whether any rational trier of fact could have
found those elements beyond a reasonable doubt. See
Graham, 83 F.3d at 1471. Applying that standard, we
conclude that neither of Simmons’s arguments has merit.
A.
A RICO conspiracy conviction requires the existence of
an “enterprise,” defined by the statute to include “any union
or group of individuals associated in fact although not a legal
entity.” 18 U.S.C. § 1961(4). “An association-in-fact
enterprise must have three structural features: ‘a purpose,
relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the
enterprise’s purpose.’” Eiland, 738 F.3d at 360 (quoting
Boyle v. United States, 556 U.S. 938, 946 (2009)).
We understand Simmons to argue that the government
produced insufficient evidence of the first two structural
features—i.e., common purpose and relationships among the
associated coconspirators. We disagree. We note that “the
evidence used to prove the pattern of racketeering activity and
the evidence establishing an enterprise ‘may in particular
cases coalesce.’” Boyle, 556 U.S. at 947 (quoting United
States v. Turkette, 452 U.S. 576, 583 (1981)). This is such a
case.
143
1.
With regard to common purpose, both economic and
noneconomic motives may form the requisite common
purpose for a RICO association-in-fact. See United States v.
Perholtz, 842 F.2d 343, 354 (D.C. Cir. 1988) (economic
motives sufficient); Nat’l Org. for Women, Inc. v. Scheidler,
510 U.S. 249, 257-58 (1994) (noneconomic motives
sufficient). The evidence at trial indicated both sorts of
motives here.
In terms of economic motive, the jury could readily
conclude that one of the enterprise’s “purpose[s] was to
distribute drugs for profit.” Eiland, 738 F.3d at 360. The
same interlocking web of drug transactions supporting
Simmons’s narcotics conspiracy conviction, see Part XXIII,
supra, also supports the jury’s finding of a RICO enterprise.
In terms of noneconomic motive, as we have explained in
sustaining Oliver’s convictions, see Part XV, supra, the
evidence supports a finding that the conspiracy’s purposes
included killing to preserve the conspiracy’s power and
reputation and to protect its members. One witness testified
that members of the enterprise were “like a real family. I
mean, basically, if one of us had a problem, we all had a
problem. You know, if one of us get [sic] into something, we
all got in it. That’s how we dealt with each other.” J.A. 1951.
That witness also stated that Kevin Gray’s reputation meant
that people working with Gray “knew they had Kevin behind
them, so basically they could do whatever they wanted to do
and when they wanted to do it. It wasn’t going to be no
problem [sic] because they knew we deal with Kevin.” Id.
When an individual joined the group, others thus became
“more scared” of him and approached him with “more fear.”
Id. That evidence allowed the jury to infer the alleged
144
common purpose of providing the mutual protection
necessary to promote and enhance the reputation and standing
of the enterprise and its members.
2.
We also have little trouble finding that there was
sufficient evidence of the requisite relationships between the
associated coconspirators. Individuals acting “independently
and without coordination” do not form a RICO enterprise.
United States v. Hosseini, 679 F.3d 544, 558 (7th Cir. 2012)
(quoting Boyle, 556 U.S. at 947 n.4). But individuals form a
RICO enterprise when they “organize[] themselves so each
w[ill] carry out a separate role in the distribution chain, with
[certain parties] overseeing the operation.” Eiland, 738 F.3d
at 360. There was considerable evidence of such an
organization here.
Witnesses testified that Moore was the “head man” of the
organization and that Gray was the “second man.” J.A. 1952.
Raynor served as Gray’s “lieutenant.” Id. at 3691. Moore
supplied Pee Wee Oliver, and Pee Wee Oliver employed
Seegers as a bodyguard. Ronald Alfred supplied Gray, who
in turn supplied James Alfred. Moore, Gray, and several
associates were described as “one big family,” with Moore
giving orders and Gray carrying them out. Id. at 1951-52.
Moore, Raynor, PeeWee Oliver, and Derrick Moore would
“strategiz[e]” about “tak[ing] over the neighborhood.” Id. at
2810. And Simmons acted as a supplier to Gray, served as
broker for Moore, and hosted Moore and Gray (among others)
at his store for their drug transactions. Indeed, while a group
“need not have a hierarchical structure or a ‘chain of
command’” to count as an association-in-fact, Boyle, 556 U.S.
at 948, the evidence here was suggestive of an organization
approaching that sort of structure.
145
In light of the web of interconnectivity, we conclude that
the government presented sufficient evidence of a RICO
enterprise. Simmons makes no claim that the jury was
improperly instructed, but he claims that there was
insufficient evidence from which the jury could find an
enterprise. But while Simmons argues that the structure could
also resemble multiple enterprises instead of a single
enterprise, it is not our function on appellate review to “parse
the enterprise’s numerous and wide-ranging activities in an
effort to decide whether we subjectively consider those
activities to be more properly consistent with a finding of one,
two, or three distinct enterprises.” Perholtz, 842 F.2d at 355.
Rather, especially when there is no claim that the jury was
improperly charged, we must remain “mindful of the jury’s
inquiry into the existence of the enterprise, and the deference
to be accorded to the results of that inquiry,” id., and ask only
whether “substantial evidence, viewed most favorably to the
prosecution,” id., would allow a reasonable jury to conclude
that appellants’ conduct “was neither independent nor lacking
in coordination,” Hosseini, 679 F.3d at 558. The answer to
that question here is yes.
B.
A conviction under RICO also requires proof of
the existence of a “pattern of racketeering activity.” Turkette,
452 U.S. at 583; see 18 U.S.C. § 1962(c). Such a pattern
requires “two or more related predicate acts of racketeering
within a 10-year period.” United States v. Crosby, 20 F.3d
480, 481 (D.C. Cir. 1994) (quoting Alexander v. United
States, 509 U.S. 544, 562 (1993)). There was sufficient
evidence of such a pattern here.
Simmons was charged with (and the jury found) three
predicate racketeering acts: (i) the murder of Richard
146
Simmons; (ii) conspiracy to commit the murder of a man
known as Rah-Rah; and (iii) conspiracy to commit the murder
of Thomas Walker. Only two of those racketeering acts are
necessary to sustain Simmons’s conviction, see id., and we
affirm based on the first and third.
Simmons does not dispute that there was sufficient
evidence that he solicited the murders of Richard Simmons
and Thomas Walker. Instead, he characterizes those murders
as isolated acts unconnected to the enterprise or to each other.
It is true that isolated acts of racketeering do not constitute a
“pattern” within the meaning of RICO. Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496 n.14 (1985). But we find that
the government presented sufficient evidence for the jury to
infer the necessary connection to form a pattern.
The murder of Richard Simmons and attempted murder
of Walker were related to each other and to the enterprise.
The jury heard evidence that Simmons solicited Richard
Simmons’s murder because he thought that Richard Simmons
was spreading rumors that Simmons’s business partner,
Fleming, was cooperating with the police. Testimony
indicated that a “rumor like that” would “affect [Simmons]
and his business.” J.A. 3019. The jury thus could infer that
Simmons solicited Richard Simmons’s murder in order to
protect the profits of the narcotics enterprise. With regard to
Walker’s attempted murder, the jury heard testimony that
Simmons “wanted [Walker] dead” because Walker “beat
[Simmons] up kind of bad” in an altercation. Id. at 2012.
Simmons then solicited Gray to murder Walker. That
evidence, coupled with testimony establishing that members
of Gray’s group were feared because they had Gray’s
protection, would allow the jury to infer that Simmons’s
solicitation of Walker’s murder related to the enterprise’s
147
noneconomic goals of mutual protection and status
enhancement.
The jury could thus conclude the predicate acts were
related by the “nature of the acts” (both murders), their
“temporal proximity” (both occurring between 1997 and
1999), and their common “purpose” (both to further the
enterprise’s goals). Eiland, 738 F.3d at 360-61. That
constitutes a pattern of racketeering activity.
XXIV. Section 924(c) Firearms Conviction (Simmons)
Simmons argues that there was insufficient evidence
supporting his convictions on firearms charges under 18
U.S.C. § 924(c), which makes it a crime to “use[] or carr[y] a
firearm” “during and in relation to any crime of violence.”
We find that a rational jury could have found Simmons guilty
of that offense.
The government obtained convictions under § 924(c)
against Simmons in connection with the murder of Richard
Simmons and the attempted murder of Walker. While both
sides agree that Simmons was not the triggerman in either
murder, the government introduced evidence that Simmons
solicited the killings. To show a violation of § 924(c) for
solicitation, the government must establish that the defendant
“knew to a practical certainty” that those he solicited to
commit the crime of violence would use a firearm in
committing that crime. United States v. Powell, 929 F.2d
724, 729 (D.C. Cir. 1991); accord United States v.
Harrington, 108 F.3d 1460, 1471 (D.C. Cir. 1997). We find
that the government produced sufficient evidence for the jury
to make that finding.
As we have explained, “evidence of the prevalence of
guns in a particular context” is one factor allowing the jury to
148
make that inference. Powell, 929 F.2d at 729. And here, the
government introduced abundant evidence to that end.
Testimony showed that Simmons and his associates regularly
carried guns, and that shootings were the common modus
operandi for the group’s murders. Indeed, the trial record is
replete with shootings, and, as far as we can tell, contains no
evidence of a murder committed or attempted in any other
way. It was therefore reasonable for the jury to infer that,
when Simmons solicited the murders of Richard Simmons
and Walker, Simmons “knew to a practical certainty” that
those crimes would involve the use of a firearm. Id. We
therefore sustain Simmons’s convictions under 18 U.S.C.
§ 924(c).
XXV. Violent Crime in Aid of Racketeering Conviction
(Simmons)
Simmons challenges the sufficiency of the evidence
supporting his two convictions for Violent Crime in Aid of
Racketeering (VICAR) under 18 U.S.C. § 1959(a), in
connection with the murder of Richard Simmons and the
attempted murder of Walker. We again find that a rational
jury could find Simmons guilty of those offenses.
The VICAR statute applies to defendants who commit
murder related to racketeering
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.”
149
Carson, 455 F.3d at 369 (quoting 18 U.S.C. § 1959(a))
(alterations in original). At issue here is whether Simmons
acted with the third of those motives. A jury can reasonably
infer that a defendant acted to maintain his position in an
enterprise when he “commits the crime ‘in furtherance of’
enterprise membership or . . . ‘knew it was expected of him
by reason of his membership in the enterprise.’” Gooch, 665
F.3d at 1337-38 (quoting Carson, 455 F.3d at 369).
The jury could reasonably infer that Simmons, as a
member of a violent narcotics enterprise with a track record of
killing (or attempting to kill) those who threatened its
business, was expected to solicit actions necessary to protect
the enterprise’s profits. As noted, the evidence showed that
Simmons solicited the murder of Richard Simmons after
Richard Simmons spread a rumor that Fleming (Simmons’s
friend and business partner) was cooperating with the police.
Any such rumor would threaten the enterprise’s narcotics
business, as “snitching clearly posed a threat to the gang.”
J.A. 1338. The jury thus could infer that Simmons acted as
would be expected of him—he sought to contain the threat.
See id.; see also Carson, 455 F.3d at 369-70; United States v.
Dhinsa, 243 F.3d 635, 671-72 (2d Cir. 2001).
Additionally, the jury could reasonably infer that each
member of the enterprise was expected to solicit actions
necessary to protect its reputation for violence, a reputation
“essential to maintenance of the enterprise’s place in the drug-
trafficking business.” Carson, 455 F.3d at 370 (quoting
United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996));
accord Moore, 651 F.3d at 94. The evidence showed that
Simmons solicited Walker’s murder after Walker had bested
Simmons in an altercation. The jury thus could infer that
Simmons solicited Walker’s murder because it was expected
of him as part “of the enterprise’s policy of treating affronts to
150
any of its members as affronts to all, of reacting violently to
them and of thereby furthering the [enterprise’s] reputation
for violence.” Tipton, 90 F.3d at 891; see Gooch, 665 F.3d at
1338.
XXVI. Simmons’s Pro Se Trial Motions and Appellate
Brief
Simmons’s appellate counsel argues that the district court
wrongly ignored Simmons’s posttrial pro se motions
requesting substitution of counsel and raising ineffective-
assistance-of-trial-counsel claims without holding an
evidentiary hearing. Simmons has also filed his own pro se
briefs in this court in which he argues he was denied the
effective assistance of counsel at trial. Simmons asserts, inter
alia, that his trial attorneys failed to call particular witnesses
on his behalf, prevented him from taking the stand at trial, and
often refused to sit with him at the defense table, and that one
attorney physically struck him in the courtroom in the jury’s
presence. (Simmons’s last allegation is corroborated by that
attorney’s admission on the record. J.A. 3382-83.)
We have no need to determine whether the district court
erred in its handling of Simmons’s posttrial requests for
substitution of counsel. Any error was effectively harmless,
as Simmons received new counsel—before sentencing—once
the district court granted his attorneys’ motions to withdraw.
As for Simmons’s claims that his counsel rendered
constitutionally ineffective assistance during the trial itself,
we remand those claims for an evidentiary hearing before the
district court, consistent with our usual practice. See United
States v. Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003).
151
XXVIII. Conspiracy Conviction (J. Alfred)
James Alfred claims that insufficient evidence linked him
to the murders of (1) Thomas, whom Franklin killed at the
behest of Ronald Alfred, James’s brother, and (2) Cardoza,
whom Veal killed at the behest of Gray.
First we should explain why, if James Alfred’s conviction
for the Thomas murder is valid, we need not discuss that of
Cardoza. The indictment charged James with the Thomas
murder as a predicate for the RICO conspiracy offense and
also as the basis for substantive offenses. But it charged the
Cardoza murder only as a RICO conspiracy predicate act.
Only two predicate racketeering acts are necessary for a
RICO conviction, and James makes no claim of insufficient
evidence as to one of the ones charged—the narcotics
conspiracy. Thus, if the evidence against James Alfred for the
Thomas murder was sufficient (as we find below), we needn’t
consider the evidence as to Cardoza.
Under both federal and D.C. law, Pinkerton requires a
jury finding that the Thomas murder was “in furtherance of
the conspiracy” and “reasonably foreseeable” to James
Alfred. Washington, 106 F.3d at 1011 (citing Pinkerton, 328
U.S. at 647-48); Gordon, 783 A.2d at 582. The evidence
against James Alfred met these standards.
Thomas was “tight” with Kairi Ball, who had an ongoing
conflict with Ronald Alfred. J.A. 1986. This conflict led to a
decision to murder Ball, in which Ronald was involved.
Ball’s associates, including Thomas, then began following
Ronald and shooting at him in retaliation for Ball’s murder.
Andrews testified that James was “involved in” the conflict
between his brother and Ball’s associates. Id. at 1977-78.
Specifically, James Alfred would report to Ronald Alfred if
he saw one of Ball’s associates, including Thomas, “trying to
152
get at” Ronald. Id. Andrews testified that Ronald Alfred told
his associates that he wanted to kill Thomas (“Froggy”) and
would pay for the murder, though Andrews did not say that
James was present for that statement. (Andrews did testify
more generally that James participated in conversations about
Thomas with Ronald, Andrews, and others.) After Thomas
was killed, James gathered with others to discuss and
celebrate the murder. Andrews testified that James was
“smiling” and “happy” that Thomas had been killed, and that
he asked for details of the murder. Id. at 2004-05. Omar
Wazir also testified that James later told him, “We got
Gangster [Franklin] to hit Froggy [Thomas]” (emphasis
added), and explained that he understood “we” to refer to both
Alfred brothers. Id. at 2385.
This evidence supported the jury’s conviction on a
Pinkerton theory. The jury could reasonably find that
Thomas’s murder was committed “in furtherance of” the
conspiracy’s goal to protect and promote its members’
reputation and standing, because Ronald Alfred perceived
Thomas as threatening retaliation against him for Ball’s
murder. The jury could also find that the murder was
“reasonably foreseeable” to James, as he reported to Ronald
from time to time on the sighting of persons who needed to be
dispatched in light of the killing of Ball.
James Alfred complains that the government did not
properly raise the Pinkerton theory of guilt, saying that the
government did not raise it before appeal, and a theory
“presented for the first time on appeal ordinarily will not be
heard on appeal.” Jones v. Horne, 634 F.3d 588, 603 (D.C.
Cir. 2011). But the district court gave the jury a proper
Pinkerton instruction, whose language James does not
contest. That general instruction—though it does not
explicitly refer to the Thomas incident, to the crime of
153
murder, or to any specific defendant—is enough to sustain the
conviction. In Washington we approved an instruction that
the jury “may find each defendant guilty of [a firearms
offense] if any of their fellow co-conspirators committed this
offense” in furtherance of the conspiracy, because each
member is “responsible for any offense committed by a co-
conspirator” that the defendant could have reasonably
expected. 106 F.3d at 1011 (emphasis added).
In another critique of the relation between the evidence
and instructions, James Alfred claims that the government’s
argument to the jury was solely based on aiding and abetting;
he assumes that the evidence was inadequate by those
standards, a matter we address below. But the transcript
pages he cites narrate the relevant facts without referring to a
particular legal theory. And while the district court did say in
its denial of James Alfred’s motion for acquittal that his
liability was “based on aiding and abetting,” J.A. 1524, that
ruling does not preclude the jury from finding the evidence
sufficient on another theory. See Wahl, 290 F.3d at 375
(explaining that we affirm a guilty verdict where any rational
factfinder could have found the essential elements of the
crime). Insofar as affirming on Pinkerton grounds rather than
aiding and abetting might pose a problem under Yates, 354
U.S. at 312, James forfeited any such argument because he
didn’t raise it until his reply brief. See Moore, 651 F.3d at 93
n.22; Van Smith, 530 F.3d at 973.
In any event, the evidence was sufficient to sustain the
federal convictions—though not the D.C. Code conviction for
first-degree murder—on an aiding-and-abetting theory. The
district court gave the jury a “natural and probable
consequence” instruction for an aiding-and-abetting theory of
liability. This was plain error vis-à-vis the D.C. Code
violation. See Wilson-Bey, 903 A.2d at 835-39; see also
154
Moore, 651 F.3d at 91 (quoting Wilson-Bey). But for federal
aiding-and-abetting offenses we have approved an instruction
allowing the jury to hold a defendant responsible as an aider
and abettor for the “natural and probable consequences” of
the execution of a “common design” shared with the
perpetrator. United States v. Walker, 99 F.3d 439, 443 n.2
(D.C. Cir. 1996); see also Gonzales v. Duenas-Alvarez, 549
U.S. 183, 190-91, 197 (2007) (citing Walker as indicating that
the circuit adheres to the “natural and probable consequences”
standard); Moore, 651 F.3d at 92. Thus, even with that
instruction, the jury was entitled to convict James Alfred of
the two federal offenses based on aiding and abetting the
Thomas murder.
The evidence was sufficient to convict James on that
theory. Aiding and abetting requires (1) his specific intent to
facilitate the commission of the crime; (2) his guilty
knowledge (3) that someone else was committing the crime;
and (4) his assisting or participating in committing the crime.
Gaviria, 116 F.3d at 1535; see also Moore, 651 F.3d at 91
(requiring “proof of some shared intent” between the
defendant and the principal actor). James contends that no
evidence shows that he knew that Ronald wanted to have
Thomas killed, let alone that James intended to help bring
about the murder. As we said in United States v. Teffera, 985
F.2d 1082 (D.C. Cir. 1993), “general knowledge of
criminality afoot” is not enough. Id. at 1086-87. But viewed
in the light most favorable to the government, the evidence
described above—particularly James’s reports to his brother
about Thomas’s whereabouts and his statement that “we” had
Thomas killed—was sufficient.
155
XXX. Individual Challenges by Ronald Alfred
Ronald Alfred raises a number of individual challenges,
none of which succeeds.
A.
In addition to the general Rule 404(b) challenges pressed
by appellants, see Part III, supra, Ronald Alfred challenges
the admission of evidence concerning two preconspiracy
crimes that he was alleged to have committed and the limits
placed on cross-examination with respect to one of those
incidents. More specifically, the indictment in this case listed
as overt acts of the charged conspiracy Alfred’s alleged
possession in 1989 of approximately one kilogram of cocaine
with intent to distribute and his possession in 1991 of a loaded
firearm.
1.
At trial, the government called Richard Egan, a police
officer involved in a 1989 traffic stop of Ronald Alfred. Egan
testified that a sizeable amount of cocaine was found in
Alfred’s car. During cross-examination, Alfred’s counsel
attempted to elicit from Egan the fact that Alfred had been
acquitted in the ensuing trial. The district court barred that
line of inquiry, allowing Alfred’s counsel only to ask whether
Egan had a “particular axe to grind” with Alfred. J.A. 2527.
The government also presented testimony from George
DeSilva, the officer involved in Alfred’s 1991 arrest, and a
certified copy of the resulting firearms conviction.
Following Egan’s testimony, the district court instructed
the jury that:
156
Again, you heard evidence of one of the defendant’s
alleged conduct prior to the time period with which
he’s charged with joining the alleged conspiracy.
Again, the testimony was admitted to explain why
and how the defendants joined the alleged
conspiracy and their relationships with other
members of the alleged conspiracy. To find the
defendant guilty of the charge[d] conspiracy, you
must find that he participated in the conspiracy
during the time period charged in the indictment.
The conspiracy is alleged to have begun in 1988.
The Defendant Ronald Alfred is alleged to have
joined the conspiracy sometime after May 15th,
1995. The Defendant Ronald Alfred is not charged
in the indictment with the acts that allegedly
occurred on or before May 15th, 1995; therefore, you
will not be asked to return verdicts as to this act if
you find that it occurred.
Id. at 2531-32.19
When giving the jury its final instructions and explaining
how it might consider evidence of prior bad acts, the court
specifically referenced the 1989 drug possession and the 1991
firearm charges as examples of evidence that should be used
only to help determine whether Alfred became a member of
the charged conspiracy. The district court also noted that,
while a section of Count One of the indictment was titled
“Overt Acts,”
[p]roof of an overt act is not an element of the charge
of a narcotics conspiracy. The government is not
19
There is no indication in the record that Alfred requested a
similar instruction following the testimony of DeSilva.
157
obliged to prove any particular one or more of the
overt acts beyond a reasonable doubt, although it
must prove beyond a reasonable doubt the existence
of the conspiracy itself and a defendant’s knowing
and wil[l]ful participation in it[.]
Id. at 5461.
At the same time, the court rejected a renewed effort by
Alfred’s counsel to delete from the indictment the two
paragraphs describing the 1989 drug possession and 1991
firearm charges as overt acts of the conspiracy. The court
then provided the indictment to the jury, instructing the jury
that it was only providing them “those overt acts that directly
relate to the charges against” appellants. Id. at 1000. The
district court underscored that “indictments are not evidence”
and should not be used by the jurors “for any purpose other
than informing [them]selves of the charges [they were] to
consider.” Id. at 5450.
2.
We review for an abuse of discretion the limits placed by
the district court on cross-examination. See Thomas, 114 F.3d
at 249. The trial court’s decision whether to strike surplus
language from the indictment is reviewed under the same
standard. See Edmond, 52 F.3d at 1112. We have noted,
however, that “[t]he scope of a district court’s discretion to
strike material from an indictment is narrow,” United States v.
Oakar, 111 F.3d 146, 157 (D.C. Cir. 1997), and “[m]aterial
that can fairly be described as ‘surplus’ may only be stricken
if it is irrelevant and prejudicial,” id.
158
3.
As the district court correctly instructed the jury below,
the government was not required to prove the occurrence of
any overt act to convict a defendant of narcotics conspiracy
under 21 U.S.C. § 846. See United States v. Shabani, 513
U.S. 10, 11, 15-17 (1994). The indictment’s listing of
preconspiracy conduct as overt acts thus constituted nothing
more than “excess allegations in an indictment that do not
change the basic nature of the offense charged . . . and should
be treated as mere surplusage,” United States v. Pumphrey,
831 F.2d 307, 309 (D.C. Cir. 1987).
The government concedes that the description of Ronald
Alfred’s alleged conduct as overt acts of the conspiracy was
inaccurate. And rightly so. Since the two incidents preceded
Alfred’s entry into the conspiracy by several years, the
government had no plausible basis for labeling them overt
acts in furtherance of that conspiracy. Cf. United States v.
Ortiz-Torres, 449 F.3d 61, 80 (1st Cir. 2006) (offenses
committed prior to joining conspiracy properly treated as
prior offenses for sentencing purposes rather than overt acts in
furtherance of the charged conspiracy).
The government contends, however, that the incidents
were still relevant and admissible under Rule 404(b). The
Second Circuit has previously approved the listing of a
preconspiracy incident in the indictment as an overt act under
similar circumstances. See United States v. Hernandez, 85
F.3d 1023, 1030 (2d Cir. 1996); United States v. Montour,
944 F.2d 1019, 1026-27 (2d Cir. 1991).
The problem for the government is that these two
incidents were too remote in time to qualify as legitimate Rule
404(b) evidence. They thus were irrelevant, serving only as
forbidden propensity evidence. See Part III(C)(3), supra.
159
But the offenses should only have been stricken if they
were both irrelevant and prejudicial, and it is on that latter
prong that Alfred’s argument founders. The district court
repeatedly instructed the jury about the limited use permitted
for the “prior bad acts” evidence, including through a midtrial
jury instruction following Officer Egan’s traffic stop
testimony. That instruction emphasized that Alfred was “not
charged in the indictment with the acts that allegedly occurred
on or before May 15th, 1995.” J.A. 2532. In addition, the
court’s final jury instruction on the Rule 404(b) evidence
specifically referenced the evidence of the 1989 cocaine
possession charge and the 1991 firearms conviction as
“admitted only for [the jury’s] consideration in determining
whether Ronald Alfred . . . then became [a member] of the
Kevin Gray-Rodney Moore drug distribution and RICO
conspiracies.” Id. at 5452. Finally, the district court
instructed the jury that the indictment itself was not evidence
and was offered simply to inform the jury of the charges
against appellants.
Alfred points out that, in providing the indictment to the
jury, the district court said that the listed overt acts were those
that “directly relate to the charges” against appellants. Id. at
1000. The district court made that statement, however, to
explain why several acts involving coconspirators who were
not defendants in the case were omitted from the indictment
provided to the jury. The cited language thus clarified for the
jury that the listed acts were those that specifically involved
Alfred and his codefendants.
To be sure, some risk of prejudice remained, and it would
have been well within the district court’s discretion to have
stricken the acts from the indictment. We hold only that
Alfred has not demonstrated the type of substantial prejudice
required for reversal, given the offsetting jury instructions and
160
the overwhelming evidence of violence and criminal activities
by Alfred. See Edmond, 52 F.3d at 1112-13.20
4.
Ronald Alfred’s challenge to the district court’s
limitation on cross-examination of Officer Egan fares no
better. Alfred’s argument that he should have been able to
introduce evidence that he was acquitted of the alleged prior
bad act certainly has some logical appeal, but unfortunately
for Alfred the case law is solidly against the argument. That
is because, to consider the prior act as relevant evidence of the
alleged crime, the jury need only reasonably conclude that it
happened. The acquittal, on the other hand, just says that the
act was not proven beyond a reasonable doubt. See Dowling
v. United States, 493 U.S. 342, 348-50 (1990). Accordingly,
when prior-bad-act evidence is introduced, “[i]t is settled that
a criminal defendant ordinarily may not introduce evidence at
trial of his or her prior acquittal of other crimes,” and the
“hearsay, relevance, and more-prejudicial-than-probative
rules generally preclude the admission of evidence of such
prior acquittals.” United States v. Williams, 784 F.3d 798,
20
Alfred suggests in his reply brief that his RICO conspiracy
conviction alters this analysis. That is because, to show the
“pattern of racketeering activity” required for the RICO conviction,
the government had to prove “at least two acts of racketeering
activity.” 18 U.S.C. § 1961(5); see also, e.g., United States v.
Hoyle, 122 F.3d 48, 50 (D.C. Cir. 1997). But the incidents at issue
here were not listed as racketeering acts in the indictment, and
Alfred’s conviction on the RICO conspiracy count was predicated
on the jury’s express finding that Alfred had committed four other
actions that were described as racketeering acts in the indictment,
including three first-degree murders.
161
803 (D.C. Cir. 2015); see also Thomas, 114 F.3d at 249-50
(same).
That rule, it bears noting, is not inflexible. If a jury
might otherwise reasonably think that the defendant had been
convicted of the alleged bad act, the defendant may be able to
introduce evidence to rebut that inference. See Williams, 784
F.3d at 803 (citing United States v. Bailey, 319 F.3d 514, 518
(D.C. Cir. 2003)). Alfred argues that the testimony regarding
his 1989 arrest for cocaine possession could have given rise to
just such speculation by the jury. But that risk was minimal
because the jury had been presented with either a certified
copy of the conviction or a transcript of the guilty plea for two
of Alfred’s previous convictions. The absence of any such
evidence of a cocaine-related conviction following the 1989
arrest thus was notable.21
In any event, any probative value associated with the
evidence of acquittal would have been outweighed by the
unfair prejudice resulting from “the risk that the jury might
overread acquittal to signify innocence rather than merely
failure of the government to show guilt beyond a reasonable
doubt.” Bailey, 319 F.3d at 518.
Alfred is also correct that this court left open the
possibility in Thomas that evidence of acquittal could be
relevant to establish a witness’s bias or motivation for
testifying. The theory of bias—that the arresting officer was
presenting biased testimony against Alfred in the instant trial
21
The jury was also aware that a previous trial had taken place in
which the arresting officer had had the opportunity to identify
Alfred. To the extent that fact may have increased jury speculation
as to the outcome of that trial, we note that it was Alfred’s own
counsel who drew out that information.
162
because Alfred beat the earlier charge—is decidedly strained.
Indeed, Alfred does not dispute that the arrest happened or
that Officer Egan testified consistently in the two trials, so it
is hard to imagine how Egan’s testimony about that arrest
could have been biased by an after-the-arrest acquittal over a
decade earlier. Accordingly, the district court did not abuse
its discretion in pretermitting this line of inquiry.22
Moreover, the limitation on cross-examination was
decidedly harmless even if viewed through the demanding
lens of constitutional (Confrontation Clause) error. See
Wilson, 605 F.3d at 1014 (noting more stringent Chapman
standard applies in assessing effect of a Confrontation Clause
violation while Kotteakos applies to an evidentiary abuse of
discretion under the Federal Rules of Evidence). Any link
between Alfred’s acquittal and the truthfulness of an officer
who had already testified as to the same facts before the
supposedly bias-producing acquittal borders on implausible,
and thus could not have outbalanced the overwhelming
strength of the government’s case against Alfred.
22
Three other circuits have rejected similar bids to introduce such
bias evidence. See United States v. Lyons, 403 F.3d 1248, 1256
(11th Cir. 2005) (“exceedingly marginal” relevance in showing bias
outweighed by prospect of jury confusion); United States v. Smith,
145 F.3d 458, 462–463 (1st Cir. 1998) (defendant precluded from
arguing that several witnesses were testifying against him only
because they knew he had been acquitted in an earlier case and so
was facing less harsh penalties, in part given the concern that “the
jury would have had to sort through the meaning of a legal
judgment of acquittal”); United States v. Kerley, 643 F.2d 299, 301
(5th Cir. 1981) (any relevance of state court acquittal on charges
arising out of the same incident was outweighed by the possibility
of jury confusion given the charges’ different elements).
163
B.
Ronald Alfred’s second argument is that the district court
abused its discretion in admitting into evidence a photograph
taken during the execution of a search warrant at his residence
that showed a ziplock bag alleged to contain crack cocaine.
We hold that any error in admission of the photograph was
harmless.
1.
The photograph was introduced into evidence during the
testimony of the agent who oversaw a search of Ronald
Alfred’s home in July 2000. Alfred’s counsel objected when
the officer was asked to highlight the “crack cocaine” or
“suspected crack cocaine” in the picture. J.A. 4029. Counsel
also moved to strike the photograph on the basis that there
was no evidence that any chemical analysis had been
conducted on the substance beyond a field test at the scene.
The district court refused to strike the photograph, but did bar
the government from asking the agent about the results of the
field test.
At the conclusion of evidence, Alfred again moved to
strike evidence relating to the ziplock bag and to redact the
photograph. The government agreed not to argue that there
was crack cocaine in the ziplock bag and to stipulate that it
had not been submitted to the DEA for analysis. The district
court accepted the stipulation and, accordingly, rejected both
Alfred’s motion to strike and his request for a jury instruction
advising that the substance pictured in the bag should not be
considered as evidence. The record does not reflect whether
the jury actually received the government’s stipulation.
164
2.
We ordinarily would review the district court’s
evidentiary rulings for an abuse of discretion. See United
States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004). But
in this case, we need not decide the propriety of the district
court’s rulings because, even were the admission error, it was
harmless, having no “substantial and injurious effect or
influence in determining the jury’s verdict,” Johnson, 519
F.3d at 483 (quoting United States v. Linares, 367 F.3d 941,
952 (D.C. Cir. 2004)).
Ronald Alfred is wrong to assert that the government
breached its agreement not to argue that the pictured ziplock
bag contained crack cocaine. Alfred points to the testimony
of a DEA chemist referenced in the government’s closing
argument. But that testimony said only that those narcotics
included on a chart provided to the jury—a list that did not
include the substance in the ziplock bag—were found to be
illegal substances. Alfred, moreover, did not object to that
portion of the closing argument, and his counsel highlighted
the absence of DEA testing of the ziplock bag’s contents in
his own closing argument. Beyond that, whatever weight the
jury might have given to a portion of a single photograph, we
are confident beyond any reasonable doubt that it was far
outweighed by the wealth of other testimonial evidence
establishing Alfred’s guilt.
C.
Ronald Alfred next asserts that the district court violated
Federal Rule of Evidence 610 and abused its discretion by
permitting a government witness, Oscar Veal, to testify about
his religious beliefs. We again hold that any error in the
introduction of that evidence was harmless.
165
1.
Veal was a significant witness in the government’s case
against Alfred. He testified that Alfred provided material
assistance in the murders of Carlos Cardoza, Jr. and Anthony
Watkins, and discussed in detail Alfred’s role in those crimes.
The jury found Alfred guilty of both murders. Near the
beginning of Veal’s testimony—and over Alfred’s
objection—the prosecutor prompted Veal to discuss his
religious beliefs and, in particular, his recent conversion to
Islam while in prison. Two days later, Veal returned to the
subject, explaining that his decision to cooperate with the
government was motivated in part by his conversion and the
concomitant need for him to make amends for his past
wrongdoing.
2.
Rule 610 of the Federal Rules of Evidence provides that
“[e]vidence of a witness’s religious beliefs or opinions is not
admissible to attack or support the witness’s credibility.”
Fed. R. Evid. 610. A 1972 Advisory Committee Note
clarifies that, while Rule 610 “forecloses inquiry into the
religious beliefs or opinions of a witness for the purpose of
showing that his character for truthfulness is affected by their
nature, an inquiry for the purpose of showing interest or bias
because of them is not within the prohibition.” Fed. R. Evid.
610 Advisory Committee Notes to 1972 Proposed Rules. We
review the district court’s rulings applying Rule 610 for an
abuse of discretion. See United States v. Sampol, 636 F.2d
621, 666 (D.C. Cir. 1980).
3.
The government argues that the testimony it elicited did
not use religion to enhance Veal’s credibility, but to explain
166
Veal’s motivation for testifying and to rebut charges of bias
based on Veal’s cooperation agreement with the government.
In Moore, the government introduced the same evidence from
the same witness. We left open the question of whether such
testimony was properly admitted, finding that any error was
harmless given the brevity of the testimony about Veal’s
religion, the government’s omission of any reference to
Veal’s religion from its opening and closing arguments, the
absence of any urging that the jury credit Veal’s testimony
because of his religious convictions, and the overwhelming
evidence of guilt. See Moore, 651 F.3d at 76.
That same answer governs here. As in Moore, the
testimony regarding Veal’s religious conversion and beliefs
took up only a few transcript pages during testimony that
stretched over seven trial days. The government made no
mention of this testimony in its opening or closing arguments,
nor did it argue or even suggest to the jury that Veal’s
religious beliefs bolstered his credibility. Finally, the
testimony implicating Alfred in the Cardoza and Watkins
murders was fully corroborated by another cooperating
witness, Maurice Andrews. We thus cannot conclude that any
error in the admission of this evidence substantially swayed
the jury’s verdict.
D.
Ronald Alfred also raises a number of claims of
ineffective assistance of counsel, asserting that several of his
attorneys below either had a conflict of interest in their
representation of him or provided deficient representation.
To present a viable claim of ineffective assistance of
counsel on direct appeal, “a defendant must present ‘factual
allegations that, if true, would establish a violation of his
Sixth Amendment right to counsel.’” Williams, 784 F.3d at
167
803 (quoting United States v. Mohammed, 693 F.3d 192, 202
(D.C. Cir. 2012)). A plausible claim requires a showing of
both deficient representation and prejudice. See id. But if the
defendant can show that his representation was infected by an
actual conflict of interest, prejudice is presumed. Thomas,
114 F.3d at 252.
When a colorable claim of ineffectiveness is made, this
court “remand[s] for an evidentiary hearing unless the ‘record
alone conclusively shows that the defendant either is or is not
entitled to relief.’” Mohammed, 693 F.3d at 202 (quoting
United States v. Burroughs, 613 F.3d 233, 238 (D.C. Cir.
2010)). As a result, while “we do not ‘reflexively remand,’
we also do not ‘hesitate to remand when a trial record is
insufficient to assess the full circumstances and rationales
informing the strategic decisions of trial counsel.’” Williams,
784 F.3d at 804 (quoting Mohammed, 693 F.3d at 202).
Alfred challenges on appeal the performance of his
attorneys before trial, during trial, and at sentencing. We
conclude that he has raised colorable claims of ineffective
assistance concerning the performance of his counsel before
and during trial and remand those claims to the district court.
Alfred, however, has not made out a colorable claim of
ineffective assistance at sentencing, and so we reject that
claim on the merits.
1. Pretrial Counsel
Thomas Abbenante was Alfred’s first attorney in this
case, commencing his representation on July 28, 2000. Long
before that (starting in early 1992), Abbenante took on the
representation of Alberto Martinez, a cooperating witness
who would ultimately testify against Alfred. Abbenante
continued to represent Martinez through trial in this case. He
168
withdrew from representing Alfred on October 6, 2000, citing
the potential conflict between the two representations.
Prior to withdrawing as Alfred’s counsel, Abbenante
arranged a meeting between Alfred and Omar Wazir, who
was cooperating with the government and who ultimately
testified against Alfred. Some details regarding that meeting
were subsequently used against Alfred at trial. At trial, Alfred
sought to bar Martinez from testifying on the basis of
Abbenante’s initial dual representation. Alfred asserted that it
was only after Abbenante had begun representing him that
Martinez indicated to the government that he could provide
information against Alfred. The government represented that
this assertion was false and produced records purportedly
showing that, by the early 1990s, Martinez had already named
Alfred as someone to whom he had supplied cocaine. After
examining those records and providing them to Alfred’s trial
counsel, the district court rejected Alfred’s request to exclude
Martinez’s testimony.
Under Cuyler v. Sullivan, 446 U.S. 335 (1980), one way
a defendant can establish ineffective assistance of counsel is
by demonstrating: “(1) that his lawyer acted under ‘an actual
conflict of interest’ and (2) that the ‘conflict had some
negative effect upon his defense (defined as “an actual lapse
in representation”).’” Thomas, 114 F.3d at 252 (quoting
United States v. Shark, 51 F.3d 1072, 1075-76 (D.C. Cir.
1995)). The first prong requires a showing that counsel
“actively represented conflicting interests.” Cuyler, 446 U.S.
at 350. If an attorney’s joint representation of conflicting
interests was unknowing, it does not give rise to a claim. See
United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir. 1998).
Alfred has raised colorable factual questions about the
timing of the dual representations, the timing of Abbenante’s
169
withdrawal, and whether Abbenante might have used
information learned from Alfred in his representation of
Martinez—questions that we cannot resolve on the existing
record. See United States v. Hernandez-Garcia, 215 F.3d
1312 (Table), 2000 WL 231251, at *1 (1st Cir. Feb. 15, 2000)
(declining to resolve “fact-intensive” ineffective assistance
claim alleging, inter alia, a conflict of interest arising out of
counsel’s previous representation of a cooperating witness on
direct appeal).
In addition, while there are indications that Abbenante’s
decision to have Alfred meet with cooperating witness Wazir
was a tactical one, see J.A. 4548, the fact that Abbenante at
least potentially could have been laboring under a conflict of
interest at that time calls into question whether the decision to
set up the meeting can be described as just “a strategic choice
by defense counsel.” United States v. Weaver, 281 F.3d 228,
234 (D.C. Cir. 2002).
We accordingly remand this claim to the district court.
2. Trial Counsel
During Ronald Alfred’s own defense case, his new trial
counsel called eleven witnesses. His counsel tried to call
others, some of whom, counsel asserted, had been belatedly
identified by Alfred. Specifically, near the end of trial,
Alfred’s counsel attempted to subpoena Darrell Darby, who
allegedly would have been able to testify that Alfred had a
legitimate income in 1996 and that he may have been in
Atlanta at the time that Joseph Thomas was murdered in the
District of Columbia. Another witness, Kimberly Rice, was
expected to say that Alfred had been with her the night that
Carlos Cardoza, Jr. was murdered. The district court
170
ultimately excluded the testimony of both witnesses because
counsel was unable to effect timely service.23
Alfred argues that his trial counsel’s failure to locate and
present those and other witnesses amounted to ineffective
representation.24 The record shows unequivocally that the
failure to call those witnesses at trial was a failure of timing,
and not a considered strategic decision by Alfred’s counsel.
But the record casts no light on who was at fault for that
belated timing, Alfred or his counsel.
Given the ambiguities in the record, there is at least a
colorable claim that trial counsel failed to obtain potentially
important witness testimony in a timely fashion. See United
States v. Mitchell, 216 F.3d 1126, 1130-33 (D.C. Cir. 2000);
United States v. Debango, 780 F.2d 81, 423 (D.C. Cir. 1986).
In addition, “[t]he current record . . . does not allow a
conclusive determination that [the missing witnesses’]
testimony was immaterial or cumulative such that it defeats a
colorable prejudice claim.” Moore, 651 F.3d at 88. For
example, Alfred alleges that Darby and Rice each could have
provided an important alibi, testifying that Alfred either was
not in the District of Columbia or was with someone else the
nights that Thomas and Cardoza were murdered. While that
testimony would not necessarily foreclose the government’s
argument that Alfred had commissioned the murder or aided
23
Alfred’s vague and conclusory assertion that another witness,
Rodman David Lee, could have offered “a strong defense to the
Narcotics conspiracy,” Appellants’ Br. 304, is far too thin a reed on
which to hang a colorable claim of error or prejudice.
24
Near the end of his case, Alfred’s counsel informed the district
court that he wished to secure testimony from at least twenty-six
additional witnesses. See J.A. 4435-44, 4918-49, 5118.
171
in the search for the victim, the testimony (if delivered as
Alfred predicts) could at least have cast doubt on aspects of
the government’s case and could have undermined the
testimony of government witnesses. The record thus supports
a colorable claim of prejudice as well. We remand for further
exploration of this claim.25
3. Sentencing Counsel
At sentencing, Alfred was represented by yet another
attorney. That new counsel requested a full sentencing
hearing, but the district court denied the request. The attorney
then reminded the court that Alfred’s trial counsel had raised
several objections to Alfred’s presentence report, and the new
attorney added one more objection. Counsel also conceded
that Alfred faced three mandatory life sentences and stated
that, as a result, he would not be making an argument for a
reduced sentence based on the sentencing factors set out in 18
U.S.C. § 3553, because it could have no practical effect.
Alfred’s argument that sentencing counsel was
ineffective does not get out of the starting gate. In particular,
25
Alfred separately argues that one of his trial attorneys—Idus
Daniel—undertook conflicting representations. Specifically, Alfred
argues that the docket in United States v. Wallace, No. 99-cr-215,
shows that, in an earlier trial, Daniel represented Melvin Wallace,
who then became a government witness in Alfred’s trial. That
argument fails because the same docket sheet reflects that the entry
to which Alfred refers was a clerical error. See Attorney
Appearance, Dkt. No. 17, United States v. Wallace, No. 99-cr-215
(D.D.C. filed Aug. 11, 1999). Daniel in fact represented a different
defendant altogether in that proceeding. See Notice of Attorney
Appearance, Dkt. No. 105, United States v. Wallace, No. 99-cr-215
(D.D.C. filed Jan. 23, 2007).
172
Alfred fails to identify any prejudice that could have arisen
from sentencing counsel’s alleged deficiencies.
First, Alfred argues that his sentencing counsel failed to
object to a sentence that was premised on the discharge of a
firearm in the commission of murder even though there was
no specific jury finding that the gun was discharged. That
argument did not work for McGill, see Part XI(C), supra, and
it does not work here either. There was no prejudice because
there is no conceivable factual scenario in which the jury
could have convicted Alfred (as it did) of the first-degree
murder of three individuals—each of whom was shot to
death—without necessarily finding that the firearm was
discharged. That Alfred was not the alleged shooter is beside
the point because a conviction under 18 U.S.C. § 924(c) may
be premised on either an aiding-and-abetting or Pinkerton
theory of liability, see Pinkerton, 328 U.S. 640, both of which
the jury was instructed on here. See Part XXI, supra.
Second, Alfred argues that counsel should not have
conceded that he was subject to a mandatory life sentence for
his murder in aid of racketeering charges and the particular
RICO conspiracy and predicate offenses alleged. But
Congress has explicitly mandated life sentences under 18
U.S.C. §§ 1959(a) and 1963(a)(1) for those crimes. See
United States v. Franklin, 663 F.3d 1289, 1289-90 (D.C. Cir.
2011). No prejudice can arise from counsel’s failure to
dispute what is legally indisputable.
Finally, Alfred’s fleeting references to counsel’s failure
(i) to challenge an allegedly above-Guidelines sentence on the
narcotics conspiracy, (ii) to present mitigating factors under
18 U.S.C. § 3553(a), (iii) to object in some fashion to the
government’s 21 U.S.C. § 851 notice regarding sentence
enhancement, or (iv) to make other unidentified “obvious
173
objections,” are all presented in such a vague and conclusory
fashion that they do not raise any colorable claim of error or
prejudice. See United States v. Williams, 488 F.3d 1004,
1010 (D.C. Cir. 2007) (“We ‘ha[ve] never held that any claim
of ineffective assistance of counsel, no matter how conclusory
or meritless, automatically entitles a party to an evidentiary
remand,’ . . . and, accordingly, we need not remand here.”)
(quoting United States v. Poston, 902 F.2d 90, 99 n.9 (D.C.
Cir. 1990)).
E.
Alfred’s final objection is to the sufficiency of the
evidence to support his convictions for (i) murdering a
government witness, Carlos Cardoza, Jr., to prevent his
further communication with law enforcement, (ii) conspiring
to murder Andre Sanders, and (iii) participating in a crack-
cocaine conspiracy. None of those objections succeeds.
This court “reviews challenges to the sufficiency of the
evidence ‘de novo, viewing the evidence in the light most
favorable to the government, and affirming a guilty verdict
where any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Eiland,
738 F.3d at 356 (quoting United States v. Littlejohn, 489 F.3d
1335, 1338 (D.C. Cir. 2007)).
1.
Alfred was convicted, among other things, of two
conspiracy counts and several substantive counts relating to
the murder of Carlos Cardoza, Jr., including an aiding-and-
abetting conviction for killing a witness to prevent
communication with law enforcement. See Sampol, 636 F.2d
at 676-77 (affirming defendants’ “responsibility as principals
in the murder . . . which flows from aiding and abetting that
174
crime”). To prove the murder of a witness to prevent
communication with law enforcement under 18 U.S.C.
§ 1512(a)(1)(C), the government must show “(1) a killing or
attempted killing, (2) committed with a particular intent . . .
(a) to ‘prevent’ a ‘communication’ (b) about ‘the commission
or possible commission of a Federal offense’ (c) to a federal
‘law enforcement officer or judge.’” Fowler v. United States,
131 S. Ct. 2045, 2049 (2011).26 To establish aiding-and-
abetting liability, the government must “prove: ‘(1) the
specific intent to facilitate the commission of a crime by
another; (2) guilty knowledge (3) that the other was
committing an offense; and (4) assisting or participating in the
commission of the offense.’” United States v. Wilson, 160
F.3d 732, 738 (D.C. Cir. 1998) (quoting Gaviria, 116 F.3d at
1535). The government does not dispute that, to prove aiding
and abetting liability under Section 1512(a)(1)(C), the
government must show knowledge both that a murder was
planned and of the statutorily specified reason for the murder.
Appellee’s Br. 308.
Sufficient evidence supported the jury’s finding that
Alfred had the requisite intent and guilty knowledge to aid
and abet the murder of Cardoza to prevent his communication
with law enforcement about federal crimes. Lionel Nunn
commissioned Cardoza’s murder precisely because Cardoza
“was supposed to be cooperating with the law.” J.A. 2052.
Evidence showed that Nunn solicited Kevin Gray to murder
Cardoza and told Gray why. Additional evidence established
that Gray told Ronald Alfred that he was looking for Cardoza
26
“[N]o state of mind need be proved with respect to the
circumstance that . . . the law enforcement officer is an officer or
employee of the Federal Government[.]” 18 U.S.C. § 1512(g)(2);
see also United States v. Rodriguez-Marrero, 390 F.3d 1, 25 (1st
Cir. 2004).
175
and was “out to kill” him. Alfred subsequently told Gray
when he saw Cardoza and loaned him his van to search for
Cardoza. Alfred also supplied Gray with the gun that was
ultimately used to commit the murder.
A jury could reasonably infer from that evidence that,
before Alfred interjected himself into the search for and
murder of Cardoza, he would have been told not just that
Gray was looking to kill Cardoza, but also why. “A man just
does not surrender to his friends possession of his gun, a
deadly weapon, without taking more than a casual interest in
its intended employment.” United States v. Harris, 435 F.2d
74, 89 (D.C. Cir. 1970); see also id. (“And the legitimate
inference that appellant loaned his gun to the robbers tends at
least slightly to support the further inference that appellant
knew the purpose for which the gun would be used.”).
2.
We need not address Ronald Alfred’s challenge to his
conviction for conspiracy to murder Andre Sanders. That is
because Alfred was not convicted of any substantive counts
associated with that conspiracy. Instead, participating in the
conspiracy to murder Sanders was just part of one of the four
racketeering acts that the jury specifically found Alfred had
committed as predicate offenses for the RICO conspiracy
charge. Those four racketeering acts are two more than what
was required to sustain his RICO conspiracy conviction. See
18 U.S.C. § 1961(5). Accordingly, even if there had been
error in the finding as to Sanders, it could not have had any
effect on the RICO judgment because at least two
unchallenged convictions for predicate acts remained
regardless. See United States v. Simmons, 923 F.2d 934, 945
(2d Cir. 1991) (evidentiary error affecting three counts of
racketeering activity was harmless where each defendant was
176
also found to have committed at least two other acts of
racketeering activity); United States v. Madrid, 842 F.2d
1090, 1097 (9th Cir. 1988) (jury instruction issue affecting
one count was harmless where two other racketeering acts
were also established).
3.
Finally, Alfred argues for an absolute requirement of “lab
evidence” (Appellants’ Br. 307) to sustain a conviction for a
narcotics conspiracy involving crack cocaine. But he
provides no authority for that proposition, and we have found
none. Instead, laboratory analysis is just one of many ways in
which involvement with narcotics can be proven;
circumstantial evidence alone can also suffice. See United
States v. Baugham, 449 F.3d 167, 171-72 (D.C. Cir. 2006)
(testimony and recordings documenting crack cocaine
transactions alone provided sufficient evidence to support
conviction for conspiracy to distribute crack cocaine); see
also United States v. Turner, 709 F.3d 1187, 1195 (7th Cir.
2013) (similar), cert. denied, 134 S. Ct. 2660 (2014).
Here, sufficient evidence supported Alfred’s conviction
even without lab analysis. Testimony was presented showing
that Alfred’s close associates were involved in trafficking
crack cocaine, including his brother James, who was said to
be Ronald Alfred’s middleman in drug transactions.
Evidence also showed that the conspiracy as a whole
participated in crack cocaine transactions. Such evidence,
along with the wealth of testimony regarding Alfred’s own
drug trafficking, supports the jury’s attribution of 50 or more
grams of trafficked crack cocaine to Ronald Alfred as a
reasonably foreseeable part of the conspiracy he joined. See
United States v. Law, 528 F.3d 888, 906 (D.C. Cir. 2008)
(“Here, the conspiracy was dealing drugs, and thus the entire
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sum of the drugs within the conspiracy constituted a single
conspiracy violation.”).
XXXI. Cumulative Error
Finally, appellants argue that the cumulative effect of
these errors requires reversal. It is true that even where
individual errors are insufficiently prejudicial to warrant
reversal, “the total effect of numerous small missteps may
deprive a defendant of a fair trial,” provided that appellants
can demonstrate prejudice resulting from the various errors
taken together. Celis, 608 F.3d at 847 (citing Egan v. United
States, 287 F. 958, 971 (D.C. Cir. 1923)).
With the few exceptions we have described, however, we
have found no error at all. And appellants have not
established that the cumulative effect of the few errors—
including where the government has conceded prejudice (e.g.,
the admission of the drug analysis reports against Seegers)—
was sufficiently prejudicial to require a new trial. The
government mounted a strong case based on overwhelming
evidence and the district court used limiting instructions
throughout the trial, both of which mitigated any cumulative
prejudice caused by the errors. See Brown, 508 F.3d at 1076.
* * * * *
We vacate McGill’s sentence and remand for the district
court to resentence him. We remand for the district court to
hold an evidentiary hearing on Simmons’s ineffective-
assistance-of-counsel claim and Ronald Alfred’s ineffective-
assistance-of-counsel claims concerning his counsel before
and during trial. We also remand for the district court to
determine whether the Confrontation Clause violations
affected appellants’ substantial rights with regard to their
conspiracy convictions, and to resentence them accordingly if
178
necessary. We reverse Seegers’s convictions for possession
with intent to distribute cocaine and heroin. In all other
respects, we affirm.
So ordered.