RODERICK CHEW, APPELLANT, v. UNITED STATES, APPELLEE.
No. 22-CF-0163
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided May 2, 2024
Before EASTERLY, MCLEESE, and SHANKER, Associate Judges. Opinion for the court by Associate Judge EASTERLY. Concurring opinion by Associate Judge EASTERLY at page 19.
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Keith B. Lofland was on the brief for appellant.
Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Meredith Mayer-Dempsey, Robert Platt, and John P. Mannarino, Assistant United States Attorneys, were on the brief for appellee.
EASTERLY, Associate Judge: Roderick Chew appeals from his convictions for multiple gun-related offenses. Mr. Chew argues that his convictions for possession of an unregistered firearm (“UF“) and carrying a pistol without a license (“CPWL“) should be vacated because both the District‘s firearm registration statute,
Although Mr. Chew did not raise his constitutional claims in Superior Court, we assume they are reviewable for plain error. We conclude that Mr. Chew cannot prevail under the test for plain error because he has failed to show any “clear and obvious” constitutional defect in these statutes that could affect his rights. We thus reject his constitutional claims. His sufficiency and merger claims likewise fail. Accordingly, we affirm.
I. Second Amendment Challenges
Mr. Chew argues that, following the Supreme Court‘s decision in Bruen, the District‘s firearm registration and license to carry statutes, D.C. Code
As an initial matter, the government argues that Mr. Chew “waived” his constitutional challenges by failing to raise them before the Superior Court in compliance with
We need not decide whether, by failing to preserve his constitutional claims in the trial court, Mr. Chew waived and rendered these claims unreviewable on appeal absent a showing of good cause or, as is generally the case for unpreserved arguments, he merely “forfeited his right to have this court consider on direct appeal the ‘merits’ of [these] claim[s] under the court‘s regular standard of review” and they remain reviewable by this court subject to the strictures of plain error review. Allen v. United States, 495 A.2d 1145, 1151 & n.11 (D.C. 1985) (en banc) (footnote omitted); accord Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc); see also United States v. Olano, 507 U.S. 725, 733-34 (1993). Even if we assume without deciding that Mr. Chew‘s claims are reviewable for plain error,1 but see post (Easterly, J., concurring), Mr. Chew fails to make such a showing.
A. Facial Constitutionality of the District‘s Firearm Registration Statute, D.C. Code § 7-2502.01(a)
Mr. Chew argues that a portion of the District‘s firearm registration statute,
The discretionary language Mr. Chew attacks, however, did not impact his ability to receive a firearm registration certificate or his conviction for UF. While the statute provides that the District “may . . . issue[]” a registration certificate to individuals who meet the requirements of the act,
Because Mr. Chew was not eligible for a firearm registration certificate under
Mr. Chew is not otherwise eligible for a firearm registration certificate. His claim that
B. Facial Constitutionality of the District‘s Firearms Licensing statute, D.C. Code § 22-4506(a)
Mr. Chew also argues that the District‘s licensing scheme for the public carry of firearms in
Mr. Chew argues, first, that his conviction for CPWL should be vacated because the “proper reason” provision of
Mr. Chew also argues that
II. Sufficiency of the Evidence
In addition to his Second Amendment challenges, Mr. Chew argues that the evidence was insufficient to prove beyond a reasonable doubt that he unlawfully possessed a firearm under
A. Factual Background
At trial, the government presented evidence that, at around 4:00 pm on October 23, 2020, undercover MPD officers monitoring the area near 45th Street, NE, and Edson Place, NE, observed Mr. Chew drive up in a silver SUV. A woman wearing pink was seated in the passenger seat. Mr. Chew exited the SUV, interacted with an individual, and exchanged money for an object, leading the officers to suspect he had engaged in a “hand-to-hand drug sale.”4 As Mr. Chew drove away, the undercover officers broadcast a lookout for him and other officers began following him, but Mr. Chew drove off at “a high . . . speed.”
As Mr. Chew drove, he passed a private ambulance that was stationary. The ambulance driver “witnessed a person fleeing from the police” in a silver SUV. While the SUV was “[a]bout one or two car lengths” away from the ambulance driver‘s location, the ambulance driver saw the person driving the SUV “reach over the passenger” (a “person wearing pink“), and “throw a gun out [of] the passenger side window.” The ambulance driver testified that he “clearly s[aw]” the gun “as it was flying,” and saw it land on “a patch of grass by the sidewalk.” When he walked over to where he had seen the gun land, he found a “firearm . . . near the sidewalk.” The ambulance driver flagged down a police officer. The police recovered the pistol from the ground, and then canvassed the area until they located and stopped Mr. Chew‘s SUV. When they stopped the vehicle, the woman wearing pink was driving and Mr. Chew was in the passenger seat. The officer who saw Mr. Chew engage in the suspected drug transaction identified him as the same individual he had seen earlier.
Following Mr. Chew‘s arrest, a police officer swabbed the firearm for fingerprints, but was unable to recover any. He also swabbed the firearm for DNA. A DNA expert witness for the government tested the DNA swab from the firearm against a DNA sample from Mr. Chew. The expert testified that the firearm contained DNA from a minimum of four individuals, at least one of whom was male. She further opined that obtaining the DNA mixture she found on the firearm was “17.3 billion times more likely” if some
The defense, cross-examining the government‘s witnesses, established that Mr. Chew was driving quickly when the ambulance driver saw him pass by and the ambulance driver could not remember if the windows on the SUV were tinted; the ambulance driver‘s testimony that police officers were following Mr. Chew‘s vehicle “very close[ly]” when he threw the gun did not align with the officers’ testimony that they were not following Mr. Chew at the time (and no officer saw a gun thrown out of the SUV); and the DNA expert had not tested the swab from the firearm against the DNA of the passenger in Mr. Chew‘s vehicle.
Mr. Chew stipulated that he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year and that he knew he had been convicted of that crime. Weighing the evidence, the jury acquitted Mr. Chew of unlawful possession of ammunition, but found him guilty of one count of UP, one count of CPWL, and one count of UF.
B. Analysis
Mr. Chew challenges the sufficiency of the evidence supporting his conviction for UP. “When assessing whether the evidence at trial sufficiently supports a conviction, we view the evidence in the light most favorable to the verdict and defer to the fact-finder‘s credibility determinations.” Hernandez v. United States, 129 A.3d 914, 918 (D.C. 2016). “The evidence is sufficient if any rational fact-finder could have found the elements of the crime beyond a reasonable doubt.” Id.
Because Mr. Chew stipulated to knowing he had a prior felony conviction, all the government had to prove to substantiate his guilt of UP was that Mr. Chew had possessed a firearm. Washington v. United States, 53 A.3d 307, 309 (D.C. 2012) (explaining that to prove UP, the government must show that a defendant (1) “had been convicted of a felony,” and (2) “owned or kept a firearm” or “had a firearm in his possession or under his control“). The government could prove possession by demonstrating that Mr. Chew had either actual or constructive possession of the firearm. Taylor v. United States, 662 A.2d 1368, 1372 (D.C. 1995). Constructive possession requires proof that Mr. Chew (1) knew of the firearm‘s presence, (2) “had the power to exercise dominion and control over it,” and (3) “intended to exercise dominion and control over it.” Schools v. United States, 84 A.3d 503, 507-08 (D.C. 2013) (internal quotation marks omitted). The government may prove constructive possession through either direct or circumstantial evidence. Rivas v. United States, 783 A.2d 125, 129 (D.C. 2001) (en banc).
Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Mr. Chew possessed a firearm. Notwithstanding the defense‘s efforts to poke holes in the government‘s case, see supra, there was still ample evidence to support the conclusion that Mr. Chew knew the firearm was in the vehicle, had the power to exercise dominion and control over it, and intended to do so. In particular, an eyewitness testified to seeing Mr. Chew throw the firearm out of the vehicle he was driving, police recovered a firearm from the spot where the eyewitness saw the firearm thrown, and DNA evidence strongly linked the recovered firearm to Mr. Chew.
The facts of Proctor and Curry make the comparison inapt. In Proctor, officers stopped Mr. Proctor and found marijuana in his car, then searched his house where four adults (but not Mr. Proctor) were present and, dumping out the contents of a CVS bag found under a mattress, found a firearm and mail addressed to Mr. Proctor. 172 A.3d at 399-400 & n.6. This court concluded that the evidence was insufficient to convict Mr. Proctor of firearm possession because: “no government witness . . . testified that Mr. Proctor had been seen previously with the gun“; another person also occupied the bedroom where the firearm was found and testified that she had purchased the gun; Mr. Proctor was not at home when the gun was found but multiple other people were; there was no testimony about whether the officer had looked to see what was on the floor before dumping the bag out; and there was no evidence linking Mr. Proctor to marijuana and cash found at the home or the marijuana found in the car he was driving. Id. at 406-07. In Curry, this court likewise concluded the evidence was insufficient to convict Ms. Curry of firearm possession where the firearm was discovered in a nightstand among her clothes but in an apartment that she shared with others and only stayed in “sporadically,” there were no fingerprints linking her to the firearm, and she was not in the apartment when the police found the firearm but five other people were present. 520 A.2d at 259-60, 264-65. The thin evidence in Proctor and Curry is readily distinguishable from this case where, again, DNA evidence linked Mr. Chew to the firearm that the ambulance driver saw him throw. And while Mr. Chew had a passenger in the car, the ambulance driver testified that Mr. Chew, not the passenger, threw the firearm from the vehicle.
Viewing the evidence in the light most favorable to the verdict, a reasonable juror could find beyond a reasonable doubt that Mr. Chew knew the gun was present and had the ability and intent to exercise dominion and control over it.
III. Merger of CPWL and UF with UP
Lastly, Mr. Chew contends that, under the Double Jeopardy Clause, his convictions for UF and CPWL should merge with his conviction for UP. “The Double Jeopardy Clause prohibits a second prosecution for a single crime and protects against multiple punishments for the same offense.” Washington, 53 A.3d at 308 (internal quotation marks omitted). The Double Jeopardy Clause does not, however, “prohibit separate and cumulative punishment for separate criminal acts.” Id. (internal quotation marks omitted). To determine whether multiple convictions under distinct statutory provisions are permissible, we generally apply the Blockburger test, and assess whether each offense “requires proof of a fact which the other does not.” Id. at 309; see Blockburger v. United States, 284 U.S. 299, 304 (1932); see also In re M.S., 171 A.3d 155, 158 (D.C. 2017) (explaining that “[t]he Blockburger analysis applies unless
As we have explained previously, UF, CPWL, and UP each contain different elements and do not merge. See, e.g., Washington, 53 A.3d at 309 (concluding that UP, CPWL, and UF all contain separate elements); Hammond v. United States, 77 A.3d 964, 969 (D.C. 2013) (reiterating that UP and UF do not merge). “To prove UF, the government must show that the defendant [(1)] knowingly possessed a firearm; and [(]2) that firearm had not been registered as required by law.” Washington, 53 A.3d at 309;
Mr. Chew nevertheless argues that his convictions for CPWL and UF should merge with his conviction for UP because UP—penalizing unlawful possession of a firearm by a person previously convicted of a felony—essentially imposes an enhanced punishment for violations of the District‘s firearm licensing and registration schemes. Pointing to this court‘s decision in Grogan, 271 A.3d 196, Mr. Chew argues that the Council meant to penalize UP through the more severe sentence in
IV. Conclusion
For the foregoing reasons, we affirm Mr. Chew‘s convictions for UF, CPWL, and UP.
So ordered.
RODERICK CHEW, APPELLANT, v. UNITED STATES, APPELLEE.
No. 22-CF-0163
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided May 2, 2024
EASTERLY, Associate Judge, concurring
EASTERLY, Associate Judge, concurring: The majority opinion assumes without deciding that Mr. Chew has not, before this court, “waived” his unpreserved constitutional claims by virtue of his noncompliance with
As I explain, infra Part I, the Supreme Court and our court have long recognized
In 2017, the Superior Court Rules Committee substantially revised Rule 12 to address this confusion and clarify that claims raised out of time under the rule are not waived, they are simply “untimely.” See infra Part IV; see also
amendment where, as here, the government asserts “waiver” due to noncompliance with
The government‘s argument that claims not timely preserved under
I. Waiver Versus Forfeiture
Until this court‘s 1985 decision in Allen and the Supreme Court‘s 1993 decision in Olano, the difference between waiver and forfeiture remained murky. Courts often used the terms waiver and forfeiture interchangeably, without distinguishing between
In Allen, this court, sitting en banc, took deliberate steps to untangle waiver from forfeiture and differentiate the two terms. 495 A.2d at 1151 & n.11. We explained that “waiver . . . is ‘an intentional relinquishment or abandonment of a known right or privilege.‘” Id. at 1151 n.11 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). We explained that forfeiture, by contrast, is a defendant‘s “default” or failure to raise a claim before the trial court. Id. at 1151 & n.11. If a defendant fails to raise a timely objection before the trial court, the defendant has “forfeited [but not waived] his right to have this court consider on direct appeal the ‘merits’ of his claim under the court‘s regular standard of review” and that claim is instead subject to “plain error” review. Id. at 1151 (emphasis added, footnote omitted).
In Olano, the Supreme Court endorsed this same distinction between waiver and forfeiture. 507 U.S. at 733. The Court clarified that “[w]aiver is different from forfeiture.” Id. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” Id. (internal quotation marks omitted). The two carry different consequences; “forfeiture, as opposed to waiver, does not extinguish an ‘error‘” or preclude further review. Id. Instead, forfeiture alters how that claim may be reviewed on appeal: forfeited errors are reviewable only for plain error. Id. at 733-34.
Allen and Olano thus made clear that unpreserved errors should be considered forfeited, but not waived, and may be reviewed on appeal subject to the strictures of the test for plain error. Allen, 495 A.2d at 1151-52 & n. 11; Olano, 507 U.S. at 733-34.
II. The Availability of Plain Error Review
Even before there was a clear distinction between waiver and forfeiture, both our court and the Supreme Court recognized appellate courts’ authority to correct plain errors not properly objected to in the trial court.
The Supreme Court appears to have first announced its own power to review unpreserved claims for plain error in Wiborg v. United States, 163 U.S. 632, 658 (1896) (explaining that “if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it“). See
Soon after this court‘s creation, we recognized that we too had the power to review unpreserved claims for plain error. See Young v. United States, 284 A.2d 671, 673 (D.C. 1971) (explaining that “in order for us to reverse the trial court [for its failure to suppress evidence sua sponte], we would have to hold that the way in which the police discovered the incriminating evidence was so patently illegal that it was pla[i]n error on the part of that court to fail to notice the inadmissibility of the proffered items“); Watts, 362 A.2d at 709 (“In order to discourage the intentional withholding of objections by defense counsel, errors not objected to at trial are unreachable on review unless they fall within the purview of the plain error rule.“) (emphasis added); see also, e.g., Brown v. United States, 289 A.2d 891, 893 (D.C. 1972) (“The possibili[ty] of suppression therefore being foreclosed [because of defendant‘s failure to file a pretrial motion], absent a showing of plain error which we do not find upon this record, the court did not err when it admitted [the] evidence” challenged on appeal) (emphasis added); Adams v. United States, 302 A.2d 232, 235 (D.C. 1973) (examining the “evidence as whole” to determine if the trial court plainly erred in failing to suppress evidence).
This common law doctrine was incorporated into court rules. When the Federal Rules of Criminal Procedure went into effect in 1946 (after their adoption by the Supreme Court in 1944 and transmission to Congress in 1945),
The manner of review for plain error has evolved and, with the Supreme Court‘s decision in Olano, has become a structured four-pronged test.2 See 507 U.S. at 732-35 (explaining that an appellate court must consider whether the defendant has shown that (1) there is error, (2) such error is “plain,” meaning “clear” or “obvious,” by the time of appellate review; (3) the error affected appellant‘s “substantial rights“; and (4) the error seriously affected “the fairness, integrity or public reputation of the judicial proceedings“); see also Johnson v. United States, 520 U.S. 461, 467 (1997) (summarizing the plain error test, citing Olano); Headspeth v. United States, 910 A.2d 311, 321 (D.C. 2006) (laying out the plain error test, quoting Johnson, which cites Olano); In re Taylor, 73 A.3d 85, 96 (D.C. 2013) (observing that “[t]he test for plain error is well-established” and laying out the four factors, quoting Olano). But the rationale for plain error review—“to encourage all trial participants to seek a fair and accurate trial the first time around” while allowing “obvious injustice [to] be promptly redressed,” United States v. Frady, 456 U.S. 152, 163 (1982)—remains the same. See, e.g., Puckett v. United States, 556 U.S. 129, 135 (2009) (acknowledging the “careful balance [plain error review] strikes between judicial efficiency and the redress of injustice“); In re Taylor, 73 A.3d at 95 (explaining that plain error review “places limits on [our] own authority to review errors raised for the first time on appeal so as to ‘induce the timely raising of claims and objections’ at trial to any error that has occurred to the defendant‘s detriment,” while allowing this court to still review and correct “egregious” errors); Headspeth, 910 A.2d at 318 (recognizing that plain error review allows courts to correct “a miscarriage of justice” but also makes the failure to raise claims before the trial court “particularly costly“).
III. Plain Error Review and Trial Court Timing Requirements
From the beginning, the plain error doctrine acknowledged in
Specifically,
The Supreme Court reached the same conclusion in Frady. Examining the interaction between
IV. Rule 12 and the Government‘s Waiver Argument
Against this backdrop, the government argues that “[p]ursuant to
As noted above, the Superior Court Criminal Rules of Procedure are modeled on the federal rules. The original text of
“[d]efenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial . . . . Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.”
Even after our court and the Supreme Court elucidated the distinction between waiver and forfeiture in Allen and Olano and clarified that courts should review forfeited errors for plain error on appeal in Watts, Allen, Frady, and Olano, the “waiver” language in old
The non-standard use of the term “waiver” in old
The government‘s argument that Mr. Chew waived his constitutional claims by virtue of his noncompliance with
Analyzing
My conclusion is compelled, first, by the text of the amended rule. Even assuming that the Superior Court Criminal Rules apply to this court‘s appellate review, but see supra note 1, nothing in the amended rule‘s text suggests that the rule addresses the availability of appellate review or contravenes the traditional rules of waiver and forfeiture. The amended rule simply directs that claims of error not raised before trial are “untimely.”
Moreover, while
Second, my interpretation of the amended
Third, I see no policy rationale for precluding plain error review of unpreserved claims governed by
Fourth, a number of federal courts have reached this same conclusion and determined that unpreserved claims should not be considered waived under the revised
Applying plain error review to claims not timely preserved under
Notes
It makes sense that this statute would generally disfavor untimely suppression motions, but still allow them to be filed before the Superior Court subject to a good cause safety valve. Olafisoye v. United States, 857 A.2d 1078, 1084-85 (D.C. 2004) (explaining that under
The Supreme Court also discussed old