Marshall v. United States, 2011 WL 1044594

Marshall was convicted by a DC Superior Court jury of aggravated assault while armed, mayhem while armed, weapon possession offenses, and obstruction of justice after the 2007 Amanuel Market shooting.
The jury acquitted on assault with intent to kill while armed and a separate firearm possession count.
On appeal, Marshall challenges witness sequestration, a Fifth Amendment privilege waiver issue, and a variance in an obstruction charge, among other matters.
The trial court admitted certain testimony from witnesses who were in the courtroom during a pretrial detention hearing, and the government presented a theory of obstruction based on letters and jailhouse conversations.
The DC Court of Appeals remands for vacating one count of possession of a firearm during a crime of violence due to merger, affirming the remainder of the judgment.
The sentence imposed was sixteen years, and the remand is limited to the merger issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sequestration of witnesses and in-court presence	Marshall argues White and Perkins were in the courtroom in violation of the rule on witnesses	Government contends no rule was invoked and no violation occurred	No error; rule not in effect at detention hearing; no prejudice shown
Fifth Amendment waiver by Perkins	Perkins’ grand jury waiver did not automatically extend to trial	Perkins waived at grand jury and may testify at trial	Appellant lacks standing; waiver valid and applicable; challenge fails
Obstruction of justice variance	The trial theory differed from the government’s pretrial proffer, prejudicing Marshall	Variance was not prejudicial; theory remained connected to evidence	Not plain error; any variance not prejudicial given record and counsel actions
Double jeopardy merger for possession of firearm	Two convictions for possession of a firearm during a crime of violence should merge	Counts arose from same weapon and single incident; might require vacatur	Remanded to vacate one conviction; remaining counts affirmed

Geders v. United States, 425 U.S. 80 (U.S. 1976) (rule on witnesses restrains tailoring testimony)
Benn v. United States, 801 A.2d 132 (D.C.2002) (rule on witnesses central; trial court may sequester witnesses)
Keys v. United States, 767 A.2d 255 (D.C.2001) (standing to challenge privilege rulings is limited)
Olano v. United States, 507 U.S. 725 (U.S. 1993) (plain error standard for trial errors)
Williams v. United States, 756 A.2d 380 (D.C.2000) (continuity of notice and continuance considerations in surprises)
Pace v. United States, 705 A.2d 673 (D.C.1998) (prejudice inquiry for variances requires notice and opportunity to investigate)