United States v. Moore

injury no they suffered rather because but short, as qualify did not

at all. In Gieg- any definition. See under

“victims” §a 3A1.1 (finding

er, because, in “con- unwarranted

adjustment within medical fraud cases

trast to other patients suffered in which

this Circuit potential [a] harm from at least

harm or scheme, suf- patients here

fraudulent [ijnstead, harm[;] patients no

fered Anderson, scheme”); from

benefited adjust- (denying F.Supp.2d “failed to because

ment any were harmed patients

show that kick- Medicare the defendant’s

way” from scheme).

back

Ill reasons, we conclude foregoing

For the 3Al.l(b)(l)’s § ad- 2-level

that Guideline

justment applies for vulnerable victims conviction,

only to victims of offense rele- also to victims of the defendant’s

but judgment Accordingly,

vant conduct.

of the district court is

Affirmed. America, Appellee

UNITED STATES

Rodney MOORE, L. also known Rasoo, Appellant. 05-3050, 05-3051, 05-3052,

Nos.

05-3053, 05-3054, 05-3064. Appeals,

United States Court

District of Columbia Circuit.

Argued March 2011. July

Decided Machen, Jr., Attorney,

were Ronald U.S. Roy III W. McLeese and Elizabeth Tros- man, Attorneys, Assistant U.S. and Angela Miller, Special M. Attorney. Assistant U.S. Leckar, appointed by the Stephen C. Zwerling, Neil H. court, Kenneth John SENTELLE, Judge, Before: Chief Defender, Jaffee, Federal Public Assistant KAVANAUGH,2 ROGERS1 and Circuit Murray argued the A. cause and Charles Judges. them on the briefs appellants. for With Kramer, Federal Public Defend- were A.J. Opinion for the Court filed PER Pérsico, er, appointed Deborah A. CURIAM. the court. Opinion concurring part in Part I filed Gerardo, Ann Assistant U.S. At- Leslie Judge Circuit ROGERS. Office, Attorney’s

torney, argued the U.S. appellee. With her on the brief PER cause CURIAM:

Table of Contents I. Batson..................................................................40 A. Batson Framework...................................................40 Strike-by-Strike Analysis.............................................42

B.

II. Stun Belts..............................................................44 Anonymous Juey.........................................................48

III. IV. Prosecutorial Misconduct ...............................................50 Opening A. Closing Arguments........................................50 B. Overview Witness ....................................................54 C. Cumulative Error ....................................................61 404(b) V. Rule Evidence....................................................63 Brady...................................................................64 VI.

VII. Statute of Limitations...................................................65 VIII. Joinder.................................................................68

IX. Confrontation Clause...................................................69 X. Jencks Act..............................................................74 Religious Testimony..........................................75

XI. Conversion Testimony XII. Of Steve Graham..............................................76 XIII. Destruction Of Evidence................................................78 Multiple Conspiracies XIV. Instructions.......................................78 Judge Rogers Circuit part Judge Kavanaugh join concurs in in Part 2. Circuit does not I, see concurring opinion, part and in Parts IV.A.1 and IV.A.2. infra V, Part note 11. infra Continuing Enterprise Conviction for Criminal ...................80 XV. Moore’s Merger Murder Of Moore’s Convictions ..................................81 XVI. of Antoine Ward

XVII. Exclusion Confession...................................81 Anthony for of XVIII. Smith’s Conviction Murder Dent...........................83 of XIX. Ineffective Assistance Counsel Smith’s Claim..........................85 Conspiracy XX. Withdrawal Instruction ......................................89 Aiding Abetting XXI. and Instruction..........................................90 XXII. Severance..............................................................94 Handy’s New Trial Motions

XXIII. ..............................................96 Sufficiency A. of Evidence............................. Brady...............................................................98 B. XXIV. Conclusion.............................................................102 from appeal judgments According

Six defendants to the indictment in the dis- of conviction the district court on multi- trict court and the evidence of the United drug ple charges, including conspiracy, trial, during States the late and 1980s conspiracy, continuing RICO criminal en- 1990s, appellants Rodney Moore, Kevin murder, terprise, other and related Smith, Gray, Raynor, Timothy John Calvin charges in violation of federal and District Nunn, Handy, and along Lionel oth- They of assert Columbia laws. a wide ers, of some whom were also but indicted variety alleged covering, among of errors separately, conspired tried conduct issues, things, evidentiary other both as to an ongoing drug did conduct distribution sufficiency; admission and conduct of the in Washington, business D.C. In the trial; misconduct; prosecutorial business, of conducting course various review, Upon instructions. we conclude of co-conspirators committed a wide- of most the asserted errors either were not erroneous or As were harmless. ranging including course of violence category alleged to one involving issue murders. United States obtained a violations Confrontation Clause of superseding upon 158-count indictment Constitution, a Supreme Court deci- jury. which the aby defendants tried sion intervening the trial our between months, After trial lasting over ten compels consideration of the ease us jury returned of guilty verdicts on several drug charges remand convictions of some charges, including conspir- the drug (Counts 126-138) for further consideration § acy, conspiracy, 21 U.S.C. the RICO light court in district the Su- 1962(d), § continuing U.S.C. criminal preme opinion. We Court’s also remand (Moore enterprise Gray), 21 U.S.C. proceedings further a claim of ineffec- 848(a)-(b), murder, § § 22- D.C.Code tive assistance of raised appel- counsel -3202; 22-2101; § D.C.Code (Counts 5). lant Smith 4 and We vacate 1959(a)(1); § U.S.C. U.S.C. one appellant murder conviction as to that, 848(e)(1)(A); § parties agree, merges § Moore 18 U.S.C. assault (Count 32). with another conviction (Moore Gray), with intent to murder 22-503, -3202, § illegal

D.C.Code use (2005) (alterations (Moore, Gray, Raynor, Handy, and 162 L.Ed.2d 196 and firearm omitted). 924(c), quotation § distribution of internal marks In the Nunn), 18 U.S.C. court, appellants argued that the (Gray), heroin 21 U.S.C. district and cocaine base prosecution’s peremptory use of 34 strikes 841(a)(1), with intent to dis- possession § id., (Raynor), tampering to remove African-Americans from the ve- tribute heroin jurors regular prima nire for established a (Handy), 18 U.S.C. witness with a Accepting case of discrimination. 1512(b). judg- trial court entered § facie cleared, prima that the hurdle was criminal sen- substantial imposing ment facie court amounting required prosecution to terms in the district generally tences explain peremptory each of its chal- from which the imprisonment life excess of lenges of After the African-Americans. appeal. now defendants prosecution provided explanations, those facts, evidence, of the Further details required argu- the district court further forth will be set as neces- proceedings part from both sides as ment Batson’s of the issues raised sary for the discussion stage. final The court allowed the defense by appellants. validity to dispute gov- counsel of each explanation required ernment L3 prosecution individually respond equal protection The Constitution’s argument disputed defense’s on each prosecutors using bars from guarantee actively engaged strike. The court challenges prospec to strike peremptory process, consulting entire its notes and jurors on the basis of race. See Bat tive correcting questioning counsel. At Kentucky, 476 U.S. 106 S.Ct. son v. hearing, the conclusion of the multi-hour (1986). case, 90 L.Ed.2d 69 In this appellants the district court ruled that had although jurors 9 of the 12 were African- purposeful not “established discrimina- American, appellants argue prose that the Miller-El, tion.” 545 U.S. unconstitutionally peremp cution used its 2317; Elem, S.Ct. see also Purkett v. tory challenges ju prospective to remove 765, 768, U.S. 131 L.Ed.2d were African-American. The rors who (1995) (“[T]he per- ultimate burden of rejected district court appellants’ chal regarding racial suasion motivation rests lenge. affirm the district We court’s deci with, from, never opponent shifts sion. strike.”). A challenge proceeds Batson in three court, appellants dispute In this the dis- First, steps: the defendant must establish trict court’s conclusion that there was no “a prima discriminatory jury case of facie Batson violation. totality selection of the relevant facts a prosecutor’s during about conduct A. Second, the defendant’s trial.” own “the Appellants’ challenge State come forward with a neutral to the district [must] explanation challenging jurors demanding decision within court’s Batson faces Third, arguably targeted rul appeal, class.” standard. “On trial court’s discriminatory “trial court duty ing then will have the on the issue of intent clearly determine if the unless it is erro defendant has established must be sustained Louisiana, purposeful Snyder v. discrimination.” Miller-El v. neous.” 552 U.S. Dretke, 231, 239, 2317, 472, 477, 128 S.Ct. 170 L.Ed.2d concurring part Judge Rogers separate opin- in Part I. Circuit filed a ion (2008). empha jurors’ demeanor, Supreme prospective The Court has of the that role pivotal government’s explana- that the “trial court has a the race-neutral sized genuine. Appellants in claims.” Id. The tions were evaluating Batson cite no of controlling precedent requiring that the demeanor a explained Court has trial exercising challenged a court render its in a prosecutor strike-by- the decision of dis strike is often “the best evidence strike format. Given the obvious thor- (alterations omit criminatory oughness application intent.” Id. the district court’s ted). court, court, step, The district unlike this of Batson’s third we cannot conclude lack strike-specific observed the demeanor first the prosecutor’s findings Further, “exceptional hand. the basis the sort of when asserted creates circum- juror’s for a behav prospective strike is stances” would overcome our defer- court, ior in trial court ob trial Snyder, the will have ence to the court. 552 U.S. at juror’s served and evaluated demean- 128 S.Ct. 1203. reasons, or as For the well. See id. those Moreover, the circumstances of this Supreme has stated “in the Court seriously case appellants’ undermine circumstances, absence of we exceptional claim. Nine of 12 jurors in seated resolving

would defer to trial court” in this ease African-American. That (alterations omitted); a Batson claim. Id. jury composition mirrored the make-up of York, see also v. New Hernandez venire, which contained 68 African- 352, 365-66, 114 L.Ed.2d out persons Americans of 90 in pool (1991) opinion). (plurality regular jurors from which were selected. Thus, prosecution while the used many argue Appellants that we should strikes to remove prospective African- reject findings the district court’s because jurors, largely American explained individually the court itself discuss did by the fact that the jury pool predom- each challenged strike on record. inately addition, In African-American. step requires Batson’s third trial courts prosecutor’s strikes did not skew the closely analyze prosecutor’s proffered composition racial resulting jury. disputed light reason for each in strike a far cry circumstances here are from all the relevant Mil circumstances. See of cases in Supreme facts which the ler-El, 241-42, 251-52, U.S. Court has found a violation. Batson Cf. S.Ct. 2317. The record here demon Snyder, U.S. 128 S.Ct. 1203 that the court appropriate strates district (all jury pool African-Americans in struck ly responsibilities. exercised its Batson Miller-El, by prosecution); 545 U.S. at required The district court three rounds (10 240-41, 125 S.Ct. 2317 of 11 African- of argument on strike of African- each in jury pool Americans after dismissals for juror: prosecution American opening by agreement by prosecu- cause or struck justi which government individually Batson, tion); 476 U.S. at strike; fied each response defense dis (all in jury pool African-Americans puting those explanations; prosecution). struck by a prosecution reply to every defense argument. Throughout hearing, Finally, this case are no there extrin- counsel, district court questioned reviewed sic indicators racial discrimination of the notes, its own corrected mistakes kind found challenges. successful Batson Miller-El, counsel. The court example, district then conclud For a case in which ed, arguments per based on the and its the trial occurred before the 1986 Batson prosecutors decision, sonal observation of the the Court in part relied on the 42 Among 2932: its concerns about this general pol- of

“widely known evidence juror, noted prospective prosecution Attor- County District Dallas icy of the delays bring- that long mem- 2932’s statement venire to exclude black ney’s Office Miller-El, impaired at to trial wit- ing criminal cases juries.” bers from contrast, 253, prosecution In the Su- memories. The wor- nesses’ 125 S.Ct. 2317. that cases explained preme suspicious has that 2932 would be Court ried jurors are the same in- where stricken case because this case government’s prose- majority of victims and race as the long delay and the volved unlikely candidates are cution witnesses long- memories of relying on witnesses’ finding of racial discrimination. do not rebut the past Appellants events. Hernandez, 369-70, 111 S.Ct. 500 U.S. at that race-neutral specific, of plausibility The overall facts (plurality opinion). 1859 objection any or other seated show this case thus do not circumstances of delay of on juror worried about the effect claim of intentional dis- support appellants’ memories. witnesses’ 478, Snyder, 552 U.S. crimination. See that it prosecution explained 3559: The (“[I]n reviewing ruling 1203 128 S.Ct. youth. on the basis of his The struck 3559 error, Batson all claimed to be statement that it struck ev- government’s upon the issue circumstances bear younger, regardless 22 ery juror age consulted.”). animosity must be racial race, remains unrebutted. B. it prosecution 3872: The stated of this Although the circumstances disrespectful in appearing struck 3872 for prosecution that the strongly suggest case transcripts cite trial Appellants court. peremptory strikes to dis did not use its that seated attempt an to demonstrate race, the basis of those facts criminate on jurors just have behaved might white The dismissal of dispositive. alone are not This is an instance inappropriately. single juror on the ba prospective even a “[ajppellate judges cannot on the which equal protection princi violates sis of race easily second-guess a basis of a cold record 478, Snyder, 552 U.S. 128 ples. See Collins, Rice v. judge’s trial decision.” review each of 1203. therefore S.Ct. We 163 L.Ed.2d 126 S.Ct. U.S. challenged by appellants. strikes (2006) J., (Breyer, concurring); see (3d Beard, Bond v. Cf. Snyder, 552 U.S. at 128 S.Ct. 1203. Cir.2008) circumstances (finding overall whether cannot tell from the record We violation, suggest no Batson but nonethe inappropriate anything there was about analysis each conducting strike less con- jurors’ those seated demeanors. And claim). resolve Batson assertion, Snyder trary appellants’ does a rule that trial courts must not establish challenged on ap the 11 strikes Of demeanor. specific findings make about objected following peal, appellants — U.S.-, Haynes, Thaler v. in the district court. We seven strikes Cf. (2010). L.Ed.2d 1003 Be findings court’s on review district not demonstrated appellants cause have Sny those seven strikes for clear error. that re any “exceptional circumstances” der, 1203. Be 552 U.S. at 128 S.Ct. otherwise, quire we defer to the district empanelled court cause the district finding “pecu on an issue that is case, court’s identify in this we anonymous judge’s province.” a trial liarly within juror using the numbers prospective each Snyder, 552 U.S. at by the district court. assigned jurors are often prosecutor explained officers desirable from the 4463: appeared prosecution’s perspective. unstable court and But that does prosecution voir dire indicated numerous answers from dismissing “his not bar why govern- would make clear any particular juror that the govern- because juror.” 7, 2002 opposes May personality ment this ment believes her would make quick Tr. juror at 75. A review of 4463’s PM her a less than from desirable statements, in rambling which he detailed prosecution’s perspective. unfairly his brother been framed how had prosecution 5773: The claimed to have cocaine, distribution of crack makes for struck 5773 due to 5773’s concerns about why prosecutor a would want to clear imposing the death penalty. Appellants 4463, regardless Appel- of race. strike respond jurors that appeared seated white juror citation a seated lants’ to white equally hostile to penalty. the death We family drug problems had

whose also disagree. As to juror the seated white juror calmly That related comparable. not views whose come closest to matching relatives, long-past problems his 5773’s, repeatedly questions he followed his stated that brother had been expressly ability about his to the death impose penal- fairly. with dealt ty with notations “I try such as would to The claims have 4730: to instruction, abide Court’s my not part struck 4730 in because 4730 was sus- contrast, personal By belief.” 5773’s that of law enforcement and unsure picious about the penalty doubts death were suffi- penalty apply death should in Wash- ciently question- salient he used his ington, Appellants question D.C. naire indicate he had to concerns subject, strength of 4730’s views on this ability juror. about his fair be a The juror no point to seated who but prosecution grounds thus legitimate had reservations about law enforce- expressed be suspect significantly 5773 would similar 4730’s about ment concern impose more hesitant to the death penalty officers,” “rogue police experi- and a “bad juror. than the seated white with law a ence” enforcement “[l]eft In court the district the defense did not Apr. taste.” 2002 PM Tr. at 23-24. bad object prosecution’s strike of the views provided 4730’s on law enforcement jurors. four following prospective The dis- explanation a race-neutral for the prosecu- rulings trict court’s these on strikes are tion’s decision to strike her. plain only therefore reviewed error. juror 5698: This was for- prospective See, Charlton, e.g., United States special police prose- mer officer whom the (1st Cir.2010). 43, 50 being cutor claimed to have struck for “submissive,” “quiet,” possibly prosecution explained not 866: The that it “strong juror. enough” to be an struck effective 866 because 866 “had relative who May 2002 PM Tr. 42. To extent May had been convicted of murder.” can discern from Tr. at we demeanor a written 2002 PM 35. record The shows that transcript, colloquy 5698’s nephew, person- the district 866’s with whom she was uncertain, close, suggests a passive, ally court murdered his wife was then person. quiet passivity plau- imprisoned, And can be a where 866 believes he sible, ju- race-neutral reason to guards. Appellants’ exclude abused his at- v. Changco, tempts ror. United States potential minimize the effect of (9th Cir.1993). 837, 840 Appellants may 866’s experiences with murder convictions be correct law comparisons jurors former enforcement and to draw to seated prosecution explained much 3505: The its convicted of less relatives

who had convincing. on 3505’s statements are not strike of 3505 based crimes serious voir dire questionnaire during her struck 2486 prosecution 2486: penalty justified.” that the death is “never prior about her she said things “based on argue either that Appellants do as well as other state- ... jury service prosecution’s explanation is false or that 7,May questionnaire.” ments in her jurors seated had the same views. other and the questionnaire 2486’s PM Tr. argue only that also Appellants during she said voir what transcript of personal claimed to be able to set her acquit- in an participation to her dire refer way implies aside. That in no views service, which she prior during tal her striking considered race in prosecutor lack of prosecution’s di- to the attributed challenge This could not succeed 3505. record also demon- The rect evidence. review, any under standard of much less impose reticence 2486’s strates plain under error review. suspicion of law enforce- penalty death Appellants now con- competence. ment short, In have failed to suffi- appellants prosecutor’s mere reference tend that the race- ciently government’s undermine the questionnaire re- statements 2486’s explanations peremptory neutral for its qualify as a credi- vague too sponses is prospective African-American strikes of But ble, explanation. race-neutral Moreover, jurors. the circumstances of give no reason to a more prosecution had strongly suggest prose- this case that the appellants because explanation, detailed cution did not discriminate on the basis of in this strike the district question did not Especially given race. the deferential that the record referenced court. Given standard under which we review chal- does fact reflect by prosecutor lenges to the district court’s decisions on prosecutor’s prof- for the objective basis issue, reject appellants’ this we Batson say cannot that the explanation, fered we claims. plainly finding erred no

district court

racial motivation this strike. II. it prosecution The claims that 3143: began, govern- A week before trial struck because 3143 demanded requesting ment filed a motion impose higher proof standard appellants district court order to wear stun penalty generally death and was hostile to during Gray op- trial. filed written belts penalty. appeal, appellants the death On and, position pretrial to the motion at a lengthy comparison offer a 3143’sviews later, hearing days appellants op- five all jurors. gov- The to those of seated white orally. posed the motion Feb. attempts ernment considerable suc- —with granted Tr. at The court PM 36-52. jurors’ distinguish cess—to the seated motion, government’s id. at and issued 3143’s, views from but the also opinion support of its memorandum point: has a It is difficult to telling more order, Gray, see United States say plainly court erred in the district (D.D.C.2002). Appellants F.Supp.2d between those noticing similarities the district court violated contend jurors given seated that none of it process rights when ordered their due lawyers the six noticed those defendants’ stun belts at trial. them to wear re- during jury similarities selection. We ject right to a fair trial is a fundamental appellants’ challenge prosecu- to the process guaran- liberty tion secured the due strike of 3143. tee of the Fifth and Fourteenth Amend- Court deployment has held that of security Williams, ments. Estelle v. 425 U.S. personnel a courtroom is not inherently (1976); 96 S.Ct. 48 L.Ed.2d 126 prejudicial, and is permissible, thus re- Murchison, 133, 136, In re 75 gardless served, of the state interest (1955). Invoking S.Ct. 99 L.Ed. 942 long actually as it is not prejudicial in a right, Supreme this fair trial Court has particular Holbrook, case. See 475 U.S. at government practices stated that certain 568-69, 572,106 during prejudice criminal trials defendants because offend three “fundamental Applying these lessons to the case legal Missouri, principles,” Deck v. us, before if the use stun belts to re 622, 630, U.S. 161 L.Ed.2d strain criminal defendants at trial either is (2005): (1) process “the criminal inherently prejudicial or in this case was presumes that the defendant is innocent actually prejudicial defendants, (2) id.; proved guilty,” until that “the Con- district court had the obligation to deter stitution, in order to help the accused se- mine whether justified belts were defense, a meaningful provides cure him governmental an essential specific interest counsel,” 631, a right to id. at 125 to the defendants on trial. Appellants, (3) 2007; S.Ct. that “judges must seek argue who that stun belts are inherently judicial to process maintain a is a prejudicial, contend that the district court dignified process,” id. When a govern- failed to meet obligation this for three practice prejudicial ment is it because ei- First, they reasons. assert that the dis inherently particular ther or in a defen- trict court failed to make an individualized dant’s case principles, offends the these determination of whether a stun belt was Court has forbidden district courts from needed to restrain each defendant. Sec utilizing practice justified unless it is ond, they argue that the district court was by interest, an essential state such as required but refused to hold an evidentiary security escape prevention, courtroom or hearing to resolve factual disputes they specific See, to the defendant on trial. e.g., concerning visibility of, raised necessi Deck, 2007; 544 U.S. 125 S.Ct. Hol- for, ty and alternatives to the stun belts. v. Flynn, brook Finally, appellants maintain that the dis (1986); Estelle, 89 L.Ed.2d 525 425 trict court erroneously failed to consider U.S. 96 S.Ct. 1691. how the stun appellants’ belts would affect Accordingly, the Supreme Court has right to communicate with counsel and as it inherently prejudicial is require held to sist their own review, On defense. we jail criminal defendant to garb during wear that, hold even assuming that stun belts therefore, trial and because no state inter- inherently are or actually prejudicial, were est is ever by served it practice, vio- the district court did all that required Estelle, his fair right. lates trial See 425 of it. 505, 512-13, at U.S. 96 S.Ct. 1691. Simi- In the Court review of a

larly, visibly has held that district court’s re- authoriza- tion of straining a criminal an during inherently actually prejudicial ei- or defendant governmental ther a criminal trial penalty practice, or the we find phase only error of a capital prosecution when the district inherently preju- has court abused its dis- Deck, permissible only dicial thus is cretion. when See 544 U.S. at 125 justified by (“[T]he an essential spe- state interest S.Ct. 2007 Fifth and Fourteenth Deck, to cific the defendant. 544 prohibit U.S. Amendments physical the use of contrast, at 125 S.Ct. 2007. In restraints visible to absent a trial of stun belts cy governing the activation determination, of its in the exercise court worn defendants. justified by a they are discretion, tri particular specific state interest Finding at 4. Gray, F.Supp.2d Wardell, F.3d al.”); States factors” militated of the eleven “[e]ach (10th Cir.2009); United States belts, the district imposing stun favor (11th Durham, Cir. belts that the use of stun court concluded security ... preserve would “best 2002). at 4-6. the courtroom.” Id. prior say, true, appellants It is opin- memorandum court’s The district inherently use authorizing it considered demonstrates ion practice, actually prejudicial partic- security presented concerns must each de- consider court the district making the trial ular before defendants determine whether him and fendant before appro- that stun belts were determination interest in an essential serves practice factors thoroughly It examined priate. Deck, 544 at hand. trial particular and, in the defendant relevant each Holbrook, 2007; 624, 633, S.Ct. U.S. discretion, made a broad exercise of its 568-69, How- 475 U.S. at on those factors. based determination In a just this. ever, court did the district many of the same shared appellants That carefully the court opinion, memorandum charged (e.g., characteristics in its deci- following factors analyzed the they all faced either conspiracy, the same belts: require stun sion sentences) does penalty or life the death I) charged the crimes of the seriousness to consid- the district court failed not mean potential the sen- severity of and the individually. And that the district er them 2) allegations of tences; numerous the the de- reached a result with which court by the defen- violence made threats of it does not abused disagree fendants mean 3) witnesses; previous dants against its discretion. convictions of a substan- or guilty pleas reject appellants’ conten prior the defendants to We also of tial number 4) crimes; obligated court to that the tion district violent gun charges and/or mak hearing. evidentiary an When activity, and the like- hold gang of allegations to discretionary whether ing the decision or rivals of the associates lihood that actually trial; inherently prejudi an or authorize may present be at the gang alleged trial, for 5) practice “[a] government Marshal for cial of the U.S. the opinion hearing may not be re evidentiary mal District, as it relates to particularly this the the factual basis for quired, but if security in this courthouse knowledge controverted, 6) the security is nature; extraordinary potential of this and of cases may finding and of facts taking of from the use evidence to the defendants prejudice Theriault, 7) v. necessary.” United States belts; of acci- be likelihood of the stun (5th Cir.1976); 8) belts; Unit of the stun dental activation cf. Law, v. 903-04 if the ed States to the defendants danger potential (D.C.Cir.2008); 9) activated; United States availability the belts are Microsoft (D.C.Cir.2001) 34, 101 Corp., 253 F.3d to ensure viability of other means and are not re 10) that district courts (holding security; potential the courtroom evidentiary hearings pri- to quired others conduct danger for the defendants in civil cases when issuing or to relief if other means the present in courtroom re disputed factual issues courtroom; “there are the no are to secure used relief’). Although II) garding the matter poli- of a written the clear existence stances, that due to the we hold that the district pointed the defense out court hearing the short notice of the acted within its discretion when it declined before the district court about how stun evidentiary hearing. to hold an provided entirely by belts functioned was Turning claim appellants’ to government there had “to be an- district considering court erred respect story other side of the ability effect of stun belts on appellants’ to made,” proffers that [the has] confer with their and participate counsel in appellants allege any specific inac- did not defense, their again we find no error. As curacy misrepresentation. Feb. above, discussed wearing whether stun 2002 PM Tr. While appellants at 44-46. affects ability belt a criminal defendant’s disputed government’s contention that participate confer with counsel inadequate other would be measures his defense is one of three questions courtroom, secure id. at this dis- whether, relevant to the determination is, essence, pute question ultimate restraint, authorizing before such a dis- the district court Dur- must answer. See trict court must first determine whether it (“[A] ham, 287 F.3d at 1304 decision to justified by governmental an essential apply leg shackles to defendant ‘must specific interest defendant on trial. subjected judicial scrutiny be to close When the district made appro- court determine if there was essential state priate findings to determine the use of by compelling interest furthered defen- justified stun belts was so in appellants’ dant to wear shackles whether less case, the court implicitly assumed that the restrictive, prejudicial less methods of re- negatively affecting belts did risk appel- straint were or could considered have been ” lants’ way. abilities this It was not employed.’ (quoting Elledge Dugger, required question to revisit this its sub- (11th Cir.1987) (per process. stantive decisionmaking We also curiam))). must Appellants make a more appellants note while direct us to case specific factual challenge. abstractly law that potential warns only The specific factual matter relevant belts, see, Durham, e.g., harm of stun to the district court’s determination about 1305-06, F.3d at have offered us no which the and appellants any way evidence stun in belts affected meaningfully disagreed was whether the their communication with their counsel or stun belts would Feb. be visible. their in participation their defense. 38, 44, However, PM Tr. at 56-57. its repackages appellants’ Moore also argu- the court opinion, accepted memorandum ments that the court district abused its appellants’ that contention there was some by authorizing discretion stun belts into an risk the stun be visible. belts would The objection to grant the court’s refusal to his specifically precautions court then ordered post-trial motion for new trial. a Before to visibility reduce the of the belts. The argued the district court Moore that he opinion “Although states: the Court does entitled trial to a because “a likely not new any juror believe that it is that predicate factual did not belts, will sufficient exist” to see the stun the Court will take the justify district court’s authorization precautions prejudice to minimize of belts. Def. defendants. The stun Moore’s Mot. for defendants will be New 2003). (June 8, Trial at 2 brought into the courtroom before He also main- jury the in, is brought will escorted tained that a be from the new trial was warranted be- activated, courtroom Gray, after the has left.” cause his stun belt was outside F.Supp.2d at 4. presence Under these circum- jury. appeal, On Appellants’ Br. at physically and involved.” argues that he was Moore this view United States v. rejected court injured by the activation psychologically Childress, (D.C.Cir.1995), 58 F.3d 693 injuries inter- that these the stun belt and (in concerning part) case whether “the use communicate with ability his fered with Constitu- juries violates the anonymous in his own defense. attorney and assist his tion,” id. at 702 added), (emphasis because activated on No- stun belt was Moore’s “[djecisions anonymity require on ... ongoing trial was while vember appraisal trial court to make sensitive day. on that trial had started but before surrounding a trial and a pre- the climate AM Trial Tr. at 8. Defense Nov. potential security pub- diction as to the to the court reported counsel the incident licity may during arise problems taking a the court to consider and asked proceedings,” id. and, Id. at 97. The court did so break. that it had reconvening, after announced Edmond, United States v. In examine Moore and asked a nurse to (D.C.Cir.1995), the court ad F.3d 1080 reported “fe[lt] nurse had that Moore general, court [district] vised “[i]n unjustified,” the use of the device was empaneling should not order the right” ... all “physically but that he was (a) anonymous jury concluding without today.” Id. willing go “was forward a strong there is reason to believe challenge Moore’s counsel did not at 98. (b) protection, taking needs object representations or otherwise these any to minimize precautions reasonable Id. further. on defendant and to prejudicial effects reject claims. That Moore’s We rights that his fundamental are ensure does not stun belt was activated Moore’s (first protected.” Id. at 1090 alteration court’s reasoned de- undermine district (citation original) quotation marks cision, upheld, require which we have omitted). determining In whether such him to wear a stun belt. Insofar as Moore warranted, protection is the court has violated now claims that the district court analysis by found its aided five factors rights by requiring his constitutional identified the Eleventh Circuit: by continuing him but to wear belt (1) orga- involvement defendant's activation, again we trial after the belt’s (2) crime, partic- nized the defendant’s noted, find no error. As the district court ipation group capacity in a with the request acceded to the for a break (3) jurors, past harm the defendant’s counsel, disputed Moore’s who never attempts judicial to interfere with the nurse, representation by the who had ex- (4) that, if process, potential convict- Moore, ready that to amined Moore was ed, lengthy the defendant will suffer with the trial. proceed monetary incarceration and substantial (5) penalties, publicity extensive III. possibility enhance the that could Appellants contend that the district jurors’ public and names would become empaneling anonymous in an court erred expose them to intimidation or harass- jurors’ prospective insofar as the ment. names, addresses, employ places of Ross, Id. at 1091 United States v. (quoting ment were withheld. Our review is for (11th Cir.1994)). discretion, despite appellants’ abuse of Find- here, contention that the de novo standard ing that all factors satisfied ap five were govern- plies principles granted because “constitutional are the district court anonymous jury. history interfering judi- ment’s motion for an As lants’ of with the court justification, process, resolving the district noted that cial in discovery various in the appellants charged supersed- were and evidentiary requests. disclosure ing in a participating drug 00-cr-157, indictment with Gray, States v. No. at (D.D.C. 2001). conspiracy and RICO involved multi- 5-12 Nov. firearms,

ple using acts of violence in addi- Second, maintain appellants that media tion to threatening potential witnesses and prosecution interest in this criminal would preventing from cooperating individuals jurors’ safety. not endanger The district enforcement, and that if law convicted court Washington identified two Post arti- appellants penalty faced the maximum of covering cles appellants’ prosecu- case as a imprisonment. Pointing death or life to “Murder, tion brought against Inc.” Both articles, Washington two Post district articles appeared on the front page of the court case garnered noted that this had Metro section and described the number of capable increasing media attention of alleged unprece- murders as historic and potential danger jurors. to See United dented. Such of “initial media 00-cr-157, Gray, States v. at No. 12-13 interest,” Wilson, United States v. (D.D.C. 2002) (resolving pretrial Feb. (D.C.Cir.1998), in a high- motions). profile prosecution major drug con- Appellants challenge district court’s spiracy involving multiple defendants over empanel anonymous jury decision to on a substantial period of time and alleged grounds. persuasive. three is None purposeful and random acts of murder First, appellants maintain the district supports the district court’s decision. court’s unfounded decision was because Third, appellants suggest that the dis- the superseding allege indictment did not trict court failed to take pre- reasonable any history juror intimidation. This any potential cautions to preju- minimize argument misunderstands and too narrow- dice to them consequence juror as a ly set requirements construes the forth anonymity. granting In the motion for an explained, Edmond. As the court “we do anonymous jury, the district court advised jury tamper- [of believe such evidence questionnaire it would “use a ing] necessary every Rather, case. jurors’ extensive voir dire examine the we think District ... reasonably Court and, backgrounds” in addition to instruct- jurors could have threat ascertained jurors ing presumed were appellants charges from the indictment.” in the Ed- guilty, innocent until proven “provide a mond, Here, 52 F.3d at the particu- jurors neutral explanation regarding lar allegations “multiple acts of violence anonymity.” Gray, 00-er-157, their No. prevent from contacting individuals law (Feb. 2002). precautions were, These enforcement,” 00-er-157, No. Gray, fact, (Feb. taken. A combination of 2002), sufficient, instruc- viewed context, downplaying significance ju- tions the of for the district court to con- be anonymity rors’ lengthy and a voir appellants’ capacity cerned about to harm dire questionnaire adequately jurors judicial safeguard and the can pro- interfere with See, Edmond, defendant’s rights. e.g., cess. See 52 F.3d at fundamental 1091-92. Childress, 701-02; Edmond, support, As court 58 the district cited the F.3d at factual findings set forth its F.3d at the in- November 1092-93. Here neutral struction, regarding appel- memorandum set forth in the question- jury, they ing passions prejudices would the and jurors that

naire,4 informed bolstering credibility and the vouching for to escorted to locations be at specific meet witnesses, soliciting testimony to that “for con- [their] courthouse from the and effect, presumption denying appellants both the as assure as well venience through improper elicitation of innocence that no one the defense and testimony, violating appellants’ opinion communicate, contact, or attempted to has by introducing evi- right Amendment Sixth dire, For voir the 46- jury.” influence the with and often they dence that associated least double jury questionnaire page —at legal the advice of counsel.5 We sought jury questionnaires that the length these claims and limit our have reviewed and Edmond— muster in Childress passed merit, having arguable those discussion to variety “a broad appellants with provided appellants’ when and concluded that even information, qua- including personal cumulatively, they fail to are viewed claims resided, jurors in which city drant of rights process a violation of their due show status, history, marital their educational would entitle them to a new trial. as service, status and employment military and chil- spouse’s their description, work A.6 experience their employment, and dren’s Argu Opening Closing crime, and law enforcement.” drugs, with prose contend that the Appellants ments. Edmond, at 1092. This sufficed 52 F.3d opening argument cutor’s information denied for the compensate “to substantially prejudiced improper elicited anonymity” “[i]t because by juror proceedings by interfering trial ... far more extensive information jury’s ability properly assess the evi appel- generalizations than the detailed allegedly improper dence. Our review of jurors’ from mere might have drawn lants arguments is for prosecutorial substantial Appellants Id. and addresses.” names lodged an prejudice where the defendants example of particular no pointed to have plain error objection, apply but we prejudice. object. where failed to standard the district we hold Accordingly, Small, 74 F.3d United States v. court, necessary findings having made (D.C.Cir.1996); v. see also United States factors, not abuse did under the Edmond (D.C.Cir.1996). Catlett, government’s granting its discretion here, When, alleged prosecutorial anonymous jury. motion for an forms the basis for an unsuc misconduct mistrial, motion for a our review of cessful IV. court’s denial of that motion is the district Small, of discretion. See claims of for abuse Appellants raise numerous misconduct, This court has identified including inflam- F.3d at 1284. prosecutorial arguments Appellants incorporate their also 4.Although appellants note in the “back ground” relating Brady Maryland, their brief that the district section of given orally (1963), was not court's instruction 10 L.Ed.2d 215 trial, repeated during appellants do not statute, 201(c)(2), bribery § 18 U.S.C. federal argument section. pursue this issue in their XII, Parts VI and which are addressed in We therefore have no occasion consider respectively. that is not oral whether a written instruction ade ly repeated thereafter would alone be an Kavanaugh join Judge does not 6. Circuit safeguard. quate See Am. Wildlands IV.A.1 and IV.A.2. Parts (D.C.Cir. Kempthorne, R.App. 28(a)(9). 2008); Fed. P.

51 States, guide Berger 78, 88, three factors that the determination v. United (1935); improper closing remarks in and 79 L.Ed. 1314 whether accord Taylor States, v. United prejudiced a F.2d 1095 opening statements defendant (D.C.Cir.1969). It follows from reversal, rigor- this so as to warrant under either the that, ous standard in making opening and prejudice plain error stan- substantial closing arguments, a prosecutor has an “(1) (2) case; dard: the closeness of the obligation making “to avoid statements of centrality of the issue affected fact to supported by proper (3) error; steps taken to mitigate trial,” evidence introduced during even the error’s effects.” United States v. Bea- when the misstatements are in good made ton, (D.C.Cir.2010); 601 F.3d see States, faith. Gaither v. United 413 F.2d Gartmon, also United States 146 F.3d (D.C.Cir.1969). 1061, Equally well (D.C.Cir.1998). addition, In settled, prosecutor may “[a] not make com- this court will presume “that a acts designed ments to inflame the passions or common sense and discrimination prejudices jury.” United States v. improper when confronted with an remark Johnson, (D.C.Cir.2000); from a prosecutor and owes deference to Childress, 58 F.3d at gen- 715. These the district court’s assessment such a to, eral principles apply and inform the prejudicial statement’s impact on the particular of, function government’s Childress, jury.” United States v. opening closing arguments in a crimi- (D.C.Cir.1995) (citation 693, 716 and inter- nal trial. omitted). quotation nal marks 1. “The purpose of an opening statement to provid[e] is background on Supreme The Court has described objective facts avoiding while prejudicial prosecutor the federal occupying posi as references,” and hence prosecutor’s “[t]he public tion of trust: opening objective statement should be Attorney United States is rep- summary of the evidence reasonably ex resentative not of an ordinary party to a pected produced, to be prosecu and the controversy, sovereignty but of a whose tor should not use the opening statement obligation govern impartially is as as an opportunity to poison jury’s compelling obligation as its govern against mind the defendant or to recite all; interest, therefore, and whose in a highly items of questionable evidence.” criminal prosecution is not that it shall Thomas, United States v. case, justice win a but that shall be (D.C.Cir.1997) (alterations in original) such, done. As peculiar he is (citations and internal quotation marks very definite sense the servant of the omitted). understood, So prosecutorial law, the twofold aim of which is that misconduct exists government’s where the guilt escape shall not or innocence suf- argument touches upon prejudicial facts may fer. prosecute He with earnestness to the defendant vigor indeed, he should do so. fails to support admissible evidence at — But, blows, while may he strike hard he Small, trial. See 74 F.3d at 1283. On liberty is not at to strike foul It ones. hand, the other a prosecutor’s reference much duty his to refrain from im- in opening argument to the defendants as proper methods produce calculated to “two armed gunmen driving through the wrongful conviction every as it is to use D.C., streets of teeth, armed to the legitimate bring just means to action, about a dressed for carrying a load of one. dope,” although strong vivid, was not 52 murder listing the other statements the 31 misconduct because

prosecutorial by ample evi- which supported by victims names and dates on was statement trial. States grounded at United are in admissible introduced were killed dence (D.C.Cir. 377, Moore, 390 F.3d government 104 that the intended to v. 1997). trial, evidentiary at this nexus introduce prosecutor began tenuous once the became ap- opening argument prosecutor’s The school, days of discussing the victims’ first departed from improperly to have pears mothers, fathers, families, songs, favorite applied Berger in the standard coffins, funerals. States v. United in by this court. As arguments opening Cf. (7th 694, F.2d 700 Cir. Dominguez, 835 it “the Small, appears 74 F.3d 1987). Indeed, recog- the district court ... in close to the line came prosecutor open- it in although prosecutor’s and crossed others.” nized that the instances several charged appellants factually example, ing argument fairly For “was stated” murders, pros- and the committing May hyperbole,” with it contained “some use of the word “exe- repeated ecutor’s PM Trial Tr. at a disfavored run of the trial seems to North, cute” at the start technique, see United States v. court expressed the afoul of the concern (D.C.Cir.1990); F.2d United Jones, States (10th Bouck, States (D.C.Cir.1973), the court stating Cir.1989); Dominguez, F.2d at 701.7 the refer- prosecutor’s “not condone” could required the is not Although closing argument to the defen- during ence argument in a rote opening to make its generally, More an “executioner.” dant as manner, the court has admonished argument includes number opening jury opening “an statement to the should prosecutor went of instances where carefully phrased to avoid overstate- be “objective beyond merely providing Thomas, ment.” 114 F.3d at 248. It is Thomas, 114 summary of the evidence.” government’s opportunity present (citation quotation marks at 248 argument objective “on jury based omitted). referring to Such statements avoiding prejudicial facts while refer- “[wjhere there victims as the murdered added) (cita- (emphases at 247 ences.” Id. life, noth- now there is once was face omitted). quotation tion and marks space.... Where ing empty black but purpose closing 2. “The sole death,” life, now there’s there once was argument analyzing is to assist the Trial Tr. at are May 2002 PM evidence,” and hence courts have rec nor free from on evidence neither based (as prosecutor well as ognized Rather, they attempt appeal innuendo. counsel) leeway is afforded some defense jury’s emotions dramatic effect. Childress, “stat[ing] conclusions drawn from the Although F.3d at 715. 9,May (paragraph prosecutor's open- 2002 PM Trial Tr. at 114 the conclusion of the 7. At statement, omitted). ing sponte the district court sua court then de- break district jury, outset of as it had instructed appellants’ a mistrial. nied oral motions for trial, explained instruction "takes It lawyers aren't evi- the statements of the any problems” and that it care of other They're help you dence. intended to follow inflammatory opening be "didn't find the evidence when the evidence is intro- counsel saw it ... in the sense that defense charges, deny duced. The defendants these but, rather, fairly factually stated with open you keep an mind until should hyperbole.” Id. at 127. some you've and I after heard all the evidence give you my on the law. final instructions

53 evidence,” Bailey, 123 Nov. 2002 AM United States Trial Tr. at 112-13. On (11th Cir.1997) (citation appeal, government responds, the F.3d 1400 a footnote, omitted); that this see “had quotation sympa- marks also narrative York, only thetic overtones” 853, 862, superficial “[a]t v. New 95 Herring U.S. jury level” because the heard evidence that (1975); 45 L.Ed.2d Downing had been kidnapped, bound and Wayne R. LaFave al„ et Criminal Proce gagged, by and shot the side of the 24.7(b) (3d ed.2007). road. § closing “[I]n dure Appellee’s Br. at 96 n. 68. This response, to, argument may rely counsel not refer or however, misses the fundamental distinc- upon, evidence unless the trial court has permissible tion between impermissi- Maddox, admitted it.” United States v. closing arguments. ble In summarizing (D.C.Cir.1998); 156 F.3d conviction, evidence supporting prosecu- Small, also 74 F.3d at 1280. But the may tor not take artistic license with the instance, prosecutor may, for draw infer evidence, trial construct a more dramatic support gov ences from evidence that the events, provide conjecture version the theory long ernment’s of the case so as the mind, about a victim’s state of and then prosecutor intentionally misrepre does not against prosecutorial defend misconduct sent evidence. See United States v. claim maintaining the statements are Deloach, (D.C.Cir.1975). 990, 1000 530 F.2d Sensationalization, “fact—based.” loosely Indeed, prosecutor “may strike hard drawn from presented during facts blows,” Berger, but not “foul ones.” trial, is still a of fact to ] “statement at U.S. 55 S.Ct. 629. Because the line supported by proper in- permissible impermissible between ar trial,” Gaither, during troduced clear, guments always will not be the in 1079, clearly at “designed to inflame the quiry necessarily is contextual. See Cat passions prejudices jury,” of the John- lett, 572; Deloach, 97 F.3d at at son, 231 at Although F.3d 47. not as 999-1000. egregious comparing appellants as to Hit- prosecutor ler, Some statements dur- North, as occurred in 910 F.2d at ing closing argument appear problematic. are, knows, there every prosecutor as lim- Illustrative the prosecutor’s striking blows,” is invitation its to Berger, “hard jurors for the “imagine Downing,” Scott U.S. 55 S.Ct. 629. victims, one of the murder in “the last few Nonetheless, assuming, ap prosecutor

minutes of life.” The [his] told contend, pellants prosecutorial mis jury: during conduct occurred arguments Downing Scott is tape. bound with duct jury, it did not substantially prejudice It’s pitch black the back of that U- appellants. Although specific argu haul. He does not know going what’s appellants object ments to which appeared happen to him. He must—he must at times to address central issues in the if going wonder he’s to live through this case, there overwhelming evidence of night.... He’s taken out of that U- appellants’ guilt of the implicated crimes haul. He to talk tries but he can’t. All by prosecutor’s purported misconduct, he can do is mumble. He feels the gave and the district court general limiting grass body. under his He feels the instructions on the arguments of counsel to gravel of gun the road.... And then a trial, the jury beginning at the after placed to the back of his head and two prosecutor’s opening argument, and bullets. during the final instructions to the Thomas, began deliberating. ing it profoundly before influenced those delibera- Gaither, 249; 413 F.2d at 1079. Williams-Davis, tions.” United States v. (D.C.Cir.1996). 490, 90 F.3d More- reliance on United Appellants’ States over, repeated the district court gener- its (3d Moore, Cir.2004), 375 F.3d mis- al limiting instruction that the statements prosecutor’s In that case the placed. clos- of counsel are not evidence at the outset of compared the defendant to a ing argument following the trial and prosecutor’s on the eve “terrorist” of the first 9/11 9, opening argument, May 2002 PM Trial anniversary of those events and referenced 114, Tr. at again and after closing argu- irrelevant evidence that the defendant was giving ments in final instructions to the drugs. forcing children to sell Reversal of jury, see Dec. 2002 AM Trial Tr. at 72. convictions, however, was based on the usually strong This is a ameliorative con- fact that high- and “[i]nadmissible prosecutorial sideration for misconduct ly inflammatory statements came rolling Thomas, during opening, see 114 F.3d at unimpeded” throughout the trial in a such Childress, closing argument, and pervasive manner as to undermine the 716; North, 897; F.3d Unit- jury soundness of the verdict. Id. at 263- Hawkins, ed States v. 754- a applies 65. This court similar standard (D.C.Cir.1978). Although type “[Ajbsent prejudice inquiry: to the ‘consis- general given instruction here a is not repeated tent and misrepresentation’ guarantee government for the as necessar- ‘[ijsolated jury, passages influence of a ily mitigating prejudicial effects of prosecutor’s argument, billed advance to prosecutorial arguments, misconduct in jury opinion as matter of not of North, 910 F.2d at 897 n. this is not a evidence, do not reach propor- the same ” “particularly egregious that would case[ ]” misconduct; contrast, tions’ of severe require cautionary limiting additional closing arguments “tainted that follow on instructions, and the defense did not re- improper the heels of pros- and indecorous them, Thomas, (cita- quest 114 F.3d at 249 ecutorial conduct trial during are more omitted). quotation tion and marks Under likely to amount type to the of severe circumstances, conclude, we assuming justifies misconduct that reversing a con- prosecutorial misconduct during opening North, (second viction.” 910 F.2d at 897 closing arguments jury, that the in original) alteration (quoting Donnelly v. impermissibly misconduct did not DeChristoforo, 637, 94 prejudicially jury’s interfere with the abili- (1974)). 40 L.Ed.2d 431 But unlike ty to assess the evidence. case, in the Third Circuit that standard is inmet the instant case. B. Here, the severity of what appellants have identified on appeal as misconduct Overview proble Witness. More relatively limited to portions small of matic government’s is the use of a Federal lengthy opening (“FBI”) and closing arguments. Bureau of Investigation agent as See United States v. Monaghan, 741 F.2d Agent overview witness. FBI Daniel (D.C.Cir.1984). Sparks As this court testified as the first witness in the occasion, has observed on length government’s “the testimony case-in-chief. His time between the prosecutor’s opening provided government’s an overview of the statement jury case, deliberations” —seven setting forth for the the script of months in the instant testimony case—“makes it un- and evidence the could likely that specific allegations open- expect in the present its Further, expressed case-in-chief. he recently his Until this court had not ad- dressed the appropriateness of opinion, training experi- govern- based on his ment overview witness at the outset of ence, its the nature of investigation about case, but had identified the “obvious dan- conducted in this case. gers posed by summarization of evidence” Appellants contend that the use of an by a non-expert witness called gov- overview witness as the government’s first ernment during its case-in-chief in United improperly permitted govern- witness Lemire, States v.

ment, objections, over defense to elicit FBI (D.C.Cir.1983). The analysis in Lemire is Agent Sparks’s opinions about the charged case, instructive. In that government crimes, called the reasons for toward the appellants’ actions end its case-in-chief agent, an FBI who was also circumstances, a certified various the nature of the accountant, public “to summarize the evi- charged conspiracy and the relationships dence about complex cash flow through co-conspirators, between including the co- companies” offshore prosecution for operating co-conspirators who testified as fraud, wire interstate transportation of witnesses, government strength and the fraud, proceeds of and conspiracy. Id. government evidence—all before the 1346. The FBI agent “used four summary presented any had such Appel- evidence. charts to re-examine th[e] evidence” al- suggest lants FBI Agent Sparks’s ready presented by government “in a testimony impression left the fashion,” more organized “prefaced that it accept should that the co-conspira- piece each of his testimony by identifying cooperating tor fully witnesses would the document in evidence from which he truthfully recount impres- the events and obtained the Upon information.” Id. de- sions that he outlined in testimony. his objection fense that the FBI agent was an Hence, question is whether such over- improper witness under Federal Rule of testimony permissible, view is and even if 602,8 Evidence the district court conducted permissible respect FBI a “full voir dire examination” before allow- agent’s description aspects of the pre- ing the FBI agent testify, “subject indictment investigation of which he had limiting testimony instructions that his was personal knowledge, whether the overview explanatory and was not itself substantive testimony witness’s here caused substan- evidence.” Id. 1346^47. prejudice tial appellants. Our conclu- appeal, On this court held that the dis- sions are not affected appel- whether trict court did not abuse its discretion in lants’ challenge question is viewed as a of permitting to use a non- misconduct,

prosecutorial appellants as expert summary witness because contend, or a claim of abuse of discretion neither Rule 602’s literal language nor by the district court in admitting inadmis- overriding its purpose was violated. evidence, Watson, sible United States v. agent] FBI testify [The did not about (D.C.Cir.2005); any of the events underlying the trial: Corp., States only he summarized evidence about cash Microsoft (D.C.Cir.2001). flows that prior several witnesses had ” time, Lemire, 8. At the Rule 602 of the Federal Rules of matter.' 720 F.2d at 1347 n. 30 " relevant, provided, Evidence '[a] wit- 602). (quoting Subsequent Fed.R.Evid. may testify ness to a matter unless evi- amendments were technical in nature. See support dence is introduced sufficient advisory Fed.R.Evid. committee's note. finding personal knowledge that he has of the evidence, the defendant’s emphasized he court As to that already offered. knowledge personal knowledge personal challenge to the from his testified exhibits. transcripts summary was not issue because witness carefully reviewed the the witness “had also noted that The court at 1347. Id. in- and ensured that reflected charts summar- such “permitted had courts other already formation contained documents 1006, allowing for admis- Rule ies under (emphasis add- Id. at in evidence.” of docu- of summaries evidence sion into ed); Kayode, conveniently see also United States to be voluminous ments too (D.C.Cir.2001). 204, 212 if the documents F.3d in court” even examined Id.9 That rule already in evidence. Second, testimony summary witness aside, that “[t]here court observed that otherwise inadmissible posed the risk permits tradition an established con- introduced. This might be put to be before summary of evidence concluded, ameliorated, court cern limiting instructions.” Id. proper jury with and de- judge, prosecutor “the because omitted). (citations marks quotation upon counsel all heard the fense Nonetheless, concluded that the this court summary” based his witness] which [the “raises more prejudice claim unfair unlikely stray to from hence “he was Ini- Id. at 1347-48. troubling concerns.” evidentiary quickly being base without non-expert the court noted that tially the Lemire, n. 33. 720 F.2d stopped.” cumulative and summary evidence was noted, Indeed, point “at one the court under Rule 403 as subject challenge inadvertently started to discuss witness unfairly probative. than prejudicial more evidence, prosecu- in and the material not acknowledged that a It also Id. doing him so.” Id. prevented tor from help the summary witness “can non-expert and evaluate evidence which jury organize Third, permit summary might witness fragmentally re- factually complex is closing to have extra government testimony of a multitude of vealed in the noted, however, that argument. The court But throughout the trial.” Id. witnesses “con- had made no summary witness dan- pointed to three “obvious the court judg- pronounced inferences or troversial gers posed by summarization of evidence.” court had no ment” and thus the district Id. examination on need to interfere with the First, summary jury might treat the id. at 1349-50. ground. this evi- evidence as additional or corroborative to address the use Other circuits gov- unfairly strengthens dence that uniformly have reached overview witnesses case. The court was satisfied ernment’s in of the serious negative conclusions view summary there were that for a witness to a fair trial. The dangers prejudice including cross-ex- adequate safeguards, First, Second, Appeals for the Court of instructions, limiting amination and that the use have held and Fifth Circuits could the district court to be fashioned testimony by of overview prevent treating the sum- from very for this “troubling development” mary proof. The is evidence as substantive originals, duplicates, or or calculation. The 9. Rule of Evidence 1006 of the Federal Rules provides: examination or shall be made available for both, parties copying, at reason- writings, or other re- contents of voluminous may order cordings, photographs place. which cannot The court able time may conveniently examined in court be produced be in court. be chart, summary, presented in the of a form Casas, v. 356 F.3d noted that “courts should wary reason. United States Circuit be (1st Cir.2004); opinion testimony whose ‘sole function is see also United (2d question Garcia, answer the same that the trier 413 F.3d 201 Cir. States ” deliberations,’ of fact is to consider its 2005); Griffin, United States (quoting id. at 210 4 Weinstein’s Cir.2003). (5th As the First Circuit Federal (2d ed.2004), § 701.05 citing “in describing practice Evidence as explained advisory R. Evid. committee’s Fed. herently problematic”: rules), proposed notes to 1972 observing very testimony raises the real [S]uch it previously had held two other verdict could be specter cases that it was “error to allow law en- by statements of fact or cred- influenced express opinions forcement witnesses to ibility in the overview but assessments culpability defendants’ based on [the] is also possi- evidence. There totality gathered of information in the bility testimony might that later be dif- investigations,” course of their id. at 211 ferent than what the overview witness (citing v. Grinage, United States assumed; objections could be sustained (2d Cir.2004); 749-51 United States v. change or the witness could his or her (2d Cir.2003)). Dukagjini, 326 F.3d story. testimony by govern- Overview The court held that “the foundation re- agents especially problematic ment quirements of Rule 701 do not permit a juries may place greater weight because agent law enforcement testify to an perceived impri- on evidence to have the opinion ... investigative based [on work] matur of the government. agent’s and formed if the reasoning pro- (internal Casas, 356 F.3d at 119-20 citation depended, part, cess whole or in on his omitted). specialized training experience.” and Id. Approaching question the from a differ- at 216. perspective, prohib- ent the Second Circuit recently This court observed that the lay overview witnesses giving ited from First, Second, and Fifth Circuits “have opinions anticipated about evidence with- agents’ hearsay-laden viewed hearsay- or satisfying requirements out the three of testimony based overview at the onset of Federal Rule of Evidence 701—that trial as a rather blatant prosecutorial at- (1) testimony witness’s be based on his tempt hearsay to circumvent rules.” Unit- (2) personal perception, helpful be to the Smith, ed States (3) scientific,

jury, not be based on (D.C.Cir.2011) (citations omitted). In technical, specialized knowledge. or other Smith, charged the defendant was Garcia, See 413 F.3d at 211-17. As re- drug An agent and firearm offenses. FBI factor, gards the second the Second Circuit testified at the start of the trial that Smith dismissed the notion that an overview wit- co-conspirator and a “were working to- jury by ness framing aided how the gether putting money together their unfold, government’s case-in-chief will ob- going buy to New York to heroin.” Id. at serving already provides law “[t]he appeal, 366. On Smith contended adequate vehicle for the testimony overview single sentence— —the ‘help’ jury gain an overview of antici- was based on hearsay inadmissible pated preview evidence as well as a of its thus violated Federal Rules of Evidence theory (“FRE”) culpability: of each defendant’s 701 and Assuming 802. the same opening statement.” Id. at 214. To the prohibition against- hearsay inadmissible summary extent testimony by witness testified to applied an overview witness fact, question circuits, the ultimate Second as the other the court conclud- agent’s objected-to single- FBI All three dangers ed that the identified this court in Lemire are evident from testimony was not based on oth- the record sentence Agent Sparks this case: FBI testified hearsay inadmissible because erwise about yet presented evidence not while underlying either admis- statements were opining that the cooperating witnesses co-conspirator party-opponent of a sions present would truthful evidence because 801(d)(2), FRE see id. at statements under they were guilty insiders and were them- error, harmless, 367-68, and if was see id. selves, strengthening government’s reached the same ulti- The court yet-to-be presented offering case and inad- respect agent’s to the conclusion with mate missible providing gov- evidence while testimony meaning about the lay opinion ernment with a opening argument. second co-conspira- and his slang used Smith example, For upon being map shown conversations; al- during tors recorded Columbia, the District of FBI Agent though lay opinion testimony was inad- Sparks confirmed that the 31 circles locat- FRE 701 it missible under because was map accurately ed on the reflected the specialized knowledge gained on based murders, charged locations the 31 working drug investigations, on other from that murders clustered in certain locations Wilson, (citing id. at 365 United States v. beginning occurred toward the (D.C.Cir.2010)), the er- charged conspiracy. May 2002 AM agent ror harmless because the was would Trial Tr. at But 68-69. no such evidence qualified expert have as an under FRE 702 FBI Agent Sparks was before the testimony, same and offered the id. at 366. purport testify did not from personal knowledge of each murder. At other ordinarily The district court is af points, Agent Sparks FBI referred to wit- forded broad discretion determine the testimony ness never presented manner which evidence will be received. during the course of the trial. States, See Huddleston United circumstance, exemplary In one FBI 681, 690, 99 L.Ed.2d 771 Agent Sparks testified on redirect exami- (1988). Lemire, But in this court conclud co-conspirator nation that Erskine Hart- pervasiveness ed that “the dan the[ ] well had described his role in the conspira- gers had identified with [it summarization cy supplying drugs and introducing requires evidence] we review the Gray May Moore and to Oscar Veal. See summary closely.” use of a witness 720 16, 2002 AM Trial Tr. at 56. When asked Indeed, only it was “under by the district court whether this informa- appropriate circumstances with appropri tion was “based on what told [Hartwell] ate instructions” that this court “in the [him],” Agent FBI Sparks agreed, prompt- past approved summary the use of wit ing the jury district court to state: “The nesses ... in trials.” going Microsoft to hear his testimony.” Id. at 57. Corp., 253 F.3d at 101. accordingly We only Yet when asked moments later Agent Sparks’s review FBI overview testi prosecutor “if Erskine Hartwell will be a mony closely, aware that there was no voir not,” witness in FBI Agent this case or dire testimony limiting before his and a Sparks replied that he “d[idn’t] know instruction given jury only was after sure if will.” at 59. From [Hartwell] Id. he completed testimony, only his and then portions of the transcript submitted with regard opinions, to court, otherwise de parties to this there is no indication scribed, may that he have offered while that Hartwell testified at trial and hence testifying. testimony “later ... what differe[d] [from] Casas, the overview witness assumed.” drugs---- [T]hey fer present are when prosecutor 356 F.3d at 119-20. The thus drug They deals are done. have been impermissibly invited the “rely to people day out, with these in day and upon alleged facts in the [overview] as you need that kind of testimony. already if proved.” facts had been [those] only way That’s the put to these kind[s] (alterations Griffin, 324 F.3d at 349 in together. of cases (citation original) quotation and internal Id. He also goal testified that in a omitted).10 marks debriefing session to “[g]et[ complete was ] Likewise, FBI Agent Sparks impermis- and truthful information” and that it was sibly strength commented on the important “try verify” the informa- government’s yet-to-be introduced evi- “[j]ust tion to make sure the person is dence, credibility vouched for the of wit- truthful, complete.” are Id. at nesses the intended to call at 15, examination, 16. On redirect FBI trial, gave personal opinion his as to Agent Sparks reinforced the notion that guilt or innocence. Weighing trial evi- cooperating witnesses were guilty of making dence and “[determinations of committing crimes their capacity as the credibility jury,” are for the United States co-conspirators: defendants’ (D.C.Cir.1995) Boyd, Q: You questions were asked a lot of (citation omitted); quotation marks on cross-examination about cooper- Virginia, see also Jackson v. 443 U.S. witnesses, ating you continually (1979), 99 S.Ct. 61 L.Ed.2d 560 referred to them as criminals. as is “drawing] the ultimate conclusion of A: Yes. innocence,” guilt or United States v. Gau- Q: Any your doubt in mind about that? din, 506, 514, A: None whatsoever. (1995); Garcia, L.Ed.2d 444 see also May 2002 AM Trial Tr. at 59. 210-11; Peterson, F.3d at United States v. (D.C.Cir.1973). All of this opinion testimony FBI was Agent Sparks’s testimony beyond went far “constructing crossed the line the se- in a number of example, quence instances. For he investigation events ... view, testified that it important, provide background his information and ex- cooperating to use witnesses this plain why case how and agents even came because it was only way” gain “the to be involved with particular [a] defen- “access to May the inside information.” Flores-de-Jesús, dant.” United States v. 15, 2002 (1st AM Trial Tr. at 8, Cir.2009) (citations 25. Acknowl- 569 F.3d 19 and edging that cooperating witnesses omitted). quotation internal marks In- criminals[,] “themselves ... unfortunate- stead, these suggested statements both di- ly,” he further testified that cooperat- the rectly indirectly jury that an ing co-conspirator witnesses nonetheless experienced highly trained FBI agent on, going

know they what’s have had the determined that the cooperating co- information, they’re eyewitnesses, the conspirators who testify would at trial ear-witnesses, they hear what these were to be treated as credible witnesses guys talking are about after com- appellants and that were guilty of the murder, murder, mit a they witness a charged crimes. The implication clear was they know where the stash government locations are the only had selected See, co-conspirator cooperating Other spiracy. e.g., May wit- 2002 PM Trial Tr. 139; nesses Aug. testified to Hartwell’s role in the con- at 2002 PM Trial Tr. at 113-16. 60 testimony zation evidence. Overview of- witnesses for the co-conspirator

truthful opportunity “poison jury’s fers an the investigation, from whom pre-indictment against mind the defendant or to recite during hear the trial. the would highly questionable evidence.” items of testimony sum, Agent Sparks’s In FBI (citation Thomas, 114 at and in- F.3d offering non-expert his improper omitted). quotation ternal marks Avoid- charged conspiracy and the opinions about dangers largely beyond ance of those reliability the of vouching for appellants, court, ability the of the district much less cooperating of the co- investigation and the defense, prevent. As the record government witnesses conspirator demonstrates, here a trained law enforce- trial, testify at and dis- to have planned likely go officer is as far as the ment yet to intro- that had be cussing evidence allow, questions presenting picture taped the dearth of conver- duced. Given prosecution of a solid case based videotaped evidence—none sations strength and credibili- opinion on his almost exclusive reliance to Moore—and ty government plans the witnesses cooperators’ testimony, co-conspirator on testify to call to at trial for reasons made understandably might government persuasive training in view of the officer’s to enhance its case seek at the outset See, May experience. e.g., imprimatur of an jury’s mind with the (prosecutor asking Trial Tr. at AM 15-16 prosecutor But the went too agent. FBI Agent Sparks why FBI truthful informa- allowing Agent far in FBI questioning, important). limiting tion is After-the-fact with Sparks expert to act as an witness best, can, mitigate preju- instructions at investigations and to refer respect gang dice, invariably rather than eliminate its to evidence that would never be introduced completely. effects See United States v. court, turn, failed at trial. The district (2d Cir.2011); Curley, 639 F.3d objections appropriate to sustain defense Amaral, Woodcock testimony Agent Sparks’s pur- to FBI (1st Cir.1974). govern- The view of the testimony ported opinion to offer and to implanted ment’s case has been in the government yet confirm evidence that had jury by agent mind of the Feder- to be introduced. Investigation al Bureau of who on worked presenting an over- Because witness the case—he should know! government’s view of case-in-chief runs permitting govern- remains free to serious risk impermissibly “paint picture ment to call as its first witness a law enforcement guilt familiar pre-indict before the evidence has been intro- officer who is with the duced,” Griffin, may investigation per ment or was otherwise Flores-de-Jesús, involved, introduced, sonally never permissible be where under join the circuits that the Rules of Evidence and we consistent condemning guarantees. have addressed the constitutional issue Old Chief (1st States, Casas, 186-88, practice. F.3d at 119 U.S. (2d Garcia, Cir.2004); (1997); at 214 L.Ed.2d 574 413 F.3d 136 Cir.); (5th Curtis, Griffin, at 481 F.3d 324 F.3d Cir. States 2003). (D.C.Cir.2007). may, generally Such a witness See Feder- Weinstein’s 1006.04[3], §§ example, provide The be able to relevant back 1006.08[4]. al Evidence investiga to the ground use overview witnesses exacerbates the information as scope in or the methods of dangers” “obvious this court identified tion’s duration surveillance, knowledge. non-expert personal Lemire in the use of summari- based on Flores-de-Jesús, timony 569 F.3d at 19. Put in the government’s case-in-chief jury that the way, disregard any opinion a law enforcement officer was to another offered, testimony May he see complicated government 2002 AM may “describe (4) Trial Tr. at 90. There was that do not wit- overwhelm- program terms address see, ing evidence of appellants’ guilt, e.g., credibility,” may ness but he offer VII, XVIII, Parts XXIII.B. And as testimony.” Griffin, “tendentious 324 infra impermissible opinion to some of his testi- Thus, Agent FBI Sparks F.3d at 349. mony, Agent Sparks FBI might qual- have describe, properly per- could based on his Smith, ified as an expert, see 640 F.3d at knowledge, gang investiga- sonal how the Accordingly, 366. the error did not “af- initiated, tion this case was what law the outcome of the fect!] district court involved, enforcement entities were Sumlin, proceeding!],” United States v. investigative techniques what were used. (D.C.Cir.2001) (citation 271 F.3d See, May PM e.g., Trial Tr. at 50- omitted), quotation marks and hence present lay 51. What he could not do was appellants are not entitled to reversal of opinion testimony investigative about tech- their improper convictions because of over- niques general opine on what gener- testimony by Agent Sparks. view FBI not, ally and what works does as illustrat- inauspicious beginning pled guilty. gov- ed informants who Neither ernment’s case-in-chief easily is avoided in anticipate gov- could he evidence that the court, the future. No less than the hope ernment would to introduce at trial Department recognizes of Justice high charged about the or express offenses an prosecution standard set for the by the opinion, directly indirectly, about the Supreme Berger, Court in 295 U.S. at strength credibility of that evidence or the Similarly, 55 S.Ct. 629. long- this court’s any government’s potential of the wit- purpose held view of the opening nesses, including cooperating co-con- jury, namely statement to the to allow the spirators. prosecutor the opportunity provide close, Although question we objective with an overview of the evi- conclude for the following reasons that the dence that the government intends to in- prejudice resulting from the admission of trial, Thomas, troduce at see at Agent Sparks’s FBI testimony, overview 247-48, long prosecutor has afforded the it inappropriate, extent was opportunity to do that for which the (1) ameliorated: Each instance of FBI prosecutor improperly Agent used FBI Agent Sparks’s improper testimony identi Garcia, Sparks, see 413 F.3d at 214. This by appellants fied was later confirmed having court now made clear the exacer- trial, admissible Appellee’s see dangers” bated “obvious of the overview 105-07; 10; supra Br. at note see also testifying witness yet about evidence to be (2) Griffin, Appellants’ parties admitted before the affords all defense was limited cross-examining clear direction to avoid unnecessary testifying cooperating co-conspirators and prosecutor risks —for the of an overturned (such other witnesses Mar conviction, for the defense of an unfair Simmons, garita eyewitness trial, to the mur having and for the district court of son, Simmons, der of her Richard retry a case. infra XXIII.B), Part see United States v. Gar C. cia-Morales, (1st Cir.

2004). (3) The district court instructed at Much for the gov- reasons stated brief, Agent the conclusion of FBI Sparks’s appellants’ litany prose- tes- ernment’s 62 not, 70, 72; Childress, AM Trial Tr. at claims do their see also misconduct

cutorial effect, North, 716; 897; warrant In reversal. at cumulative 58 F.3d 910 F.2d proba- Hawkins, 751, have considered regard, this we United States v. 595 F.2d any (D.C.Cir.1978). impermissible effect of aggregate ble 754-55 may that have oc- conduct prosecutorial prosecutorial claims of miscon- Other ability jury’s judge on the curred duct, including appellants’ arguments re- States v. Cel- fairly. See United Brady 83, lating Maryland, (D.C.Cir.2010) 818, (citing is, 847 F.3d 1194, (1963), 83 S.Ct. 10 L.Ed.2d 215 and States, 958, 287 F. Egan v. United statute, bribery the federal 18 U.S.C. Thomas, (D.C.Cir.1923)); see also F.3d 201(c)(2), XII, § Parts VI infra only addressing appel- two In at 246. Similarly, appellants’ are without merit. misconduct, prosecutorial claims of lants’ prosecutor, by eliciting claim that the testi- any indicated that have other implicitly we mony appellants sought that had the ad- may misconduct have prosecutorial attorney vice of a certain named to defend minor in itself and had no occurred against charges criminal not at issue in in- limiting effect view of prejudicial case, inappropriately implied ap- this example, appellants For main- structions. they pellants guilty were because took prosecutor impermissibly tain that counsel, steps penalizing to retain this thus credibility govern- for the of the vouched appellants exercising their constitution- witnesses, particularly co-conspira- ment’s right al to counsel under the Sixth Amend- witnesses, during cooperating closing tor ment, is without merit. See United States argument. Although rebuttal statements (3d Yeager, ex rel. Macon v. 476 F.2d 613 “[tjhey’re telling such as the truth about Cir.1973). Although testimony some 4, Dec. AM experiences,” their Trial might impermissibly privi- have revealed express per- impermissibly Tr. at attorney-client conversations, leged an ar- prosecutor, they opinion sonal were make, gument appellants do not there was on responses, based evidence introduced at prosecutor, not a direct statement trial, attacks appellants’ on the credibili- in Yeager, appellants retained ty government’s during of the witnesses counsel the instant case because closing argument. See United States v. guilty. Biddy, United States v. Cf. 1, 17-19, Young, 470 U.S. (D.C.Cir.1974) (en 509 F.2d 442-45 (1985); 84 L.Ed.2d United States v. banc). Rather, the evidence demonstrated (D.C.Cir. Brown, 1075-76 attorney that the linked several members Robinson, 2007); United States conspiracy, including of the Moore and (D.C.Cir.1995). prosecutor Gray. however, emphasized jurors, that it Having appellants’ considered all of province weigh credibility was their misconduct, prosecutorial claims of con- we regardless arguments of witnesses of the clude, in light of the district court’s limit- Dec. 2002 AM counsel. See Trial Tr. ing instructions 69; regarding statements of Nnanyererugo, United States v. cf. (D.C.Cir.1994). regarding particular argu- counsel and Impor evidence, the overwhelming ments or tantly, the district court instructed the appellants’ guilt any evidence of insofar as weight, it alone determined “the concerned, prosecutorial the effect the value of misconduct is the evidence witnesses,” any credibility prosecutorial and the which the cumulative effect of opening appellants complain evidence did not include counsels’ misconduct of which trial, closing arguments. Dec. 2002 did not affect the outcome of the therefore, encompasses harmless. See Kotteakos v. evidence is ei- States, part charged 66 S.Ct. “of an act that is of the 328 U.S. ther (1946); Chap see also or is performed 90 L.Ed. offense” of “acts contem- 18, 24, California, 386 U.S. 87 poraneously charged man v. with the crime ... if (1967). 824, 17 L.Ed.2d 705 facilitate the commission Bonne, crime.”

charged 232 F.3d at 929. V. provides Rule 403 that even evidence “may otherwise admissible be excluded if trial, government At introduced evi- probative substantially its value is out- uncharged about Moore’s role in an dence by the weighed danger prejudice, of unfair drug-trafficking conspiracy by Rayful run issues, confusion of the or misleading Edmond; uncharged Nunn’s role in an by jury, delay, or considerations of undue Webster; Phyllis ap- conspiracy time, presentation waste of or needless of Lee, of Rodman who was not a prehension cumulative evidence.” Fed.R.Evid. charged co-conspirator, while he was with requires Rule 403 the district court Gray, contemporaneous discovery and the engage “on-the-spot balancing proba- base, in Lee’s car of cocaine and cocaine prejudice” tive value and and to exclude government per- none of which the claims factually even relevant evidence when it charged conspiracy; tained to the several fails the balancing Sprint/United test. uncharged shootings; murders and Mendelsohn, Mgmt. Co. v. Gray’s uncharged juvenile conduct as (2008) 1140, 170 L.Ed.2d Gray perceptions and others’ as a leader (quoting 1 S. Childress &M. Davis, Feder- while he was detained at the Oak Hill (3d 4.02, § at 4-16 al Standards Review Facility. Appellants argue Juvenile ed.1999)) (internal quotation marks omit- highly this evidence was irrelevant and ted). prejudicial, admitted violation of Rules 404(b) and 403 of the Federal Rules of Appellants claim that the district The cumulative effect of Evidence. these court should government have barred the errors, claim, evidentiary appellants de- introducing from the evidence of un prived process them of due of law. charged question conduct because it charged was not “intrinsic” to the conduct 404(b) Rule declares inadmissible and was therefore evidence of “other crimes, wrongs, evidence of “other or acts crimes, wrongs, by or acts” barred Rule prove person ... the character 404(b). Appellants also contend that such conformity action in order to show there erroneously evidence was admitted under 404(b). with.” But not all Fed.R.Evid. prejudice Rule 403 because its risk of crimes, uncharged wrongs, evidence of substantially outweighed the defendants rule. acts is barred this When evidence probative Although appellants its value. charged of such acts is “intrinsic” to the likely are correct that the district erred crime, it is not evidence of “other” acts and permitting to introduce 404(b). wholly unregulated by is thus Rule uncharged the evidence of conduct at is Alexander, v. See United States sue, of Moore’s role in the (D.C.Cir.2003); particularly 116, 124-27 United States (D.C.Cir. Bowie, Rayful role in conspiracy, Edmond Nunn’s F.3d 927-28 Badru, 2000); Phyllis conspiracy, and Webster United States (D.C.Cir.1996). juvenile, Gray’s 1473-75 “Intrihsic” unlawful conduct as we 64 any government’s obligations Brady error was not reversible.11

hold that under 1194, error, Maryland, constitutional we 373 U.S. 83 S.Ct. 10 assuming Even (1963). L.Ed.2d 215 if the reverse a conviction error will not beyond a “harmless reasonable was components “There are three of a true California, 386 U.S. Chapman doubt.” Brady violation: The evidence at issue (1967). 18, 24, 824, 17 L.Ed.2d 705 accused, must be favorable to the either strength In of the amount and of the light exculpatory, because it is or because it is government presented the of the evidence impeaching; that evidence must have been crimes, any potential find that charged we State, suppressed by willfully either or error was harmless. inadvertently; prejudice must have Greene,

ensued.” Strickler v. VI. 263, 281-82, 144 L.Ed.2d (1999). Appellants’ Brady claim fails 1996, Gray Bailey. In murdered Ricardo because some of this information was not Gray request of Rodman did so Lee. appellants, favorable to and because the Gray fleeing and Lee were arrested while government’s failure to disclose the re- murder, the scene of the and a search of mainder did prejudice. not cause approximately Lee’s van revealed five kilo- The grams showing in a that Lee was a cocaine hidden secret com- higher-level drug dealer than partment. pled guilty Gray Lee would ensuing appellants. not have aided drug charges. govern- Documents related to that ment itself contended that plea Lee was “at a major show that Lee was a drug dealer, higher drugs level in terms of than Kevin Gray that Lee was senior to Gray.” May dealer, 2002 PM Trial Tr. at 69. status a drug and that Lee was According government, it was Lee’s transporting most of the cocaine in his van major status as a supplier cocaine to a implicated distributor who was not motivated Gray Bailey to murder on Lee’s Gray conspiracy. the Moore and behalf. Appellants government’s claim that the

failure to disclose the information in Lee’s respect With to the evidence that plea drugs documents to defense violated the Lee’s van were destined for Judge Rogers 11. Circuit would find un- Accordingly, testimony error eration. Edmond’s 404(b) der Rule as to the prior activity introduction of about only Moore’s criminal can evidence, certain propensity but nonetheless conclude be viewed as evidence introduced beyond character, the errors were harmless a reasonable to demonstrate Moore’s bad doubt for the reasons stated Douglas, court. United States v. 482 F.3d Exemplary (D.C.Cir.2007), testimony Rayful Ed- "complete and to [Moore's] mond, circumstances,” drug kingpin story” notorious "explain in the Dis- [his] serving multiple trict of practice rejected Columbia life sen- this court in United States v. Bowie, prison following (D.C.Cir.2000). tences in his conviction. See Edmond, United States v. 1083- regarding Gray's The same is true of evidence (D.C.Cir.1995). juvenile, Edmond testified unlawful conduct as a which evi- days for two concerning separate, at trial purported dence the was de- conspiracy predated violent signed the Moore to demonstrate the formation and Gray charged conspiracy supersed- scope charged conspiracy. in the The evi- ing indictment. beyond Gray The fact that Moore was in- dence went the fact that met volved in conspiracy charged Edmond's irrelevant conspiracy was members of the while in- charged conspiracy, facility juvenile as the trial tran- carcerated in a delin- script government’s belies quents purpose assertion and served no other than to of, conspiracy genesis Edmond Douglas, show his bad character. See for, template drug-trafficking op- Moore’s F.3d at 596. partici may of course Gray spiracy. con Criminals the Moore and outside someone See, conspiracy. fails be than one Brady pate claim more appellants’ spiracy, Marino, show prejudice. To they cannot show States v. e.g., cause “a (1st Cir.2002); must demonstrate appellants see also United States v. prejudice, 25 that, (D.C.Cir. had the evi Childress, probability 693, n. reasonable 58 F.3d 711 3 defense, the to the 1995) (“[T]he been disclosed dence conspirators fact that certain would have been proceeding of the result independent drug in transactions engage Pettiford, 627 States v. different.” United the existence of negate not on its own does (D.C.Cir.2010) 1223, (quoting 1227 F.3d fact conspiracy.”). The that some single a 1936). 280, Strickler, 527 U.S. not contradict the appellants did so does the burden of show bears “The defendant overwhelming evidence that Moore and a different probability of ing a reasonable to collaborate on crimes Gray continued Johnson, 519 United States outcome.” claimed had long after the defense (D.C.Cir.2008) 478, (citing Strick 488 F.3d ways. Pettiford, 627 F.3d at parted See 1936). ler, 291, 119 (“The responsibility court ... has a impact of the undisclosed to evaluate the drugs The evidence isolation, light evidence not but Moore not destined for the Lee’s van were (citation quo- and rest of the trial record.” have been of Gray organization would and omitted)). tation marks open In its value to the defense. minimal statement, government mentioned ing government Brady The did not violate dur only passing, drugs’ destination respect to the Lee evidence. with Gray murder lengthy description a ing 9, PM Trial Tr. Bailey. May ing VII. made no other government at 71. drugs’ in particular those

claims about indictment filed superseding In a destina drugs’ and the recipient, tended and appellants November oth on government’s was not material tion co-conspirators indicted and unindicted er Rather, drugs significant were ease. in a charged participating drug presence their corroborat simply because jointly conspiracy led Moore and RICO claim that Lee was government’s ed the years, approxi Gray for over from Gray would major for whom drug dealer 2000. mately through March Under to kill others. willing be five-year applica of limitations statute § charges, to these see 18 U.S.C. ble Moreover, the that Lee had prove had to that Moore government Gray the Moore and distributors outside into Gray’s joint leadership continued materially aid- would not have organization period, beginning Novem the limitations already had The defense appellants. ed Seher, 17,1995.12 See United States v. ber that members of the Moore shown (11th Cir.2009). Ap 562 F.3d in oth- Gray conspiracy were also involved law that the court must plying well-settled of that fact drug rings. er Corroboration if accept jury’s guilty “any verdict importance, because would have had little Lee, of fact could have found the rational trier deny not government did beyond a elements of the crime illegal essential Gray, or others had business doubt,” judgment we affirm the Gray’s con- reasonable directly related to Moore any appellant. For ease of anal- date which the existed as 12. This is the latest relevant sufficiency jointly-led ysis we of evidence as prove had to con- address appellants. continuing enterprise to this date for all spiracy and criminal charges. of conviction on these reasonably could have credited other testi- Dykes, States v. 721 mony that Moore continued to have deal- (D.C.Cir.2005) (citation quotation ings in Southeast. See United States v. omitted). marks (2d Eppolito, 543 Cir.2008); Dykes, see also 406 F.3d at 721. More- Appellants contend there was insuf- over, “shifting emphases in the location of beyond ficient evidence for the to find operations not necessarily require do[es] doubt that Moore and Gray reasonable finding of more than one conspiracy.” jointly conspiracy led a unified through Jones, (2d United States v. They November maintain that Cir.2006). Carson, inAs United States v. multiple the evidence showed there were reject we the argument that multiple con- conspiracies essentially that Moore and — spiracies can be through shown “attempts Gray split up drug operations their in the artificially split conspiracy one into two 1993-1994 time frame and thereafter oper- simply based geographic on lines.” 455 separate conspiracies ated in different sec- 336, (D.C.Cir.2006) (citation and city tors of the that came into contact with omitted). quotation internal marks only casually. each generally other Tarantino, United States v. The central issue is whether (D.C.Cir.1988). 1391-93 Rather than Moore’s Gray’s and following actions maintain that failed to Moore’s relocation to Northeast are incon prove the traditional single elements for a sistent jury’s with the finding conspiracy goal, interdepen- —common jointly continued to lead the charged con dence, and, extent, to a lesser overlap of spiracy past November 1995. On this participants, see id. at appellants 1393— point, appellants maintain that Moore’s re identify the “crux of this issue” to be lationship Gray changed, with as shown government presented whether the suffi- that, Sanders, evidence according to after cient evidence that “Moore Gray joint- the move supplied Gray Moore with co ly charged led the conspiracies and [the caine “a only May 20, few times.” continuing criminal enterprise] within the PM Trial Tr. at 138. This mischaracter statute of periods,” limitations Reply Br. testimony. izes Sanders’s previous On the charged. as page of transcript testimony of his support As position, ap their Sanders admits that he had no knowledge pellants point to the evidence describing regularly of who was supplying cocaine to Moore’s relocation from the Gray, Southeast to Gray and that told him of “a few quadrant Northeast D.C., of Washington, times” that supplied Moore had cocaine. prior 17, 1995, to November leaving Gray Id. at 137-38. This is not the same as operate separately in Southeast. An evidence that supplied Moore Gray’s oper examination of this evidence shows that it ations in only Southeast a few times. Fur falls short of undermining jury’s ther, ver Maurice Andrews testified that dict that Gray’s joint Moore and leadership Gray’s Moore was primary supplier of of a single conspiracy continued after large quantities of cocaine starting instance, Moore’s move. For appellants and continuing at least into July 1996. See emphasize Raymond Sanders’s testimony 54-56; 2002 PM Trial Tr. at see also “dropped Moore out Dykes, of Southeast” in 406 F.3d at 721. There was also 1993 or 1994 and was not seen South Gray may evidence that initially have ob east May thereafter. See Alfred, PM tained cocaine from Ronald Trial Tr. however, at 126-27. jury, Frank Howard separate confirmed a con- Alfred, Every day. A: himself, Rod- between spiraey Trial Tr. at Lee, July you go 2002 PM over to Q: why And would man factually nor day? is neither every Northeast Such finding inconsistent legally money pick over there to [Gray] A: had to lead Gray continued Moore basically go we’ll to see up and Here, much conspiracy together. charged and then meet [Moore] [Moore] Maynard, 615 F.3d States v. as in United them. (D.C.Cir.2010), regards “[t]he Q: right up that occur on And did ..., separate conspiracies purportedly

two through at least 1995 and 1996 and conspiracy core comprises each into 1997? that certain con- And “the fact charged.” A: Correct. drug engage independent spirators Id. 88-89. negate not on its own

transactions does There was also sufficient evidence single conspiracy.” of a the existence joint Gray’s leadership Moore and Childress, States 17, conspiracy continued after November (D.C.Cir.1995). 711 n. 3 1995, apartment complex at a Southeast evidence ample offered Halley Gray Terrace. oversaw located on conspiracy through Novem- jointly led of a Andrews, in drug operation the which 17, extends to 1995. This evidence ber Arnold, partici- and Jermaine Vick David scope and conspiracy’s geographic both the Although Arnold testified that pated. unlawfully dis- aims: to principal its twin any dealings never had with us “Moore commit murders. See drugs and tribute Terrace,” 22, Aug. Halley down on Indict, key testi- at 4-5. The Superseding 16, and Andrews PM Trial Tr. at Vick drug operation the mony regards supplied that Moore the South- testified Andrews, ac- from who came Northeast 10, drugs. Sept. See operation east daily in 1996. Gray on a basis companied (Vick); AM Trial Tr. at 11 Oct. Andrews PM Trial Tr. at 88. July (Andrews); AM Trial Tr. at 56 Gray guys a lot of over that “had testified Moreover, at 721. Dykes, also cousins, Northeast],” including Moore’s [in testimony makes clear that this Andrews’s uncles, at Each and brother. Id. 82-84. continued relationship Halley at Terrace family participated members of these temporary until a eight for six to months business, in- drug which Gray’s Northeast Moore and two-month fallout between at 86. Moore as well. See id. volved February Gray the time of the around was Indeed, that Moore Andrews testified in New York. 1998 NBA All-Star Game for responsible “in person particular AM Trial Tr. at 56-60. Oct. in that area drug operation overseeing Contrary appellants’ contention H, Northeast.” Id. of 7th and a hardly reflected that of Moore’s actions joint stewardship Gray’s Moore “leader,” Br. at re- Appellants’ Vick 17, 1995, es- November Northeast after Gray came to see called that Moore clearly by Andrews’s an- most tablished or, [Gray] you he to see need[ed] “[w]hen government’s direct examina- swers on the know, impor- to deliver some need[ed] he tion: that, something like or tant information somebody carry out a task.” often, hanging he needed

Q: you when How 12 (empha- 2002 AM Trial Tr. at every day, Sept. Mr. Gray with Kevin out added). Likewise, Oscar Veal testified Andrews, you go sis how often would Halley Terrace to Northeast, that he met Moore Washington? over to targets in justifiable murders of Northeast evidence and discuss draw inferences of ” Aug. fact,’ Dykes, 1997. See 2002 AM Trial through 406 F.3d at 721 (quoting evidence, Foster, From this Tr. at 13. United States v. (D.C.Cir.1986)), reasonably infer Moore’s ab- could we hold that suffi- necessarily time did not supported jury’s time to cient evidence finding sence from role; non-leadership in- point Gray jointly that Moore and toward led the might suggest charged Moore was within conspiracy stead it the limitations role, supervisory in a while acting period. principal opera-

Gray day-to-day coordinated VIII.

tions. Finally, reasonably could have Appellants argue charges all under concerning Veal’s 1998 the District of relied on Columbia Code were im- dealer, Cobb, a Roy drug joined rival their properly murder federal indictment 8(b) statutory period. limitations Rule well into under Federal Rules of recounts, them Gray As drove both of Criminal joinder Veal Procedure. Because maintain, at a loca- improper, appellants from meet Moore the district Southeast there, jurisdiction tion in Northeast. Once court lacked to hear those 11-502(3) presence conspir- § of other members of the charges under of the District Gray Code, acy, killing provides Moore discussed Columbia which Having already for plan Cobb. devised “the United District States Court murder, Gray Moore and Veal jurisdiction walked District Columbia has of ... to a location where it known specific [a]ny any was offense applicable under law ex- intersection, clusively that would at an stop Cobb to the District of Columbia which instructed go joined Veal on how to about offense is in the same information Although Gray killing any Cobb. Moore and or indictment with Federal offense.” change plan, to refine and continued the interpreted “joined” We have the term Gray provided gun Veal with the used to 11-502(3) joined §in mean “properly to murder Cobb and afterward Moore com- under Rule of [Federal Criminal Proce- pensated Veal with cash and cocaine. See Jackson, 8.” United States v. dure] 562 50-55, 90; id. at Oct. AM also 2002 (D.C.Cir.1977). F.2d 793 Under Rule 108-11,116-20. Trial Tr. 8(b), joinder of local charges prop- the sum, In appel- the on only evidence which er here if charged all the offenses rely in attempting part lants to demonstrate were of the same “series of acts or Gray Moore and ceased to as (holding serve transactions.” id. at 794 joint of charged conspiracy leaders the propriety joinder “the of in cases where 1993 1994 support weight or does not the there are multiple defendants must be they it, 8(b) place upon have reasonably could tested Rule alone and that Rule 8(a) rejected by been other light of has no application”); Fed.R.CrimP. 8(b) (“The contrary testimony, witnesses’ or is irrele- may indictment or information vant joint of 2 leadership. existence or charge more defendants if are “ Mindful that prosecution’s alleged ‘the evidence to have in the participated same is to light transaction, be viewed in most act favorable or or the same series of government, transactions, drawing constituting no distinction or acts of- offenses.”). between Appellants’ direct and circumstantial evi- fense or conten- dence, giving play right full of superseding tion is indictment and the jury to credibility, weigh determine the evidence adduced at trial demonstrate

69 might requirement” satisfy ment for charges properly th[e] were local 8(b) joinder). 8(b), Rule the dis- joined under Rule jurisdiction. lacked trict court therefore IX. disagree.

We Appellants contend that the intro that “a of have held ‘series We autopsy into reports duction is ‘two or more acts or acts or transactions’ of the authored the Office Chief Medi together consti connected or transactions cal Examiner of the District of Columbia or tuting parts of a common scheme reports drug analyses performed by ” Brown, plan.’ States v. Enforcement Drug U.S. Administra (D.C.Cir.1987) 591, 598, (quoting United (“DEA”) tion violates Confrontation (D.C.Cir. 985, v. 731 F.2d Perry, States Clause the Sixth Amendment 1984)). Construing the facts of the su reports’ Constitution authors because true, must, as as we perseding indictment were not available for cross-examination. Zicree, v. 605 F.2d United States Our review of the district court’s legal (5th Cir.1979); see United States v. regarding conclusions the Confrontation (D.C.Cir. Carson, 336, 372-73 455 F.3d novo, Carson, is de Clause United States 2006); Spriggs, United States v. 102 F.3d (D.C.Cir.2006), 455 F.3d and sub (D.C.Cir.1996), the local of 1255-56 ject analy to constitutional harmless error fenses were committed as acts charged California, pursuant sis Chapman charged conspiracy of the furtherance 18, 23-24, in the charged acts predicate and/or (1967), L.Ed.2d 705 see United States v. All of the of conspiracy. charged RICO Smith, (D.C.Cir.2011); federal, fenses, part were thus local Wilson, United States v. plan, which means common scheme (D.C.Cir.2010). that, 8(b), they of Rule purposes landscape Supreme Court’s part of series of acts or transac the same jurisprudence on the Confrontation Clause Carson, tions. 455 F.3d at 373-74. trial changed appellants’ has since con- the superseding Because we conclude that rule governing cluded 2003. The at the joinder the indictment establishes time, Roberts, set forth in 448 Ohio U.S. proper, local we the offenses was hold 65-66, 65 597 S.Ct. L.Ed.2d jurisdiction § 11- district court had under (1980), was that out-of-court statements 502(3). against admitted a criminal defendant the the requirements Even if evidence adduced at trial avoided Confron- if within had that all of offenses tation Clause came tradition- demonstrated hearsay exceptions were not of the same series of acts or al or were otherwise part 2004, however, In reject Supreme we reliable. proposition transactions —a —this jurisdiction from relied strip would not the dis- Court on the Confrontation Clause’s trict underpinnings court. If the indictment establishes historical to hold “tes- 8(b), joinder proper under Rule trial evi- timonial” out-of-court statements a de- joinder impermissible testifying dence cannot render clarant not at trial were inad- and is to our missible inquiry. thus irrelevant under the Confrontation Clause (“Rule 8(b) Spriggs, at 1255 unless the unavailable can declarant was by previously subject be ... satisfied indictment cross-examination. (ex- alone----”); F.2d at Perry, Washington, 53- Crawford 54, 59, obviously, plaining “[q]uite the indict- 158 L.Ed.2d 177 S.Ct. (2004). qualifying Statements as “testimo ters. At trial prosecutor introduced parte nial” included “ex in-court testimony report analyst and certificate of into is, equivalent or its functional mate evidence as a business record. The foren- —that affidavits, rial such as custodial examina analyst sic who authored report did not tions, testimony prior that the defendant testify at trial and was not otherwise sub- cross-examine, was unable to or similar ject to cross-examination Bullcoming. pretrial statements declarants would Instead, prosecutor called as a witness reasonably expect prosecutori to be used a scientist from the laboratory same who ally,” “formalized” other materials such as had not signed Report of Blood Alco- “affidavits, depositions, prior testimony, or hol Analysis, and neither participated in confessions,” and “statements that were nor observed the test on Bullcoming’s made under circumstances which would blood sample. testifying The scientist objective reasonably lead an witness to was, however, familiar with blood-alcohol believe that the statement would be avail analysis laboratory’s and the testing proto- able for use at later trial.” Id. at 51-52 Bullcoming, cols. 131 S.Ct. at 2706-12. (citations omitted). quotation marks objected Defense counsel on Confrontation applied The Court Melendez- Crawford grounds, Clause open- noted that “her — Massachusetts, -, Diaz v. U.S. indeed, ing, her entire ‘may very defense 2527, 2531-32, S.Ct. 174 L.Ed.2d 314 ” well have dramatically been different’ (2009), to hold that the state’s use of a had prosecution prior disclosed laboratory report forensic to prove that day of the trial that it would not calling be seized cocaine was of a certain quality and the certifying analyst as a witness. Id. at quantity violated the Confrontation Clause (citation omitted). competent because no live witness to testi fy Supreme The Court to the truth of the statements held that the Re- made in port report Analysis was available for cross-exami Blood Alcohol was “testi- nation. monial” and therefore within the ambit of Clause, the Confrontation a resulted dic- Supreme The Court’s most recent deci- tated Melendez-Diaz. Id. at 2716-17. sion on the Confrontation Clause is Bull- It further “surrogate — clarified that the tes- Mexico, coming U.S.-, v. New timony” of the substitute witness “does not (2011). 180 L.Ed.2d 610 After meet requirement the constitutional [of failing sobriety field tests and refusing right cross-examination]. accused’s test, breath Bullcoming was arrested and to be analyst confronted with the who required give sample blood for the certification, made the analyst unless that purpose determining of his blood-alcohol trial, is unavailable at and the (“BAC”). accused had concentration Bullcoming’s opportunity, an pretrial, to cross-examine blood sample was sent to the New Mexico particular that [analyst].” Health, Id. at 2710. Department of Scientific Laborato- Division, aspects Three of ry the Court’s reasoning where a are analyst forensic noteworthy First, signed a here: the analyst,” “certificate of Court framed part of a question the “Report presented standard form titled as of Blood Al- whether “the Analysis,” cohol recording permit[s] Confrontation Clause Bullcoming’s prose- the grams BAC as 0.21 cution per hundred to introduce a forensic laboratory milliliters. New charged report Mexico Bullcoming ag- containing with a testimonial certifica- gravated driving under the influence tion ... through of the in-court testimony of intoxicating liquor, requires proof analyst which of sign who did not the certifica- grams BAC of 0.16 per hundred millili- tion personally perform or or observe the appel- in into evidence over the were admitted reported the test of performance no objection way lants’ that “there is 2713; also id. at at see Id. certification.” ... confront under the Sixth Amendment” J., concurring in (Sotomayor, 2711-12 the reports’ unless calls the Second, rejected the ar- the Court part). authors as witnesses. Oct. 2002 PM Bullcoming’s “true accuser” gument Trial Tr. at 90. machine that gas chromatagraph the was figure the BAC generated the in Bullcoming This differs from case a “mere scriven- analyst’s role was First, respects. three relevant because (majority opinion). Id. at er.” he four testified that authored Walker Third, explained that a surro- the Court 23, 2002 Trial reports, DEA see Oct. PM knowledgeable as to the gate witness Tr. at and he was available for cross- in protocol used adminis- equipment trial, at these four DEA re- examination “convey ill-equipped the tering test no ports present Confrontation Clause or certifying analyst] knew ob- what [the Bullcoming.14 other problem under The events his certification about the served however, remain issue. reports, 20 DEA at concerned, i.e., particular test and test- the reviewed, Second, personally but Walker could such process employed. he Nor ing author, report shortly one DEA did not expose any lapses testimony or surrogate creation, testifying “[he] after its certifying analyst’s part.” the Id. lies on the ... and [were] at what results look[ed] at 2715. analyst] proper [the sure that used ma[d]e come knowledge up case scientific-based of the instant re The facts Bullcoming. Although Id. at 80. part [the] in those of results.” semble analysis Bullcoming Dr. indicates that as witnesses Jona government called by surrogate degree participation Arden, Medical Ex than then-Chief D.C. Walker, can alter Clause aminer, a DEA senior witness Confrontation Jerry analysis, Bullcoming, Dr. Arden testified as to forensic chemist. J., 2715-16; (Sotomayor, id. 2711-12 approximately autopsy

the contents of appears role concurring part), other examin Walker’s authored medical reports but, wit- office, surrogate to be much like of the Bullcoming, in his as ers he Bullcoming because was unable provided by par ness as the record insofar shows, authoring forensic performed “convey [the nor what neither ob ties he or knew observed about signature his autopsies chemist] served concerned, i.e., the any reports.13 events his certification not on appear does he em- particular testing process test and Similarly, testimony concerned Walker’s on ployed,” “expose any lapses or lies analyses, per 20 of drug which [authoring part,” chemist’s] id. DEA chemists on forensic other forensic formed (majority opinion). at 2715 Walker did not investiga in the of the drugs seized course did being performed the test charged conspiracy, results observe tion sign report approving the DEA in DEA re which were memorialized Rather, that, in testified reports DEA official. Walker autopsy The ports. Pereira, reports, autopsy report per- of 14. Of the four Walker-authored DEA The Jaime 13. 2000, 15, report May only the DEA dated examiner for Com- the formed a medical 20, relating 2000 of Virginia, evi- to the March seizure was admitted into monwealth of Nunn, drugs appears to have been made pursuant stipulation, and thus from dence raises part appeal the multi-volume record on Clause See Bullcom- of no Confrontation issue. provided by parties. the ing, at 2706-07. 131 S.Ct. 72 review, “making testimony he was an

performing despite question his Clause his is a the chemist used sam- in Bullcoming, assumption open that the left where the Court analysis.... making Pm ple and did the was only testifying confronted lab they that did do each of assumption the technician who had “no what- involvement they tests that wrote down on their the in report.” soever the relevant test and 23, PM 2002 Trial Tr. at worksheet.” Oct. Id. at 2722. holding In there constitutional

81. was Bullcoming, Supreme in the Court error government’s The attempts on a similar statement the testi- relied Clause, avoid the Confrontation on the “you fying surrogate witness: don’t know grounds autopsy reports that rank as you actually analysis unless observe the reports non-testimonial and DEA conducts, else that someone whether data,” contain “raw rather than “state protocol every followed instance.” th[e] ments,” 185-87, 189, Appellee’s Br. at are (altera- Bullcoming, 131 S.Ct. at 2715 n. 8 by Bullcoming.15 foreclosed (citation original) quotation tion omitted). marks First, “solemn or af declaration^] Third, purpose made for the firmation[s] Dr. Arden testified as the Chief of estab Examiner, lishing proving fact” prior D.C. Medical to trial some are testimo Melendez-Diaz, may have nial “supervi- he well had either a statements. 129 (citation sor[y]” regard reports at quotation role with S.Ct. 2532 marks omitted). personal, from his or even “a way, Office albeit Put another document “[a] limited, to the at [autopsies] solely connection created for an ‘evidentiary purpose,’ issue.” Id. at 2722 J., (Sotomayor, concur- ... made in aid of police investigation, in part). ring reports Whether such would ranks as testimonial.” Bullcoming, 131 Melendez-Diaz, be under inadmissible Confrontation (quoting S.Ct. 2717 government suggests The that Dr. Arden's testimonial statements inadmissible under 15. testimony permissible and Walker’s Confrontation Clause live absent in-court tes- expert testimony pursuant to Federal Rule of timony by the declarant. Other courts have 187, Appellee’s Evidence 703. Br. at expert held afoul the runs Confronta- authority on which the relies tion "parrot[s] Clause when he out-of-court distinguishable reports because the forensic directly testimonial statements ... to the in those were cases not introduced evi- into guise expert opinion.” of United States See, e.g., dence at trial. United v. Pa- States Johnson, 625, (4th Cir.2009) v. blo, 1285, (10th Cir.2010); (citation quotation and internal omit- marks Turner, F.3d States 932-33 see, ted); Pablo, e.g., at 1291-95. (7th Cir.2010). It could well be a different Here, testimony by Dr. Arden and Walker expert case where an witness discussed out- relayed often reports. contents For of-court testimonial statements "were not example, responding prosecutor’s ques- themselves admitted as evidence.” Bullcom- report tion about what "the re- indicate^]" J., ing, (Sotomayor, concur garding gunpowder soot or marks on the arm Williams, ring part); People see also Dent, Anthony Dr. "[the Arden testified that Ill.2d 345 Ill.Dec. 939 N.E.2d 268 report] specifically says gun- ... soot or (2010), -, granted,-U.S. cert. powder tattooing being ... are mentioned as 180 L.Ed.2d 2011 WL 2535081 absent.” June 2002 AM Trial Tr. at 9. (U.S. 2011). Any expert June testimony Likewise, relating examination to the DEA by Dr. Arden and Walker does not avoid the reports typically consisted Walker autopsy confirm- reports fact and DEA ing a stating lab number on an admitted exhibit and appellants’ into evidence at trial. Moreover, report conclusion regarding we note need but not decide the tested See, drugs. testimony e.g., whether Dr. Arden's or Walker’s Oct. 2002 PM Trial Tr. at 97, 98, qualifies 114, 118-20, proper expert opinion as on based 122-25. 2532). Furthermore, reports. creation the Supreme The Court con- the at S.Ct. laboratory reports in the in autopsy signed the certifications were formalized cluded Bullcoming’s were analyzing factors, BAC report “reports.” titled These documents “a of- law-enforcement because testimonial the fact each autopsy with that combined to a state provided seized evidence ficer the to be a found manner death homi- in law to laboratory required by assist wounds, by gunshot cide caused are “cir- foren- investigations,” certifying the police an objective cumstances which would lead analyst pre- the evidence and “tested sic reasonably to that the witness believe concerning the result of a certificate pared be at a statement would available use was formalized analysis,” the certificate his Melendez-Diaz, trial.” at later S.Ct. signed and headed a “re- a document (citation marks quotation and omit- and document referenced court port,” the ted). admissibility the of certi- relating

rules Second, suggestion the that analyses. Id. at 2717. fied blood-alcohol data,” reports only DEA contained “raw Analogous circumstances make the au- Supreme rejected the the Court same testimonial.16 topsy reports here The Office “Bullcoming’s that characterization true by required of the Medical Examiner [gas ... accuser was the chromatography] 5-1405(b)(ll) to investigate § D.C.Code machine, analyst[’s] testing while ... [the] Metropolitan the Police for which “[d]eaths role was that of mere Bull- scrivener.” [“MPD”], other law en- or Department (citation coming, 131 S.Ct. or agency, the United States forcement omitted). quotation internal The marks a Attorney’s requests, or court or- Office emphasized analyst “report- Court autopsy reports investigation.” ders machine-generated more a num- ed than requests not whether such do indicate when ber” he in the case were made instant but he Bullcoming’s certified that received that MPD homicide detec- record shows intact the seal sample blood with unbro- from the Mobile tives officers Crimes ken, that he checked to make sure present autopsies. at several Unit report the forensic number the sam- report supplemented autopsy Another ple “eorrespond[ed],” number diagrams containing the notation: with performed Bullcoming’s sample he on (not diagram crime Ex- [Medical “Mobile test, adhering to a particular precise only).” for info Still another aminer] —use protocol. represented, He further Review report “Supervisor’s included leaving the section of “[r]emarks” the MPD Criminal Investi- Record” from blank, that no report “circumstance commenting: gations Division “Should integrity condition ... affect[ed] Raynor for this have indictment re John validity sample or ... murder.” Law enforcement officers thus analysis.” representations, These relat- only autopsies, a fact that observed past ing to events human actions not signaled have to the medical exam- would raw, data, machine-produced autopsy might iner that bear on revealed investigation, they participated are meet for cross-examination. criminal testimonial, and, event, imposed sy reports any on 16. Certain duties D.C.Code are approach such the Office of the Medical Examiner demon- it is doubtful would strate, comport government suggests, autopsy Supreme precedent. Court 2532; Melendez-Diaz, reports Michi- are business records not made for cf. — U.S.-, Bryant, litigation. unnecessary gan v. purpose It is (2011). categorical autop- L.Ed.2d 93 decide as a matter whether 11155-56, (alterations ellipses original) in not ports, reaching question Id. and and thus the omitted). (internal citations Likewise open Bullcoming, left S.Ct. at 2711- here, forensic chemists who authored J., the (Sotomayor, concurring part), we reports representa- made several the DEA the beyond hold error was harmless a tions, example, were trained reasonable doubt. proce- certain DEA chemists who followed respect drug With to those convictions regarding marking the of containers dures dependent specific weight aon and/or seals, inspection and of that the the and (Counts quality quantity and of 126-138 reagents analytical chemical instru- and/or indictment), the superseding any improp- from

ments used were free contamination erly reports, admitted DEA which were operating properly. The record testimonial and within ambit the of the by this parties court submitted the does requirements Clause, Confrontation appellants not had an opportunity indicate may prejudicial have caused error. The to cross-examine the forensic chemists parties’ could briefs not address Bullcom- representations. just about their as And which ing, by was the Supreme decided the Supreme per- Court concluded that the argument, after parties Court oral and the of a analysis formance blood-alcohol using not did address which specific counts of gas ... chromatography was “matter superseding may may indictment or certain,” so or id. at simple 2711 n. not be on grounds. sustained other Ac- subject “human ... step,” error at each cordingly, we remand to the district court drug analysis id. at the DEA process to determine whether the admission of the requires forensic chemists to weigh sub- reports DEA error Bullcoming was under stances, calculations, make and choose the which counts underlying judgment particular correct “color test for kind of vacated, Smith, exhibit,” of conviction must Oct. PM be Trial atTr. F.3d at process subject government also to human error. because Indeed, type cannot by one of test used the DEA establish that the error was harm- gas beyond forensic chemists involved chromatog- less a reasonable doubt. raphy. id. Non-struetural constitutional er X.

ror, as such violation of the Confrontation Act, Under the Jencks prosecutors must Clause, requires vacation of a conviction “any government disclose statement” aof only where error was not harmless witness subject “which relates to the mat- beyond Wilson, a reasonable doubt. See ter as to which has witness testified.” (citing at 1014 Chapman, 3500(b). § 18 U.S.C. 824). A statement includes U.S. at regards As “a written statement by made said autopsy reports, witness there was other evidence signed by him,” otherwise adopted trial that the 31 murders occurred well as gunshots any “substantially fired members verbatim re- charged cital” conspiracy. For witness’s oral example, there was testi statements “re- mony by contemporaneously corded cooperating co-conspirators with the mak- Gray ing 3500(e). claimed of such shooting § credit for oral statement.” Id. Anthony Dent that Handy In the its lengthy investigation claimed credit for course of Green, murdering Demetrius appellants, and there created re- eyewitness testimony Handy ports shot of many witness interviews. Appel- Assuming Richard Simmons. argue error with lants district court abused respect review, admission re- autopsy its discretion when it declined

75 attempt establish colorable claim camera, of to the of interviews reports all of later specific prior testified witnesses’ interviews witnesses who government any trial, whether to determine statements. The produced at in order had Jencks Act Jencks contained appellants following of those records came was the closest disagree. We exchange: statements. or you Do recall whether not Defense: an “affirma court has

A district you speaking were the while adequate inqui duty” “engage in an tive people taking times these were when of the documents before ry into nature the they you to slow notes whether asked production.” Act ruling Jencks against something could they down so write Stanfield, v. 360 F.3d States United (D.C.Cir.2004). However, saying? you down that were a defen 1355 judge compel court dant cannot a district Witness: No. in every govern the through sift record you anyone you Did ask [sic] Defense: merely by speculating possession ment’s repeat yourself? in there those records that somewhere Probably so. I’m not sure. Witness: Rather, Act might be statements. Jencks must a “colorable claim” the defense raise guess A that an interviewer witness’s or set docu that a document of specific probably him to himself at repeat asked See, Jencks statements. ments contains point during an does not some interview Price, 542 F.3d e.g., United States speculation more than anything create (8th Cir.2008); States v. Rose 621 is a “substan- report the that interview (4th Cir.1996). boro, 646 the tially verbatim recital” of interview. Roseboro, 646. Under those reports question in here The interview Cf circumstances, court did the district not officers, lawby written enforcement declining abuse its discretion review themselves. Such the witnesses every resulting report, much less inter- qualify do not as Jencks reports generally report during investiga- view created statements; usually are not Act tion. of the wit- “substantially verbatim recital” by” “adopted approved or

ness’s words XI. Price, 621; 542 F.3d at the witness. Cf Moreover, Roseboro, even F.3d trial, elicited testimo- government At down few of the if the interviewer wrote from two former members of the Moore ny words, there is no “sub- exact witness’s they had Gray conspiracy con- if recital” the inter- stantially verbatim religious to Islam and that their verted selection” engaged viewer “substantial testify them to conversion motivated United States quoting witness. cross-examination, prosecution. On (D.C.Cir.1996) Donato, attempted to the defense demonstrate States, (quoting Palermo v. United two the conversions those witnesses 352-53, L.Ed.2d U.S. questioned awere sham. The defense also (1959)). There is thus little reason to legitimacy many government other reports the interview in this believe beliefs, though even religious witnesses’ generally contained Jencks state- case had not government raised issue ments, no to insist that reason examination of those on direct witnesses. every report. court review such district sought in turn to defend government occasions, genuine nature its witnesses’ reli- appellants two On cross-examined gious witnesses beliefs. gov examination, contend that

Appellants religion on direct but with testimony elicitation of with re ernment’s many Appellants others well. admit spect its witnesses’ faith violated Feder to did so both to impugn gov- the al of Evidence 610. That rule states: Rule ernment credibility sup- witnesses’ and to opinions of the beliefs or of a “Evidence port their own claim that government the religion on of is not witness matters admis prison witnesses Friday prayer used ser- showing by of purpose sible for the vices to coordinate testimony against false of nature the reason their witness’ credibil record, appellants. On this the defense’s ity impaired or enhanced.” is topic extensive cross-examination on this cannot be used to government transform a government responds the testi- The error) (assuming two did fall error a mony the witnesses was relative- ly part because the was within Rule 610 evidence minor trial into a reversible purpose showing States, “for the inter- offered error. See Lurk v. 296 United religious (D.C.Cir.1961). est bias of’ beliefs. or because 361 advisory committee’s Fed.R.Evid. According government, to the notes. XII. religious

witnesses’ conversion refuted an Nunn maintains that the district namely, accusation of the accusation bias— court erred in denying his motion for a solely testifying the witnesses were new trial. See Gray, United States v. plea agreements. receive favorable The (D.D.C.2003). F.Supp.2d 91-94 Al government argues thus that this testimo- though issues, the motion raised four this ny motive, went witnesses’ not their only part addresses Nunn’s contention that credibility. testimony of Steve Graham pro needWe not decide which side has by government cured in violation of the argument, better assuming because even statute, federal bribery 18 U.S.C. arguendo that there in allowing was error 201(c)(2), § provides which that “[w]hoever testimony, this the error was harmless. offers, gives, ... or promises anything 52(a). government See Fed.R.CrimP. The any person, value to or because of the very religious elicited little testimony of its testimony under oath given or affirmation own accord. It made no mention of that given or be such a person as witness testimony in opening closing; or it never upon a trial ... shall be fined ... or urged jury to credit its witnesses on imprisoned years, for not than more two or account of their faith. United States Cf. both.” Graham testified that Nunn was (D.C.Cir. Spinner, 152 F.3d 961-62 Gray’s drug supplier and described two 1998). Whatever slight influence those drug Gray transactions between two religious witnesses’ conversions could Nunn. See Nov. 2002 AM Trial Tr. have had on insignificant along 14-26. Our review of the district court’s side overwhelming of appel denial of a new trial is for abuse of discre lants’ guilt this See case. Kotteakos v. Johnson, tion. United States v. States, 750, 765, (D.C.Cir.2008). (1946). 90 L.Ed. 1557 Moreover, Graham thoroughly defense was indicted for participating probed religious the issue of only charged drug faith not conspiracies, and RICO n withthe two witnesses who discussed their his trial but was severed from that of the regarding Nunn's claims Federal Rule of Federal Rule of Criminal Procedure 14 are 404(b) XXII, pursuant Evidence respectively. severance addressed in Parts V and 35(b)(2)(C),18 pro- effective December refusing After of- co-conspirators. other a plea granting into viding enter an additional basis for by the fers govern- with the cooperate on a agreement sentencing reduction based defen- of con- ment, he was convicted to the govern- dant’s assistance substantial heroin cocaine base to distribute spiracy agreement ment. also memorialized The with intent to distribute possession to file Rule government’s intention court Gra- sentenced heroin. district Gray, F.Supp.2d motion. at 92. 210-month terms of to two concurrent ham view, cooperated In Nunn’s Graham incarceration, by two concurrent followed against the and testified government with incarceration, and years’ of five sentences agreed appellants government because the See years supervised release. three of Graham, untimely improper file Rule to an States 35(b) his This (D.C.Cir.2003). agree- motion on behalf. year than More 265-66 constituted, words, in Nunn’s this court in December ment sentencing, after represent counsel to appointed bargain,” Appellants’ new “Faustian Br. at counsel ex- appeal. on New Graham represented because it that Graham real- cooperating the of benefits plained importance ized the of the information he of the terms such government the only upon appointment of new possessed something that Graham cooperation, year appellate counsel more than one after failed to do. his trial counsel claims when, Nunn, according to sentencing, Gra- 66-67, Trial Tr. at 70. 2002 AM Nov. possessed ham this information the time potential contacted the his and knew of its In March Graham arrest express his desire to to prosecutor’s gov- office thus value. Nunn contends gov- On October cooperate. ernment, ineligible was aware Graham into entered an ernment and Graham 35(b)(2)(C) reduction, for a sentence Rule cooper- whereby Graham would agreement unlawfully Graham le- nonetheless offered. government testify fully with the ate niency exchange cooperation. for his agree- trial. The truthfully appellants’ Ramsey, United States F.3d 980 “the stipulated that usefulness ment (D.C.Cir.1999), controlling. Ramsey ... not could have supplied information drug of a crime based on was convicted reasonably anticipated by [Graham] been named Fierro. testimony by an informant sentencing year more than a after his until Ramsey challenged on the his conviction in- promptly provided [Graham] and that bribery ground that federal statute its government after utili- formation government for the made it unlawful reasonably apparent to him.” ty was leniency exchange for his offer Fierro Gray, language at 92. This F.Supp.2d af- cooperation testimony. This court now found Feder- tracks amendment firmed, bribery holding that Procedure statute al Rule Criminal year sentencing was after and which Federal Rule of Criminal Procedure 35(b)(2)(C) provides: government promptly provided af- (2) reasonably appar- Upon government’s motion made ter its usefulness was sentencing, year more than one after ent to the defendant. may a sentence if the defen- court reduce advisory committee notes that "[w]hat dant’s assistance involved: substantial depend prompt’ constitutes notification will on circumstances of the case.” Fed. (C) information the usefulness which advisory committee’s note to R.Crim.P. reasonably anticipat- could not have been 2002 amendments. than ed the defendant until more one its applicable terms (5th the Appx. 854, Cir.2005). 858-59 Because United States when in conjunction read the district court acted within its discretion Dictionary Act, with the 1,§ U.S.C. in crediting Graham’s stipulation that he reasoned a contrary conclusion would realized the usefulness of the information deprive the federal of its long- he possessed only upon the explanation by standing ability plea bargain, thereby new appellate counsel, government’s creating absurd results. See Ramsey, 165 Rule 35 motion meets Singleton test, F.3d at 986-91. As justification, additional even assuming arguendo its applicability court this concluded that “even if federal here. prosecutors were subject to [the federal Accordingly, we hold that the district statute], bribery that fact would not justify court did not abuse its discretion in deny- excluding Fierro’s testimony’ under the ing Nunn’s motion for a new trial motion exclusionary rule Congress because had based on testimony. Graham’s prescribed only a monetary fine and im- prisonment punishments. Id. at 991. XIII. Nunn Counsel for conceded at oral argu Gray’s contention the ment that “the cases district court legion[ are ] that the abused its government discretion in is allowed denying to his re- exchange lenien quest for a cy testimony.” destruction of Arg. Oral Tr. at evidence instruc- tion if is manifestly Even the federal bribery without merit. statute This were applicable, court has no authority violation depart would not to change from Ari- the course zona v. Youngblood, 51, trial Nunn’s 488 because the U.S. 109 S.Ct. exclusionary 333, rule 102 operate would not L.Ed.2d (1988), to 281 pre requiring bad vent government the faith destruction, from eliciting see Felton, Gra Agostini v. testimony. ham’s United 521 203, Single 237, States v. U.S. 138 ton, (10th 165 Cir.1999) 1297 (en F.3d (1997), L.Ed.2d 391 a showing Gray con- banc), is not to the contrary. Nunn cedes make, relies he cannot Appellants’ Br. on a concurring opinion for the proposition at 204. “[p]roseeutors may offer only those incentives that Congress has approved, XIV. and may bargain and execute agreements Appellants requested that the district only within the narrow, specific procedures court instruct on its theory that Congress and the courts have articu the government demonstrated, most, lated.” Id. at (Lucero, J., 1308 concur engaged multiple independent ring). The majority likewise stated: “Our conspiracies, single joint not a conspiracy. conclusion in no way permits agent an Appellants submitted several in- proposed government to beyond step the limits structions to the court on this theory; of his or her office to make an offer to a district court refused give to appellants’ witness other than one traditionally exer proposed instructions, four of which are cised the sovereign.” (ma Id. at 1302 now at issue on appeal. See Nov. 2002 jority opinion). A motion under Rule 35 is PM Trial Tr. at 47-56. functionally little different plea from the bargain at issue in Singleton and the le We have held that a “theory-of-defense niency afforded to the informant in Ram instruction inis order if there is ‘sufficient sey, save for the timing. United States evidence from which a Cf. reasonable v. Ridge, (6th 329 F.3d Cir.2003); could find’ for the defendant on his theo- United v. States Vargas-Deleon, 124 ry.” Fed. Hurt, United States v. substances, you may then find (D.C.Cir.2008) controlled (quoting United States (D.C.Cir. Glover, guilty single conspiracy of the them F.3d v. 1998)). In this However, charged making have made clear Count One. we also determination, you de- should consider provide requested failure to that a conspirators not error share a com- instruction is reversible whether fense “(1) substantively may goal.... You also consider the instruction: mon unless (2) correct; substantially covered of the the extent which members actually on one charge conspiracy depended delivered another in the (3) point important accomplish goal of narcotics distribu- jury; and concerns tion, it give overlap participants the failure to in the trial so that ability operations conspiracy, seriously impaired the defendant’s various given effectively quality, frequency, defense.” duration present Taylor, conspirator’s each transactions. States (D.C.Cir.1993) States (quoting United Tr. Dec. 2002 AM Trial at 108-10. (5th Grissom, Cir. Rather, question here is whether omitted). 1981)) (internal quotation marks refusal in- provide specific court’s requested by appellants disputes appellants No structions consti- one reversible hold instruction on their tutes error. We that it did entitled to an at not. theory proven, that the had

most, than a multiple conspiracies rather the in- Appellants requested following Indeed district single conspiracy. the structions: gave an instruction: court such Instruction 3. To determine whether the govern- The defendants contend the supports single conspiracy a as trial is at variance from proof ment’s at multiple conspiracies, you to opposed in of charged One conspiracy the Count the must examine whether defendants is, indictment; the evi- the any goal, interdepen- shared common trial, believed, presented at if dence among any the participants, dence multiple conspiracies would constitute in overlap among participants the the conspiracy. overall single rather than a allegedly separate conspiracies. The ov- multiple a single conspiracy, Whether only if the erlap requirement is satisfied conspiracy no at all ex- conspiracies or alleged figures conspiracy main in the decide.... Proof of you isted is to conspiracy’s involved in all of the are conspiracies separate several alleged scheme. single conspiracy of overall proof case, you

charged govern- in indictment. Instruction In this What U. single alleges ment what is known as a ‘hub must determine is whether government charged spoke’ conspiracy. ex- conspiracy as Count One Gray Moore conspirators. alleges two or more Mr. Mr. isted between conspiracy, find exist- at the of the you conspiracy If that no such were hub defendants, in ed, other you acquit the defendants that the addition must however, charge. If, conspirators, ‘spokes.’ find the were you this other However, in con- proved beyond prove has a rea- order to such a it is a spiracy, that the must be shown that there sonable doubt defendants conspiratorial period interrelationship, at direct any point during involved integrat- ‘interdependence,’ among in an also known charged the indictment ed, conspiracy, effort on the of the ongoing, ‘spokes’ common to distribute those omitted). relationship to their

in addition to those marks A “continuing series of violations,” § the hub. 848(c)(2), requires U.S.C. participation in three or predicate more In5. order for the defen- Instruction offenses, one of may which be a drug One, to be convicted of Count dants conspiracy charged § under 21 U.S.C. 846. beyond evidence must demonstrate Harris, See United States v. F.2d doubt each defendant reasonable (D.C.Cir.1992), 252-54 on overruled other the scope knew or had reason know grounds, States, Bailey v. United organization and retail the distribution (1995); 133 L.Ed.2d 472 involved, had reason to believe that Dec. also 2002 AM Trial Tr. at 120. from op- their own benefits derived The jury upon convicted Moore finding dependent upon eration the suc- [were] seven proven predicate offenses. Moore cess the entire venture. challenges his CCE conviction on the single conspiracy A Instruction 6. exists ground that there was insufficient evidence if agreement there is one overall among to support jury’s finding of three or parties perform various different predicate more offenses. This court “must carry objectives functions in order to out accept jury’s guilty verdict” where a conspiracy, multiple [the] while con- rational trier of fact could reasonably have if spiracies exist each of the conspira- found that Moore committed at least three agreements tors’ has its own end and predicate offenses. United States v. constitutes an end itself. Dykes, (D.C.Cir.2005). 717, 721 We cannot conclude that the failure to any provide proposed of the instructions The predicate offenses found “seriously impaired the ability defendant’s (1) included the drug conspiracy charged effectively present given defense.” 846; (2) § Count see 21 Gray’s U.S.C. Taylor, light In possession with intent to distribute cocaine comprehensive district court’s instructions (Count 1, base on October 1996 Overt to the the about multiple- defense’s (3) 78); Act Raynor’s and possession with conspiracies theory, which mentioned all of intent to distribute February heroin on the factors jury’s relevant to the determi- (Count 1, 90). 1997 Overt Act The latter nation, appellants we find that were able to two were attributable to a Moore as co- effectively present their defense. conspirator pursuant to v. Pinkerton Unit- States, 640, 645-48, ed

XV. (1946): 90 L.Ed. long 1489 “As as a Count 2 charged Moore with en substantive offense was done in further- gaging in a continuing enterprise criminal ance of the conspiracy, reasonably and was (“CCE”), in § of 21 violation ‘necessary U.S.C. 848. as a foreseeable or natural con- § To government convict under the sequence of the agreement,’ unlawful then prove must that the defendant committed: a conspirator vicariously will be held liable “1) felony a violation of the federal narcot for the offense committed his or her co- 2) law; ics part continuing as of a conspirators.” series of Washing- United States v. violations; 3) ton, (D.C.Cir.1997) concert with five or more 106 F.3d 4) persons; Pinkerton, for whom the defendant (quoting 647-48, 328 U.S. at organizer 5) supervisor; 1180); from which he S.Ct. see also United Bak- States er, (11th derives substantial Cir.2005); income or resources.” Hoyle, Hoover, States v. 122 F.3d 50 United States (D.C.Cir.1997) (citation (7th Cir.2001). quotation 1057-58 XVII. predi- to these CCE challenge Moore’s contention that rests on his cate offenses murdering convicted Smith of terminated before charged conspiracy the During the in- police Eric Moore. initial it period, when limitations the statute murder, vestigation of Moore’s another conspiracies operating separate into split man, Ward, Antoine claimed to have killed city quadrants of the more in different argues that Moore. Smith the district filing years prior five than excluded improperly court follows, It Moore superseding indictment. the confession. We conclude that Ward’s maintains, government’s failure to not abuse its district court did discretion negates charged conspiracy prove excluding evidence. the Ward predicate finding these CCE jury’s Eric Moore was found shot to death a proven beyond reasonable offenses closet, pillow a his bedroom with on his conviction for suggests Moore doubt. the room At nearby floor ransacked. conspiracy would be drug the Count trial, government witness testified: vicariously and he not be vacated would drove and an to accomplice he Smith Gray’s Ray- under Pinkerton for liable apartment rob- Moore’s with intent of no charged there was nor’s acts because Moore; bing carrying that Smith Washing- to be furthered. See conspiracy handgun; accomplice and the that Smith ton, Because we con- apartment carrying returned from Moore’s Gray jointly that Moore and led clude clothes; bags of and that Smith told the within the limita- drug conspiracy charged Moore witness he had shot in Moore’s VII, Part period, supra tions pillow after placing closet over Moore’s grounds dis- identifies no other Moore gov- head muffle the sound. Another jury’s these turbing verdicts ernment testified that had witness Smith offenses, challeng- such as predicate CCE in a confirmed those details conversation Gray ing sufficiency of evidence witness. Raynor committed these Count light, Before the above evidence came to acts, they properly are considered overt police fingerprint belong- had found a predicate offenses. CCE ing apartment. in Eric Moore’s Ward target became the first challenge the Ward therefore Accordingly, Moore’s police investigation into this murder. jury’s finding predi- of these Count CCE questioned, that he When Ward admitted cate offenses fails.19 initially that he knew Moore and claimed with three participated robbery Moore’s XVI. men, of whom other one killed Moore. story, naming Moore later his a government agree The Ward altered the as the felony person Moore’s convictions for different murderer. Still later, entirely, changed the of his account premeditated murder and murder Ward claiming va that he killed Moore himself dur- merge. Ronald Powell We therefore ing any felony argument, denying Moore’s murder conviction for cate Then, of others involved. in his fourth the murder Powell. were guilty plea Act see Any violation the Confrontation Clause to Overt Oct. 131-33; admitting report certify- the chemist DEA Chapman Trial Tr. at see also v. Raynor ing possessed by the substance to be California, 386 U.S. S.Ct. heroin, IX, supra rendered Part harm- (1967). L.Ed.2d 705 beyond Raynor’s less reasonable doubt statement, pre- grant Ward fusing immunity and last recanted his to a defense wit- any accounts and denied in- vious three ness. Id. at assuming 342-43. Even robbery in Moore’s or death. volvement applies (given Carter here that Smith was not pursue charges did government The D.C.Code), charged with murder under the it against Ward because did find suffi- everything district court did that the his cient to corroborate involve- Carter decision require: gov- would The ment. ernment had interviewed Ward when it him, the govern- investigated grant counsel informed and decided not to

Ward’s Ward his Fifth immunity ment that would invoke him because Ward’s accounts against right Amendment self-incrimina- self-contradictory likely to result testify called to tion if Smith’s trial. in perjury. accepted The district court Smith claims that the district court should prosecution valid reason for the government have to immunize told Ward, not to immunize and declined to purposes testifying, and if Ward for impose prosecution. sanctions on The refused, government dismissed district court’s decision was well within the charges against Smith. bounds Carter. Butler v. United Cf. States, (D.C.2006); 890 A.2d Car- But the district court had no au ter, A.2d at 342-43. Ward, thority to immunize to compel Ward. immunize The Smith also argues that the court district grant immunity prosecu decision from have should admitted into evidence the tion solely rests with the Executive third of contradictory Ward’s four state- 6003; § Branch. See 18 U.S.C. United regarding murder, ments Eric Moore’s Doe, 605, 616-17, States v. statement which Ward claimed to have (“Con (1984) 79 L.Ed.2d 552 Moore. killed gress expressly left this decision exclusive ly to the Department.”). Justice hearsay, Ward’s confession is but under 804(b)(3) Federal Rule of Evidence such Smith contends that the district (1) hearsay was admissible if: the declar court should have dismissed the murder (2) unavailable, ant was the statement was against charge govern Smith because (3) against interest, the declarant’s Ward, ment refused to citing immunize “corroborating clearly circumstances indi D.C. of Appeals’ Court decision Carter cate the States, trustworthiness statem 684 A.2d 339-46 (D.C.1996) (en banc). ent.”20 party offering the state Carter allows trial ment bears the impose establishing courts to burden prosecu sanctions on the including the statement charges requirements. dismissal of meets these tion— —if prosecution Jackson, creates “distortion of See United States (7th fact-finding process” by unjustifiably Cir.2008); re- United States v. 804(b)(3) (2011). 804(b)(3) Under the version of change Rule That not is relevant trial, during effect requirement here; Smith’s both apply versions of the rule to for clear ments, only applied corroboration to state- Ward’s statement. The 2010 amendment Ward’s, "tending expose such as to applies broadened rule so that it to state- liability declarant to criminal and offered to against penal by ments interest offered exculpate portion accused.” That prosecution as as by well statements offered rule was amended in 2010. new The text (such here). the defense as Ward’s confession applies any to statement "offered in a crimi- 804(b)(3) advisory See Fed.R.Evid. commit- nal case expose as one that tends to de- tee's note to 2010 amendments. clarant to liability.” criminal Fed.R.Evid. (4th claim that he MacDonald, only F.2d Cir. corroborate Ward’s Moore, 1982). that he him. knew not killed facts, was dispute general is no Ward must Against There those Smith his had invoked because he fact that contradicted unavailable with the Ward deal self-in against right Amendment made multiple Fifth his statement times. Ward dispute There is also no separate police regard crimination. statements to four Eric Moore is killing confession Ward’s Eric Moore’s death. In three of those ing The is against his interest. statements, a statement killing four Ward denied corroborating thus here is whether Moreover, sue the details of Ward’s Moore. trust “clearly indicate” circumstances vary significantly in each of the four story of Ward’s statement. Fed. worthiness gave, killing denied he he accounts 804(b)(3) added). (emphasis R.Evid. claiming Moore both before after Other circuits have held that such he did. 804(b)(3)’s demanding. standard is Rule can alone render an other contradictions requirement for clear indications The untrustworthy. wise admissible statement serves someone prevent trustworthiness Jackson, v. See United States 540 F.3d cross- reliability cannot tested whose be (7th Cir.2008); 589-90 United States (such Ward) from exoner- examination (2d Lumpkin, 192 F.3d Cir. v. incriminating him- guilty party by ating a 1999); Bumpass, see also United v. States contemplates rule thus The self. (4th Cir.1995) 1099, 1102 (listing 60 F.3d will guilt out-of-court admissions of some consistency of declarant’s statements as a relevance, excluded, despite be- their be assessing under factor trustworthiness indications possess cause insufficient 804(b)(3)). Rule v. States of trustworthiness. United (2d Salvador, Cir.1987); the deferential abuse of discre- Under Silverstein, States standard, we cannot tion conclude (7th MacDonald, Cir.1984); 1346-47 in excluding court erred Ward’s district 233; F.2d at see also United States 804(b)(3)’srequirement statement. Rule (D.C.Cir. Edelin, 1241-42 indications of is show clear trustworthiness 1993). occasions, separate one. On three strict confes- argument that Ward’s Smith’s his to have killed Ward contradicted claim “clearly” purposes corroborated for sion circumstances, Eric Moore. Under those 804(b)(3) largely general Rule rests oh general corroboration advanced directly that do not confirm Ward’s facts say clear that we can Smith was so killed claim to have Eric Moore. Ward’s court its discretion that the district abused was in proves that Ward fingerprint hearsay excluding Ward’s confession. But in apartment point. some Moore’s statement, he was Ward claimed that his XVIII. relationship with ongoing in an romantic him. also the suffi regularly stayed challenges Smith Moore ciency of the evidence his con fingerprint supporting thus not corroborate does during Anthony that he for the murder of Dent. present Ward’s claim viction murder, concluding much little trouble that the less that he committed We have other of corroborat- sufficed for rational find examples it. Smith’s beyond a doubt. problems: guilt suffer from similar reasonable ing evidence Smith’s 307, 318, tending Virginia, that Evidence demonstrate See Jackson (1979). things knew certain about Moore 99 61 L.Ed.2d 560 Ward alleged during that out The Smith as- the murder. The second wit- Gray murdering Moore and Dent report sisted ness’s of Gray the later conversa- delinquent in a Dent was debt to because provided tion Smith knew government presented testi- Moore. The purpose of the search was to kill Dent mony from two witnesses who observed bring and that Smith intended to about of Dent’s murder. Both the circumstances that result. That evidence is sufficient to Smith, Gray, and Moore witnesses saw support Smith’s conviction. Cf. block searching prior Dent’s the mur- Wilson, States v. 160 F.3d 737-39 witness testified that der. The first (D.C.Cir.1998). Moore, company, Smith’s while in asked challenges Smith’s to this evidence are witness where find Dent. The first unavailing. He suggests expla alternate that Smith and Gray witness also noted eyewitness nations of the testimony and an wearing dark clothes when the wit- theory crime, alternate of the but on suffi spoke Moore. The second wit- ness with ciency person in dark of the evidence review single saw a clothes we must ness Dent, light but could not see the shooter’s view the evidence in the shoot most favor Smith, saw face. The second witness also government. able to the See United States vicinity of Gray, Alexander, (D.C.Cir. Moore killing murder soon after the 2003). occurred. also objects Smith that the testimo (both ny accomplices gov of is unreliable The second witness also related a con- ernment witnesses had been drug dealers years versation occurred after the Gray organization), the Moore and but murder, when that had witness himself testimony accomplice this Circuit alone a lieutenant to Gray. According become can witness, support a conviction. second See United Gray stated that Lee, (D.C.Cir. pay $5,000 had States v. agreed Moore Dent’s 1974). Gray murder. told the And objects witness while Smith to the admission Smith, Gray, and Moore searched for of the second witness’s later conversation Dent, argued Gray Smith with over who Gray, with but this court “must consider actually would shoot Dent and receive the all admitted evidence—whether admitted $5,000. Gray apparently argu- won erroneously or reviewing not—in the suffi ment, and, locating after Dent with Smith Alexander, ciency evidence.” help, and Moore’s killed Dent. Nelson, F.3d at 128 (citing Lockhart v. 39-42, U.S. 102 L.Ed.2d eyewitness testimony of both wit- (1988)).21 placed reject We nesses therefore Smith’s Smith the scene of the murder, working challenge to his his fellow conviction for the murder murderers acting to locate their Anthony victim and as a look- of Dent.

21. Even argument if we construed conspiracy Smith's mained member against Gray admission of the conversation as time of this conversation. See Part XX infra separate argument under the Federal (Smith’s Rules claim to have withdrawn from Evidence, argument fail. would Un- fails). conspiracy And this held court has 801(d)(2)(E), der Federal Rule Evidence recounting past violent acts to members "by coconspirator admissions party of a gang of a violent ais statement in furtherance during the course in furtherance of the conspiracy provides of the it because useful conspiracy” hearsay. Gray are not When conspiracy's information on the activities and gave govern- his account murder to the conspiracy motivates members’ continued witness, Gray's ment that witness was assis- Carson, participation. See United States v. tant and conspiracy. thus a member of the (D.C.Cir.2006). Contrary argument, to Smith's Smith also re-

85 upon XIX. There sufficient evidence jury reasonably which the could find that corollary as a to his Somewhat Gray Smith aided and abetted murder- challenge as re sufficiency Dent. Part ing swpra Smith XVIII. his conviction for murder gards against charge by defended this at trial Dent, Anthony Smith contends that his evidence, offering pursuant to Winfield provide failed constitution trial counsel to (D.C.1996) (en States, A.2d 1 United 676 electing adequate assistance not to ally banc); Wilson, see also United States v. Benbow, Leo Benbow a witness. call 732, (D.C.Cir.1998), F.3d 160 742-43 Smith, according to Dent’s mur witnessed Thomas, party a third with whom Smith Clayton der and would have identified affiliation, had no committed the crime. Thomas as the shooter. understanding An of how un- that defense on a Amendment claim To succeed Sixth folded at and the trial context in which counsel, of ineffective assistance de not to Smith’s counsel chose call Benbow must “that fendant show both counsel’s testify requires background. some and performance was deficient” “that the statements, During opening Smith’s performance prejudiced deficient the de that, counsel forecasted as to Washington, fense.” Strickland v. 466 Dent, “you the murder of find that will 668, 687, 2052, 104 80 L.Ed.2d U.S. S.Ct. eyewitness there that identified other (1984). deficiency To 674 establish “the people and being pres- not Calvin Smith as must repre defendant show that counsel’s 13, ent and May involved.” AM Trial 2002 objective fell below an standard sentation defense, at groundwork Tr. 92. As for this reasonableness,” 688, 104 id. S.Ct. “ expert Smith introduced testimony that 2052; to establish prejudice ‘[t]he defen gun bullets from a fired used in the at- must show that there is a dant reasonable tempted murder of Michael Taylor were that, for counsel’s probability unpro but close to “tantalizingly being perfect errors, proceed fessional the result ” match” to collected following those Dent’s different,’ would have been id. at ing a day murder later. Nov. AM 2002 2052. See also Porter v. McCol Trial Tr. expert opined at 33. The that it lum, -, -U.S. was “likely” the bullets were fired from (2009). typically This court L.Ed.2d pistol. Building the same Id. at 34. on remands an ineffective assistance of coun this Taylor connection between the on sel claim raised the first time direct Dent shootings, which occurred at appeal to the district court for an eviden location, same see Nov. PM Trial hearing trial record tiary “unless the alone 124; 4-5, Tr. at Supersed- see also Counts conclusively shows that the defendant ei Indict, 104-05, ing Smith intended to relief,” ther is or is not entitled establish, through identifications made Shabban, States v. Benbow, Taylor Thomas and two (citation (D.C.Cir.2010) quotation others, Smith, them in- neither of omitted), provided marks the de volved in both crimes. See Nov. has raised a “colorable claim” fendant Trial PM Tr. at 76. that, true, “factual if making allegations of his any would establish violation sixth Before witnesses as to were called counsel,” identifications, right prosecutor amendment United the advised Burroughs, the government’s States district court (citation (D.C.Cir.2010) quotation response third-party to Smith’s defense omitted). might potential marks cause a to arise un- issue States, der Bruton v. United Fluck testified on direct examination in 127-28, 20 L.Ed.2d 476 accordance with ruling. (1968),which held that a defendant’s Sixth Before cross-examination of Detective right to Amendment cross-examination is Fluck, however, the prosecutor noted that when, joint trial, violated in a a non-testify- the direct examination had resulted in an ing defendant’s out-of-court admission is “incomplete accounting of Taylor what Mr. against a introduced codefendant. The said” to Detective Fluck insofar as “Mr. prosecutor explained that one of the assail- Taylor actually talked about people three Taylor ants identified both and Benbow being involved in the Id. at was a tall man Rodney, shooting.” named 97. who the Consequently, prosecutor to be believed con- charged indicated his Moore, spiracy co-principal Rodney intent “to flesh out all of the identifica- prosecutor therefore the tion,” would seek the including the fact that man named identification of all three assailants on Rodney was involved. Id. at 97-98. The cross-examination of Benbow and other court, likely district prosecutor mindful the fact witnesses. Nov. 2002 PM had specter raised the Bruton of a prob- Trial at Tr. 76. Counsel for Moore ap- lem, inquired prosecutor whether the could peared agree regarding the Bruton “sanitize” the cross-examination and avoid problem, stating “given govern- [the Bruton problem by “[a]sk[ing] the officer proffer ... really ment’s] [t]his could come if it is true ... Taylor Mr. also identi- us,” back bite but when demurred fied other individuals.” Id. at 98. In re- pressed by the court district to articulate sponse, however, prosecutor stated the concern. Id. at 81-82. that he think “d[idn’t] it is a Brut[]on The concerning Taylor’s identi- problem, because it isn’t a defendant testi- fication Thomas one of his assailants fying against another I defendant. think testimony by consisted of two police D.C. that’s the Brut[ ]on line authority], [of es- investigated who officers the incident. Of- sentially limited to a defendant testifying ficer stated that Will the attempted mur- against another.” Id. The district court der occurred on “October 8 of [in prosecutor directed the to sanitize the Place, the] 3100 block of Southeast, 15th Id. cross-examination. at 99. parties late evening,” that he directed Detective and the district court then engaged in the Fluck to show photographs Taylor for following exchange, which central purposes of identifying the perpetrator, Smith’s allegation of constitutionally inade- ultimately an arrest warrant was quate counsel: issued for Thomas. Nov. 2002 PM Trial Fluck, Tr. Moore’s I turn, just Detective Counsel: do want to note visiting Taylor recounted in the a concern hospital to that even that sanitized tes- do a “photo spread,” prompting prose- timony, when viewed together within object cutor to admission of an out- the testimony of what I’m told to an- of-court by Taylor. identification See id. ticipate from—the next may witness at 86. Following a colloquy bench, at the provide present a very serious —could the district court sustained objection, continuing type problem Brut[ ]on thereby limiting the direct examination of us. Detective Fluck to the fact that an identifi- The Court: What is next? cation was made Taylor, without reveal- ing the (Thomas) name of the person iden- Honor, Smith’s Counsel: Your I’ll be See id. tified. 86-89, 91. Detective frank with the Court. my It is not go “[sjeverely intention to call Benbow to into the other circumstances ham- shooting. strung” presentation Dent third-party defense, at id. is difficult to discern did, I I think we would have a If from the current record. Bruton applies mistrial. where, here,

only unlike there is an “ad- incriminating mission of out-of-court state- govern- I that the will tell the Court ments a nontestifying made codefen- They is free to call Benbow. ment dant,” Wilson, United States v. know where he is. He’s out there in (D.C.Cir.2010) added), (emphasis If program. the witness choose. Moreover, which Benbow was not. al- They open up want to this can of though Smith’s counsel was unable to elicit worms, they’re free to do that. Taylor’s identification of Thomas on direct it, introducing But I be on won’t based Fluck, examination of Detective ability myself my the limited could infer this fact from the issuance of ability go through limited into this and, an arrest warrant for in any Thomas Severely two officers. ham- these event, ultimately Thomas was identified all, I’m strung. missing pho- First of during prosecutor’s cross-examination I tographs go can’t into with Ben- of Detective Fluck. jacket. in they’re bow because They’re missing photographs from parties’ The briefs length discuss at Taylor. and Michael [Dent] whether the government could have Look, I can’t The Court: solve all the proved that the “Rodney” purportedly who problems of the whole case here. participated Taylor shooting was I Let’s finish this witness. Do what Moore, Rodney and, so, if whether this suggested. factored into defense counsel’s decision not added). (emphasis Id. at 99-100 Proceed- government suggests to call The Benbow. manner, ing prosecu- this sanitized possibility “[t]he Benbow would that, tor elicited from Detective Fluck ac- implicate shootings Moore one or both cording Taylor, “Thomas was one of Moore, prejudiced would have but more [Taylor]” three men who shot and that importantly, it would also have had a di men, “there were three all of whom were prejudicial rect impact on Smith’s own de firing [Taylor] at the same time.” Id. fense,” Appellee’s Br. at insofar 101-02. government had introduced evidence in its Moore, on the foregoing, Gray,

Based we conclude case-in-chief that and Smith searching shortly Smith has made “colorable claim” were for Dent before the call shooting, May his counsel’s decision not to Ben- see 2002 AM Trial Tr. at record, testify constitutionally however, bow to was defi- 137-38. The current cient, and that he prejudiced by allegations his inconclusive as to whether the Burroughs, counsel’s conduct. See 613 “reflect the trial counsel’s informed tactical First, F.3d at 238. Smith has made choice or a decision undertaken out of plausible ignorance claim that his counsel’s decision law.” of the relevant Reeves, (D.C.Cir. testify not to call Benbow to fell below an States 2009) (citation objective quotation standard reasonableness. omit marks ted). Why calling Similarly, Smith’s counsel believed that Smith’s assertion that his mistrial, precipitate erroneously Benbow would counsel believed there was a problem Nov. 2002 PM Trial Tr. at and how Bruton fails find conclusive evidentiary rulings support the district court’s the current record. See id. Second, error, might partici- the extent to which an if have meant that three men third-party murder, de- any, prejudiced pated Smith’s in the one of whom was the from the current also unclear rec- fense is and two of shooter whom served as look- clarity lack of stems in part ord. outs. Such a statement could be exculpa- inability pin precise down the from tory depending of Smith on where the testimony. In his nature of Benbow’s and, standing again, lookouts were if Ben- brief, that proffers Benbow would Smith position in a alley. bow were to see into the saw three men—Smith “[I] have testified: The trial record does not make clear which Appel- of them—kill Dent.” being not one interpretation Compare is correct. Nov. Smith, According Br. at 275. lants’ (“Benbow 14, 2002 PM Trial Tr. at ... eyewitness account of the Dent Benbow’s people identified three in being involved ” changed have the course of murder would added)), shootings.... both (emphasis light trial in of the weak circumstantial the (“Clayton with id. at 124 Thomas is identi- Smith, against thereby evidence offered fied both and in the [Dent] Michael fully implicating exonerating Thomas and Taylor [shootings] being the one that in the crime. participating Smith of The added)), (emphasis shot.” with id. at 125 government disagrees, maintaining that (“Thomas is identified as one the three of testimony the absence of Benbow’s was added)). (emphasis shooters.” satisfy insufficient to the second Strick- The current record also does not allow a the prong land because evidence would not determination conclusive that Benbow’s exculpatory have been of Smith. Recall testimony was immaterial or cumulative Smith, Gray, that and Moore were seen such that it prejudice defeats colorable together near the scene of the Dent mur- Toms, claim. See United States v. shortly it der before and after occurred (D.C.Cir.2005). 434-35 jury government that the introduced evi- heard fact testimony Taylor that that dence to establish Smith served as a identified him, alley Gray, person lookout from an for the Thomas as a who shot shoot- this, supra 101-02, er. Part XVIII. From Nov. the 2002 PM Trial Tr. at government concludes that expert Benbow’s ac- opinion testimony that the bullets count of the Dent murder does not rule out Taylor fired at and Dent “tantalizing- participation Smith’s because Benbow ly being match,” close to a perfect Nov. hiding would not have seen Smith in the 2002 AM Trial Tr. at 33. Benbow would so, alley. may may This not be depend- provided have corroboration for Smith’s ing on a number of variables. third-party defense insofar as he witnessed Dent, thereby Thomas shoot strengthening (“[I] proffered testimony

Benbow’s saw the connection between Thomas the being three men—Smith not one of them— shootings. two This Dent”) evidence would not subject kill varying interpreta- have been cumulative. It is conceivable hand, may tions. On the one it be that that pursued Smith could have his defense Benbow saw three men simultaneously solely Dent, Taylor’s based on identification Smith, shoot at of of none them shooting that confirm Thomas the first and the simi- position Benbow in a was larity that in the markings Smith bullet between the standing alley. was shootings, Smith but there was no completely was not hidden other evidence from view identify linking directly since Sanders was able to the record Thomas May Jenkins, him. See 2002 AM Trial Tr. at Dent’s murder. See Sussman v. (7th Cir.2011). hand, in stating On other 636 F.3d 358-59 Nota- Dent,” bly, three men provided only “kill[ed] Benbow Benbow would have 9, 2002 Trial Tr. at the shooter at Count One.” Dec. AM eyewitness identification Quarterman, deliberating nearly 104-05. After Harrison v. the scene. See Cir.2007). “If (5th days, jury asked the court: we find But cf. McNeil, conspiracies the Narcotics or RICO United States after relevant continued date under (D.C.Cir.1990). eyewit Benbow’s Without limitations, particular but that a statute murder and iden account of Dent ness conspiracy defendant left the before the Thomas, left to was tification relevant date under the statute of limita- Thomas infer from Smith’s tions, must we find that defendant not weigh and to this inference shot Dent objections, guilty?” appellants’ Over testimony wit against district court told the “[o]nce assistance, Gray, with Smith’s nesses proven has that a defendant Government the murder and later claimed committed conspiracy, a member of a the burden for it. credit on the defendant to prove withdrawal theory at trial was government’s conspiracy by a a preponderance from Dent Gray murdered while Smith the evidence.” defense was served as a lookout. Smith’s contends that the district court Smith cohort that Thomas and his murdered instructing erred in that he rather groups; No evidence linked the two Dent. than government bore the burden of only government’s conjec- there was persuasion to show that he had withdrawn accomplices, ture that one of Thomas’s that, conspiracy. from the He believes “Rodney,” Rodney in fact identified as production because he met his burden of to argument a “colorable” Moore. There is charged show he withdrew from the testimony would not have that Benbow’s conspiracy prior to the relevant statute of hampered a precipitated mistrial period, process required limitations due defense, yet signifi- would have Smith’s government prove beyond a reason- evidence, cantly tip- altered the balance of able doubt that he was a member of the favor. Port- ping the scales Smith’s conspiracy during period. the relevant 455-56; Strickland, er, S.Ct. at 466 130 693-94,104 According- S.Ct. 2052. U.S. process In a criminal trial due not ly, because the current record does government prove beyond requires the claim, conclusively resolve Smith’s we re- a reasonable doubt all elements of the mand Smith’s “colorable claim” of ineffec- 358, Winship, offense. In re 397 U.S. 90 tive of counsel under the Sixth assistance 1068, (1970); 25 L.Ed.2d 368 see also S.Ct. it Amendment to the district court so that States, 1, Dixon v. 548 U.S. 126 United may evidentiary hearing hold an and ad- 2437, 165 (2006); L.Ed.2d 299 Patter this claim in the first instance. dress York, 197, v. son New 432 U.S. 97 S.Ct. 2319, (1977); Mullaney 53 L.Ed.2d 281

XX. Wilbur, 684, 1881, 421 U.S. 95 S.Ct. 44 (1975). a jury prior consequence, In its instructions to the L.Ed.2d 508 As deliberation, (by meeting raises his explained: the district court when defendant production) “If at trial did that ne you find that the evidence burden defense offense, gates charged of the narcotics an element of the prove not the existence conspiracy point continuing per at a in time bears the burden of years May disprove ... the defense. existence within five before suasion See Dix (“We on, 5th, 11, 2000 for defendant Calvin Smith ... 548 126 S.Ct. 2437 U.S. you guilty require[] prove must find the the Government to ] defendant

90 (3d beyond sanity Cir.2001); a reasonable defendant’s 532 United States v. Lothi- an, (9th the evidence that tended to because Cir.1992); doubt 976 F.2d 1261-62 insanity disprove also tended to an prove West, United States v. 877 F.2d charged.” (4th element offense essential Cir.1989); Dyer, United States v. States, v. United (citing (1st Davis U.S. Cir.1987). 373, 378, 17 S.Ct. L.Ed. 750 circuit, however, Our does not write on a (1897))). blank previously slate. We have said un- Conspiracy is a pre crime that equivocally, albeit in the context of sen- until continuity accomplishment or sumes tencing, defendant, that the gov- not the termination; a defendant once becomes a ernment, “has the proving burden of conspiracy, of a he member remains affirmatively he withdrew from the con- affirmatively member until he withdraws spiracy if he wishes to benefit from his conspiracy Hyde ends. or the claimed lack of involvement.” United States, 347, 368-70, Thomas, States v. 114 F.3d (1912). Therefore, 56 L.Ed. 1114 once the (D.C.Cir.1997); see also United States v. government proves that a defendant was a Mitchell, (D.C.Cir.1995); ongoing conspiracy, member of it has Dale, United States v. proven the defendant’s continuous mem (D.C.Cir.1993). obliged We are to follow bership conspiracy in that unless and until precedent, our and we thus hold that the question the defendant withdraws. The court correctly district jury instructed the withdrawing here then is whether from a the defendant bore the burden of conspiracy prior to the statute of limita persuasion to show that he withdrew from negates an period

tions element of the conspiracy outside of the statute of conspiracy government such must period. limitations prove that the defendant did not so with draw. XXI. sister circuits have Our differed on this issue. While some have said that the bur Raynor Smith and were convicted of proving always den of withdrawal on killing rests furtherance of a continuing crimi- defendant, see, e.g., 848(e)(1)(A) United enterprise, § States nal 21 U.S.C. (2d 25, Cir.2008); Eppolito, (2000), 543 F.3d 49 murder in racketeering, aid of 18 Arias, 1327, 1959, § United States v. 431 F.3d first-degree U.S.C. and murder (11th Cir.2005); (1981) (current 1340 United § States v. under D.C.Code 22-2401 Brown, (6th Cir.2003); 22-2101). § 332 F.3d 374 version D.C.Code See also Hughes, United 191 § States F.3d 18 2 (aiding abetting); U.S.C. (10th Cir.1999); (1981) (current 1322 § United States v. Pet D.C.Code 22-105 version (5th 22-1805) tigrew, Cir.1996), (same). 77 F.3d § at D.C.Code mur- that, others have held once the defendant ders by were committed other members of production meets his burden of charged conspiracy, he has with Smith or withdrawn prior Raynor the relevant limitations participating. regard to With period, persuasion the burden of principles liability, shifts to the district court in- see, government, e.g., United States v. structed the aider and abet- “[a]n Read, (7th legally 1232-33 Cir. tor is responsible for the acts of 1981); Antar, United States v. persons other that are the natural and (3d Cir.1995), abrogated 582-83 probable consequences on of the crime in grounds other Berg, Smith v. intentionally participates.” F.3d which he Dec. AM Trial Tr. at (emphasis respect add- With to the first-degree murder ed). D.C.Code, convictions under the Wilson- States, (D.C. Bey v. United 903 A.2d 818 Raynor challenge their feder- Smith 2006) (en banc), There, controls. the D.C. al and D.C. murder convictions on the Court of Appeals reversed conviction for probable “natural and con- ground first-degree premeditated murder while sequences” aiding formulation of the and armed, 22-2401, § in violation of D.C.Code abetting permitted instruction to because the “natural probable conse guilty verdict requiring render without quences” aiding abetting instruction prove beyond a reason- “omitted the mens rea element of the of Raynor able doubt that Smith and acted charged,” namely fense “premeditation, requisite specific intent kill. deliberation, and intent to kill.” Id. at 822. objection Because did not raise this rejected The court proba the “natural and court, plain the district our review is for ble consequences” formulation because its Wilson, error. See States v. use was at odds with the longstanding (D.C.Cir.2010). prevail To requirement that an accomplice “knowing Raynor identify Smith and must therefore ly associate[ ] herself with the commission legal “plain,” meaning error that was crime, participate! that she in the ] “obvious,” “clear” or and demonstrate that something crime as she bring wished to rights such error affected substantial and about, and that she intended her ac fairness, “seriously integrity affectfed] tions to make it succeed.” Id. at 835. To public reputation judicial proceed- otherwise, reasoned, hold the court “would Olano, ings.” United States v. 507 U.S. permit liability predicated upon to be neg 725, 732-37, 123 L.Ed.2d ligence even when the crime involved re (1993) (citation quotation quires mind,” marks a different state id. at omitted). 837, the law at the time of “[WJhere and eviscerate the distinction between clearly contrary trial was settled traditional first-degree and murder and the [,] unique foreseeability appeal felony the law at the time of ... it test of mur der, government see id. at 838-39. The that an enough ‘plain’ error be at the time regards Raynor’s concedes as Smith’s and appellate consideration.” Johnson v. first-degree murder convictions under the States, 461, 468, United 520 U.S. 117 S.Ct. D.C.Code that the district court’s use of 1544, 137 (1997). L.Ed.2d 718 “necessary probable and conse quences” plain instruction was error. See For the following reasons we con States, Perez v. United 968 A.2d clude that assuming by even error (D.C.2009). using district court in the “natural and

probable consequences” instruction for the regard With to the and mur- CCE RICO aiding abetting charges, given and the for U.S.Code, der convictions under the this argument by Ray- feiture of an Smith and court in reversing aiding abetting and nor, prejudicial the error was not in view Wilson, in conviction United States v. of the district court’s instruction on co- (D.C.Cir.1998), F.3d 732 that aiding held conspirator liability for acts reasonably abetting liability requires proof and necessary foreseen as a or natural conse some shared intent the aider and abet- quence agreement. of the unlawful There, principal tor with that of the actor. States, jury Pinkerton v. United 328 U.S. Ralph convicted and Louis Wilson 645-8, 90 L.Ed. 1489 of a kill conspiracy to a witness named (1946). Leroy Copeland, killing witness with in- testifying, aiding him from both in The shared-intent standard for prevent

tent to Code, abetting conspiracy and in a case is at first-degree and of the U.S. violation probable odds with the “natural and conse- in armed violation of the murder while quences aiding formulation” of the and addition, jury In found D.C. Code. instruction abetting insofar as the guilty these crimes as Marcellus Judd may foreseeability substitute a test for the abettor for his role inform an aider and requirement. mens rea Such use of the Copeland could be ing the Wilsons probable “natural consequences” and for- aiding abetting An nearby. found functionally aiding mulation transforms proof that required conviction Judd had: liability li- abetting conspiratorial into “(1) specific intent to facilitate the ability, Supreme when the Court has rec- (2) another; commission of a crime vict that there was insufficient participating fense.” court reasoned: committing guilty knowledge juror willfully participated v. Raper, 676 F.2d manner that make kill Copeland. See show that Judd had sufficient Walker, and 1982)). [ some intent To Teffera, 985 F.2d and abettor need not be identical to that sist them ernment must show that Judd shared and took some affirmative action to as 1535. (D.C.Cir.1993) (quoting Judd prove aiding participation to infer that he it Although principal, as an aider and succeed.” (D.C.Cir.1997). in carrying offense; with the States v. the commission of indicated he intended to ] (3) the intent of the aider still was to allow reasonable see United States v. Gavina, [United 841, in abetting ^[1082] Gaviria, out their Wilson brothers the offense in a “knowingly evidence to con the other was (D.C.Cir.1996), (4) In concluding United States abettor, required 116 F.3d at assisting knowledge States at 1086 (D.C.Cir. plan gov this and v.] of from Wilson rection, whether or not there is a 2007 cited United States v. states and circuits that continue to F.3d structional issue was not raised in ticipates.” Dec. doctrine.” Gonzales v. 549 U.S. trict court are the natural and makes a defendant a 166 L.Ed.2d 683 sponsible ticipation” and the latter “more remote 839-42. plotting”); see id. at sen United dissenting) ognized consciously abetting the crime which he “ Although respect “[a]n ‘natural and 439, we note that the the two are distinct. Appellants for the acts of other has 183, 190-91, 197, 93 L.Ed. 919 aider and abettor is accord (the erred shares might States, the above-referenced 69 S.Ct. 766 former (D.C.Cir.1996), (2007). broader Wilson-Bey, in instructing probable consequences’ federal murder probable 2002 AM Trial Tr. at tend in contend that the dis- involving (1949) principal any Supreme intentionally par- Duenas-Alvarez, Although the application. 127 S.Ct. appellants’ consequences conspiracy.”); criminal act (Murphy, persons (“Aiding Nye 613, 620, Walker, 903 A.2d at legally in “real when he Court Walker, charges & Nis- listing quote apply par- 815, re- in- di- J., in It Wilson, 160 F.3d at 738. Evidence that this court prob- described the “natural and looking Judd knew the Wilsons consequences” able ap- instruction with Copeland was insufficient to show he proval. (citing See 99 F.3d at 443 United intending 621, knew the Wilsons were to kill v. Sampol, States 636 F.2d (D.C.Cir.1980)). Copeland and that he had decided to Fortunately, assist we need not them in enterprise. See actual any apparent id. resolve or conflict be- order to de- forfeited. Bush v. tween Walker Wilson District Colum issue, plain bia, (D.C.Cir.2010) present 384, (cit cide the because 595 F.3d App. can applies. error standard of review We 28(a)(9)(A)); ing Fed. R. P. Am. Wild hardly say plainly the district court erred 991, v. Kempthorne, lands 530 F.3d by following prec- the same construction of (D.C.Cir.2008).22 Supreme edent as Court. We further Appeals’ post- D.C. Court of Raynor note that Smith and fail to show Wilson-Bey decisions in v. Wheeler United “seriously any how such error affect[ed] States, (D.C.2009), 977 A.2d 973 and Neal fairness, integrity public reputation States, (D.C.2007), v. United 940 A.2d 101 Olano, judicial proceedings.” 507 U.S. cases, are instructive. In both the court (citation 732, quota- 113 S.Ct. 1770 that, despite held omitted). aiding erroneous tion marks This is because the instruction, abetting a Pinkerton instruc co-conspirator liability court’s in- district preserved tion any prejudice. given struction cured convictions for a jury, crime having because the convicted matter, Ray- As a threshold Smith the aider and abettor charged of a conspir cursorily nor contend that their murder acy, could have found that the crime was may convictions not be sustained under foreseeable and committed furtherance theory liability this alternative because of the charged conspiracy. Smith and impossible jury it to know whether is Raynor correctly respond that Wheeler by following arrived at its verdict the dis- conspiracy concerned a single to commit a aiding abetting trict court’s instruction murder, jury overt act of and the necessar They provide or its Pinkerton instruction. ily found that Wheeler spe acted argument, Appel- no citation for this cific intent to kill in convicting lants’ Br. at 303 n. and it is mentioned him of only argument in a footnote. Hence the is conspiracy to commit murder. 977 A.2d note, however, instruction, Supreme jury 22. We that the Court but had no occasion to de- States, held in v. cide appropriate Yates United 354 U.S. which was the standard. Perkins, (1957), United States v. 77 S.Ct. 1 L.Ed.2d 1356 73-74 (D.C.Cir.1998). proper applied Other circuits have held that that “the rule to be is that apply plain Yates does not under error requires a which verdict to be set aside in establishing standard because the burden of supportable cases where the verdict on one another, harm is on the defendant. See United States ground, impossi- but not on and it is (4th Hastings, 242-44 Cir. ground ble to tell which selected.” 1998); Colvin, see also United States v. holding The Court narrowed this Griffin (7th Cir.2003). 576-77 States, 46, 59, (1991), 116 L.Ed.2d 371 situations Here, reasons, for two we will assume with- grounds upon which one of the which the deciding plain out that under error review legally, could have reached verdict its require Raynor's Yates does not Smith's and opposed factually, inadequate. See United murder convictions to be set aside even Johnson, States v. 216 F.3d 1165 n. 2 though jury we do not know whether the (D.C.Cir.2000). Although prejudice inqui- aiding abetting convicted for and or under ry might normally by application be cut short First, Raynor Pinkerton. Smith and have for- here, where, challenge of the Yates rule as argument by citing authority feited the no and legality aiding abetting Bush, is to the and by raising it in a footnote. See instruction, suggested 388; Wildlands, this court has that re- F.3d at Am. F.3d at standard, plain op- Second, view under the error as Raynor 1001. Smith and shoulder standard, posed to the harmless error in demonstrating the burden of that instruction- significantly way case “would prejudiced Yates affect the al error their defense under the standard, analyze[s] appeal” plain Appellants' [the which court] [the] error see Br. at overwhelming position during to the extent there is evidence their counsel reiterated support proper argument, Arg. to the conviction under the oral Oral at Tr. 80. contrast, Here, by conspiracy was ample jury There evidence for the contains 236 overt acts and such a reasonably count to find that the murders for be But conclusion cannot drawn. their which Raynor Smith and were convicted argument relationship misunderstands the were foreseeable and in furtherance of the types liability of between the two and con- charged conspiracy. Raynor’s Smith and approaches flates the two alternative taken attempt unpersuasive; to show otherwise is id. It is true that a Wheeler. See they summarize the facts of each murder hun- conspiracy conviction for based on and claim either there was insufficient ad- per- of overt acts does not possible dreds support missible evidence to the murder that the mit the inference found the conviction or there is no evidence estab- overt act murders have been committed lishing the murders were related to the requisite intent. proof, with the Such conspiracy’s dealings. regards As the for- however, required is not under the Pinker- mer, those contentions are discussed and liability. theory ton of As the D.C. Court rejected elsewhere. Part supra See XVI- of Appeals explained Wheeler: regards latter, II. As the superseding ... Under Pinkerton intent neces- indictment and evidence trial make clear sary for conviction of murder an aider that one of the principal goals of the drug Wilsonr-Bey yields and abettor under conspiracy was killing to enhance the con- virtually the same state of mind—the spiracy’s power, protect reputation foreseeability lesser or natural members, the conspiracy and its and col- consequences probable standard —found lect money owed to conspiracy. aiding-and-abet- erroneous the court’s Indict, Superseding It 4-5. was reason- short, In ting instruction. a conspira- able for the to find that each of the cy agreement necessarily not pres- —an (if more) murders furthered one among ent aiders and abettors —is goals. Carson, these See United States deemed a substitute for particular (D.C.Cir.2006). required state of mind for convicting Accordingly, any regarding error nonconspiratorial accomplice of murder probable “natural and consequences” Wilson-Bey. under A in- jury finding that struction “seriously did not had the state of required affect[] Wheeler mind fairness, integrity or first-degree public reputation conviction murder Olano, judicial was therefore not necessary proceedings,” for convic- 507 U.S. at (citation tion theory. under the Pinkerton quotation omitted), marks because the sup- added); (emphasis Id. at 985 accord Unit- ports jury’s verdict on Smith’s and ed States v. Vazquez-Castro, 640 F.3d CCE, Raynor’s RICO, (1st Cir.2011). first-degree coconspirator Pinkerton murder convictions under the alternative liability exists, moreover, even where the theory Pinkerton of liability. substantive offense is not an overt act alleged in the indictment. See United Washington,

States v. XXII. (D.C.Cir.1997). It requires only that the Following substantive be the government’s offense committed in proposal fur- conspiracy try appellants therance of the reasonably together a trial separate —in necessary foreseeable as a from prior natural con- charged other co-con- sequence agreement. of the unlawful spirators Handy moved for —Nunn id. 1012. This analysis is the relevant severance of their trials from that of their here. codefendants. In a opinion, memorandum

95 promise court denied Nunn’s a specific right the district trial of one of the motions, defendants, adopting prevent or Handy’s govern- jury from mak- try appellants ing judgment guilt all in a a reliable about or proposal ment’s inno- 539, Gray, trial. cence.” Id. 113 S.Ct. 933. The single United States 173 (D.D.C.2001). Court has further explained that even F.Supp.2d Nunn and prejudice the risk of is ... Handy argue high, “[w]hen on two bases the district measures, less drastic such as in- by refusing limiting tri- court erred sever their structions, often First, any will suffice to cure they argue als. their codefen- prejudice.” risk of Id. charged dants were with more numerous crimes, and serious the evidence of which We review the district court’s de effect, “spillover” could have a akin to cision not to sever the trials of defendants guilt-by-association, prejudice that would 14(a) only under Rule for abuse of discre Second, against they them. main- 541, 933; tion. Id. at 113 S.Ct. tain that should not have forced been Brown, 423, States v. 16 F.3d 426-27 alongside Gray, to be tried Moore and who (D.C.Cir.1994). reviewing In the exercise facing penalty, the death because it discretion, of the district court’s keep we “ prejudice caused them to be tried a in mind that ‘[t]he balance has been death-qualified jury. joint struck in favor of trials.’” United Hines, 1317, States v. 455 F.2d 14(a) of the Federal Rules of Rule (alterations (D.C.Cir.1972) in original) provides Criminal Procedure that “[i]f the (quoting Krechevsky, United States v. joinder of offenses or defendants in an (D.Conn.1967)). F.Supp. We hold indictment, information, or a consolida the district court did not abuse its appears prejudice tion for trial a defen discretion when it declined to sever the dant or the government, may the court Handy trials and Nunn from counts, separate order trials of sever the appellants. other trials, provide any defendants’ other justice requires.” relief that As is clear turn first question We rule, from the text of the district courts “spillover” prejudice: Acknowledging that significant flexibility have to determine may it prejudice a defendant to be tried remedy any potential preju how to risk of together with another defendant accused posed by joinder multiple dice crimes, de of more serious or more numerous single fendants trial. See United we have held that required “severance is Lane, States v. 449 n. 106 when the against one defendant (1986). 88 L.Ed.2d 814 Thus ‘far damaging’ is more than the evidence “Rule 14 require against does not severance even moving party.” United States shown,” Bruner, (D.C.Cir. prejudice if v. United v. 657 F.2d Zafiro States, 1981) 534, 538-39, Mardian, (quoting U.S. United States v. (1993), (D.C.Cir.1976) (en 122 L.Ed.2d 317 in many cir banc)). However, may cumstances district courts order less “[a]bsent dramatic any prejudice. evidence, er forms of relief to cure disparity of any prejudice caused Indeed, although may by joinder a district court is best dealt with instruc grant a severance in a array wider tions to give individual consid circumstances, Supreme Court has eration to each defendant.” United States Slade, (D.C.Cir.1980) held that “a court grant district should a v. added). 14 only (emphasis words, severance under Rule if there is a In other some joint serious risk trial disparity would com- compel evidence does not sev dants, instructions, erance; rather, jury the district court’s when there “substantial by explaining guilt of each that each independent [defen defendant’s individually in the con significant involvement should be considered based dant’s] required. him, is not upon pertained severance Unit the evidence that spiracy,” Tarantino, any prejudice. ed States v. were sufficient to cure such (D.C.Cir.1988); Slade, 627 see also Furthermore, Handy and Nunn were not re (finding at severance merely not to severance because entitled disparity evidence be quired despite guilt adjudicated by their a death- “in against defendant was cause evidence qualified jury. Facing death-qualified a substantial”). dependent and jury trial “compromise specific did not case, Handy although and Nunn In this Handy Zafiro, Nunn. right” of or 506 U.S. to have committed fewer alleged Indeed, 113 S.Ct. 933. in Buchan- had a less extensive arguably crimes and Kentucky, Supreme an v. Court made than the charged conspiracy role in the death-qualified clear that trial before a them, tried with the dis- other defendants not does violate the constitutional not rise to a level parity of evidence did rights noncapital defendant. 483 U.S. necessary mandate severance. The 414-20,107 97 L.Ed.2d in- government presented substantial and (1987). death-qualification Neither did the Handy’s and Nunn’s dependent evidence jury “prevent making from charged conspiracy and involvement in the judgment guilt reliable about or inno- in furtherance thereof. Further- crimes Zafiro, cence.” more, gave following the district court in the Implicit holding 933. of Buchanan jury: instruction to the recognition death-qualified is the that a otherwise, you I Unless have instructed jury, any no than jury, less other is able to you consider each instruction should judgment concerning guilt make a reliable you given apply that the Court has appellants or innocence. To the extent individually separately and to each de- required ask us to find that severance was Likewise, you fendant on trial. should only upon allegation based their give separate consideration and render death-qualified juries likely are more separate respect to each verdicts with juries, than may easily convict other we defendant. Each defendant is entitled dispense with argument this as well. As guilt to have or innocence of the his Supreme explained, Court has “defen- he is on trial crime for which determined merely dants are not entitled to severance from his own conduct and from the evi- they may because have a better chance of to him as applies dence if he were acquittal separate trials.” Id. at being guilt tried alone. The or inno- 113 S.Ct. 933. The district court acted any cence of one defendant should not appropriate within the bounds its discre- your control or influence verdict as to Handy’s tion in declining to sever may any You the other defendants. find Nunn’s trials from that of their codefen- guilty one or more of the defendants dants. guilty. XXIII. AM Trial Tr. at

Dec. 2002 Although ignore possibili- Handy we do not Next contends that the district ty “spillover” prejudice may denying that some court erred in his motions for a Handy have resulted to and Nunn from new trial. Our review is for abuse of being together presented tried with their codefen- discretion unless the issue on

97 appeal purely legal, which event our narratives lacking citation to the record is de novo. See v. authority. review United States and relevant See Bush v. Dist. Orache, 590, (D.C.Cir.2007). Columbia, (D.C.Cir. 484 F.3d 384, 595 F.3d 2010); Hall, States a Handy filed his first motion for new 1204, 1209 (D.C.Cir.2004). 4n. following participat- trial his conviction for drug ing conspiracies and RICO and narcotics, involving several other crimes A.

murder, justice, obstruction of and the use Handy’s arguments regarding 9, of firearms. See Jan. 2003 AM Trial Tr. sufficiency the of evidence are unpersua argued at 55-59. He there was insuffi- Handy sive. maintains there awas fatal guilt cient evidence of his and that the variance superseding between the district court erred in indict making various evi- ment dentiary government’s and the rulings instructing proof and at trial jury. regarding entry The district court denied the mo- his into the conspiracy tion, finding that there was sufficient evi- because none of the cooperating co-con dence for reasonable to conclude spirators Handy testified that agreed had Handy was “hitman” for the con- with or Gray them with join Moore to joined mid-1990s, spiracy, which he in the charged conspiracy in the mid-1990s rejecting his other claims of error. or thereafter. Such direct evidence of Gray, F.Supp.2d See United States v. agreement however; required, is not (D.D.C.2003). 71, Handy 90-91 filed his jury may conspiratorial infer agreement during second motion for a new trial from the circumstances and the defen pendency of subsequent, separate trial dant’s knowledge. See United States v. of other alleged co-conspirators. This Childress, 693, (D.C.Cir.1995). argued time he had The cooperating co-conspirators provided unconstitutionally exculpatory withheld ample testimony upon which the rea evidence, impeachment in violation of sonably Handy’s of, could infer knowledge 83, Brady Maryland, agreement join, drug conspiracy 1194, (1963), 10 L.Ed.2d 215 proge and its mid-1990s, in the early as 1994. ny. motion, The district court denied the See, e.g., May 2002 AM Trial Tr. at 33- ruling that “the evidence is not at all excul 34; July 2002 AM Trial Tr. at 53-54. patory or impeaching” and “the withhold example, For Maurice Andrews testified ing of the evidence did not prejudice Handy a participant drug in a Handy.” United v. Handy, States No. 00- operation located in the qua Northeast (D.D.C. 2005). at 3-4 Mar. D.C., Washington, drant of which Moore Gray actively managed in 1995-1996. appeal, Handy only

On raises some of July 82-83; 2002 PM Trial Tr. at motions; arguments he made in his Further, supra Part VII. only continuity sufficiency of evidence claims re- Handy’s participation 1998-1999, lating Handy’s entry through conspiracy into the July and the PM Trial Tr. at murders Richard Simmons and Green, undermines his contention that Brady Demetrius and the claim the evi relating pretrial buyer-seller dence demonstrated at statements of Che- best Pinkard, ryl properly presented. relationship, are rather than membership remaining arguments conspiracy. (including those re- See United States v. Thomas, lating Scorpio Phillips) (D.C.Cir.1997); are forfeited be- Childress, Handy cause has presented unsupported 58 F.3d at 714. Handy and to be Penn understood Oliver to the Richard Simmons respect

With Hartwell, Erskine see indictment did associated with murder, superseding 19, 24, Trial Tr. at all Handy Sept. com- 2002 PM of inconsistently charge with not Gray’s gain of Moore and July 1997 to whom members the murder mitting Northeast, 9, July enterprise drug operation in see conspiratorial to the entrance 26, 82; joined Aug. 2002 PM Trial Tr. at 2002 PM alleging that he while also was, Handy An at in the mid-1990s. Trial Tr. 113-16. Because charged conspiracy words, means may charge “stepping alternative in Penn’s on [Green’s] indictment away, a crime. See United States committing by taking of toes” sales Penn walked 89, n. 610 F.3d 106-07 & 10 Coughlin, [Handy]” down the hill to “holler at (D.C.Cir.2010). superseding indict- many “slow down” and not make so sales. ment, tracking 24, 23, the text of the RICO vio- Trial Tr. at Sept. 2002 PM 25-26. statute, Handy charged lent crimes Following warning, the verbal which was murdering Simmons for the alternative essentially up the ignored, Penn retreated listed in the consider- reasons statute —“as guns. hill to Penn testified that he get his of, receipt ation for the or as consideration Handy took “didn’t have no action because any- promise agreement pay, for a or right Handy’s business there” and that ... thing pecuniary value or for the selling marijuana of For- on section main- purpose gaining entrance to or rester Street was considered to be “some in an taining increasing position enter- By sort of violation.” at the time Id. 26. prise engaged racketeering activity.” testified, guns, he retrieved his Penn 1959(a); 60, § 18 U.S.C. see also Count “somebody had ran in and said had Indict, rea- Superseding 134. The shot Id. at 28. Oscar Veal tes- [Green].” sonably could have found from the evi- Handy tified that later claimed credit for Handy dence that committed the murder murdering Aug. Green. See 2002 PM exchange money, for see Oct. Eliminating Trial Tr. at competi- rival 130-34, Trial Tr. at or to maintain AM his charged conspiracy by tors furthered the enforcer, July an 2002 AM status as strengthening presence its the D.C. 54; Trial Tr. at see also United States v. Walker, drug trade. See United States v. Carson, (D.C.Cir.2006).23 455 F.3d (2d Cir.1998). 103, 114 142 F.3d It well within for also was reason B. jury to find that Demetrius Green’s mur- consequence drug Handy’s der was a territorial More colorable is contention dispute charged associated with the con- failed to fulfill its marijuana spiracy. selling obligations Brady, Green was under Penn, 1194, by disclosing exculpatory James who controlled a stretch of S.Ct. a hill top impeachment Cheryl houses on Forrester evidence from Southwest, Pinkard, than quarter eyewitness Street less mile an to Richard Sim- Handy, from the government’s key Southeast border. ac- mons’s murder. The ev- companied by Handy eyewitness another man identified in against idence superseding indictment as Taron Oli- account of the the victim’s murder ver, mother, marijuana selling Margarita was also down the Simmons. Ms. Sim- just hill nearer to the quadrant prior Southeast of mons testified at trial that to the D.C., Washington, standing by not too far from Green. murder Richard as she was he North, 23. There is no claim that lacked See United States v. (D.C.Cir.1990). unanimity ground for conviction. pay phone. (1999); She watched as

used street L.Ed.2d 286 see also Street, Northeast, H Handy Bailey, ran down United States v. (D.C.Cir.2010). side, Prejudice gun, from the 12th Street drew a exists when the grabbed fired at Richard. Ms. Simmons undisclosed evidence or information is “material,” meaning briefly away Richard before he ran from “there is a reasonable that, probability had the Handy toward the corner of 11th evidence been Street defense, disclosed to the collapsed H Richard at that result of the Street. proceeding would have been Handy, him, different.” standing intersection and over 667, United States v. Bagley, 682, 473 U.S. 19, Aug. shot Richard several times. See 3375, (1985); 105 S.Ct. 87 L.Ed.2d 481 AM Trial Tr. at see Handy 2002 9-14. con- Pettiford, also United States v. 627 F.3d report24 tends that an FBI 302 interview 1223, (D.C.Cir.2010). 1227 The district Pinkard, grand jury testimony and the of findings fact, court’s including determi- girlfriend, Richard’s were exculpatory and nations of credibility at trial in post- subject to disclosure Brady under because trial proceedings, are reviewed for they abuse impeach could have been used to Ms. discretion, “[b]ut once the existence and testimony. Giglio Simmons’s v. Unit- content of undisclosed States, evidence has 150, 153-54, been ed 405 U.S. 92 S.Ct. established, (1972). the assessment of 763, the materi- 31 L.Ed.2d 104 In Handy’s ality of evidence under view, Brady question is a report grand jury testimony law,” which this court reviews de novo. show Pinkard did not see Ms. Sim- Oruche, 484 at F.3d mons standing pay with Richard at the phone and therefore Ms. Simmons was not In making an initial determination eyewitness govern- murder. The about whether evidence or information is responds ment that there nothing was ex- “material” and subject therefore to disclo culpatory report about the or Pinkard’s Brady, sure under see United States v. grand jury testimony, and because Williams-Davis, 490, 90 F.3d 514 were not “material” disclosure was not re- (D.C.Cir.1996), prosecutor is afforded quired Brady. under “a degree of discretion” by bound “a corre- Brady, (inasmuch

Under sponding has prose- burden” as the obligation constitutional to disclose “evi- cution “alone can know what is undis- closed”) dence favorable to an accused that is mate- “gaug[ing] the likely net effect guilt rial to or to punishment.” Cone v. of all such evidence mak[ing] disclo- Bell, 449, 1769, 1772, 556 U.S. 129 S.Ct. point sure when the proba- of ‘reasonable (2009); Oruche, 173 L.Ed.2d 701 reached,” see also bility’ Kyles Whitley, 514 484 419, 437, 596. To show a Brady 1555, viola- U.S. 115 S.Ct. 131 L.Ed.2d tion, (1995). the defendant must establish that the 490 Supreme Court in- has evidence or information is favorable to prudent structed that “the prosecutor will him, exculpatory either because it is or resolve questions doubtful in favor of dis- impeaching; the evidence sup- closure.” Agurs, United States v. 427 U.S. pressed by the government, willfully either 49 L.Ed.2d 342 or inadvertently; (1976); and that preju- he was Kyles, 514 U.S.

diced the nondisclosure. Strickler v. particularly S.Ct. 1555. This is true where Greene, 263, 281-82, 527 U.S. brings the defendant the existence of what reports Harrison, 24. FBI typewrit- "are the formal Form FD-302.” United States v. reports prepared ten interview from the (D.C.Cir.1975). 524 F.2d 424 n. 2 rough [interview] notes and recorded on exculpatory impeach- cross-examined Ms. Pin- to be Simmons without he believes grand jury testimony. Although or information to the atten- kard’s ing evidence prosecutor right and the district “the of the defendant to tion of disclosure for court, general request to a prosecutor contrast is deemed waived if defense Pennsylvania v. Rit- Brady knowledge material. See actual ... counsel with chie, 39, 59, 107 S.Ct. present information chooses not to such (1987). L.Ed.2d jury,” information to the United States Iverson, (D.C.Cir.1981), Here, prudent prosecutor would specificity scope of the defendant’s grand disclosed at least Pinkard’s have key knowledge is the consideration. In Handy jury testimony. multiple filed re Smith, States v. 515- discovery, sought each of which quests (D.C.Cir.1996), court held that al- material related to the Brady Simmons though aspects plea agree- of a witness’s Although Pinkard was not men murder. defendant, ment were known to the the name, Handy by specifically sought, tioned prosecutor’s nondisclosure of other ele- to the reference Richard Simmons “[i]n plea agreement ments unknown to homicide, any ... and all documents.” Brady the defendant violated because the Handy’s Timothy Def. First Mot. to Com information was material to the defen- 2001). 2, 13, at pel app. (Sept. Disc. In ability impeach dant’s to the A witness. correspondence subsequent gov with the review of the trial transcript excerpts pro- ernment, Handy asked for “all documents parties Handy vided the indicates that pertaining to statements of non-testifying only knew that Pinkard atwas the murder “Brady witnesses” and evidence and infor accompanied scene and had Ms. Simmons the regarding murder of Mr. Rich mation to hospital shooting; the after the his Simmons,” including ard “information that cross-examination of Ms. Simmons was may impeach against the witnesses Mr. spoke limited to whether she to Pinkard at 3, Handy.” app. Id. at Although 3. the 19, the hospital, Aug. 2002 AM Trial Tr. at Supreme rejected Court has the notion 60-61, and when she first saw Pinkard at Brady right open created a of file scene, 19, Aug. the 2002 PM Trial Tr. at defendants, discovery for criminal see government’s 20-21. Absent disclo- 437, 1555; Kyles, 514 at U.S. 115 S.Ct. grand jury sure of Pinkard’s testimony, Ritchie, 989, at U.S. Handy lacked a reason to delve further given Handy’s repeated requests and the into Ms. alleged- Simmons’s Pinkard’s centrality eyewitness testimony of ly different accounts the murder. Un- government’s against case concerning him it Brady upon der was incumbent pros- murder, the Simmons at Kyles, U.S. cf. ecutor to disclose grand jury Pinkard’s 441-44, prosecutor 115 S.Ct. testimony Handy for his use at trial. recognized should have eye that Pinkard’s 763; Giglio, 405 U.S. at 92 S.Ct. witness account raised at the least a Bagley, 3375; at 473 U.S. 105 S.Ct. question[]” “doubtful favoring disclosure Celis, United States Brady, Agurs, under 427 U.S. at (D.C.Cir.2010). 96 S.Ct. 2392. government’s suggestion appeal Nonetheless, on Handy fails to show that that Handy’s Brady claim is foreclosed process right violation his due knowledge his at the time of trial is not Brady disclosure under was “material.” Strickler, well taken. It Handy 281-82, noted that knew See at U.S. 119 S.Ct. 1936; Pinkard had witnessed the shooting Bagley, weight standing on Ms. Simmons was not next Handy places significant 3375. 11, 2003, December Richard shot testimony standing when he was while Pinkard’s of other cocon- at during subsequent pay phone. contrary, trial To the Group 2003 PM 2A following exchange See Dec. spirators. occurred: 50-51, 82-83, 86, 92, 28-30, Tr. at 95- Trial Q: you And do remember Sim- [Ms. view, testimony In that Ms. his her being outside the time mons] [of standing by Richard’s was not Simmons shooting]? pay on the talking phone when he was side was, A: I think but I’m she being shot is “illustrative” of the

before was, sure.... I think she because that Pinkard witnessed murder fact sure, I think —I’m not I but think proves, Ms. did not. This Simmons but when came out to use the [Richard] maintains, Handy phone, he had locked the door. But capable knew Pinkard was witness I’m I not sure. don’t know where credibility impeaching Ms. Simmons’s she from. popped up murder, eyewitness to Richard’s Thus, Id. at 41. subsequent Pinkard’s tri- pretrial thus her statements law en- testimony with, al is inconsistent rather jury testimony grand forcement of, grand than illustrative her testimo- But Handy have been disclosed. should ny key on In point. another respect, any likely impeach- the force of overstates grand jury testimony her shares the same ment. flaw as her trial subsequent testimony. First, subsequent trial Pinkard’s testi- The five-minute gap between Pinkard ob- mony impeaching Handy sug- is not as as serving the pay phone Richard at up to a gests. acknowledged She minute hearing gunshot relatively the first was a observing between Richard walk out gap lengthy period which during Ms. Simmons pay phone looking up to see him to could from emerged have the store and down id. at 95. run the street. See Ms. joined Richard on the sidewalk without might easily appeared have Simmons at knowledge. govern- Pinkard’s Had the during Richard’s side this time. ment grand jury testimony disclosed the to trial, Handy prior to his there is not a Second, grand before the Pinkard probability reasonable this informa- that, murder, prior recounted she tion used impeach could have been Ms. talking pay on a phone to her father eyewitness Simmons’s claim to be sports across the street from Richard’s Richard’s murder such that it would have 27, Jury Grand Tr. store. See Oct. changed the of the proceeding. outcome She Richard exit the 23-24. observed Third, signaled assuming prudent to use the even pay phone prose- store they by tapping late her cutor would have the FBI running disclosed report, representa- wrist. She then testified “less than interview it contains no way tion one other something five minutes” later she “heard or the as to whether go up present boom” and looked to see Richard Ms. Simmons was at the time of running only down See id. at 24. Richard’s murder. The the street. reference to then crossed the street to where Rich- Ms. Simmons is this sentence: She “PIN- noting collapsed, ard had Ms. Sim- KARD stated that she and SIM- [Richard] “was, like, already just right mons there. I MONS has left their house and were know had come from.” en route to the when don’t where she movies SIMMONS’ grand jury paged Handy’s at 26. Absent mother him.” See Def. Id. from transcript Mot. Trial any assertion Pinkard that Second for New Exhibit 2004). (Dec. lar apparent peremptory pattern It is far from strike or a of 93-94, have used information strikes. Id. at 1712. Handy how could Sec- ond, im- report FBI interview the prosecutor from the must “come forward credibility eye- as an explanation with a peach challenging Ms. Simmons’s neutral such, and, are jurors,” we confident its witness not based on racial or other [the] use, of Pinkard’s with disclosure even impermissible classifications. Id. at testimony, would not have grand Third, judge 106 S.Ct. the trial then of the proceedings. the outcome changed duty “will have the to determine if the purposeful

defendant has established dis- XXIV. 1712; crimination.” Id. at 106 S.Ct. California, see also Johnson v. 545 U.S. reject by appellants all claims raised We 162, 168, 125 S.Ct. 162 L.Ed.2d 129 individually. have not discussed we Elem, (2005); 765, 767, Burkett v. all fully have considered such claims We (1995). 131 L.Ed.2d 834 separate find do not warrant This court has seldom addressed Batson or relief. discussion

challenge, has, and on the rare occasion it our analysis step three A was limited.1 reasons, foregoing we affirm all For the beyond few observations those stated appellants’ except convictions Count today the court are in order. vacate; which we Counts and which Marshall, Batson, to the district court for an we remand Justice concurring evidentiary hearing and to address Smith’s which he characterized as a “historic step claim; ineffective assistance of counsel eliminating practice toward the shameful 126-138, we Counts which remand to the of racial discrimination in the selection of in light district court for consideration juries,” had grave goal doubts that the — Mexico, ——, Bullcoming v. New U.S. “endfing] the racial discrimination that (2011). 2705, 131 S.Ct. 180 L.Ed.2d 610 peremptories inject jury-selection into the process” accomplished could be without ROGERS, Judge, in concurring Circuit “eliminating peremptory challenges entire- part in Part I of the curiam per opinion: 102-03, (Mar- ly.” at Id. 106 1712 S.Ct. shall, J., doubts, concurring). His he ex- 79, In Kentucky, Batson v. 106 plained, arose only because defendants are (1986), S.Ct. 90 L.Ed.2d 69 the Su- able to attack discriminatory per- use of preme announced a three-part Court anal- emptory ysis challenges challenges where the identify to whether racial discrimina- flagrant are so as to a peremptory prima tion had motivated establish challenges case, First, in judges selection. because trial face defendant facie must the difficult prima by assessing prosecu- establish a case show- burden of a facie 105-06, ing totality that “the of the relevant tor’s motives. at facts See id. 106 S.Ct. gives latter, to an discriminatory rise inference of 1712. As to the Justice Marshall purpose,” respect asked, to either a particu- citing examples from the case law: Watson, 1. See United Appeals States v. 483 F.3d 828 lumbia Court of where the United (D.C.Cir.2007); v. Spriggs, United States 102 Attorney responsible prose States is also for (D.C.Cir.1996); 1254-55 involving major cutions felonies and misde White, (Table), States v. 899 F.2d 52 1990 WL See, e.g., meanors under the D.C. Code. Smith contrast, (D.C.Cir. 1990). Apr. By 42213 States, (D.C. v. United 966 A.2d 369-88 fulsomely explored Batson issue has been 2009). multiple on occasions the District of Co-

103 inject prosecutor’s may strategies the court to treat a tors racial into jury How is juror that he struck because selection the effort to obtain a statement convic See, Louisiana, juror age about the same e.g., had son tion. Duncan v. 391 defendant, 145, 155-56, or seemed “uncom- 88 20 [the] U.S. S.Ct. L.Ed.2d municative,” (1968). or “never cracked a smile” expected The 491 Court the trial “ and, possess not sen- therefore “did ‘a judge would undertake sensitive inqui realistically to look necessary ry sitivities into such circumstantial and direct evi ” in this at issues and decide facts may dence of intent as be available.’ Bat case”? son, 93,106 U.S. at 1712 (quoting S.Ct. Arlington Heights v. Metro. Hous. (internal Dev. 106,106 citations Id. at S.Ct. 252, 266, Corp., 429 U.S. omitted). S.Ct. Justice Marshall foresaw that (1977)). L.Ed.2d easily explanations such are generated “[i]f discharge prosecutor’s ob- sufficient Supreme repeatedly The Court has em- on ligation justify his strikes nonracial phasized the significance of the trial grounds, protection then the erected judge’s Johnson, role at In step three. today may Court be Id. illusory.” explained: the Court Powell, Court, writing for

Justice first steps govern two Batson responded: production of evidence that allows the respect expressed we the views

While trial persuasive- court to determine the concurring opinion Marshall’s Justice ness of the defendant’s constitutional concerning judicial en- prosecutorial “It claim. is not until the step third holding today, forcement of our we do persuasiveness justifica- that the share them.... We have no reason not tion step becomes relevant —the believe that will fulfill prosecutors which the trial court determines wheth- challenges duty their to exercise their opponent er the of the strike has carried only legitimate purposes. Certainly, proving purposeful his burden dis- may judges, Court that trial this assume crimination.” dire in our supervising light voir 2410 (quoting U.S. identify be alert today, decision will 1769). Purkett, U.S. purposeful facie prima case of discrimi- Indeed, the defendant not show need think that his- nation. Nor do we this likely it is more than not that the peremp- trial which has practice, long toric tory challenges, if unexplained, based jury, of an impartial served selection bias, 168, impermissible group on id. at be because of an appre- should abolished 173, 1769, proceeds 115 S.Ct. and the case trial prosecutors hension step three even if the prosecution “pro- judges conscientiously will not perform only utterly duces frivolous or nonsensi- respective their duties under the Consti- strike,” 171, justification cal for its id. at tution. 115 1769. As in explained Snyder S.Ct. 22, n. 1712 (majority Id. at 99 106 S.Ct. Louisiana, 472, 1203, 552 U.S. 128 S.Ct. opinion). (2008): 175 L.Ed.2d Court, therefore, pivotal

The Supreme expected The trial court has a role in trial judges, fulfilling duty, evaluating Step in their Batson three of claims. effectively justice inquiry would ensure that the Batson involves an evalua- equal credibility, did not system prosecutor’s facilitate denial of tion of protection by remaining vigilant discriminatory atten- “the in- [of best prosecu- tive the risk that overzealous often will be the demeanor of the tent] governance contribution to on challenge.” significant who exercises

attorney addition, suspect reasons for char- race-neutral account of his race” or other In challenges acteristic, often invoke “harm from discrimina- peremptory id. The nervousness, (e.g., in- juror’s demeanor jury beyond that in- tory selection extends attention), making the trial court’s first- on the defendant and the excluded flicted im- greater of even hand observations juror community,” to touch the entire portance. procedures purposefully “[selection (alteration 477, juries in from under- persons 128 S.Ct. 1203 exclude black Id. at omitted). (internal A citations original) public mine confidence in the fairness of court, turn, “ordinarily Batson, should reviewing system justice.” our U.S. judge’s] findings” based on give trial 87, 1712; [the at 106 S.Ct. see also Powers v. credibility of demeanor and an evaluation Ohio, 1364, 499 U.S. 111 S.Ct. Batson, 476 at 98 “great deference.” U.S. (1991). Long 113 L.Ed.2d before Bat- 21,106 n. S.Ct. son, Supreme had observed: Court designed to Batson framework is “For racial discrimination to result in the

“The suspicions actual answers to produce jury exclusion from service of otherwise may have inferences discrimination groups only violates our qualified Con- process.” selection infected and the laws enacted it stitution under but Johnson, 125 S.Ct. 2410. U.S. concepts is at war with our basic of a dem- ... process simultaneous- three-step “The society and a representative gov- ocratic purposes is ly public serves the Batson Texas, ernment.” Smith v. encourages vindicate and designed to (1940) (foot- 130, 61 S.Ct. 85 L.Ed. 84 objections perempto- on prompt rulings omitted). judge, note The role of the trial disrup- substantial ry challenges without dispelling any notion either process.” Id. at tion of the selection proceedings by preju- have been affected (citation 172-78, and inter- prejudice repudiating dice or such when it omitted). rights nal marks quotation occurs, paramount, today remains even vindicates, however, Batson are not con- important the District of Columbia.2 This rights possessed by fined to the the defen- fully the trial judge function of consis- trial, dant on but extend “to those citizens tent underlying motivations Bat- ‘in participate who desire to the adminis- son, U.S. and not ” law, jurors,’ tration of the id. at by conclusory rulings served or dismissive (quoting 125 S.Ct. 2410 Strauder West of the district court. 303, 308, Virginia, 100 U.S. 25 L.Ed. 664 Batson, Supreme Since when the Court (1880)), overriding as well as to “the inter- has encountered cases where the trial eradicating est discrimination from our judge duty, failed to fulfill his or her it has civic institutions suffers whenever [that] making individual is excluded from not hesitated to examine the voir dire study jury five-part peremptory 2. A service in the Dis- nation or curtailment of strikes by the trict of Columbia National Center for experience judges that in "the of most trial among State Courts identified that the rea- minimum, give[ appearance ... at a ] general public sons the avoids service is jurors being prospective peremptorily are perceived justice unfairness and biases in the race, grounds gender stricken on or both.” Seltzer, system. Vanishing See Richard The Council For Court Excellence: District of Co- Why Enough Juror: Jurors?, Are There Not Available the Year 2000 Project, Jury lumbia Juries for 203, (1999). 20 Just. J. 212 Vari- Sys. Beyond: Proposals Improve Jury developed have been ous recommendations (1998). 26 D.C. Washington, Systems perception, including address this the elimi-

105 detail, proceedings painstaking acceptance inas- cutor’s jurors of white who dis- single much as a instance of racial conflicting discrim- closed obligations [time] ination in requires appear selection reversal to have been at least as serious as conviction, 95-96, juror],” [those of a see id. at 106 of the struck S.Ct. black id. at 483, 1203; An example 1712. of such detailed review Miller-El Cock- cf. rell, 322, 1029, 537 Snyder, judge is where the trial U.S. 123 failed to S.Ct. 154 (2003) (on L.Ed.2d 931 finding petition). make on the record based on habeas Additionally, when presented confronted on regarding prosecu- habeas review with a prosecutorial state explanations striking policy tor’s two an Afri- strike African American juror, can American members of the consequently venire that pattern resulted of such deference inherent in clear error review Dretke, strikes Miller-El v. 545 U.S. replaced by was what was tantamount 231, 2317, 125 196, S.Ct. 162 L.Ed.2d 479, 482, de novo review. See 552 at U.S. held, Supreme Court upon a searching rec- 128 S.Ct. 1203.3 This is reflected in the review, ord judge’s the trial factual practice of circuit appeals courts of when findings nonpretextual as to the nature of reviewing contentions that normally would the state’s race-neutral explanations were subject be to clear error review but for the wrong by evidence, clear and convincing fact that the district court made no find- 266, id. at 125 S.Ct. 2317. In a See, concurring ings of fact. e.g., United States v. opinion one acknowledged Justice Justice 935, Corp., 147 F.3d 945 n. 7 Microsoft Marshall’s concerns and the defects intrin- (D.C.Cir.1998); see also United States v. sic analysis, to the Batson at Smith, (4th id. 266- Cir.2011); 640 F.3d 596 J., (Breyer, S.Ct. 2317 concurring), McMath, United States (7th concluded that “a peremptory Cir.2009); jury- Mitchell, Dennis v. system selection (6th permits or encour- Cir.2003); Armienti v. ages the use stereotypes States, (2d work[s] Cir. cross-purposes” with “the law’s antidis- 2000); United States v. Vega, 221 F.3d command,” crimination 271-72, id. at (5th Cir.2000). As to the first of S.Ct. 2317. explanations two proffered, the Supreme that,

Court in Snyder reasoned in the ab Supreme The post-Batson Court’s prec- sence of a specific it finding, could not edent has forewarned lower courts that “presume that judge the trial credited the objections Batson are not to lightly be prosecutor’s assertion juror] that [the A dismissed. approach by one-size-fits-all nervous.” Id. proffered As to the second the trial judge summarily stating that — explanation, Supreme concluded, Court prosecutor’s explanations are credi- quoting length the transcription of the ble—risks reversal of a ap- conviction on trial court proceedings, that prosecu peal. Supreme Court has held “explanation tor’s given for the strike ... prosecutor’s response to an allegation itself unconvincing,” id. at racially motivated peremptory strikes and that implausibility “[t]he of “must a ‘clear and reasonably specific’ [be] explanation this is reinforced the prose- explanation ‘legitimate of his reasons’ for adopting In a clear error searching standard of re- findings review of made in a state view, Supreme Snyder, Court in trial incompatible court would be with con- 477, 1203, at plurality 369, 128 S.Ct. cited the cepts of federalism. Id. at 111 S.Ct. York, opinion in v. New 500 U.S. Hernandez 1859. No federalism concern exists with re- 352, 1859, (1991), 111 S.Ct. spect 114 L.Ed.2d 395 this court’s review of the district court's in expressed which concern was ruling. that a more Batson

106 Batson, example, comparing prosecutor’s for challenges.” 476 exercising the in 20, (quoting striking, striking, 1712 behavior n. 106 S.Ct. at 98 U.S. Burdine, races, jurors of different questioning 450 like Cmty. Dep’t Tex. Affairs of 1089, 258, looking patterns dispari- for or statistical 248, S.Ct. 67 L.Ed.2d 101 U.S. (1981)). remarkable, ties, any or examining policy be whether It would least, practice prosecutor’s the trial of the relevant office to conclude say the see, concerns, e.g., Mil- step implicates at three of the Batson judge’s evaluation Cockrell, 331-35, not also clear and ler-El v. 537 U.S. at analysis need be Batson reasonably S.Ct. specific. findings in of Because the district court’s though “these determinations

Even conclusory, without peculiarly demeanor lie the instant case were credibility and explanation permit meaningful ... in judge’s province a trial sufficient within circumstances, review, the deferential re- exceptional appellate of usual the absence away question would defer to view falls and the is wheth- Supreme [the Court] [the 477, court, record, court],” upon at er this review of the Snyder, 552 U.S. trial (second by preponderance in a of the evidence original) alteration finds S.Ct. 1203 (internal quotation pur- marks the defendant has established citations and omitted), by the poseful prosecutor. no deference is due to the trial discrimination ruling Although based on the evi- not characterized the Su- judge’s Batson review, analy- explains preme it unless it on the Court as de novo dence before today, struck-juror court why prosecutor’s sifting it credited the sis record rejected struck-juror explanation through transcription race-neutral much arguments proceedings, that an individual of the Batson as the defendant’s single a racially Supreme motivated or that a Court did for struck strike was juror Snyder, reality. in pattern demonstrated reflects this series of strikes at 42-44. con- Op. Supreme strikes. See id. at The Court racially motivated Cockrell, 1203; single templated, Miller-El v. inasmuch as Batson cf. conviction, 341-43, requires violation reversal of a at 123 S.Ct. 1029. After 537 U.S. Batson, after, see, all, e.g., Snyder, 552 at in and before and U.S. S.Ct. that the trial would emphasized purpose- judge provide Supreme Court selection, objection-by- record that on an ful racial discrimination reveals how, objection upon considering “all equal protection, in the denial of basis resulting upon the circumstances that bear only “harms not the accused whose life try,” animosity,” (citing but issue of racial id. Mil- liberty are summoned Dretke, at beyond that inflicted on the de- ler-El 545 U.S. S.Ct. “extends 2317), objections juror prose- the excluded to touch defense fendant and community,” “undermining] explanations cutor’s strike were resolved. the entire Otherwise, Supreme expecta- Court’s public confidence in the fairness of our Batson, protection system justice.” 476 U.S. at tion of the constitutional institu- Batson, 1712; expec- v. Dret- tionalized as well as the S.Ct. see also Miller-El ke, 237-38, 2317; trial prosecutor judge at tations for the 545 U.S. S.Ct. response Powell’s Virginia, Strauder v. West 100 U.S. described Justice (1880). concerns, will have 25 L.Ed. 664 Court’s Justice Marshall’s precedent contemplates proven illusory. explains pains- no than that This less judges give taking trial will full consideration to review of the trial court record that undertaken, bias, presented Supreme the evidence of racial Court has 478-84, 478,128 Snyder, by, example, Snyder, U.S. Dretke, 128 S.Ct. and Miller-El v. remen their questionnaires reveals a 240-66, 545 U.S. at 125 S.Ct. to salient difference. The Caucasian venire- step underscore the third of Batson man expression followed his opposition cannot become matter of rote or one- to the death penalty with the statement: analysis. size-fits-all “I try would by abide the Court’s in- struction, my personal By belief.” merits, appellants’ On Batson chal- contrast, the African American venireman lenges do not entitle them to reversal of indicated his concerns about the death convictions, their even upon de novo re- penalty would cause him to have concerns view of the A single record.4 example fair, being about explaining he had “so suffices. Defense counsel challenged the many questions about the penalty death striking of ground “Juror 5773” on the belief in Cognizant [his] it.” that the prosecutor applying was a double stan- persuasion burden of prove the exis- dard in peremptorily striking “Juror tence of purposeful 5773,” per- discrimination in male, an African American but not emptory strikes ultimately rests with the 6487,” “Juror a Caucasian male. Both defendant, Johnson, 170-71, U.S. opposed penalty. the death apparent it is prosecutor in his step response Batson two prosecutor’s proffered explanation that the gave equivocal stated “Juror 5773” difference in the veniremen’s answers about the death answers and penalty and his not a difference in religious their race Appellants views thereon. main- motivated their disparate tain that the record treatment. For essentially showed that the main concern reasons stated of “Juror 5773” was not the court with religious re- spect condemning remaining strikes, but a concern of wrong atOp. 42-44, man During to death. each Batson collo- likewise survives de novo re- quy, argued defense counsel had view of the that “Ju- record. ror pro-prosecution 5773” had “some in- In equal view of the protection concerns regarding stincts the death penalty, but earlier, identified a final observation bears generally thoughtful,” disagreed [was] mentioning. public record, As a matter of oppose “Juror 5773” “would the death venire in the District of Columbia penalty religious grounds.” on Instead of in 2011 unlikely, as it inwas 2002 when dealing with this factual disagreement and jury began case, selection in the instant making reasonably specific findings on the majority have a of African American veni- court, record to which this as appropriate, members, re no matter many how are defer, could the district court ruled as to peremptorily struck prosecutor. all challenges defense that it credited the The U.S. Census of 2000 Afri- showed that prosecutor’s explanation of non-racial rea- can Americans were 60.0% the District sons for all of the peremptory strikes of population, of Columbia’s with Caucasians

African American members the venire. 30.8%; making up Hispanics or Latinos

A review of the transcription of the Bat- were 7.9%. The venire in the instant case proceedings son supports plausibility approximately three-quarters African prosecutor’s explana- American, race-neutral and the twelve-member tions for its peremptory challenge to “Ju- that was selected composed for trial was 5773,” upon ror even de novo review. The jurors nine African American and three relevant provided by answers jurors. the two veni- Caucasian The demographics have Appellants pursue appeal pellee’s do not on their Br. at 28 n. 21. challenges gender. Batson Ap- based on of 2010 showed The U.S. Census

changed. America, Appellee comprise 50.7% UNITED STATES of Americans that African population of Columbia’s the District 38.5%, Lati- Hispanics Caucasian’s then,5 in a Likely 9.1%. comprising nos NWOKORO, also known Onuoha defendant, a American of an African

trial Iggy, Appellant. as longer pose no be able to will prosecutor government’s in the question the rhetorical No. 11-3046.

brief, contrary to the of Batson purposes Appeals, States Court of Why, a matter of trial as progeny:

and its District of Columbia tactics, Circuit. discriminate would challenges when exercising peremptory in Aug. 2011. jury would be petit the venire and overwhelming Appel- African American? 68; May 2002 PM

lee’s Br. at see also in the District

Trial Tr. at 32. Courts unable, likely likewise will be

of Columbia matter, acceptance a factual to base

as explanations for

prosecutor’s race-neutral in step part third on

strikes Batson’s predomi- in that a generality, as

nantly jury American will nonethe- African

less be To the extent distrust of seated. justice system among minorities part

women in on fear that persists, based against during will be discriminated service,

jury supra note accepting prosecution’s approach, reflected question, suggests

the rhetorical view of in the changing demographics District First, Columbia least two concerns:

growing prosecu- that an overzealous risk

tor in turning jury could be successful racially

toward conviction on moti- based discriminatory

vated or peremp- otherwise Second,

tory activity by strikes. such

prosecutors greater would result mis- justice system

trust of the and reduced

participation the affected service

populations. ing Individuals are called for service in the nondriver identification cards from the regis- Department District Selt- of Columbia based on lists of D.C. of Motor Vehicles. See voters, drivers, zer, supra tered licensed and those hav- note at 204.

Case Details

Case Name: United States v. Moore

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 29, 2011

Citation: 651 F.3d 30

Docket Number: 05-3050, 05-3051, 05-3052, 05-3053, 05-3054, 05-3064

Court Abbreviation: D.C. Cir.