Butler v. United States

BUTLER, Anthony Appellant, Horace STATES, Appellee.

UNITED ABDUL-MANI, Appellant,

Ali STATES, Appellee.

UNITED 82-323, 82-314.

Nos. 82-1387 and Appeals.

District of Columbia Court of

Argued Jan. 1984.

Decided Reiser, D.C., Washington,

David Adam Spearman, with whom Michael S. Wash- ington, D.C., court, appointed appellant on the brief for Butler. Klein, Service, James Public Defender Washington, D.C., with whom A. Franklin Jr., Service, Burgess, Defender Public D.C., Washington, at time the brief was filed, Howe, and Scott Public Defender Ser- vice, D.C., Washington, were on the brief appellant Jacobson, for Abdul-Mani. Linda Service, D.C., Washington, Public Defender appearance also entered appellant for Abdul-Mani. Abrecht,

Mary Atty., Ellen Asst. U.S. Washington, D.C., with whom Stanley S. Harris, Atty., Washington, D.C., at the filed, time the brief Michael was W. Far- rell, Hetherton, Judith and Harold L. Cush- Jr., enberry, Attys., Washington, Asst. U.S. D.C., appellee. were on the brief NEWMAN, Judge, Before Chief and PRYOR, FERREN, Judges. and Associate NEWMAN, Judge: Chief surrounding This case involves events highly publicized July 1980 assassina- Appellants tion of Ali Tabatabai. Akbar Horace Ali Butler and Abdul-Mani were convicted as accessories the fact to first-degree Butler was also murder. con- larceny victed of and unauthorized addition, In use a motor vehicle. Abdul- perju- Mani was convicted two counts of ry.1 outspoken opponent

Tabatabai was an Ayatollah regime Khomeini in Iran. Tabatabai worked Shah’s the Iranian revolution. before president In 1979 he and became founded Foundation, corpora- of the Iran Freedom Maryland. tion state of chartered press He often criticized Khomeini’srule in appearances releases and here in television charges. judgment acquitted alleged trigger- acquittal The trial of all court entered man, Belfield, perjury successfully on one of the Both Butler and counts. has evaded David conspiracy acquitted Abdul-Mani were on apprehension. codefendant, Caffee, counts. A William others, the United agree postal States. With Tabatabai him jeep lend his so that he planned an anti-Khomeini demonstra- delivery. could make Belfield assured Washington, tion in D.C. for week of Frazier he taking could make the July 20 to 1980. He was murdered on jeep appear He left forced. Frazi- July Bethesda, his residence bills, er two $100 instructions meet him Maryland. at the northwest intersection Idaho Ave- pro-Khomeini, David Belfield—a Woodley armed nue and next day Road the security guard at the Iranian Interests Sec- instructions how to receive $300 more Algerian tion of Embassy re- job when the was done. —had assignment ceived an to assassinate Ali On Abdul-Mani tried to rent a opponents Akbar Tabatabai other car Charge Central card. Because Khomeini. already owed and had credit $550 limit Hunter, accomplice A1 Fletcher who $600, Charge approve Central not would government grant testified for the after a charge required Budget Rent- $300 came immunity, to know Belfield A-Car, required charge $225 Na- through training martial arts and first payment tional Rental cash Car unless a plan heard of the in assassination mid-June was made Soon to lower the debt. there- pictures when Belfield him showed after, cash paid in was Abdul- $225 opponents Ali Akbar Tabatabai and other Charge Mani’s Central at 1215 E account Ayatollah Having Khomeini. al- Street, Then N.W.2 Abdul-Mani success- ready committed a number crimes for fully Charge used Central card to his rent a benefit of Islamic revolution and Toyota blue Car National Rental at benefit, for his own financial Hunter be- Street, 1001 12th N.W. came a willing participant in the assassina- plan tion as well. Hunter testified that he Testimony at trial that Abdul- indicated Library Congress went to the in a vain throughout Mani was known his communi- gather effort to information about Tabata- ty married, peaceful as a man. He was bai, and several times he drove with Bel- employed the father of six children at and Bethesda, neighbor- field to the Maryland, the time of indictment. He had never been According hood where Tabatabai lived. to arrested. plan, pose the assassin to as a was at the Abdul-Mani attended services Is- postman getaway and needed a car. Hunt- Avenue, lamic Center on Massachusetts er inquiries procedures made for about every worships. where almost local Moslem renting Belfield, a car for a told week and Belfield, At mosque he met David a bills, who had in thousands dollars $100 fairly person in that communi- well-known they would need a credit card to rent a ty. friendship developed, yet A close never car. Hunter testified that Belfield assured Belfield, others, if he came like found that him with a that he knew someone credit loan, get needing he would Abdul-Mani card and take care of it. would money and on repaid it. He borrowed occa- Meanwhile, pursued Belfield other as- successfully sion asked for the Abdul-Mani pects plan. of the assassination On known for use of his car. Abdul-Mani was 20, 1980, postman visited ac- Belfield willingness help and generosity oth- Frazier, quaintance, Tyrone and discussed community. ers in the procedures delivery for of certified and registered Hunter’s outlined se- packages receipt of address- only. pressured quence leading ee Frazier to the assassina- Belfield of events subsequent apartment, pay- $225 2. In a search allowed to make the of Butler’s Ali Abdul-Mani investigators Charge found a note in Belfield’s hand- to rent a car. ment to Central order "car,” "$225," writing However, with the words and "Ali". improperly note admitted note, From asked the hearsay. p. infa provided money to infer that Belfield which house with Tabatabai’s jeep al toward tion. He testified that Belfield did Af- postal in the rental car. jeep meet Frazier’s on the 21st. close behind Hunter evening stopped for Bel- However later Hunter and Belfield ter Hunter together newly call, rented Belfield rode telephone Hunter to make a field Although ear to the Tabatabai residence. the Taba- cul de sac close to parked Hunter went to the door with Belfield’s on to and Belfield continued residence tabai hand, an- pistol millimeter no one nine the house. away. They the doorbell. drove swered Mor- day, Seyed Shortly noon that before night called Frazier that to advise Belfield the door of the Tabatabai tazavi answered he meet him and take him that would pre- and confronted a man whom home day. next postal jeep the he was mailman because sumed to be a Tuesday 8:00 and 9:00 a.m. on Between helmet wearing postal and blue uniform up morning, July picked Belfield envelope carrying large manila and was Hunter in the rental vehicle. Hunter insisted addressed to Tabatabai. The man go told him to to Butler’s drove. Belfield delivery sign for the that Tabatabai had to parking They into the apartment. drove him- personally. of mail When Tabatabai Longfellow rear of 738 Street lot at the began to bend approached self the door and appeared at car horn. Butler first blew the shot package, he was over to look at and then came downstairs the window caused repeatedly. gunshot wounds While through them a rear door.3 admit immediately.4 Mortazavi his death almost apartment, put on a inside Butler’s help. and called for shut the door him a postal uniform. He also had with postal jeep back to Belfield drove helmet, envelopes light pith two and blue in the sac where Hunter waited cul de go gun. Belfield asked Hunter to out- postal rental car. Belfield abandoned the rental car around to the side and drive apartment to Butler’s jeep and rode back building. Bel- front of the Hunter did so. According Hunter’s testi- Hunter. to with uniform, field, came postal dressed in the apartment Belfield mony, once inside apartment building, got out of the into the gun in and left it one put his a box to the area car and directed Hunter to drive ' from a He numbers he took rooms. wrote Avenue, Street, where Massachusetts 39th called for paper and book on sheets meet. Hunter and Idaho Avenue When flights information from La Guardia about there, up he Butler in his saw drive arrived Geneva, At 12:19 Airport Switzerland. to appear then Frazier blue truck and saw Bel- Airlines recorded p.m., Trans World They postal jeep. all drove to with flight to p.m. for a 7:30 reservation field’s Belfield, Woodley his en- Road where with Kennedy Interna- F. Paris from John Fra- velopes gun, got and out and directed postal uni- left the Airport.5 Belfield tional truck. jeep zier out of his and into Butler’s apartment. in the the helmet form and gun held one hand on the inside get rid of Butler would Telling Hunter that in a manner envelopes one of the and acted Bel- him, testified that gun Hunter for an uninformed outlooker that would make on bill tacked $100 left a note and field being forced postman that the was believe the rest of the note and threw Butler’s wall drove Frazier into Butler’s truck. Butler paper in the trash.6 post- Baltimore. Belfield drove toward door, upgraded to p.m., the reservation key 5. At 2:16 Although to the front Belfield had a 3. made reservation and an additional any first class through key rear would not admit him flight Paris to Geneva. from for a Swissair doors. Among papers in a search of recovered 6. gun a millim- Belfield’s as 9 Hunter described 4. in Belfield’s apartment was a note Butler’s handwriting Lugar Investigators a 9 millimeter found eter. telling to look in his tool Butler casing step of the Tabatabai on the front shell from Butler at was recovered A bill box. residence. of his arrest. the time When Belfield and Hunter p.m. left Butler’s 1980. about day, At 1:30 FBI apartment, they threw agents the manila en- appellant arrested Butler in his velopes away neighborhood trash cans (and truck and seized $100 bill three and drove to the Muslim House bills), appointment smaller an listing book Street, N.W., 16th packed where Belfield phone number, Abdul-Mani’s and an ad- personal some belongings. they Then including dress book Belfield’s number. drove rental to car New York. Hunter heard his car radio that Butler postman and the had been arrested. Con- Butler, truck, Meanwhile in his own freedom, cerned his about own Hunter postman drove Frazier around Baltimore called his roommate William Caffee about eventually and returned him to the Wash- during four times his drive south be sure area, ington letting him out in Wheaton. it ¡his was safe for him return. Caffee was postal supervisor Frazier called friend, a close pending codefendant in a Sligo High Junior School and soon thereaft- case, burglary and someone whom he er was postal met there authorities and “assign- had confided that he had had Investigation (FBI) Federal Bureau of ment” on agents. Hunter arrived home He told first them he had been later kidnapped by night police and was warned that two white men. Once con- looking Therefore, would be for the car. postal fronted jeep fact that his had assassination, driving been used in an a friend Donnell Holmes he told the Although truth. blue rental fol- he had known car Hunter and Caffee along all truck, it illegal lowing that was in a for him to the car was taken to jeep, lend Washington. assumed activity wiping that the worst southwest After it might drug have been car fingerprints, they used for was a to eliminate aban- deliv- ery. He part covering wanted no up away doned it drove in the truck. began murder.7 The FBI looking They stopped Capitol Bel- at Elmire and South Streets, field and Butler. Hunter instructed where Caffee call him to car Abdul-Mani tell By then Belfield had decided to avoid call, they made stolen. After Caffee possible apprehension at a New York air- Hunter, apartment. returned to their tired port by fleeing to He Canada. and Hunter drive, long and nervous asked after his drove to stopped Canada and late that They to the Caffee call Mehdi for $2000. night at a motel near the border. The next they Yahya to learned that had contact morning, they drove farther north to the (also Roberts) John for the mon- known as airport Montreal and checked in the air- at ey. Yahya security guard at was another port inquiries hotel. Belfield made about Section, along the who Iranian Interests flights pre- to Paris and Geneva. Hunter Belfield, for Mehdi. worked Before pared to drive back to the of District Co- they money, and got the Hunter Caffee lumbia. gave Hunter testified that Belfield charges July on on were arrested unrelated him three notes and instructions: he was to 24, 1980. call Abdul-Mani to him the tell to ear stolen; he was call in to Saud Ramadan July Butler was Saturday, On while say way; Geneva to a friend onwas jail, forcibly still in Butler’s sister entered boss) (Belfield’s towas call Mehdi to obtain get apartment Butler’s to some of his $2,000. gave $200 also Hunter to things; manager the resident called the Frazier, postman. deliver to police. July 27, FBI Sunday, agents On south, apartment

Hunter drove the rental car cross- entered Butler’s with a search ing border into the at They passport, United States warrant. seized his a book- Champlain, p.m. New at July York 1:09 on let on the and Islamic Revolution other pled guilty taking illegal gratuity 7. Frazier to ment. postal govern- aon vehicle and testified for the denying pith anyone else and magazines. They found a car to Belfield

leaflets and helmet, car. mailbag and a From the that he had been reimbursed toolbox. kitchen, they pair in trash can seized testifying grand jury, While before left gloves print of which bore a rubber he had lent explained also Abdul-Mani right particles middle finger Belfield’s and Belfield, money past in the who was well to they gunpowder residue. In the trash community in his Muslim because known which, scraps paper found torn when obligation to religious a sense of he felt reconstructed, were found to directions be: requests someone who be- respond to car, home; to Tabatabai’s note about longed to his church. $225, Ali; directing and a Butler and note part government’s A of the substantial All notes were look his toolbox. testimony trial consisted handwriting. in Belfield’s Hunter. On the accomplice immunized Throughout period newspapers, this credibility, Hunter’s defense coun- issue of television carried stories radio and stations many prior crimes8 sel introduced Hunter’s Monday morn- killing. about the Tabatabai grant immunity argued that and ing, Butler at July Abdul-Mani visited encouraged shape him to ac- signed log and D.C. Jail visitor’s government’s cording evidentiary indicating purpose as a of the visit needs. business consultation. Butler raise and Abdul-Mani sev That afternoon Caffee was released in this The first section appeal. eral issues jail, Yahya he and Hunter visited opinion will consider Abdul-Mani’s day, promised collect the The next $2000. improperly contention that the trial court July paid Hunter for over- cash $805 several statements under admitted Forestville, apartment due rent on his co-conspirator’s exception to the hear Maryland. say rule. Section two will discuss suf raised both reported ficiency of evidence claims July On Abdul-Mani will consider the police appellants. Rental that the Section three National Car and the the Jencks July 21 made in reliance on Toyota arguments small he had rented on blue (1982); Act, Brady v. had 18 U.S.C. reported stolen. He that he been 19th 83 S.Ct. parked Maryland, last it 1600 block of car, (1963); Street, N.W., Giglio v. United 30. The rental L.Ed.2d in fact been Hunt- which had abandoned earlier, question

er Washington a week L.Ed.2d Southwest viability statutory sentencing During current August. was not recovered until punisha case, which refer to offenses investigation provisions of this Abdul-Mani in 4, section grand by death will be addressed on June testified before ble 1981, he rental denying that had lent the four.9 Therefore, we affirm 76 L.Ed. 306 by defense includ- crimes introduced Prior murder, robbery, grand larceny, robbery, car appellant armed bank Butler’s conviction for ed arson, theft, perjury, polygamy, and fraudulent use his for unauthorized remand conviction purchase of firearms. be to court to vacated. a vehicle the trial of argues trial court committed that the Butler that conviction of

9. Butler contends his by excluding from the him voir error reversible larceny vehicle and unauthorized use of a motor conducted in venire members dire of individual right protection to his Fifth Amendment violates against interpreta- court’s anteroom under this a court multiple punishments the same of- for 43(a) Super.Ct.Crim.R. in Robinson v. tion of recognized agree. This has fense. We court (D.C.1982). States, 448 The A.2d 853 United improper con- are where dual convictions that however, Robinson, is in not to required enunciated no rule for use “[u]nauthorized viction proof beyond retroactively. v. required applied of Brodis United for conviction be States, Thus, grand larceny,” States, (D.C.1983). A.2d appel- v. Arnold United 468 A.2d 1335 (D.C.1983). Blockburger v. See also argument succeed. cannot lant Butler’s 299, 304, States, 52 S.Ct. United I. Eng.L.Rev. (1980-81) New ]; Hearsay cited as Rule see [hereinafter Abdul-Mani contends that the trial also D. McCormick, court by admitting erred under the cocon- Handbook of the Law (2d 1972). ed. The spirator’s Fed- exception hearsay to the of Evidence rule sev however, eral provide, also hearsay eral Rules an Belfield, statements of Caffee, opponent of party one of admission a is not hear- which relate to Abdul-Mani’s relationship say. 801(d)(2). Although to such by the rental car used Hunt Fed.R.Evid. er escape and Belfield to admissions come within the definition of after the assassi 801(c), nation: hearsay in excep- set forth Rule an tion (1) has created because “it is been an testimony Hunter’s that Belfield equitable do, thing he to consonant with “said somebody knew with a credit search it,” card and he truth the confines of would take care within of refer- ring to the car; adversary system.” rental of Binder, getaway D. Hear- say (2d 1983). ed. type Handbook One (2) the note in Belfield’s handwriting by of party-opponent admission state- apartment found Butler’s and offered “by coconspirator party ment of a prove to made that Belfield paid had or owed during Abdul-Mani the course and in furtherance rental; for the $225 ear 801(d)(2)(E). conspiracy.” Hunter’s Fed.R.Evid. agents “[Cjoconspirators are considered asked Caffee to call Abdul-Mani to tell another, one for so that the assertion of him stolen, said to car one, scope made the course and Caffee indicated that he made call.[10] conspiracy, is of all.” Bind- the admission

er, Supreme at 344. The Court has A explained that: question prerequisites The to admis- hearsay con- The for both the rationale sion of coconspirator’s under spiracy exception and its limitations is exception hearsay rule is an issue of partners are conspirators the notion that first impression in this court. such, As the law deems crime.... just agents them And of one another. Rules Federal of Evidence de agent bind the declarations of hearsay statement, fine as “a other than agent within principal only acts when one made the declarant testifying while authority, declara- scope of his so the hearing, at the trial or offered in evidence made in coconspirator tion must be of a prove the truth matter asserted.” charged conspiracy furtherance of the Three critical concerns Fed.R.Evid. 801(c). part- against order admissible have led the exclusion evi ner. dence from the jury: “the lack anof oath declarant; States, out court lack 417 U.S. Anderson United personal appearance at trial the declar- 218 2259 n. n. 94 S.Ct. ant; inability (1974) (citations omitted); opposing and the counsel L.Ed.2d 20 see to cross examine the declarant.” Evolu also Lutwak United Exception tion the Coconspirator L.Ed. Hearsay Courts, Rule in Federal challenged hearsay Butler also that he contends is entitled to a also as Hunt- Abdul-Mani 10. joinder improper new trial because of er’s that in Belfield "said Montreal offenses. We find be this contention to without tell him it stolen." This [Abdul-Mani] merit. rather, hearsay; not it is a directive statement is argues Abdul-Mani that the failed given. prove that offered to instruction was prove that he the made statement 1766, generally §§ 1788 Wigmore, Evidence alleged jury perjurious. to be We find (Chadbourn 1976). rev. this contention to be without and affirm merit perjury. Abdul-Mani’s conviction type the of evidence Although the Federal Rules of must be confronted: Evi determining a apply system, dence do not in our court we considered in whether to be 801(d)(2)(E) exists; hereby adopt Fed.R.Evid. as conspiracy and the standard controlling jurisdiction.11 in this Under satisfy and the tim- proof prosecutors must holding coconspirator’s this a out-of-court ing admissibility decision. of the may nonhearsay assertions be admitted as determining the The choice to be made jurisdiction in the courts evidence judge may a consider type of evidence (1) only prosecution proves if the admissibility is making the decision wheth- existed, (2) conspiracy the defendant had a proffered may regarded, be er all evidence (3) conspiracy, the connection with the nonhearsay only independent or whether coconspirator during made statements Prior to may considered.13 of and in furtherance of the the course 104(a), Supreme Rule Court Glasser 801(d)(2)(E). conspiracy. Fed.R.Evid. 457, States, 315 U.S. 62 S.Ct. v. United conclude, alsoWe consonant with (1942), “prohibited judges 86 L.Ed. 680 circuits, approach of all the federal considering coconspirator from state- 104(a), judge under Fed.R.Evid. should determining ments when themselves admissibility determine the ultimate of co- availability coconspirator hearsay ex- conspirators’ This is the bet statements.12 ception to those statements. Under the approach, puts ter a “rule that because judges only requirement, may con- Glasser admissibility coconspirator statements in independent conspir- sider evidence of the jury the hands of the does not avoid determining admissibility of out acy danger jury might that the convict on the coconspirators.” of court statements of basis of these statements first without Coconspirator Exception, supra note dealing admissibility question.... with the 104(a), however, appears to at 134. Rule result, As a such statements should be judges hearsay to consider and other allow legal evaluated trained mind of the admissibility inadmissible evidence in deter- James, judge.” trial United States judge minations it frees the because (5th Cir.) (en banc), F.2d cert. the Rules of Evidence the limitations of denied, 99 S.Ct. 61 except regards privileges. Fed.R.Evid. Lego L.Ed.2d 283 Twomey, Cf. 104(a). U.S. 30 L.Ed.2d 618 courts are divided as to circuit The 104(a) placing compat Rule overrules or is admissibility After decision in whether agree those judge the hands of the We with two further issues ible Glasser. statement is not Fed.R.Evid. statement during conspiracy. (E) (2) (d) a statement Admission Statements ^[******] the course and in furtherance of the offered hearsay which against party coconspirator party-opponent. 801(d)(2)(E). if— are not hearsay. and is party ... A judge conspirator cuit should decide the ultimate Circuit other circuits have since trozziello, approach. to make such found that Rule statements. F.2d 20 admissibility (1st Cir.1977), In United States v. adopted 104(a) required the admissibility decisions. The the First Cir the First of co- Pe of all third alternative is consideration 13. A (a) imposes of Federal Rule 104 12. "Subdivision nature, evidence, regardless ex its duty upon judge preliminary to decide specific hearsay cept evidence for which dependent competency questions of fact on the James, sought. See United States v. admission is 104(b) jury is to of the evidence. Under rule James, F.2d at In the Fifth 580-81. preliminary questions relevancy determine sought requirements of to combine the Circuit upon dependent condition of the fulfillment of a Glasser v. United Federal Circuit fact.” Inconsistencies in the 104(a), (1942), and Rule but 86 L.Ed. 680 Application Coconspirator Excep- Courts’ tion, compli resulting presents more rule a task [here- Wash. & Lee L.Rev. without, necessary judge for the trial cated than Coconspirator Exception]. Rule 104 does inafter view, compensating advantages. in our judge whether the itself dictate 440

jurisdictions which prima mandate consideration a cution established facie case only independent nonhearsay the Rule, Hearsay supra at 628. conspiracy. evi dence in admissibility the determination. prima rejected by facie test has been E.g., United States v. Cambindo Valen all but circuits.15 As one the the First cia, (2d 603, Cir.1979), 609 F.2d cert. Circuit reasoned in United States v. Pe 631 denied, 940, 2163, 446 U.S. 100 S.Ct. 64 ozziello, supra, tr 548 F.2d at 23: (1980); L.Ed.2d 795 United v. States Mack jury This standard makes sense when the lin, 1046, (8th Cir.), 573 F.2d 1048 cert. word; judge has the last should re- denied, 852, 160, 439 U.S. 99 S.Ct. 58 co-conspirator’s fuse hearsay to admit a (1978); L.Ed.2d 157 United States v. An only no reasonable could find when drews, (10th 961, 585 Cir.1978); 964 F.2d conspiracy. that a there was But rule Dixon, United States v. 1138, 562 F.2d 104(a) requires questions that admissi- (9th Cir.1977), denied, cert. 1141 435 U.S. judge, bility “determined” 927, 1495, 98 (1978); S.Ct. 55 L.Ed.2d 521 not finding prima a facie case is the same Stroupe, United States v. 1063, 538 F.2d conspiracy as “determining” that a exist- (4th Cir.1976); United States v. 1065 higher implicit ed. A standard is Buschman, 1082, (7th 527 F.2d 1085 Cir. judge’s new role. 1976); Hopkins, United States v. 518 F.2d in- jurisdictions Some use the substantial 152, (3d Cir.1975); see also United 156 dependent point at evidence standard some Haldeman, States v. 254, U.S.App.D.C. 181 admissibility guiding formula 246, 31, n. (1976), 341 F.2d 559 118 n. 246 independent decision.16 evi- denied, Substantial 933, cert. 2641, 97 S.Ct. 53 dence “more than a has been defined as (1977) (decided L.Ed.2d 250 before enact amount, scintilla,” or “less than the an ment Rule 104 persuasive but remains evidence,” weight a reasonable Jackson, authority; see United States v. support mind 212, would find sufficient U.S.App.D.C. 34, 201 219 & n. 627 F.2d Petersen, su- States 1198, conclusion. United v. (1980)). approach 1215 & n. 34 This pra 16, at n. 5. It has note 611 F.2d 1330 coconspirator’s ensures reliability “enough demanding also been described as statements admitted determining at trial prosecution’s merit case to risk corroborating that sufficient evidence of a might hearsay later conspiracy guards against exists. admission of It also i.e., v. States danger prove United “bootstrapping,” using inadmissible....” Grassi, supra hearsay 16, F.2d at 1301. justify evidence to its note 616 own admis States, supra, sion. v. Glasser United provide may or may This standard 74-75, U.S. 315 62 at S.Ct. 467.14 protection than does accused more does, however, vary regard prima The circuit courts also It facie standard. ing proof ac- prosecution protecting standard of fall adequately short of satisfy prove must unreliable evi- against existence cused risks of conspiracy. law, signifi- At common it protection dence. The offers against prose- if cantly admitted defendant less that of standard than Batimana, 1366, 104(a) 14.The First found that Rule 623 F.2d Circuit over See United States v. 1038, denied, Glasser, (9th Cir.), U.S. ruled it cert. "to the extent that held 66 L.Ed.2d 500 seeking statement admission cannot be making all considered at the determination Jackson, 16. See v. 627 F.2d United States conspiracy whether a States exists.” United Gantt, (D.C.Cir.1980); United States Martorano, (1st Cir.), reh’g F.2d de (D.C.Cir.1980); F.2d 845-46 United States v. nied, denied, (1st Cir.1977), 561 F.2d 406 cert. (5th Cir.1980); Grassi, 616 F.2d 1300-01 U.S. 98 S.Ct. 55 L.Ed.2d 515 Petersen, United States v. 611 F.2d 1330-31 conclusion, reject We and as (10th Cir.), denied, cert. law, requirements matter of state adhere (1980); L.Ed.2d United States v. of Glasser. James, supra, 590 F.2d at 581.

441 adopted by accused, majority express a of the to circuits—the we choose our state preponderance of the evidence holding by ruling standard.17 law that the existence of Kendricks, See United 623 States F.2d conspiracy proved the to must be be “more 1165, 1167-68, (6th Cir.1980); n. 5 1168 likely Compare than not.” United States Provenzano, United States v. 620 F.2d Petrozziello, 548 F.2d at 23. Al- supra, 985, (3d Cir.1980); 999 United States v. though express we our standard different- 767, (8th Baykowski, 615 F.2d 771 Cir. ly, quantum prosecution proof of 1980); v. Santiago, United States 582 F.2d satisfy must remains identical to that re- (7th Cir.1978); 1134 United States v. quired by the of preponderance the evi- Jones, (4th Cir.), 542 203 F.2d cert. dence preponderance standard. Unlike the denied, U.S. S.Ct. 49 test, however, does our standard not re- (1976); L.Ed.2d 375 United States v. Gea quire weighing a of all the evidence. (2d Cir.1969), ney, 417 F.2d cert. Therefore, judge the trial should make the denied, S.Ct. 25 admissibility during pros- determination preponderance L.Ed.2d 539 of By timing ecution’s evidence. the determi- requires the evidence weighing standard point proceedings, nation at this of prosecution’s against evidence pressure favoring admissibility logical of the defense admissibility before can be application preponderance of the standard preponderance determined. While one-step admissibility is eliminated. The protects standard adequately the accused approach determination this facilitates also against admitting the risk of unreliable evi impractieality avoids the of the mini-trial dence, requires, it if also administered in a necessary to unconditional admission under manner, conceptually delay consistent preponderance Additionally, standard. the admissibility decision until the close of approach conceptual this diffi- avoids all the evidence. Coconspirator Excep culty determining admissibility tion, supra, at 143. This circumstance part government’s case based on the forces the options: court into one of two content of the defense case. conditional hearsay admission evi dence at trial incumbent risk of admissibility This one-step decision defendant, prejudice practical to the or the cases, pertain great majority will inconvenience of preliminary mini-trial to in very but unusual circumstances the trial the judge enable determine admissibility to judge conditionally retains discretion to ad prior recognized to trial. It must be hearsay subject mit evidence to eventual where the hearsay conditionally admit conspiracy by indepen establishment of a ted, there is built into the decision-making dent admission evidence. Conditional process pressure hearsay to find the ad where, appropriate example, would be for necessity missible order to avoid the of a an out-of-state witness whose mistrial. independent and contained both hearsay subjected conceptual

To evidence would be avoid practical hardship delay giving undue if prepon difficulties inherent forced standard, portion testimony. derance of her yet pro hearsay the evidence This protection judge exception respond vide the same for the level would allow (D.C.Cir.) (prima 17. The D.C. Circuit use of the 160 F.2d directs substantial denied, test), independent standard facie evidence to determine cert. hearsay conditional admission of under the co- 91 L.Ed. 1850 United States v. 233-34, Jackson, U.S.App.D.C. conspirator’s exception; indepen- substantial reject something approach, less F.2d at this be dent evidence is defined than 1219-20. We against prosecutor lieving prima If the it unreliable facie case. satisfies lowers the barrier case, beyond necessary quantum proof the end of the the level fair highest decide ness. The standard in the D.C. Circuit’s the trial court must also whether the case test, jury using prima and this test can should be submitted the stan- calculus is the facie Curley U.S.App.D.C. itself. Id. dard of be met v. United to such special circumstances, 1, 2141, but must not U.S. 98 S.Ct. 57 1 L.Ed.2d permitted general swallow the rule. We following do so in the section. II.

B Abdul-Mani contends case, that trial In the court instant the trial denying erred in his judgment motion for conditionally court the hearsay. admitted acquittal the accessory after the After fact prosecution’s case, the close of the charge because the evidence is insufficient court ruled that prosecution to show proven partici- that knew Belfield had conspiracy existence of pated in the Tabatabai murder or that independent evidence, substantial and al actions any after the murder lowed the were as- statements in to remain evidence. Having sistance to Belfield. We reviewed the conclude that the coconspirator’s state government’s the accessory evidence on ments not should have been admitted. The charge, standards,19 using proper only independent we nonhearsay evidence agree with Abdul-Mani’s contention presented tending to there is insufficient evidence which a conspiracy establish a involving appellant jury beyond him (1) guilty could have found Abdul-Mani was Abdul-Mani’s visit to Accordingly, reasonable doubt. we (2) reverse jail, Butler at the his denials before accessory conviction Abdul-Mani’s as an af- jury regarding the rental car. ter the alone, first-degree fact of murder on Standing this evidence is not suffi ground as well. cient to make the a conspiracy existence of likely “more than Applying not.” Because of an absence of a harmless error test of Kotteakos v. United statutory definition the elements ac States, 750, 1239, 328 U.S. 66 90 S.Ct. L.Ed. fact, cessory after the to the com we turn (1946), 1557 improperly to the admitted law, mon the common law. “Under ‘[a]n hearsay, it cannot be said the judg “that who, accessory the fact is after one know ment was substantially swayed by ing a felony to have committed been 765, error-” at Id. 66 S.Ct. comforts, another, receives, relieves, or as Therefore, Abdul-Mani’s conviction as an sists the order to hinder felon’s felon ” accessory fact cannot stand.18 trial, punishment.’ apprehension, or Although ground, States, we reverse on this 418 we Clark v. A.2d at United States, must also address Abdul-Mani’s 1061 (quoting Skelly contention 76 United evidentiary 483, (10th Cir.) (citations insufficiency omitted), because of the F.2d 487 provision 914, double-jeopardy denied, 757, Fifth cert. 295 U.S. 79 Therefore, States, Amendment. (1935).20 Burks v. L.Ed. United 437 1699 sustain States, 1059, hearsay (D.C.1980) 18. Because we find that the statements United 418 A.2d 1060 V. 331, improperly Rux, coconspir- were (quoting admitted under the F.2d States v. 412 United 333 rule, (9th exception Cir.1969) (citations omitted)). ators’ essary to the it is unnec- appellant's argument to reach that admis- However sustain a conviction the evi ”[t]o sion of the statements violated his Sixth Amend- dence need be 'such evidence reasonable right ment to confront adverse witnesses. persons guilt beyond find could reasonable Harris, U.S.App. 140 doubt.’” States v. United evaluating 19. In Abdul-Mani’sclaim insuffici 270, 41, (1970), D.C. 88 284 n. 435 F.2d n. 41 evidence, ency of we "review the evidence in a denied, cert. S.Ct. light government, giving most favorable (1971) (quoting L.Ed.2d 152 States, v. United Crawford play right full to determine U.S.App.D.C. 375 F.2d evidence, credibility, weigh justifi draw (1967) (emphasis original)). States, able of fact.” inferences Sousa v. United (D.C. 1979) (quoting Byrd 400 A.2d 20. D.C.Code 22-106 has modified the States, (D.C.1978)), United extent 388 A.2d common law definition "to the that one denied, accessory any cert. can be an after the fact crimi subject punishment or L.Ed.2d nal to a fine "We are also mindful that offense connecting ‘circumstantial infe rather the offense to felonies.” evidence is not considered than respect.’" any supra. rior to direct Clark Clark v. United fact, Post, pearing Washington conviction after the Bal- government’s Sun, Star, evidence must establish that Washington timore Balti- knowledge Abdul-Mani had of Belfield’s American, more News as well as the participation in the murder and that with newspapers local such as the Mont- knowledge Abdul-Maniaided or assist- gomery County Journal. specific ed help Belfield with intent to him Q: partic- What were the dates of those apprehension punishment. evade ular articles? Jury Criminal Instructions for the District 24th, July July A: 25th. Columbia, (3d 1978). No. 4.01 ed. Q: paper was that? What On the issue of Abdul-Mani’s “knowl- Post, Sun, A: That was Star edge” participated that Belfield had in the and the News American. Tabatabai, government murder of intro- added). (emphasis Record at 1640-42 The newspapers duced that local car- government introduced Abdul-Mani’s July ried stories about the murder between jury testimony papers that he “read the murder, July the date of the and everyone like else.” Record at 1592. report- the date on which Abdul-Mani ed agent the rental car stolen. An FBI government The also introduced evidence testified as to the nature of these news morning July that on the Ab- accounts: appellant dul-Mani visited Butler at

Q: Stieler, sir, Special Agent Now have logged purpose D.C. Jail. He

you had an any to review occasion as From visit a business consultation. by records maintained the Federal evidence the was asked to infer that Investigation reflecting Bureau of knowledge Abdul-Mani had that Bel- actual any newspaper coverage of the Ta- (i.e., field killed Tabatabai that Abdul-Mani killing? batabai newspaper reports identifying read Belfield Yes, appellant as that But- A: the assassin and/or sir. ler told Abdul-Mani that Belfield murdered Q: Bearing 23rd, July the dates of Tabatabai).21 July 1980? Yes, A: sir. introduced Q: type And you what did re- government concerning newspaper of—what ac specifically,

view sir? killing indicated counts of the Tabatabai only that Belfield had been “identified.” nature, A: When we have a case of this given the role (e.g., No other details were keep press clippings. we a file on allegedly played, the source for the sto Q: you gen- Now can tell the ladies and ries, leading or evidence identifica press tlemen about the nature of the Further, showing tion). there is no that coverage killing, of the Tabatabai actually reports. read these Abdul-Mani press the number of such accounts testimony that he grand jury Abdul-Mani’s papers and the ac- which such newspapers, everybody like “read the specifically counts occurred where else,” newspapers he not what does show David identified? read, or when he read them. my A: From review he was identified Likewise, appellant visit to 23rd, 1980, Abdul-Mani’s evening support any the D.C. Jail does not Washington Butler at edition of the Star and to the content of their conver- through the 31st inference as then on the 24th assumption ap- Any sation. such would there were numerous articles knowledge, personal while often states that 21. The dissent asserts that Clark v. United "... required susceptible proof, leaves unclear for a 418 A.2d at of direct is not knowledge" question "personal is being accessory of whether after the fact.” an conviction accessory required to sustain a conviction of Id. However, forthrightly the fact. Clark pure speculation. illustration, We therefore conclude one could assist the escape adequate proof guilty knowledge felon an overt act done at a time the presented.22 was not already felon was dead or had been arrest- knowledge ed without the of the one seek- regards As Abdul-Mani’s aid or assist- ing help apprehension? him evade We Belfield, argues ance Abdul-Mani think not. As the Court Ap- Criminal his stolen report car could not have assist- held, peals of Texas has the aid rendered escape ed Belfield’s because the escape was must be of such a character as to “enable complete by report. the time of the In present prosecution.” elusion of arrest response, government argues Texas, Easter v. 536 S.W.2d delaying gave Abdul-Mani Bel- added). (emphasis field extra time to conceal himself. This argument puts posi- In majority the vast of cases in which a contending tion of guilt that Abdul-Mani’s an accessory defendant’s conviction as af arises to his having due affirmed, ter the fact facts engaged illegal in making the false action — accessory’s offense reveal that assist report an earlier Certainly time. Ab- —at help way principal ance did in some dul-Mani duty had no to make a false sto- See, e.g., apprehension. evade United len report any event, car In any time. McLennan, (1st States v. 672 F.2d 239 noted, as the trial court govern- and as the Cir.1982); Ferreboeuf, States v. United brief,23 ment in concedes its Abdul-Mani’s denied, (9th Cir.1980), cert. 632 F.2d 832 report on July could not have 450 U.S. 101 S.Ct. 67 L.Ed.2d 368 helped escape, Belfield in by his because Balano, (1981); United States v. 618 F.2d report the time of the Belfield had success- denied, (10th Cir.1979), cert. fully fled to Iran. (1980); 66 L.Ed.2d 47

Although (5th a Hayes, United v. specific defendant’s States 589 F.2d 811 denied, intent to act as principal Cir.), so to assist a in cert.

escape proof is relevant to of of offense Even in those L.Ed.2d accessory fact, after it is not alone rendered few cases where assistance sufficient. accessory The definition of af effective, way possibili any was not in requires ter the fact also assistance aid or ty might existed the aid have facilitat designed to hinder apprehension, See, trial or e.g., United escape. ed the offender’s States, Clark United punishment. See v. Honesty, U.S.App.D.C. States supra, 418 A.2d at 1061. as “person Just a (1971).24 459 F.2d 1279 cannot aid or abet a crime which al has assume, If the sake of ar Roberts v.

ready completed,” been United we States, (5th 1216, 1221 Cir.1969), gument only, 416 F.2d that Abdul-Mani had knowl a person in edge participation cannot assist a criminal of the assas to evade Belfield’s apprehension punishment sination, might support or where the es evidence cape already By way charge felony. has of misprison been effected. of of D.C.Code report 22.The he’d contends Abdul-Mani’s Caffee told Abdul-Mani indicated knowledge guilt p. supra. of Belfield’s could be inferred the car stolen. presented against all the evidence Abdul- in im- Mani. Included that evidence was the Brief at 61. 23. Government properly supra. admitted discussed other The evidence was Abdul-Mani’s rental opinion 24. The dissent asserts that this focuses Toyota, directing the blue Belfield’s statement principal on the or failure which the “success report Hunter to tell Abdul-Mani car seeking escape" encounters in determina- stolen, report, the false stolen car and Abdul- ‘assistance’ has been tive whether rendered. grand jury. Mani’s false How- contrary, as the cited in text To cases ever, only prove evidence which tends to demonstrate, the ultimate success the offend- Abdul-Mani’s intent to aid Belfield is Hunter’s escape finding er's efforts to irrelevant to a improperly hearsay testimony that admitted been that assistance has rendered. 4-175 This af- apartment offense makes unlaw Belfield returned to Butler’s aiding any person assisting ful the or According ter the murder. to Hunter’s suspected escape judicial crime to full put testimony, gun his in a box withholding any examination in apartment, rooms in one of the Butler’s felony formation about a unlawful other note and a on the and left a bill tacked $100 However, act. Id. this offense must be day after was arrested the wall. Butler distinguished from the offense of and was a $100 the murder found to have fact, requires which an act of later, possession. days Three bill alleged accessory. assistance Skel forcibly Butler’s sister entered Butler’s ly United supra. The evidence get apartment things. some of his any does show action of Abdul-Mani’s day apart- the FBI following searched the aided which Belfield’s evasion law en Among things, they ment. other found forcement authorities. helmet, pith toolbox, mailbag, a and a We conclude that pair gloves bearing of rubber Belfield’s support insufficient to case is the inference fingerprint particles gunpowder res- personal knowledge that Abdul-Mani had They saying— idue. also found a note participation of Belfield’s in the murder. “Ahmed, your Keep look toolbox. Likewise, the evidence is not such that a over your difference what brother jury beyond reasonable could find reason- charges.”25 doubt that able Abdul-Mani’s false stolen presented govern- The evidence evading ap- car assisted Belfield in ment sufficient for a reasonable prehension. Therefore, Abdul-Mani’s mo- beyond to conclude that reasonable doubt judgment tion for on acquittal knowledge partici- Butler had of Belfield’s charge accessory after the fact first- pation in assassination. It also was degree murder granted should have been support to finding sufficient that Butler by trial court. by driving" assisted Frazier Belfield— Appellant Butler also contends Baltimore, providing to around access his support that the evidence is insufficient use, apartment dis- Belfield’s and/or accessory his conviction as fact. conclude, posing gun. of Belfield’s We Contrary to our regarding conclusion Ab therefore, that the evidence was such dul-Mani, we find against that the evidence persons guilt beyond reasonable could find jury’s Butler sufficient to support a reasonable doubt. v. United Crawford verdict. Therefore we affirm Butler’s con States, supra, U.S.App.D.C.at viction as after the fact to first- F.2d at 334. degree murder. government ample introduced evi- III.

dence the issues knowledge of Butler’s case, his Hunt testimony Prior to in this participation of Belfield’s in the assassina- government er as a in also testified witness tion and Butler’s assistance Belfield. the case United States v. Jimmie The evidence showed that knew Bel- Butler in Franklin McEachern the Eastern Dis field; fact, in they other knew each well Virginia. testimony trict of That occurred enough that Belfield key had a Butler’s signing homicide, approximately one month after the apartment. Prior to the immunity agreement. appel changed postal into the in When uniform Butler’s discovery instant apartment present. while Butler lants in the case filed was But- of, requesting pretrial participated ler in scheme motions disclosure Belfield’s postman driving among things, around all of state Frazier to and Bal- other Hunter’s offenses, place. relating took timore while assassination ments to the indicted found, Hunter, Although gun government gun no 25. to the mentioned note referred jury part part asked to infer that the of this referred to $100. first and the second produce portions (4)the did not those statement must relate to the sub- testimony Virginia ject Hunter’s fed- matter of the witness’ direct tes- grand timony.29 eral jury which related to his in- volvement in the Tabatabai murder. Con- § 18 U.S.C. 3500. sequently, testimony was not intro- ‘speculate “Since courts cannot duced at trial. whether could have been [Jencks material]

Butler argues government’s trial, effectively’ utilized Clancy fail at v. Unit portions States, ure to ed disclose those Hunter’s [81 (1969), L.Ed.2d testimony the case harmless-er of United 574] strictly ror applied doctrine must be States v. McEachern the Eastern Dis Jencks Act Goldberg cases.” Virginia trict of United which concerned the Taba- States, n. 425 U.S. tabai assassination constituted a violation (1976) (brackets 1348 n. 47 L.Ed.2d government’s obligations under the U.S.). Therefore, in 425 for the conviction Act, (1982); Jencks U.S.C. Brady stand, the court must be “sure that the Maryland, supra, Giglio v. United jury, error did not influence the or had but States, supra.26 urges Butler that the trial very slight effect.” Kotteakos v. United court denying therefore erred his motion S.Ct. at for a on newly new trial based discovered evidence.27 Upon strictly applying the harm The trial court found that Hunter’s standard, less error trial court found grand jury testimony in United States v. jury, that the error did not influence regarding plot McEachern to assassi only very slight effect. While the nate Mr. Tabatabai should have been dis testimony undisclosed revealed that Hunter closed to defendants at trial as Jencks ma receiving would—and his im did—lie after terial. The satisfied the four munity agreement, the trial court deter prerequisites of the Jencks Act: mined to which this that the extent disclo posses- the material must be in the Hunter’s sure could undermined credi have government; sion of the bility to affect would not sufficient (2) request the defense must the materi- given strength of the case verdict al; against presented Butler. The (3) the material must constitute a “state- detailing substantial corroborative ment” as defined at 18 U.S.C. Butler’s the assassination involvement with § 3500(e);28 Frazier), plot postman and (e.g., testimony of (1) by 26. We need not consider Abdul-Mani's made said similar a written wit- statement adopted ap- signed contentions ness or because his conviction of and or otherwise him; being proved by the fact is reversed or on other mechanical, electrical, (2) grounds. stenographic, thereof, transcription recording, or other aor substantially which verbatim recital of an is a newly 27. A new trial based on motion discover- by said witness and re- oral statement made where, designed ed evidence “is to afford relief making contemporaneously corded trial, despite the fair of the conduct it later statement. such oral that, clearly appears judge to the trial because statement, (3) taken or A however record- trial, of facts time unknown at the substantial ed, thereof, any, by transcription if or a made Johnson, justice was not done.” United States v. jury. grand said witness to a 464, 467, 327 U.S. 66 S.Ct. 90 L.Ed. 562 (1946). testimony grand jury 29. Hunter’s contradicted (1) testimony regarding his trial whether he had 28. 18 U.S.C. § 3500: assassination; (2) been involved in Tabatabai’s (e) "statement,” The term as used in subsec- whether he was a follower of Khomeini and the (b), (c), (d) tions and of this section in rela- Revolution;” (3) response "Islamic and any by tion to witness called the United States request Belfield’s in for assistance the assassina means— tion scheme. making possible it “to twenty year conclude that sub- 22-106 maximum establishes a affected,” rights stantial not were sentence for convicted as accessories id. those 1248, by “any punishable S.Ct. at the nondisclosure crime death.”33 Butler statutory provi- of the Jencks contends material.30 Because the trial application following sion has clearly court’s no Furman determination was erro- neous,31 Georgia, its Butler’s denial of motion for a (1972), repeal L.Ed.2d 346 death

new trial based on the Jencks Act violation penalty in the District Columbia. He must be affirmed. § urges (1981) that D.C.Code 22-107 must The trial court found the sections of apply, resulting in a maximum sentence of Hunter’s jury testimony in issue not years.34 five material, to be Brady concluded that a phrase We find that “crime any new trial was not in order based on § punishable by death” 22-106 is still Brady violation. if the Even viable as a catego shorthand reference to a material, issue Brady were found to be no ry particularly serious offenses which justification arise, for a new trial would first-degree murder is included. “there is no reasonable doubt about [But- guilt or whether not the additional ler’s] Following holding penal- decisions death evidence is considered.” United States v. ty unconstitutional,35 statutes courts have 97, 112-13, Agurs, relied legislative intent in interpreting simply L.Ed.2d 342 It can- rely other statutes or upon rules which not be said that introduction of Hunter’s notion “capital of a offense.” The courts grand jury testimony would have affected reasoning have followed the of the Fourth outcome of trial. Id. at Watson, Circuit United States S.Ct. at 2397.32 Cir.1973). (4th Watson, F.2d 1125 In notwithstanding Furman, court held that

IV. supra, the right defendant an absolute Appellant Butler was sentenced as an attorneys to two under federal statute accessory after fact to first-degree authorizing counsel for those indicted for § murder under capital crimes, D.C.Code 22-106 18 U.S.C. imprisonment

a term of of not less than six The court reasoned because it was and not twenty years. “imposition more than say Section unable to of the death punished 30. Because by imprison- no reasonable likelihood exists that ble death shall be the nondisclosure could have affected the 20-years. out- ment than for not more Whoever jury, Giglio come of the there likewise no being accessory shall be convicted of after the present. Giglio violation v. United any punishable imprisonment fact to crime supra, 405 U.S. at 92 S.Ct. at 766. punished by imprisonment, shall be fine or be, both, may as the case not more than 'clearly appro- 31. “[A] erroneous’ standard is the imprisonment, one-half the maximum fine or priate by measure we are to which review the both, principal may or to offender which the trial court’s both conclusions as to whether ... (1981). subjected. 22-106 § D.C.Code requested the falls within the material reach of Act, and, so, if whether circumstances any of Whoever shall be convicted criminal any imposition warrant the government’s of sanction for the provisions any offense not covered of produce failure to document.” Code, any general section of or of this law of 691, (1976). March v. 362 A.2d United 702 locally inapplicable the United States not 32. Butler also that there is a Columbia, contends reason- punished by shall be District of able likelihood that nondisclosure of Hunter’s $1,000 exceeding by imprison- a fine not or alleged other criminal conduct an mischar- years, ment than 5 for not more both. immunity agreement acterization of Hunter’s (1981). D.C.Code § 22-107 might jury’s findings have so affected that a new trial is We find these warranted. conten- Jackson, 570, 35. United States v. 390 U.S. 88 unpersuasive. tions to be 1209, (1968); S.Ct. 20 L.Ed.2d 138 Furman v. Georgia, supra. being 33. Whoever convicted of shall be any punisha- after the crime fact 448

penalty why Congress was the penalty sole reason provision removed the death gave an accused right statute, to two attor- kidnapping Congress longer no Watson, neys,” 1128, F.2d at kidnapping 496 intended for be considered a did judicial repeal Furman not effect capital of for there offense which was an un § possi- 3005. Id. The court discussed of pro limited statute limitations and other bility that special protection was of- protections. cedural United States v. Pro complexity fered because of the venzano, F.Supp. (S.D.N.Y.1976), and seri- 423 662 capital (2d Cir.1977). ousness crime cases. aff'd, 556 F.2d 562 See also Massingale, United v. 500 1224 States F.2d following reasoning Courts of Wat- (4th Cir.1974). generally provision son conclude that a re- on lying the notion “capital offense” When the District of Columbia reduced if response remains valid it was penalty first-degree enacted the maximum for mur- offense, to the seriousness of the but no imprisonment der from death to life longer application has only 1981, if it penalty repealed. served itself the death was special protections ensure for offenders penalty The death statute in the District of facing finality already judicially death.36 been invali- Columbia had Georgia, supra; dated. Furman v. analysis legislative This intent is un- Stokes, 37, supra United v. note States only legis- dertaken the courts when 616 n. 4. 365 A.2d at has failed lature to indicate it still whether regards the underlying downgrading offense for punishment substantive This “capital legisla- as a offense.” first-degree interpreted Where murder cannot be has acted longer ture so as to it no this downgrading indicate as a of the status of particular “capital considers of- It crime crime as the most serious of offenses. fense,” such analysis necessary. solidly is not offense that cate- remains an within gory grave to in a offenses referred example, Brown, For v. United States punishable by shorthand manner as crimes (D.C.1980), 422 A.2d 1288-85 death in 22-106 D.C.Code found by reducing court maximum penalty rape impris- 22-106, life from death to which establishes a Section twen- ty onment while the death remained penalty year maximum sentence for accessories alternative,37 Congress punishable viable intended to fact to crimes rape capital death, category impose remove from the the most strict of seeks Similarly, punishments offenses. federal courts have on accessories to the most penalty repeal that where the held death remained serious of crimes. To conclude that United Congress penalty States Code38and intended to invali- of the death majority charged. E.g., 36.A of courts Ken have found defend United States v. offense (9th Cir.1980); who penalty nedy, ants do not face the are death no United States 618 F.2d (M.D.Fla.1981), longer Helmich, special procedural safeguards F.Supp. entitled to 1247-51 v. (7th Cir.1983). court-appointed attorneys. 'd, as two such United 704 F.2d 547 aff (9th Dufur, States 648 F.2d Cir. 514-15 Although other courts have reached different 1980), denied, cert. 450 U.S. conclusions, the decisions are still based (1981); Shep L.Ed.2d United States Annot., legislative intent. See A.L.R.3d herd, (7th Cir.), 576 F.2d cert. de 727-29 nied, L.Ed.2d 155 (1978); Weddell, penalty provision United States v. 567 F.2d the District 37. "The death [in (8th Cir.1977), denied, cert. was invalidated as a result Code] Columbia (1978). Contra Unit Supreme L.Ed.2d 761 Court’s decision in Furman However, Watson, supra. Georgia, States v. courts ed 33 L.Ed.2d (1972).” Stokes, apply continued statute A.2d have the unlimited 346 615, United States v. (18 (1982)) (D.C.1976). Congress and limitations U.S.C. 3148 more 616 n. reduced § (18 rape provisions penalty for life restrictive bail U.S.C. maximum from death to § (1982)) imprisonment capital in 1970. offenses with unconstitutional reasoning penalty provisions, death that these provisions (1982). are nature related to the serious § 3566 38. 18 U.S.C. § date disregard 22-106 would the lawmak- principal knew that the committed a crime ers’ consistent treatment of and murder as the that rendered assistance in order to offense, most serious hinder apprehension, and would mandate the latter’s trial or results, i.e., punishment. States, year absurd Clark v. five maximum United (D.C.1980). A.2d sentence for first-degree accessories to murder, year while fifteen maximum re- case, government’s In this evidence mains first-degree for accessories to bur- accomplice consisted of Hunter’s §§ glary. 22-1801(a), See D.C.Code -106 outlining planning and execution of the interpretation Where “a literal assassination; the circumstances surround- result, statute would lead to an absurd ing relationship principal between the the court legislative will follow the intent Abdul-Mani; Belfield and Abdul-Mani’s States, -” Mulky v. United 451 A.2d rental upon request; of the car Belfield’s (D.C.1982). the “highly publicized” nature of the assas- including sination the fact that several ear- We phrase conclude that the pun- “crime ly reports Belfield; identified Abdul-Mani’s § by ishable death” in D.C.Code 22-106 is a private accomplice visit to Butler in the legitimate particu- shorthand reference to shortly assassination; D.C. Jail after the larly serious among offenses which first- accomplice Belfield’s final instruction to degree murder prominently ranks. The tri- Hunter to tell report Abdul-Manito the car al court did not err in regarding twenty stolen; Caffee’s call to Abdul-Mani for- years as the allowable maximum in sen- warding order; Belfield’s Abdul-Mani’s tencing appellant. false that the car had been stolen part; part; reversed in re- Affirmed and his concerning false statements where manded. car; he had finally, last left the and Abdul- perjury Mani’s jury. before the PRYOR, Judge, Associate concurring in evidence, jury From this could have part dissenting part: reasonably concluded that Abdul-Mani I parts I-A, III, concur in of the IY knew that Belfield participated majority’s opinion. respectfully I dissent killing reported Tabatabai when he the car parts II, from I-B and however. stolen. admittedly The evidence is circum- With respect part II majority’s of the stantial, heavy coverage but the media opinion, considering Abdul-Mani’s accesso- crime, coupled with Abdul-Mani’s ad- ry conviction, after the fact I would hold— mission that he papers every- “read the like applying the familiar test regarding suffi- else,” private one and his and hurried con- ciency evidence, of the v. United accomplice ference with Butler on Crawford States, U.S.App.D.C. 156, 375 F.2d 332 permits the inference of reasonable Abdul- there ample was knowledge.1 Mani’s This inference is all —that from jurors which reasonable could con- course, required, is to send the clude, beyond doubt, ap- reasonable question jury. pellant Abdul-Mani guilty of the of- I Similarly, appellant’s think that false charged. fense report that the rental car had been stolen law, common could, circumstances, modified D.C. under the be viewed (1981), Code 22-106 requires govern- a reasonable as a deliberate effort prove ment to alleged accessory apprehension.” “to hinder the felon’s Although only accessory requires possess Clark v. United indi- that the alleged accessory give cated that did not have information sufficient him reasonable crime, "personal knowledge” principal's grounds principal it to believe that the had com- opinion felony. Lynch, is not clear from that that such knowl- mitted a State v. 79 N.J. edge required 337-39, is to sustain a conviction. The 399 A.2d I believe that fact, government’s common law of after the this was established evi- derived, jurisprudence which our own id. at dence in the case. instant apparent It is that I differ with the showing ma dence Belfield’s whereabouts after jority on aspects two question. of this Ini that date. tially, I prior do not read the decisions to This notwithstanding, I think it unwise government hold that the prove must that for the court to hold as a matter of law the accessory’s did, fact, assistance help that one cannot designed “render aid principal good make his escape. It is apprehension,” etc., hinder to one who is enough that the knowingly accused took beyond conceded to be the reach of law steps overt awith view—successful or enforcement authorities. What this hold- rendering not—toward aid. See United ing does in superimpose effect is to Honesty, 255, States v. 148 U.S.App.D.C. requirement possible of actual or assist- (1971)(where 459 F.2d 1279 a murder sus upon ance offense, the common law pect by police was tracked officers to an commensurately create the defense of im- apartment wife, shared with his she unsuc possibility to an accessory charge. I find cessfully blocked a help bathroom door to authority no position,3 for this and believe him police; elude the court concluded that upon it to be based an unsound view of her overt acts adequate served as an basis why legislature punish has chosen to conviction). Thus,

for I submit that it is place. accessories in the first the character accessory’s or nature of the (along act requisite intent) with the which jurisprudential The current trend is to paramount, not the success or failure impossibility. eliminate the defense of principal which the seeking encounters in Henley, Pa.Super. Commonwealth v. escape.2 See Maddox v. Common 564, 365, (1983); see, 459 A.2d e.g., wealth, 686, 349 S.W.2d (Ky.1961)(any LaTraverse, State v. 443 A.2d given assistance apprehension to hinder (R.I.1983) abolition); (judicial State v. Hen- felon is support sufficient to accessory con derson, (Me.1980) 416 A.2d viction, although acts, types certain such (statute); Model Penal generally see Code as the giving of charity disclosing or not (U.L.A.) policy 5.01 The under- crime, do not as a matter of law tend to pinning this trend is traditional com- apprehension). hinder culpability mon law view that of an judged solely by A actor is best his manifest- second disagreement area of touches See, legal People ed intent and concept e.g., conduct. impossibility. My re- 725, 726, Dlugash, 41 view of the N.Y.2d 363 N.E.2d record does not lead me to 1155, 1156, that, conclude 395 N.Y.S.2d reported when Abdul-Mani (“The 31,1980, July car stolen on ultimate issue is whether individu- already actions, escape. though failing “effected” his I al’s intentions and do not think to achieve concedes this a manifest and malevolent crimi- point appeal. purpose, danger organ- Belfield was last seen in nal constitute a Montreal on reading 23. The fairest ized society magnitude of sufficient to war- of the record holds that imposition sanctions.”); there is no evi- rant the of criminal majority interprets 2. My noting elements of the research has disclosed one case require offense to that the aid rendered had or expressly accessory princi- that the “did aid” the might hindering prin- have had the Hicks, pal, N.C.App. supra State v. note effect cipal’s apprehension, requiring rather than holding 207 S.E.2d at but no cases proof accessory's designed that the action was showing necessary of actual aid is a element (intended) Here, to have that effect. Abdul- of the common law offense. In most Mani’s false of the stolen car could be cases, published fairly it is obvious designed viewed a reasonable as aid accessory’s actually princi- action did aid the apprehension, punish- hinder Belfield’s trial or view, however, pal way. my in some In this is Hicks, N.C.App. ment. See State v. 557- govern- require not a sufficient reason to (1974) (giving 207 S.E.2d 320-21 false showing every ment to make such case. purpose helping principal sup- Potter, ports accessory charge) (quoting State v. (1942)). 221 N.C. S.E.2d Gosser, 428, 437, Wash.App. State v. (purpose P.2d aboli- ROSEN, Respondent. re In Sol Z. impossibility

tion of punish defense is to No. 83-1288. “culpable intent”) (quoting State v. David- Appeals. District Columbia Court of son, Wash.App. 897-98, P.2d (1978)). culpability, This it be- Argued July lieved, mitigated should not external Aug. Decided 1984.* circumstances outside actor’s control that are later ascertained appellate reviewing transcripts

courts with cold

twenty-twenty hindsight. generally

Model Penal Code Tent. Draft No. Arti- (1960) (discussing

cle at 30-38 rejection defense).

of impossibility reported

If Abdul-Mani car stolen

July 31 Belfield needed belief perfect such escape, assistance then my opinion the conviction should stand

regardless of whether Belfield was actual-

ly safe Iran on that date. I Because

believe that the trial evidence adduced at

reasonably permits inference, an I such jury’s

would not reverse the verdict.

Although I accept the rule set forth

part I-A of the majority’s opinion regard-

ing quantum proof necessary to es-

tablish conspiracy the existence of a as a

predicate to admitting coconspirator hear- evidence,

say I challenged think the evi-

dence, main, in the hearsay be- admissible,

cause it would been re- have

gardless therein, of the truth asserted as

showing relevant circumstances surround-

ing Abdul-Mani’s alleged actions an ac-

cessory. Therefore, join part I cannot

I-B. exception sufficiency

With the charge against Abdul-Mani evidence, analysis I related

join opinion majority in all other

respects. August ing opinion decid case with to follow.

* On an order was entered

Case Details

Case Name: Butler v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jul 23, 1984

Citation: 481 A.2d 431

Docket Number: 82-323, 82-1387 and 82-314

Court Abbreviation: D.C.