United States v. Rico Williams

America, Appellee STATES UNITED WILLIAMS, Appellant Rodrigus

Rico

No. with 13-3058

Consolidated Appeals, States Court

United Circuit.

District of Columbia 10, 2015 December

Argued 2, September

Decided Kramer, Defender, A.J. Federal Public military. with the Expert evidence at trial argued the cause and filed the briefs for connected the Gangster BOS to the Disci- Jeffress, appellant. Jonathan S. Assistant ples, an American gang with roots Chi- Defender, Federal Public entered an ap- “sets,” cago and individual or local groups, pearance. Although around the world. members of ' got the BOS often fistfights, gov- into Bates, Lauren R. Assistant Attor- U.S. ernment’s witnesses testified at trial that ney, argued the appellee. cause for On the they did not Cohen, Jr., engage brief were other criminal Acting Vincent H. activity. Attorney, U.S. and Elizabeth Trosman and Strand, Stratton C. Assistant U.S. Attor- did, however, The BOS regularly initiate

neys. hew beating members up them in a ritual “jump-in.” known as a During a HENDERSON, GRIFFITH, Before: typical jump-in, approximately six mem- KAVANAUGH, and Judges. Circuit bers of the BOS hit the initiate for about Concurring opinion by filed Circuit six minutes. Blows only were to be landed Judge KAVANAUGH. waist, between the neck and the and the initiate was forbidden from defending him- Opinion concurring in part and any way. self in During the jump-in, the dissenting in part by Judge filed Circuit initiates were repeatedly they asked if HENDERSON. proceed. no, wanted If they to. said GRIFFITH, Judge Circuit initiation ended. After a jump-in, the new Army Sergeant Juwan Johnson died in member hugged, would be kissed on the July 2005 after participating in a violent cheek, handshake, shown the BOS tak- and hazing ritual near Ramstein Air Force en out to celebrate. The BOS per- Germany. Base in juryA appel- convicted formed around eighteen fifteen to jump-ins lant' Rico Williams of mur- Johnson’s; before in none had a new mem- der and witness tampering for his role in ber hospitalized been or killed. hazing covering and up information Johnson’s jump-in place took on the about death. affirm We 3, 2005, night July at a brick-floored hut Williams’s conviction for tamper- witness Sims, near the Ramstein base. Nicholas ing, but we reverse his murder conviction. who was second in command to Williams in BOS, government testified for the people nine participated in Johnson’s Rico Williams was stationed at Ramstein jump-in than the usual six. Sims —more Air Force Base as an Airman in the Unit- recalled that Williams asked Johnson ed States Air starting Force around 2001. whether begin. he wanted to Johnson re- discharged He was for medical reasons in sponded: yeah.” “Hell Williams asked him May 2005 but remained at Ramstein as a again, and he again replied: yeah.” “Hell wife, dependent Octavia, of his who was Then punched Johnson in the also an leader, Airman. Williams was the face. Johnson fell immediately, but stood “governor,” or group of a by went again. continue, Asked if he wanted to he “BOS,” various names: “Brothers of the repeated: yeah.” again “Hell (For Struggle,” or “Gangster Disciples.” punched him in simplicity, group the face. The opinion then will refer to the BOS.) began group hitting as the him The BOS below the neck and up was made of members of the above Army U.S. and Air the waist. After two or min- three Force at utes, Ramstein but was not affiliated group stopped while Williams and direction,

Sims, but told to let him know top-ranking members Johnson BOS, asleep if he pummel anything. Johnson for needed Charris fell continued then The other members next minute. the room with Johnson. When he woke beating. joined in on again up in morning, Johnson was dead. witness, Themetri- Another injuries autopsy An revealed to John- similarly testified that Saraglou, ous son’s and These force brain heart. “blunt the beating Johnson before Williams asked injuries” inflicted the initiation this,” sure he wanted and began “he was death, according to the caused Johnson’s yes.” Saraglou said: “Hell that Johnson government’s expert By medical at trial. throughout jump- further testified that contrast, expert the defense’s medical fell, in, when he was asked: “Do Johnson opined underlying cause of death reply say, want He you this?” “would trait, typically asymptom- was sickle-cell ” yeah.’ yeah,’ or ‘f*** ‘yeah,’ ‘hell even condition, genetic “superficial atic halfway about Saraglou testified injuries” impact merely blunt were a “con- beating, wasn’t as through the Johnson tributing” cause. beginning; been at the “hyper” as he had death, days following Johnson’s Two began “yeah,” in- responding simply he Williams moved back to United States. yeah.” point, At some John- stead “hell Virginia February He arrested in up son was held as members continued to charged 2009 and with four counts rela- point, him At mem- repeatedly. hit another death, tion to one of which the Johnson’s while he was on the bers kicked Johnson through partway district court dismissed ground. kicking prior No had occurred three, trial. remaining Of the the first jump-ins. up, the six minutes were "When second-degree count under was murder to “time” yell the three timekeeper Military the Extraterritorial Jurisdiction stopped. beating times before the As (MEJA), provides Act which feder- of result, jump-in longer the than usu- lasted jurisdiction by al over crimes committed al. Forces accompanying civilian the Armed lost Johnson never consciousness See outside the United States. 18 U.S.C. jump-in mouth though and his was § seq. 3261 et bleeding, no other Johnson showed visible that charged The two other counts injury Ac- sign of serious when ended. tampered Williams had witnesses Sims, cording was exhausted to Johnson 1512(b)(3). § violation of 18 U.S.C. One walking person, and “like a drunk but alleged made a threat to that Williams Saraglou himself.” testified Johnson at a three other BOS members Sims and slowly he too walking and said Ac- day after Johnson died. cookout go to to celebrate with others. sore out Sims, told them that cording to Williams take Williams directed BOS members to authorities, to questioned by they were charged Florentino Johnson home say because “Turkish that Johnson died him watching overnight. Charris with people him. also threat- jumped” Williams midnight, testified around Charris they “basically be done ened that would slurring speech his and hav- Johnson was they for” if told truth about Johnson’s later, ing walking. Sometime John- trouble death. testified that he took Sims go hospital. asked Instead of son to anyone kill to mean Williams would threat taking hospital, relayed him the Charris to (Oct. Trial Tr. who told the truth. 36-37 request to another BOS mem- 2010). al- ber, tampering The count other who called Williams. Williams said not from leged Saraglou that Williams called to take him. Charris followed Williams’s jurisdiction § that month and under the United States later 28 U.S.C. 3742(a). § up him to order Sims to a tattoo told cover 18 U.S.C. signaled gang membership. II

In November found guilty murder Williams begin We with Williams’s challenges count tampering and one of witness based sufficiency government’s of the evi- (but on threat not to Sims pros- dence at trial.1 He maintains that the others). jury acquitted prove ecution failed that he was “resid- tampering count related to Sims’s tattoo. ing military with” a member of the U.S. April Williams was sentenced he was not a of or and that “national imprisonment 22 years’ on the murder con- ordinarily resident in” Germany at impris- and a concurrent years’ viction occurred, required time the offense for witness The court tampering. onment jurisdiction- establish federal under MEJA. $756,000. restitution of also ordered 3267(2). Further, § argues 18 U.S.C. he moved for judgment acquit- that the evidence was insufficient to find witness-tampering tal on murder and the requisite that he had of mind for state count, As for counts. the murder he ar- second-degree murder. gued that the evidence was insufficient to highly review is Our deferential: requirements establish of MEJA accept jury’s “any we must verdict if met or that he were had the state mind rational of fact” trier could have found the required for a murder The dis- conviction. beyond elements of the crime a reasonable United See trict court denied that motion. Battle, doubt. United States v. F.3d Williams, States F.Supp.2d 258, 264 We view (D.D.C. 2011). moved Williams also light evidence in the most favorable to the trial grounds for a new on the government, drawing no be distinction government during misstated the law clos- evidence, tween direct and circumstantial that ing argument and the district court full “giving play and to the right the of evidentiary rulings. made several incorrect credibility, to determine the weigh motions, court The district denied these justifiable evidence and draw of inferences

too. Id. Examined fact.” through this deferen appeal, On Williams that the contends lens, tial sufficiency-of-the-evi Williams’s evidence was insufficient to convict him of arguments dence fail. argues He also prosecutori- murder. that a closing al of law ar- misstatement A gument substantially prejudiced his trial. trial, challenges evidentiary government

He further three At required was to by the rulings prove district court and various a that beyond reasonable doubt alleged prosecutorial MEJA, other errors. We met Williams elements of (D.C. Although 8, 2016) we July reverse Williams's murder 2016 WL 3648552 Cir. 1. error, conviction on the we nev- basis of trial sufficiency-of-the-evidence argu- (addressing challenges ertheless choose to address al- his reversing ments after conviction for trial er- evidentiary leging insufficiency. If we con- Bezio, ror); 144, (2d v. 726 F.3d Hoffler that the clude evidence to was insufficient 2013) (explaining Cir. that our sister circuits murder, convict Williams of his retrial would concluding "are unanimous that re- such under Jeopardy be barred the Double Clause warranted, minimum, view at a is as a matter of the Fifth Amendment. See United States v. prudent policy”). of Williams, 13-3019, 1134, 1162, No. present was took jurisdiction over house where Octavia provides for federal which July juror A accompany- place early in June or 2005. committed civilians crimes rationally the Armed Forces infer from this evidence a could ing member 3267(2). §§ A with wife on See 18 U.S.C. that Williams resided abroad. Moreover, for statutory government’s criteria July meets 2005. defendant if, military a member “accompanying” unqualified testimony witnesses offered (1) occurred, a time crime he was: A ra- that Williams- lived with Octavia. Armed a member of the dependent of that juror could infer one of the tional (2) Forces; “residing with” that member qualified his testi- witnesses would have (3) States; “not a outside United out mony had Williams moved before the ordinarily in the national of resident or Lamy, jump-in. United States Cf. 3267(2). § con- nation.” Id. Williams (10th 2008) host (holding F.3d prove tends that the failed rationally jury may that a infer from tes- third of MEJA. the second and elements timony that house “is” within Indian country that was “within reser- the house close, the question Although times vation boundaries at all within juror for a rational evidence was sufficient witnesses”). knowledge of Taken to- the[ ] beyond that find a reasonable doubt sufficient was gether, evidence “residing with” his wife Octa Williams juror beyond permit rational find Force, via, Air when the a member of the reasonable doubt that Williams resided July Three of crime occurred on 2005. his wife at the time Johnson’s testified government’s witnesses death. of those lived with Octavia. One witnesses, Charris, further statement that Williams was testified Sims’s joined April staying people sometime after he the BOS with other June However, meeting at May picture. he attended a may appear cloud saw there. house and Octavia was entitled to discredit testi However, Jenkins, said that Williams no witness mony. See United States v. (“Credibil 1175, 1178 lived with at the time Octavia F.2d matters, government Complicating death. may rest on a witness’s ity determinations on and, reason, Sims testified cross examina witness are for the demeanor marital having us.”). tion that those who jury, not And even whether problems June Asked- Sims could have inferred believed staying “moving Williams was around time with Octavia at the Williams resided interval, people other this with” does Because MEJA of Johnson’s death. 29 responded that he Trial Tr. Sims was. give its “residing,” we the term not define (Oct. 2010). 26, identify not where He did ordinary Alabama v. North meaning. See that exactly staying Williams was but said 340, 130 2295, Carolina, 330, 560 S.Ct. U.S. Id. place.” was “all over the Williams (2010). To is “reside” 176 L.Ed.2d 1070 Germany and back to left moved permanently or for considera dwell a “[t]o 6, July on 2005. the United States or usual time” or “to have one’s settled ble place.” at particular home in or a OxfoRD re- This meets the low bar evidence 1989) English DictioNaey (2d (empha ed. quired sufficiency-of-the-evi- defeat a omitted). than A can have more person sis court challenge. dence As district v. residence. United States Ventu reasoned, de- one See juror a rational could (2d 2004); rella, 391 F.3d Cir. joined group termined that Charris Mich., and, v. 30 F.3d Eastman Univ. May late as end of as of 1994). (6th Thus, therefore, even who Cir. at. Williams’s 673 meeting that curiam) Wigmoee, testimony (quoting that Williams credited Sims’s Evidence (Chadbourn 437(1) 1979)). with in “staying” people was other June § rev. The like- 2005 could have determined that Williams persists lihood that a condition still be- “resided” his wife—either depends intervening on the of chances tempo- cause he with her but was resided having circumstances to bring occurred elsewhere, rarily he staying or because possibility to an The the existence end. multiple places. resided in Where evi- of will depend such circumstances al- interpreta- dence can support “varying entirely of specif- most on the nature tions, at least one of which is consistent in thing ic whose is issue existence verdict, jury’s with” we defer to must particular affecting circumstances Ayewoh, that v. verdict. United States soap in case in a hand. That bubble (1st 2010) (emphasis F.3d ago was in existence half an hour affords omitted). in no inference at all that it is existence similarly reject We Williams’s ar now; that Mt. Everest was existence insufficient gument that the evidence was years ago strong ten evidence that it prove he was not a of’ that “national or yet[.] exists in” “ordinarily Germany resident at the view, nationality Id. our falls closer to time of Johnson’s death. 18 U.S.C. spectrum. the Mount Everest end of the 3267(2)(C). § proof nationality, As of An nationality, individual’s while not im- questionnaire introduced a mutable, ordinarily does change 'over completed a part as of 1996 period.2 Thus, of a nine-year course application national-security position. knowing that Williams not a German indicating Williams checked the box juror rationally national could he was a citizen or birth. U.S. national infer he that was not one in 2005. He in the ques wrote “NA” section of the inquired tionnaire that about citizen dual evidence was also sufficient to ship. govern Williams contends prove that not “ordinarily Williams was ment’s only evidence establishes he in” Germany. giving resident Again says not a German national in It ordinary term meaning, undefined its we nothing about whether he was a “national “ordinarily” note “usually.” means Ox of’ Germany on the date of Johnson’s English Dictionary (2d ed. FORD death in 2005. thus a person MEJA envisions that “ac companying the Armed Forces” a host The evidence Williams’s nation country country resides in that mili as a ality is But in a explained indeed dated. tary usually but dependent, is not resident evidence, on leading treatise the law of words, there. In other lives he there be “[wjhen object, the existence of an condi cause the military connection to tion, quality, tendency given or at a time is significant rather than because of issue,” other “prior its can indicate existence” Daneshpayeh Dep’t “local ties.” “persisted] that it Air. later continued] (Fed. Force, period.” Stuart-Caballero, at *2 United States v. (11th 1982) 890, (per 686 F.2d 893 (unpublished) (approving agency Cir. an find- reason, (7th 1983); 2. Shively, For this this case does not resemble v. 715 F.2d 260 Cir. States our (5th those in which sister have held circuits Platenburg, States v. F.2d United 657 797 years-old that certificates cannot establish federally Cir. A bank's insured status federally that a bank was the time insured at premiums lapses paid. are not See Stuart- See, alleged e.g., of an offense. United States v. Caballero, 686 F.2d at 893. Ali, (9th 2001); 1242 266 F.3d Cir. United

9 Weinberger, period. this 707 employee Air was Collins ing that a civilian Force Cf. (D.C. 1983) Turkey 1518, in” he because F.2d 1519 & n.7 “ordinarily resident there). in- local ties” This “profound (explaining that of Forces the Status Congress’s terpretation also accords agreement Treaty for the Atlantic North MEJA, was to enacting which intent military Organization distinguishes person try States to crimes permit the United civilian accompanying employ nel—and connected to the by civilians committed foreign in a nation ees—stationed from military simultaneously “recog- while there). “ordinarily locals who are resident” pre- host has the niz[ing] that the nation juror A could also infer rational in exercising criminal dominant interest ordinary, not an or Williams did become per- and other jurisdiction over its citizens usual, Germany of in the resident interval country make that their home.” sons who discharge between his and Johnson’s Rep. pt. at (2000). 106-778, 1, H.R. starters, short, period death. For this pas further observe that before the We lasting longer no than two months. Fur MEJA, “ordinarily of the term resi sage ther, evidence showed Forces agree- used Status of dent” was home than in a private was on base rather pients governing the duties and —treaties dwelling, and he was married to an of countries that station armed privileges servicemember rather than a American military has forces inter overseas. ordinary German national resident. Evi publications. the term various preted dence revealed that left Ger also not ask us to government While the does many days for the United States two after definitions, military’s any defer to death, 6, 2005, on July Johnson’s and nev — U.S. -, v. Apel, see States United Daneshpayeh, er returned. See (2014) 186 L.Ed.2d 134 S.Ct. (employee “ordinarily at *2 who was (“[W]e that the Govern have never held Turkey resident” in lived there for almost a reading ment’s of criminal statute is woman, years, to a Turkish married deference.”), they confirm entitled to apartment building and lived in an she that an individual must interpretation our owned). rationally A have in could significant have at some ties to the least did ferred from evidence nation, host outside of his connection significant not ties at time of have local “ordinarily qualify military, resi death but rather lived there be dent.” military. his connection to the cause of The government introduced evidence MEJA, leaving our Before discussion was stationed at Ramstein that Williams however, we observe that the from 2001 military because of his service straightforward steps could have taken A discharged May until 2005. he was judicial “avoid the need for consideration readily could inferred rational have a non-problem.” of what should be United from this evidence that Williams was Hall, Germany during in” States v. F.3d “ordinarily resident See, nation); ordinarily resident in the host U.S. e.g., U.S. Air AFE U.S. 36-104, Force, Agency'— Army, Civilian Human Resources Component Determination in the Forces Civilian Resident, Ordinarily https:// Kingdom Europe Region, (explaining (2014) United resident,” army.mil/eur/employment/ acpol. wu. "ordinarily in the as used Status (last Aug. ordinarily_resident.htm visited agreement for the North Atlantic Trea- Forces may (noting ty Organization, a that U.S. citizens become "normally involves number if, factors,” Germany among ordinarily oth- people who lived resident in and that they year things, er live there for without year than "without a US abroad for more military). qualify connection to the U.S. government generally as connection” heightened standard of recklessness re- respect residency With to wife, example, government quired points his for for a murder conviction. He with testimony repeatedly have asked its witnesses where to that could Johnson said at time of Johnson’s jump-in lived he wanted the to continue and did Williams evidence of appear seriously injured death or introduced where not when it end- or kept belongings received mail. argues Williams ed. that Williams also the evidence Morris, United See States showed he BOS told other members 1992) (concluding that evi- necessary. hospital take Johnson to the if kept posses- that a defendant his dence presented But government ample in an could apartment “support sions juror evidence a rational from which could that [he] reasonable inference lived infer that consciously disregarded Williams [there]”). cases, As we have in other close an death injury extreme risk of or serious sufficiency note that we evidence “[t]he example, testimony Johnson. For at tri- situational,” always govern- and that the suggested al signature that Williams had a out the way ment “should not find hard quitter,” move called the “one-hitter which change in circumstances would what be with people punch, knocked out one inadequate per- sufficient to render its that he once to initiate group’s refused fatal formance on this issue to a convic- jump-in female member via because Hall, tion.” 613 F.3d at 253. Testimony “would kill suggested her.” also that jump-in danger- was more B prior hazings. only ous than Not did it last argues Williams next that the evidence usual, longer people and involve more than juror was insufficient for a rational to find Saraglou but testified Johnson was beyond a reasonable doubt he acted up held point group at one while members required the mental state murder. him repeatedly punched asking without reject this We contention.4 jump-in.. he wanted to continue the And another point, Sims stated Johnson Whether a defendant is convicted up curled in a ball while he was kicked. murder, opposed According testimony, to Charris’s more- involuntary manslaughter, depends on the over, jump-in after the Williams told an- aforethought. of malice presence Compare other over 1111(a) phone BOS member (murder), § 18 U.S.C. with id. 1112(a) hospital. take A Johnson to the rational § (manslaughter). Malice can be juror could from this infer evidence that proven by showing in defendant or, Williams was aware of his own strength, to kill tended as the ar here, jump-ins consciously understood that could lead to ser- gued disregarded that he death, injury ious an extreme or or and knew that John- bodily risk of death serious injury. govern jump-in presented that the son’s a more contends extreme prove ment did not that his actions met risk than most initiations. From this evi- argues pre- 4. Williams also uses with intent ... conviction for intimidation ... tampering pay witness the order that he vent the communication to a law enforcement restitution must be reversed because the evi- relating officer ... of information to the com- dence was to convict him insufficient of mur- possible mission or commission of a Federal argument appears grounded der. This to be fined offense ... shall be under this title part on the belief that a defendant cannot be added)). imprisoned[.]” (emphasis At tampering convicted of witness unless he ac- rate, propriety we on the need not rule of this tually committed a federal crime—a dubious interpretation because evidence was suffi- statute, interpretation of the relevant see 18 cient to convict of murder. (“Whoever 1512(b), (b)(3) § U.S.C. knowingly cause, view, dence, to find that in the court’s it was jury .the was entitled inaccurate disregard with conscious that suggest acquiescence Williams behaved to Johnson’s risk to human life. See Unit- of an extreme could bear on Williams’s state of mind. Foster; 557 ed F.3d States closing argument, In defense counsel sufficieney- (explaining that in a emphasized Johnson was excited must court challenge, the of-the-evidence participation about in the initiation and the the to give play right “full to of every time he was asked he wanted credibility, evidence weigh the determine beating, yes. continue with the he said to fact”). justifiable inferences and draw say: went on to Counsel Judge going you is to tell [T]he Ill defense, not a under- consent is and we argues prosecuto- next that a that, but it in ... stand has to factor to during closing rial misstatement law ... intended to kill [ ] whether Williams substantially the argument prejudiced injure Johnson, seriously and had [or] [ ] trial. the agree of his outcome We disregard a reckless for his life or seri- government misstated law in its clos- the injury. say- ... person ous When is [a] argument. Because the misstatement ing yes, yes, yes, ing, got that’s affect a central state of implicated issue—the something legal a may not be de- —it mind with which acted'—and fense, got but it’s to affect the state of cured, sufficiently requires reversal not person the supposedly mind of who mur- murder conviction. Williams’s him. dered A (Nov. 2010). rebuttal, Trial Tr. 32 its trial, parties government responded on a the that defense agreed Before explaining will- inaccurately instruction that Johnson’s counsel stated law: did not jump-in ing participation you gave counsel] some incor- [Defense justify conduct. The excuse or the one— judge rect law because the is read, part: “The instruction relevant expert on he’s final—he is the is of consent not available defense law, judge. you can’t take— And involuntary manslaughter, or homicide Johnson in there Sergeant thinking went not Pro- therefore should be considered.” going that he to' become member posed Jury No. l:09-cr- Instructions ingo of a brotherhood. He did there 2010). (D.D.C. Oct. After trial get consent is willingly killed because however, Williams asked the dis- began, It is never ever defense to murder. no add to that instruc- language trict court to or in- degree murder defense to.second that the consider clarify tion to could you voluntary manslaughter, and know “in jump-in consent to the deter- what, judge you— tell going had the nec- mining whether defendant it; to consider you counsel] told [defense essary aforethought malice to establish you can’t even consider it because don’t Trial Tr. second-degree murder.” crime of It is it. not a defense.... You consider (Nov. 5, argued He intent even consider it in his can’t re- particular circumstances of the case anything just else. You cannot. clari- quired a more detailed instruction added). After (emphasis Id. at fy. jury could that the consider Johnson’s concluded, object- counsel rebuttal defense when willing participation the initiation give and asked district court ed consciously assessing whether Williams proposed lan- “curative” instruction. ah human life. disregarded extreme risk to request guage court be- would read: The district denied During yesterday’s rebuttal argument, request for a curative instruction. The de- you government] you heard tell [the it, fense declined and the district court did you could not consider Juwan Johnson’s not jury. read it to the ceremony consent to the initiation when argues government’s that the determining government whether the misstatement of substantially law preju- proven beyond has a reasonable doubt agrees diced him. He that consent is not Mr. Williams’s intent to commit the of- homicide, an affirmative defense to but degree fenses of second murder or invol- insists that consenting behav- untary manslaughter. As I will instruct is, “continued, ior—that and enthusias- you momentarily, consent is not a de- tic, statements that he wanted the initi- However, fense to charges. these under ation. suggested continue” — law, you the may consider Juwan John- Williams was not of an conscious extreme initiation, son’s consent to the among all risk that might Johnson die or seriously be admitted, the other evidence injured. Appellant’s Br. 63-65. According determining government whether the Williams, government’s rebuttal ar- has proven Mr. Williams’ intent to com- gument that consent mit cannot be the crimes of considered degree second murder “in involuntary manslaughter beyond a intent or anything [Williams’s] else”— reasonable doubt. coupled with the district court’s instruction that “consent prevented is not Objection Mr. Rico Williams’ to Gov’t’s defense”-— jury considering from Improper crucial context Closing Arg. & Mot. for Cura- 4-5, determining tive Instruction No. when l:09-cr-00026 whether Williams acted (D.D.C. 2010). Nov. aforethought. malice

The district court refused to read this B proposed “curative” language jury, concluding again that it was inaccurate to Williams asserts that govern suggest that acquiescence the victim’s closing ment’s argument improperly led any impact on the defendant’s state of jury to believe that it could not consid However, mind. the district court modified er crucial evidence of Williams’s state of the first sentence of the consent instruc- mind, and that “sup instructions tion simply: to read “Consent is not a ported” this misperception. Appellant’s Br. defense degree to second murder or invol- words, other alleges he that improp untary manslaughter” excising the lan- — er prosecutorial argument prejudiced his guage “and therefore should not be consid- trial. reviewing When challenges, such we (Nov. 16-17, 9, 2010). ered.” Trial Tr. first government’s examine whether The district court also give offered to error, statement was keeping indeed jury an additional proof instruction on mind that it need not have been deliberate state of pointed mind. It standard or made in bad faith to be erroneous. See criminal instruction that explains that Watson, United v. States 171 F.3d someone’s state of “ordinarily mind cannot (D.C. 1999). error, Cir. If the remark was be proved directly,” may but be inferred we evaluate whether the error substantial from the defendant’s conduct and other ly prejudiced the defendant and therefore “surrounding circumstances” that requires Straker, reversal. United States v. finds relevant. Instruction No. 3.101 of the (D.C. 2015). 800 F.3d When Jury Criminal Instructions for the District (2014). examine, considering prejudice, of Columbia we among The district court ac- however, factors, knowledged, other steps that this additional district court instruction satisfy would not the defense’s took to cure the erroneous remark. See accidentally.” victim died Gartmon, be] States United argu- § n.25. But this supra, 1.8 LaFave, really an ‘affirmative defense’ ment is “not i Instead, correctly” all.” Id. is “more argument govern- an that the viewed as law misstated the an element of the prove has failed to ment govern argument. When closing in its 9.1; § supra, see also crime. could not consider LaFave, jury said that ment Sandoval-Gonzalez, 642 States v. United determining consent (9th else,” (distinguish- it in F.3d anything or “intent Williams’s “[cjlassic (1) affirmative defens- ing between wheth two issues: accurately conflated excuse, es,” justification as justification can be a such consent er a victim’s crime, simply to a ... advanced commission of ‘defenses’ “[o]ther for the or excuse crime”). trial, At (2) pres of the negate it can bear on the an element whether the crime. to make this lat- sought precisely an element of or absence of ence argument: that Johnson died ter kind of in crimi- is fundamental This distinction than as a result of accidentally rather a crime If an of nal law. element is.miss- human disregard conscious for conduct has not culpable ing, charged understood, this contention is Properly life. Here, aforethought was malice occurred. justifi- as an affirmative defense such not crime which with an element excuse, an simply but assertion cation or if he acted without charged; Williams was of element of the crime required that a mind, been could not have of he this state missing. murder —malice—was By con- second-degree murder. of guilty justifications or trast, recognized legally contrast, cannot the rule that consent By defenses” are “affirmative excuses simply homicide means be a defense to though all liability even criminal eliminate not an affirmative defense that consent is met. See of a crime are of the elements or excuse. See justification vein of WayNe LaFave, (“In application § 110 Am. 2d HomiCide CRIMINAL JüR. Substantive R. (2d example, For § ed. 9.1 not that consent is general principle Law of kills in self- purposefully defendant who activity if the that was to a crime a defense of murder: the elements defense satisfies policy, it is against public to is consented (killing) act required performed he has that, homi- in a for prosecution rule (intent mental state required is no excuse.” cide, of the deceased consent kill). criminally liable because But he is not added)); Bergelson, Vic- (emphasis Vera justified. Id. Simi- -deemed his actions are Argument An Perpetrators: tims and kills purposefully' who larly, a defendant Law, 8 Liability in Criminal Comparative is that his conduct not know (2005) but does L. Rev. Crim. Buff. murder, of the elements wrong satisfies (“[W]ith acts, society does respect to some liability excused may but be from.criminal of valid possibility recognize even not Although his actions insanity. because of among prominent most consent.... justified, society excuses are seen consent to victim’s them is homicide—the responsibili- lacked because he his conduct justification complete never a be killed is fault of his through no ty for his actions added)). (emphasis perpetrator.” for the own. Id. from jury not foreclose This rule does circum- facts and considering all relevant element of required that a argument

An to deter- surrounding a homicide stances colloquial- is sometimes missing a crime is consciously the defendant mine whether “the example, For ly a “defense.” deemed life, to human risk disregarded an extreme [might prosecution murder to a defense a necessary question and therefore whether ele- of fact which must be submitted proven. been ment of the crime had light in the of all relevant evidence.”). contrary, such To the evidence is determining But government’s closing argument critical whether defen guilty second-degree may murder or dant well have led believe involuntary manslaugh the lesser crime of could not consider this crucial evidence. In requires ter. While murder its closing, the defense focused the on disregard at least a conscious of an ex participation Johnson’s enthusiastic in the injury, serious treme risk death or invol jump-in, explaining person “[w]hen [a] requires untary manslaughter that a de yes, yes, ... is saying, yes, got that’s engage fendant reckless conduct that affect ... of mind of person state created an extreme risk death or serious supposedly who murdered him.” In rebut- injury of should which he have been tal, government the said the defense’s aware, Proposed Jury but See was not. statement was “incorrect law.” gov- 40-42, Instructions No. 1:09-cr-00026 ernment then to purported interpret the (D.D.C. 19, words, Oct. other the jury instruction that consent is not a de- second-degree between difference murder by fense explaining jury the that “the manslaughter and “lies in the quality of judge going you” is “you to tell that can’t awareness of the risk.” United States v. consider” consent Johnson’s when evaluat- (D.C. Dixon, 1969) 288, 293 419 F.2d Cir. ing Williams’s “intent or anything else.” (Leventhal, J., concurring). The jury may by The dissent suggests “consent” the infer that the defendant aware of the government only referred to the word’s surrounding risk from the circumstances. legal subjective meaning willingness, of Cox, States v. 509 F.2d United 392 by manifestation of consent behavior or (D.C. 1974). Here, repeated Cir. words. But juries courts nor “[n]either insistence that he the jump-in wanted parse extemporaneous closing remarks signaled might continue have to Williams argument closely as as sentences care- that Johnson was in no danger. serious fully documents,” legal drafted and what that, And if Williams believed jury matters is what the would “have un- could not have been aware of an extreme derstood prosecutor say.” the United risk to human life. Venable, States v. 269 F.3d illustrate, To consider counterfactual: (D.C. 2001). Here, government the if, repeatedly what instead of affirming characterized incorrect the defense’s “yes,” he wanted continue the initi- statement Johnson’s behavior—his ation, “no,” Johnson had or “stop”? said “yeses” probative of Williams’s de- —was Surely this point evidence would in favor recklessness, gree of and further suggest- a finding of consciously dis- ed to it jury could not consider regarded an inju- extreme risk of death or this purpose. behavior for This was ry. highly Johnson’s behavior was rele- error. indeed, determining crucial—in vant— guilty whether Williams of murder or ii such, manslaughter. As Williams was enti- A prosecutorial misstatement jury tled to have the consider that evi- closing argument ground is Hopt People, dence. See re U.S. 633-34, (1881); 26 L.Ed. 5 ORField’s only substantially prejudiced versal Straker, defendant. 800 F.3d at 628. CRIMINAL PROCEDURE UNDER THE FEDERAL (West 2016) (“Intent “[Cjontext § key” 30:23 is a in determining the ef- Rules Venable, Further, any misunderstanding that this of the misstatement. feet If, considering the context of might engendered impli- at 1090. statement F.3d trial, that the error full we are “sure a central issue: awareness cated jury, very had but influence the did not of the risk to Johnson. To convict Williams effect, judgment the verdict and the slight murder, of had to Fowler, States v. should stand.” United of an find that Williams was conscious (quoting injury extreme risk of death or serious States, 328 U.S. Kotteakos v. United If was not conscious of Johnson. Williams 764-65, 1239, 90 L.Ed. 1557 66 S.Ct. risk, been, but should have then the (1946)). say, But if “cannot with fair we him only manslaugh- could convict assurance,” judgment that “the was not (Leventhal, Dixon, ter. 419 F.2d at 293 See error, swayed by it is substantially J., concurring). that substantial impossible to conclude analysis As to third factor our To rights were not affected.” Id. determine prejudice, substantial ac- substantially prejudiced the error whether knowledged that the was a close call case defendant, severity we consider the very on this issue: Williams’s awareness of error, centrality of the issue affect- agreed, explain- The district court the risk. error, case, ed the closeness ing that “it was close case between sec- steps taken to cure the error. See degree manslaughter” ond murder and Gartmon, 146 F.3d at 1026. that while “a could reasonable severity, at it is true Looking first reached, it ] have reached the conclusion [ amounted problematic that the statement irrational to it would not have been con- portion closing argument. of to a small manslaughter Tr. of clude it was instead.” context,” Venable, However, read “in (June sure, Proceedings To be very at there is a real F.3d chance (in II.B) by the as described above jurors statement led some to be the dissent, jury permitted the evidence the they lieve could not consider Johnson’s find that Williams was aware of an ex- at all. The district consenting behavior evi- treme risk to human life. But other of the “consent is court’s administration acted with- suggested dence instruction, gov after the defense” human life— disregard out a conscious for it, inaccurately interpreted may ernment behavior created an extreme even his the mistaken well have left about. risk that he should have known See they not consider impression that could Smart, 98 F.3d United States that he repeated Johnson’s statements 1996) (explaining that substan- Because wanted the initiation to continue. suffieiency-of- a mere prejudice tial is “not by govern made the the statement was inquiry”). example: For no the-evidence ment, particular weight. Spi it carried See injuries had occurred in of the serious (11th 1263, 1275 Head, vey v. 207 F.3d jump-ins the eighteen prior fifteen to 2000) (“Improper prosecutorial arguments, repeatedly group performed; had members law, be especially misstatements of must if he wanted to continue asked Johnson ‘while carefully considered because they initiation and testified that with the authority cloak of state wrapped the no; stopped he said John- would have [they] heightened impact have a on the ” signs outward of son had no unmistakable (citation omitted)). And the re jury.’ injuries jump-in; and some major after the prejudice, was even potential mark’s testimony suggested that trauma expert it occurred dur pronounced more because jump-in primary was not the from the allowing government’s ing rebuttal — rather, undis- of Johnson’s respond. cause opportunity the defense no death — at misstated. Id. closed, trait was. The law that medical underlying awareness 742 & n.6. question of Williams’s close, and as was therefore risk to Johnson Here, sufficiently correct- no instruction an danger “the explained, we engendered by potential confusion ed increas- jury’s verdict” error will affect the dis- government’s argument. While “in a case where the evi- significantly es jury instructed the on the state trict court at conflicting.” Id. dence at trial is man- required mind for murder and steps were taken to Finally, insufficient not have slaughter, this instruction would sure, district the error. To be cure that, under misimpression corrected informed the general court’s instructions not a defense to separate “consent is parties’ closing arguments instruction, Johnson’s statements murder” not evidence and that the should were considered in and actions could not be instructed the court. apply the law as determining Williams’s consciousness can have an ameliorative Such instructions to a risk.5 Because the error went central Venable, at 1091. For ex- effect. 269 F.3d case, it and close issue because government improperly where the ample, cured, insufficiently we reverse prove his suggested the defendant must Williams’s murder conviction.6 innocence, have held that the court’s we cured the proof instruction on burden of iii clearly it informed the mistake because appeal, government appears On at relevant law. See id. and be- concede that Johnson’s statements efficacy 1091. But “there are limits” important havior were evidence of in- instructions when “the general of such mind, suggests but it Williams’s state of prosecu- structions not address the d[o] that Williams’s use of the term “consent” closing argument, error in and the tor’s curative instruction invited proposed Watson, a central issue.” affect[s] error implied confusion because instance, in United 702. For in the subjective willingness participate (D.C. Hall, F.3d 727 States v. jump-in pertinent assessing 2010), closing argument’s that a we held of mind. Williams’s state forthcoming court’s] “reference to [the agree might that have been We Williams not alone remove jury instructions could a term as “con- better served to use such at 742. In that the taint -of the error.” Id. to senting behavior” instead of “consent” case, an by example cited the defense as any misunderstanding. But avoid risk of instruction, a curative we found that sufficiently that it the defense made clear in- was cured because the court’s error using the term “consent” to refer to specific point of was structions corrected argue argues that this to 6. To the extent that Williams 5. We do not understand Williams requires error also the reversal of his witness- us that the “consent is not a defense” before conviction, disagree. Although tampering we instruction, own, problem. on its highly relevant in as- Johnson’s behavior was that We therefore decline to consider whether sessing pur- Williams’s state of mind for the conveyed adequately the relevant instruction any poses charge, of the murder it had little if above, however, the term law. As we observed bearing charge on the that Williams threat- open multiple interpretations “defense” is to was there- ened Sims. The state-of-mind issue colloquial of its use to refer to because tampering conviction. fore not central to argument that an element of the defendant’s below, Moreover, explain we the witness- § missing. supra, LaFave, crime is See 1 1.8 particu- tampering. charge present a did not n.25. Gartmon, larly 146 F.3d at close case. See phrased generally his sub- the instruction to refer outward behavior-—not when example, of mind. For jective (just state behavior to the victim’s as the model instruction, a curative defense requesting offered, instruction that the district court argument way: its this explained counsel approves, generally and the dissent refers hitting somebody ... and someone is “[I]f “any by statement made or to acts [done Tes, it, yes, I still want they’re saying, defendant],” Instruction No. 3.101 of it,’ it would be reasonable —at still want Jury the Criminal Instructions for the Dis- argue it least the defense would would be (2014)). trict of Columbia Or the court that not in ... to think he’s reasonable could have recited evidence favorable jeopardy; keep hitting that he can physical sides, as the dissent In- both proposes. him, going him not to kill that and he’s stead, it concluded that no curative in- keep hitting him and he’s not going he’s disagree. struction was needed. We injure him.” Trial Tr. 7 going seriously government points also out that (Nov. 9, argued Counsel further declined the district offer Williams court’s government’s unless the misstatement was to read an additional on proof instruction “cured,” going say- “are to be mind. If of state of means said, No, ing: you can’t consider that he suggest that Williams invited error yeah,’ ‘hell whatever. You can’t consider judge refusing ... at all. The took that off an instruction that would have Looking for us.” Id. at 8. at the misstatement, limits government’s cured the record, believe the district court under- we presented argument inadequately argument simply re- stood counsel’s FERC, City Nephi its brief. v. (June 8, jected Proceedings it. Tr. of (explaining 933 n.9 2011) (“[Wjhatever may the decedent party properly that a to raise “fail[s] [an] way can in no affect the said or done in- argument” appeal “merely on when it rea of mental state or mens the defen- the court” of the factual basis for a form[s] added)). (emphasis dant.” claim). however, suggest, do not mean to We rate, At the additional instruction required the district court was by the court suggested district would accept precise language curative government’s have cured misstate- course, proposed. Of had it done above, ment. that instruction As described so, complain could not now simply provided person’s that a state of improperly the instruction was worded. “ordinarily proved cannot direct- mind be Wells, 519 U.S. See United States ly,” jury may that the infer state of but (1997) 137 L.Ed.2d 107 S.Ct. surrounding “from the circum- mind (“[U]nder doetrine[,] a the invited error Instruction No. 3.101. The in- stances.” party may complain appeal on of er- explained jury further the struction provoked invited or rors that he himself the statements and acts of may consider (alterations the district court to commit.” the and “all other facts and defendant omitted)). Alternatively, had the court circumstances received evidence” agreed with Williams’s concern but be- his state of mind. Id. But the indicate proposed lieved that his instruction would identifies is that the prejudice Williams jury, rephrased it could have confuse jury might have believed that the consent directly to refer more the instruction it separately precluded instruction from behavior. Johnson’s statements and Simi- consenting behav- considering the victim’s highlight larly, the court was reluctant “facts and Williams, ior as one of these relevant specific evidence favorable to as The consent instruction is it could have re- circumstances.” suggests, the dissent in that it effectively pregnant somewhat unusual that she was when Johnson died for- jury considering bids the from certain evi- was irrelevant. The district court conclud- dence, merely telling jury rather than trial, much ed as after but denied it which elements must find and how to trial, Williams’s motion for a new because feature, weigh the evidence. Given the error was agree harmless. We that the unique light of the circumstances error was harmless tam- as Williams’s closing argument, jury developed at pering conviction. Our test for harmless readily perceived could have consent (1) close, error “is If the case clear[:] is not limiting any instructions on instruction as (3) (2) central, the issue not effective The additional state of mind. instruction steps were taken to mitigate the effects of jury’s therefore would not have cured the error, the error is harmless.” In re potential misunderstanding. Even had it (D.C. Case, Sealed 99 F.3d jury, given been we would not be 1996). Although pregnancy testimony assurance,” “say, able to with fair that “the might jury’s sympathy enhanced judgment substantially swayed was not by victim, for Johnson as a sympathy such Fowler, at 12 (quoting error.” any would have had minimal'—if —influ- Kotteakos, 764-65, 328 U.S. at 66 S.Ct. tampering ence on the conviction because 1239). Johnson was not a victim of that crime. testimony The therefore did not touch IV upon a “central” issue. Id. remaining challenges, Williams Moreover, supporting the evidence points evidentiary to three errors and tampering conflicting. conviction was not alleged three instances misconduct Rather, testified, unrebutted, Sims government. argues Williams threatened him. The case was jury these errors inflamed the and there- charge. therefore “not close” on this Id. require fore reversal' of both convictions. Further, jury carefully parsed the wit government’s Because the misstatement of ness-tampering charges. As to one of the during closing argument law independent- counts, ly requires tampering us to reverse Williams’s mur- found that conviction, however, der we need consider Williams threatened Sims but not three only whether alleged of these errors gang other charged members he was separately warrant reversal of his witness- threatening at the same time. And the tampering They conviction. do not. acquitted Williams of the other tampering Thus, altogether. count we are confident evidentiary ruling The first that the “swayed by was not emotion challenges require does not re appeals” al tamper when evaluated the versal, because it not error. pho ing charges. Bass, United States v. tograph that the district court admitted of 110, 117 F.2d Johnson and his wife at an amusement park objective was relevant an indica reasons, For the same the admis height important tion of Johnson’s —an testimony gang sion of the expert Rob fact in determining his size relative to ert Stasch was at most harmless error the Williams’s—and district court did not respect with con tampering Williams’s holding abuse its discretion in that Stasch, Chicago viction. a lieutenant in the photo’s probative value was not substan Department, Police testified about tially outweighed by prejudice. the risk of background, history, symbols of the correctly gang Gangster Disciples. American He argues, Williams however, testimony of Johnson’s wife also identified some of Williams’s tattoos Gang bearing statements had little on the tam- among members as common explained further Disciples. Stasch pering charge, they ster since focused on the Struggle,” a “Brothers of the surrounding events Johnson’s death. More- called it group Ramstein often name the over, adequately court the district cured self, “prison as the faction” originated by instructing govern- the first remark “eventually Disciples and Gangster clarify implying ment to it was not argues the street.” Williams transferred to that the defense believed Johnson was re- un testimony was irrelevant and that this sponsible for his own death. And assuming But duly prejudicial. highlighted Williams’s counsel the inaccu- error, testimony it of this was admission racy by reading of the second statement harmless; tampering charge did was transcript of the relevant witness testimo- jury question, a close and the present not ny jury. alleged to the These instances charges, as de carefully assessed misconduct therefore do not warrant re- However, of a de above. evidence scribed witness-tampering versal of the conviction. membership “likely gang fendant’s Unit jury,” in a strong antipathy provoke V Jernigan, ed States v. We reverse Williams’s murder convic- (11th 2003), harmlessness and the 1284-85 Cir. tion and remand the case for a new trial. in a look different closer calculus would witness-tampering affirm his convic- We case.7 tion. three Williams further identifies alleged prosecutorial miscon instances KAVANAUGH, Judge, Circuit that, view, prejudiced his trial. duct concurring inappro argues government that the He join majority opin- fully the excellent witness on cross priately asked defense response strongly ion. In to the worded any whether she had read examination dissent, I am to add a few com- compelled Stars in the thing about Johnson’s death and, my of the case ments about view Stripes newspaper or seen it featured the critical im- particular, to underscore Gangland. Even if on the television show portance of accurate instructions improperly designed was questioning this jury requirements. on mens rea re encourage jury to do outside search, prejudice me, did to reverse Williams’ For the vote question conviction. The tampering is not a hard call. This murder conviction the district court cured fleeting, and ritual for gang’s case involves a initiation prejudice by directing potential gang. into the bringing new members reminding the disregard it and instance, member who gang a new was forbidden. jury that outside research eventually ritual the initiation underwent the case fit died afterwards. The facts of further contends that the involuntary manslaughter to the crime of accused the de government improperly charged T. But the Government death, “blaming the victim” for his fense of murder, a more seri- inaccurately told and that the punishment. ous offense with much heavier only person one before John man- on both But these The was instructed jump-in. had fallen at a son course, therefore do not—-rule on explained, Williams’s need not—and 7. Of as we have just properly charge presented testimony such a closer ad- murder whether Stasch’s reversing already Because we are charge. case. prove the murder mitted to conviction, however, we murder Williams's murder, jury naturally right a critical issue wonder: slaughter and would Who’s jury to decide was whether about the law? the guilty manslaughter during The defense counsel’s statement the two of- murder. To decide between closing was the correct statement of law. fenses, jury it was essential for the prosecutor’s The statement was an incor- the difference between the two understand But unfortunately, rect statement of law. crimes. jury the ultimate instructions to the did here, the relevant differ- On the facts definitively not up clear the confusion or between the two crimes related to the ence disagreement resolve the between the mur- defendant’s mens rea. The crime was Indeed, if prosecutor any- and defense. subjectively der the defendant was thing, suggest the instructions tended to aware that his conduct created an extreme prosecutor’s the incorrect view of the bodily injury. risk of death or serious The law was correct. however, manslaughter, crime was if the firmly I am jury convinced that the did subjectively defendant was not aware understanding not have a correct his conduct created an extreme risk of and, law armed with that misunderstand- bodily injury, though death or serious even ing, proceeded then to convict he should have been aware. second-degree murder rather than man- key jury The issue for the to understand slaughter. unwilling sweep am assessing in Williams’ mens rea and distin- rug. under the Williams committed a hei- manslaughter guishing from murder was nous crime. But as the District Court ob- significance of the the victim’s statements post-trial hearing, served in a this “was a during gang namely, the the initiation — degree close case between second murder repeated during victim’s statements the manslaughter.” Hr’g Mot. Tr. 27:11-12 okay initiation that he was and could con- (June And the difference between During closing argument, tinue. de- manslaughter conviction and a murder correctly jury fense counsel told the what in very significant conviction this case is in assessing the law was: that in Williams’ of prison terms time for Williams. He was rea, jury mens could consider the in years prison sentenced to for the statements that the victim had made dur- If murder. he had been convicted of invol- ing gang initiation. But prosecutor, untary manslaughter, statutory maxi- rebuttal, in her said that the defense coun- mum years sentence would have been 8 wrong sel was about the law. prosecu- 1112(b). § prison. See 18 U.S.C. jury tor told the that it could not consider statements the victim had made appeal In a criminal where a mens rea- gang disagree- initiation. This jury may related instruction issue ment was central to the outcome of the made a difference to the conviction and Considering case. the victim’s statements sentence, critically important it is to en- likely would lead the to convict for sure correct under- manslaughter, not But excluding murder. standing of the relevant law. See United likely consideration of those statements Burwell, States v. murder, would lead the to convict for J., (Kavanaugh, dissenting). manslaughter. case, That happen my did not reason, disagreement Faced with this between view. For that I vote to reverse the conviction, prosecutor fully join the defense counsel and the murder and I key case, over legal majority opinion. issue HENDERSON, speech. He had soiled himself. slurred his LECRAFT KAREN carry up It took four men to him the stairs concurring part Judge, Circuit Johnson, there, to his barracks. Once with dissenting part: assistance, eventually took a shower and Rico My colleagues reverse spoke telephone. wife on the his He words conviction because of eleven murder hospital. then asked to be taken to the clos- uttered her rebuttal prosecutor Charris, gang Florentino member view, prosecu- 'In their ing argument. Johnson, assigned spoke to watch Williams legally incorrect and tor’s statement was gang relayed with another member who substantially be- prejudiced was Williams request to Williams. Williams cause the district court failed to cure the directed that Johnson not be taken to the the evidence was close. error and because hospital. eventually asleep. fell Charris component of that disagree I with each later, couple When he awoke a of hours noth- analysis. prosecutor The misstated Johnson was dead. charge court’s was correct ing. The district guilt of and balanced. And evidence day beating, July after Because received a powerful. Williams story Williams concocted a cover and dis- at all events trial that was error-free —and among gang seminated it his fellow mem- cash'— n second-degree fair—I would affirm his gang’s He bers. took stash of murder conviction.1 about “dues” that had been collect- $600 gang explaining ed from the members— Beating

I. The and the Aftermath gang anybody that “if treasurer 3, 2005, in night July a brick- On first, going anybody they to come for were Hohenecken, Germany, gang floored hut in him,- going to come for and he needed [the gang mem- leader Williams and fellow money] get country.” out of the Trial Army Sergeant “Jay” Juwan bers beat (Oct. 2010). July Tr. 44 On Williams gang-initiation Johnson to death a Germany caught flight a out of back Williams, 6’3”, began at 6’2” or ritual. large He at until United States. remained “jump-in” punch directly with a so-called nearly years his arrest four later. After Johnson, 5’3”, face. at 5’2” or to Johnson’s trial, three-week convicted Williams got up. back hit hit the floor. He for his role in murder again. eight him in the face The other Johnson’s death. joined fray, pum-

gang members then Review II. The Standard of meling During Johnson. the course than six minutes of a nine-man beat- more it, majority is nec- As the tells reversal ground, curling up ing, Johnson fell to the essary prosecutorial misstate- to undo position. into the fetal Williams then led 12-15, “consent,” Maj. Op. about ment in what one witness described group correct, which the district court failed to Trial Tr. “stomp[ing] trial as on” Johnson. Maj. Op. 16. frames the issue (Oct. 25, differently, that “the district claiming closing improperly [his] alive court foreclosed emerged from the ordeal Johnson denied re- walking argument improperly [his] as if intoxicated. He but was prosecutorial majority opinion claims of mis- join I and II of the Williams’s other Parts join upholds in full. I Part IV insofar as challenge evidentia- conduct or his to certain witness-tampering conviction. Be- Williams's ry rulings warrant reversal of the would also colleagues my reverse the murder con- cause reject murder conviction. I would those prosecutor's alleged mis- viction based on the claims across the board. law, they do not decide whether statement of quested Appellant’s on consent.” III. The Prosecutor Did language Not altered). Misstate the Law highlight (capitalization Br. 62 at the threshold because the distinction alleged Whether in error sounds prosecutorial governing alleged law mis- both, misconduct or instructional error or govern- from the law conduct is different it cannot support light reversal of the ing challenge jury charge. a to the district correct charge. court’s and careful starters, Point For See IV.A. howev- infra recognizes The test for misconduct er, prosecutorial I cannot discern a mis- prosecutor’s closing argu- “a statements statement. a trial” if rarely ment will warrant new he A. The of the Context Statement misstates the evidence. United States v. “ (D.C. Watson, 695, 171 F.3d 699 Cir. notes, majority As the is ‘[c]ontext ” prosecutor alleged- The same is true if the key,’ Maj. Venable, 14Op. (quoting 269 ly an misstates the law because advocate’s 1090), recounting F.3d at and so it is worth “usually billed in advance to procedural backdrop against which the declarations — jury argument” as matters prosecutor spoke. —“are judged having not to be the same force trial, parties Before jointly proposed Boyde as an instruction from the court.” v. jury a instruction stating part that “un 370, 384-85, California, 494 U.S. 110 S.Ct. der no circumstance is consent a defense 1190, (1990); 108 L.Ed.2d 316 see United Proposed Jury to the crime of homicide.” Venable, 1086, States v. 269 F.3d 1091 46, Instructions at Dkt. 96. That language (D.C. 2001) (prosecutorial Cir. misstate- See, is consistent with settled law. e.g., “mitigated” by ment of law can be correct Washington 702, Glucksberg, v. 521 U.S. instructions, jury especially (1997) if court in- 714, 2258, 138 117 S.Ct. L.Ed.2d 772 (“the structs “that it responsibili- [is] court’s well-established common-law view” “that ty law, the consent of a homicide victim apprise the as to the wholly is immaterial guilt of the lawyers’ merely that the statements [are] death”) person who caused (quotation argument”). Ultimately, inquiry turns omitted); and alterations Woods United on whether a misstatement occurred and (D.C. 2013) States, 667, 65 672 A.3d prejudice” caused “substantial to the de- (“[C]onsent not a charge defense to a Straker, fense. United States v. 800 F.3d assault with significant bodily injury aris (D.C. 2015) 570, curiam). (per Cir. ing State, out a fight.”); street Durr v. contrast, By when the charge is (Miss. (victim’s 1998) 722 So.2d “whether, challenged, we consider taken as consent was no defense to manslaughter whole, accurately [the state instructions] charge against defendant who killed fellow governing provide law and inmate in gang-initiation beating); State v. Hiott, understanding sufficient Wash.App. issues 987 P.2d (1999) (“[C]onsent applicable standards.” is not valid United States v. (D.C. activity defense if the Wilson, consented to is 605 F.3d Thus, against curiam) (internal public policy. gang ... omitted) (per quotations member cannot an consent to initiation (alteration original); Joy see v. Bell Hel (citation omitted). beating....”) Textron, Inc., icopter 1993) (we review de novo “[a]n trial, During itself alleged proper jury failure to submit a testimony elicited about Johnson’s “con- instruction”). senting majority’s behavior”—to use the term, added). Maj. Op. 15—and it e.g., (emphases rebuttal, did not Id. otherwise, object, grounds on relevance prosecutor responded as follows: to the defense’s introduction of evidence on gave you [Defense counsel] some incor- conference, point. charge the same At the rect law because the judge is the one— joint the defense revisited the instruction he’s the expert final'—-he is the on the is not a Pointing consent defense. out law, the judge. you And can’t take— much pretty that “it’s that Ser- undisputed Sergeant Johnson went in thinking there geant jump-in,” Johnson consented to the going that he was to become a member argued the defense that Johnson’s consent of a go brotherhood. He did not in there criminal “undermine[d]” Williams’s intent. willingly get to killed because consent is (Nov. 2010). Trial Tr. 56 The defense never a ever defense to murder. It is no urged therefore the district court to amend degree defense to second in- murder or joint say to “you may instruction that and, voluntary manslaughter, you know ... consider consent determining what, judge going you— is to tell necessary whether the defendant had the it; you [defense counsel] told to consider aforethought malice to establish the crime don’t even you consider it because can’t murder.” Id. at 57. The it. It consider is not a defense. request court denied the because “intent adequately and mens rea are defined no [U]nder circumstances is consent a and, the substantive in any instructions” defense to the crime of homicide. So event, jurors] “to tell that they [the can remember that. You can’t even consider consider consent as it relates to intent or it in his intent anything or else. You

mens rea a fair is not statement of the just cannot. (Nov. 2010). law.” Trial Tr. 24 added). Id. at 100-01 (emphasis closing argument, before the Right B. The Prosecutor Was charged, strayed the defense from the dis- that Johnson’s Consent ruling. argued just trict court’s It that Was Irrelevant yes, Johnson’s ... “saying yes, yes” dur- ing jump-in could “affect the state of My colleagues that conclude the com- person mind of the who mur- supposedly ment italicized above misstated the law (Nov. dered him.” Trial Tr. 32 “suggested that it could That statement would unobjec- have been not consider behavior”—name- [Johnson’s] “ ” solely tionable if tied appreci- Williams’s ly, ‘yeses’ his during jump-in —“for ation of Johnson’s point. condition at that Maj. I purpose.” Op. disagree. The But the argued, incorrectly, defense also prosecutor they did not tell the that negate “consent” could could not consider Johnson’s “behavior” or Williams’s criminal intent: “yeses.” they She said could not consid- Judge going is you

[T]he tell er his majority appears consent. As the defense, Maj. consent is not a and we acknowledge, Op. under- 16-17 those are two that, [ie., stand but it has to things. consent] different Consent is an individual’s factor in ... Williams, subjective whether Mr. willingness, sometimes mani- government claims, words, by [as] intended to behavior or that some act fested See, Sergeant kill Johnson and e.g., intended to or event occur. Williams Walk- Johnson, seriously injure Sergeant Co., and er-Thomas Furniture 1965) disregard had a reckless for his life or 449 in con- (distinguishing, injury. context, serious subjective tractual con- between Instead, the reason 117 S.Ct. 2258. manifestation of’ objective and “an sent “stop” would be rele- of ToRts words like “no” or it); Restatement (Seoond) 892(1) (1979) (“Consent willingness they tend to show § vant is would may It be mani- danger to occur. and communicated fact for conduct Johnson sensed (1) and need not Williams, or inaction fested action who would then either that to actor.”). If in fact be communicated to of an extreme risk of death cease because synonymous with necessarily (2) consent were or bodily injury to Johnson or serious words, be difficult to it would behavior in conscious dis- beating continue Johnson doctrine, un- incapacity reconcile with the regard of that risk. children, presumes the law der which more hypothetical that even Consider are and the insane persons intoxicated consent, why qua demonstrates plainly they consent even incapable deemed consent, nothing do with it. Dan B. Dobbs al., “profess[]” et Suppose gang mind. recruit said state of (2d § 109 ed. June Law of ToRts jump-in: “I can’t breathe. feel tort] does not “bar (“professed [a consent” get But I want in. Just it done.” dizzy. still capacity give lacked plaintiff claim if the manifest The last two statements would consent”). they would be irrelevant to the consent but subjective the distinction between Given intent, light in of the especially attacker’s or verbal manifesta physical consent and “I “I can’t breathe” and feel statements it, argu rebuttal prosecutor’s tions of the of consent dizzy.” That is because words had ment was correct. Whether Williams only they tend to show are relevant murder the mens rea for that the victim the attacker did not know “recklessly, in he acted turned on whether “I danger. in And statements like was an extreme risk of disregard conscious dizzy” “I would can’t and feel breathe” bodily injury to” Johnson. death or sérious beyond the victim was show doubt (Nov. 2010) 9, (jury instruc Trial Tr. 39 danger. indeed in tions). consent—his state of Johnson’s recounts, 4-5, Maj. majority Op. theAs nothing mind—had to do with Williams’s “ ” . yeah,’ ‘Hell or words to Johnson said v. Mi perception of risk. United States Cf. effect, he wanted when asked whether (2d Cho, 716, 721-22 Sun jump-in dispute, I do not continue. curiam) (in case, sex-trafficking (per relevance, that “Johnson’s as a matter of “subjective to travel” willingness

victim’s repeated insistence that he wanted wholly charges” “immaterial to the might signaled jump-in to continue it went “to the irrelevant issue because in that Johnson was no serious consent”); People Mangiaracina, her however, Crucially, danger.”2 Maj. Op. 14. 424 N.E.2d Ill.App.3d 54 Ill.Dec. otherwise. In- prosecutor never said (1981) (“[Wjhether [rape] vic stead, told the that Johnson’s she did, fact, tim consent ... involves her That was an ac- “consent” was irrelevant. defendant’s.”). state, mental not the of law. If Johnson curate statement Maj. majority posits, counterfactual me,” proper cried out “Kill would be 14, only point. If John Op. illustrates argue, any judge any defense counsel “stop,” “no” or that would son had said instruct, could consider But the rea indeed be relevant evidence. Of course exculpatory that as evidence? nothing to do son it would be relevant has case has been the problem at not. The Glucksberg, 521 U.S. with consent. See evidence, however, my colleagues hold. See exculpatory as I do In view of all of the agree apparent Point IV.B. that Johnson’s bravado infra Jury Charge during closing its ar- A. The defense’s Cured insistence — Any Misstatement gument appeal using and now on —on physical to describe “consent” After the prosecutor’s alleged misstate- condition as communicated Johnson’s ment, objected the defense Tri- sidebar. prosecutor’s words. And the reference to (Nov. al Tr. It proposed later “consent” in rebuttal was an understanda- a curative instruction that would have said ble effort to correct the defense’s misuse in part:

of the word. [Ujnder law, you may consider Ju- initiation, wan Johnson’s consent to the event, contrary major- among all the other evidence I have ity’s recounting, prosecutor say did not admitted, in determining whether “could not consider [John- government has proven Mr. Williams’ any purpose.” Maj. Op. behavior for son’s] intent to commit the crimes of second added). (emphasis Nor would a reason- degree involuntary murder or man- able have understood her to make slaughter beyond a reasonable doubt. argument light govern- such an Objection Mr. Rico Williams’ to Govern- having first testimony ment’s elicited Improper ment’s Closing Argument and about Johnson’s behavior the jump- Motion for Curative Instruction at Dkt. not objecting when the defense added). No. (emphasis The district presented similar evidence. court give declined to proposed in- struction, (Nov. 9, see Trial Tr. 12-13 2010), Prejudice relying part ruling IV. Williams Suffered No on its earlier jurors] that “to tell they [the can Nevertheless, majority worries that consider consent as it relates to intent or prosecutor jurors misled the into cate mens rea is not a fair statement of the n gorically disregarding purported Johnson’s law,” (Nov. 2010). 8, Trial Tr. 24 The behavior,” 15, “consenting Maj. Op. so that explanation court’s lengthy repro- bears they convicted of second-degree duction: they might murder when otherwise have Now, say I then went on to last week manslaughter, Maj. convicted him of Op. ... why I going was not to include I 15-16. would not share its concern even proposed [defense addition to counsel’s] thought prosecutor I misspoken. the consent-is-not-a-defense instruction. thoroughly apprised district court instruction, proposed Because his his in- Moreover, of the relevant law. when addition, proposed struction or essential- measuring strong mens rea evidence Well, ly defense, said: it’s not a but jury charge, under error-free I am consent is relevant to or in- mens rea confident that a reasonable would tent. And I I going give said wasn’t to have convicted Williams of instruction, I I and said the reason prosecutor nothing murder had the said going give wasn’t the instruction was they’re matters, about the relevance vel non of separate because two already and I’m purported discussing mens rea Accordingly, consent. “when all done,” separate and intent in each of the in- any prosecutorial is said and mis underlying structions on the offenses. statement either “did not influence the jury, very slight or had but effect.” Kottea States, 750, 764,

kos v. United 328 going U.S. And I’m not a curative give (1946). 1239, S.Ct. 90 L.Ed. 1557 I think by giving instruction because any prosecutorial from instruction, my prejudice forestall it undermines curative jury to misstatement. I tell the rulings. And didn’t ar- disregard defense’s] [the strike and discretion judge A district has wide intent]; [the gument [about instructions, Joy, 999 phrases he how judge, and in her is not the prosecutor] 556, per remedies F.2d at how he point made the argument she rebuttal Foster, errors, v. trial United States ceived argument was inconsistent 650, Cir. He 557 F.3d they going are an instruction he must on the evidence but may comment hear. one-sided” great care” not to “be “use to tell them this going But what I’m intimation is lightest “his word or because is, a curative morning giving without deference, may prove received with instruction, what highlighting without Quercia jurors’ minds. controlling” highlight- and without said [the defense] 470, States, 289 U.S. United said in their prosecutor] ing [the what (1933) (internal S.Ct. 77 L.Ed. 1321 they need closing arguments, omitted). then, Unsurprisingly, quotations together instructions consider all of the have cautioned appeals other courts of instruction out of and not take one commentary in including factual against highlight it to the exclusion context or See, e.g., States v. jury instructions. United part that’s of the stan- others. think (10th Bowen, dard instructions. 2006) (“[T]he exercise district court must when, (Nov. 2010). examples Tr. 12-13 including Trial care illustrative in an instruc element] criminal [a short, court declined to the district Venture, Inc., ...”); tion. Hardin v. Ski be- curative instruction give the defense’s (4th 1995) (“A court is F.3d just the defense’s wrong, it was cause specific to comment on evi required not addition to the consent instruc- proposed in giving dence in the course of I have wrong. For reasons tion had been struction, well-advised and indeed often is subjective consent explained, Johnson’s to.”). state was not itself relevant Williams’s The curative instruction would of mind. Here, prudently court de- the district The court therefore opposite. have said the “highlight! to Johnson’s ]” clined 1 F. correctly give to it. Kevin declined have led to believe words could O’Malley al., PRACTICE et Federal JüRY beating to contin- that Johnson wanted 7:3, § & nn.ll- and InstructioNS (Nov. 2010). 9, If the Trial Tr. 13 court ue. (6th 2006) (“Requested instructions 12 ed. evidence, evenhand- singled out that no accurate or the court is under must be recitation of required edness would have them.”) cases). give (citing to obligation in- government, evidence favorable to the gang fellow cluding that led his “might the defense Recognizing and that stomping in on Johnson to use a term members have been better served such taken to request Johnson’s to be instead of ‘con- he denied ‘consenting behavior’ States, 153 16, hospital. v. United sent,’” Maj. my colleagues fault Starr Op. 919, 614, 626, 14 38 L.Ed. failing “rephrase[ U.S. S.Ct. 841 ] the district court for (1894) Pennsylvania Su- directly (agreeing instruction to refer more commentary on behavior,” judicial Maj. preme Court statements and all,” evidence, include “if stated at should duty to fashion a 17. The court had no Op. party makes in favor of ill. it “that which cure for a non-existent And both suitable him”) (in- against makes jury’s that which certainly [and] not have to focus the did omitted); Duke v. Uni- quotation in ternal words order to attention on Johnson’s cf.

27 (4th Inc., 1413, weight” 1421 Cir. royal prosecutorial 928 F.2d statements of law “ 1991) (“refusal single any particülar out they because come in ‘wrapped the cloak ” instructions “is item of evidence” authority.’ Maj. of state Op. (quoting approach often a sensible to evenhanded- Head, (11th 1263, Spivey v. 207 F.3d law”). presentation in the of the 2000)). ness Cir. Even assuming phe- such a exists, nomenon it application has no here. event, rejec- the district court’s prosecutor herself im- jury, told the tion of defense’s curative instruction mediately before commenting on the law of isolation, “may judged not be in artificial consent, judge that “the is the one—he’s but must be considered the context of the final—he is the expert on the law.” the instructions as a whole the trial (Nov. 8, Trial Tr. 100 That McGuire, 62, remark record.” Estelle v. 502 U.S. (1991) 72, 475, jurors right sent the back to the instruc- S.Ct. 116 L.Ed.2d 385 (internal omitted); tions, which quotation astray. see did then lead them Kibbe, Hall, Henderson v. 431 U.S. 152 See United States v. 610 F.3d (1977). (D.C. n.10, 2010) (district 97 S.Ct. 52 L.Ed.2d 203 charge court’s law, There is no cause for reversal if the in- cured prosecutor’s misstatement of sought struction the defense “was substan- “particularly when the argu- erroneous tially charge actually covered deliv- ment was acknowledged by prosecutor jury.” Udo, instructions”). ered to the United States v. subject to be to the court’s 2015) (internal Second, the district court instructed the omitted). quotation That was the case jurors to solely “[d]ecide the case from a here; jury charge several features fair consideration of all of the evidence” statement, prosecutor’s ensured that “you and that alone weight, decide what erroneous, prejudice even if did not any, give to the evidence that’s been Williams. (Nov. 9, 2010); admitted.” Trial Tr. see First, the district court told the (court id. at 28 also “you told them should your duty your that “it’s sworn to base consider all of the presented, evidence give you verdict on the law that I in these circumstantial”). both direct and As dis- instructions and on the that has evidence cussed, “the evidence ... in- admitted” (Nov. been admitted trial.” Trial Tr. 21 jump- cluded Johnson’s words added). (emphasis In the same in. Accordingly, would reasonable vein, the court instructed: understand that it “should consider” John- lawyers made por-

[B]oth reference to give son’s words and them whatever yesterday tions of these instructions weight thought they warranted. And during closing arguments, may and we similarly reasonable would have un- wording have even made some minor derstood from the decision to let court’s then, changes since I need to tell but closing argument stand the defense’s you your duty accept that it is to “kept saying thing Johnson the same over law, you law as instruct on the over, yes, and over and over and I want you should consider all of the instruc- that it this” should consider those words. tions as a whole. (Nov. 8, 2010); Boyde, Trial Tr. 32 494 cf. added). (emphasis Id. pre- The is 383, at (rejecting U.S. 110 S.Ct. 1190 claim sumed to have adhered to that directive. prosecutor that court and misstated what Marsh, 200, See Richardson v. 481 U.S. mitigating evidence could considered be 211, (1987). 1702, 107 S.Ct. 95 L.Ed.2d 176 during capital sentencing proceedings, otherwise, majority part proceed- concludes theo- because “the context of the rizing juries generally give “particular ings would have led reasonable to 626, 919; Starr, Bow- 153 U.S. at S.Ct. evidence could [at issue] that [the]

believe 1018; Hardin, considered”). en, 50 F.3d at 437 F.3d at be also, 1294;Duke, 1421; e.g., F.2d at see Third, explained court the district Grover, United States necessary support a mens rea detail the (affirming district Specifi- conviction. second-degree murder aspects court’s refusal to instruct on which cally, the court instructed: him conduct would make of defendant’s means aforethought kill malice To with in- aggressor purpose of self-defense deliberately and intention- to kill either struction). always clarification Additional is disregard recklessly, in conscious ally, or that it possible. But the cited cases tell us of death or serious of an extreme risk always necessary prudent. is not or even To find bodily injury to Juwan Johnson. Fourth, accommodate the defense at acted with malice the defendant court modified part, least the district government must aforethought, instruction jointly-proposed consent a prove beyond reasonable doubt effect that con- removing language to the specific with the the defendant acted Trial not be considered.” See sent “should kill, or that the defendant acted intent to (Nov. final Tr. 15-18 The court’s disregard for a reckless and wanton parties charge, consent to which both nature, that was extreme in human life agreed, was as follows: aware that his conduct created and was is not a defense to second de- risk of death or serious bodi- Consent an extreme involuntary manslaugh- gree murder or ly injury. you the victim ter. Even find person a would The fact that reasonable assault, you may consented to the initial aware of the risk would have been It not consider consent as a defense. finding prove a of malice. To sustain settled that a victim cannot consent aforethought, malice likely in death an assault that is to result that the defendant acted with must show further, bodily injury; under grievous human disregard and wanton callous no circumstances is consent defense life, and an extreme indifference the crime of homicide. Only finding human life. value of regarding recklessness homi- extreme plainly at cor- Id. 46. This instruction support will an inference of cidal risk See, Glucksberg, 521 U.S. at e.g., rect. aforethought. malice Woods, 672; 2258; 65 A.3d at S.Ct. Hiott, Durr, 135; at 987 P.2d at (Nov. 2010). So.2d Trial Tr. 39^0 136-37; Maj. Op. (declining 16 n.5 cf. in- disputes foregoing that the No one correct). decide whether instruction was far as it went and struction was correct as fail- Fifth, notwithstanding the defense’s especially steep an Williams faces climb legally correct curative go propose ure to claiming prejudice from its failure to instruction, Henderson, yet the district court offered further. 431 U.S. (“An omission, accommodation: the model “Proof incomplete or an another S.Ct. 1730 instruction, of Mind” instruction from the likely prejudicial is less to be of State law.”). Jury Instructions for the District than a misstatement of the Criminal [court’s] (commonly known as the Red- already explained, judge of Columbia For reasons (Nov. 2010). book). unwise, least, at Trial Tr. would have been the fact-specific emphasized instruction would have adorn the instruction with objec- “all” of the may jury have the could consider guidance about what evidence circumstances in determin- the intent element. tive facts and negated satisfied or state, 698; supplying mental Quercia, ing See 289 U.S. S.Ct. sought.3 legal of the clarification statement prosecutor much Williams the made dur- instruction, By the the court offering Id. ing nearly day a full of arguments, which accommodated the defense as much as arguments Were followed the next morning erroneously injecting without possible by jury extensive instructions. The district mix. “consent” into the correctly court instructed the on rea, accept mens told them to the court’s declined the instruction. Trial (Nov. legal instructions 2010). emphasized and Tr. 15 Yet he now claims they should consider all of the evidence. give any “the district court refused to The court jury,” Appel- additional instruction to the also amended the jointly-pro- lant’s Br. Reply posed and the instruc- consent instruction to accommodate away jury’s tions “took from the consider- the defense’s concern about prosecu- surrounding ation the most crucial facts argument. tor’s charge Given the as a circumstances,” Appellant’s Br. 64. whole, assuming and even prosecutor grant see no reason to a new trial to a law, misstated the a curative instruction any defendant who have could averted con- separately detailed less than all of the ceivable error or if prejudice he had evidence relevant to mens rea would most agreed proposal. to the court’s Had the likely have been reversible error. Williams given, Redbook instruction been would offered such a anyway. curative instruction provided any further clarification—if correctly rejected The court it because it nothing were needed—that in the charge jury would have confused by conflating from considering” “forb[ade] Johnson’s state of mind with Williams’s. during jump-in.4 Maj. Johnson’s words Still, the court an offered alternative that omitted). Op. (emphasis 17-18 would have addressed the essence defense’s concern. The defense declined B. The Mens Rea Evidence the alternative. Strong Was recap analysis Let me so far. I believe Williams would have suffered reversal prejudice any prosecutorial seeks because of a brief no from error charge 3. The model reads in full: "Someone's doubt that [name acted with defendant] [knowledge] appropriate necessary Jury [intent] [insert other state of mind.” Criminal Columbia, ordinarily proved state of cannot be Instructions for District of No. mind] (5th 3.101 ed. directly, way knowing because there is no person actually thinking, you what a but repeat, 4. To "[e]ven was told that may [knowledge] infer the someone's [intent] you find that the victim consented to the ini- appropriate [other state of from the mind] assault, you may tial not consider consent as surrounding may circumstances. You consid- (Nov. 9, 2010) (em- a defense.” Trial Tr. 46 er statement made or [done] [omit- acts terms, then, added). phasis By its the in- defendant], ted] [name and all other did "forbid[]” struction not from facts circumstances received in evidence considering Maj. Op. Johnson’s words. [knowledge] which indicate [intent] his/her omitted). (emphasis appropriate may [other state of mind]. [You infer, infer, required but are not that a briefly reply my concurring Let me col- person probable intends the natural and con- league, mistakenly emphasizes who trial sequences intentionally of acts did did explaining s/he counsel's role in the law to the however, entirely up you, It is do.] jury, musing right "Who’s about the law?" decide what facts to find from the evidence Op. simple: 2. The It Concur. answer is is the and, received judge lawgiver this trial. You should consider trial who is the sole you all the up circumstances evidence that extent he needed to clear the "white determining produced by differing legal think are relevant in whether the noise” counsels’ proved beyond arguments, has a reasonable he did so. 30 lasted for some indeterminate jump-in mens rea been close: of his

had the issue Boyde, all ills. See charge cured minutes period beyond the court’s the standard six 384, (“[Argu- S.Ct. members, U.S. gang including because generally carry less ments of counsel Williams, beating Johnson after continued than do instructions weight with a repeatedly “time” had been called. Trial court.”); Watson, 171 F.3d at 702 from the (Oct. 2010); 25, Trial Tr. Tr. 31 see (in prosecutorial assessing prejudice from (Oct. 29, (“[everybody who was not misstatements, effects of “the ameliorative him, in- holding” up beating Johnson was underesti- are not be instructions Williams, stopped” “and no one cluding Venable, mated”); 269 F.3d at see also times). first two when “time” was called (court’s burden-of-proof correct mis- mitigated prosecutor’s instruction re- majority

31 points murder, from a majority testimony The particularly if the defendant’s aim defense that Johnson an “un- expert See, is to conceal the beating. e.g., United derlying medical trait” that contributed Sarracino, 1148, States v. 340 F.3d 1162— “primarily] (10th 2003) or even his death. (violation cause[d]” 64 Cir. of Confronta Maj. But Op. expert— 15-16. the same tion beyond Clause was harmless reason roundly by government experts rebutted in able doubt prose murder in acknowledged that “the cution where evidence “overwhelmingly” event— Sergeant manner of Johnson’s death was badly showed defendants had beaten vic ... contributory homicide” because “[t]he tim, “knew that the victim was severely injury ... cause at the of oth- hands hurt” and nevertheless “decided to remove (Nov. 2010). 3, ers.” Trial Tr. 104 the victim from the in hopes scene of crime”);5 avoiding detection of the Unit majority gives weight The no cf. Conatser, v. 508, ed States 514 F.3d 522-24 depraved Williams’s refusal of Johnson’s (6th 2008) Cir. (affirming district court’s request for medical attention. I think that conclusion, at sentencing, that defendant’s true, spectacularly is mistaken. It is “ failure to request medical attention for notes, that the issue ‘material is prisoner he malice); had beaten constituted state mind at the [his] of time the homi- of ” United States v. McDougle, Fed.Appx. Appellant’s cide.’ Br. (quoting United (6th 2003) (unpublished) (8th Johnson, States (affirming conclusion, district court’s 1989)) Johnson). (emphasis He cites sentencing, that defendants’ “efforts at however, no authority, that would exclude covering up injuries” from [victim’s] their from of “the time the homicide” the imme- beating earlier constituted malice when diate a beating aftermath of severe while prevented cover-up victim getting from clings the victim still to life. attention). proper medical very of definition homicide is “[t]he killing by another,” person Here, one depravity the continuum began Blaok’s (10th 2014), Law DICTIONARY ed. which with beating through extended means the crime is not complete unless refusal of request Johnson’s for dies, and until the victim see Trial Tr. 38 jump-in, medical attention. After the some- (Nov. (district court instructed one if asked Williams: he “[W]hat has to jurors (Oct. that go hospital[?]” element “[f]irst” to the Trial Tr. 93 2010). prove had to “that un- the defendant initially responded that “if Johnson”). lawfully killed Juwan go And the he hospital, has to tell them he available case law makes clear that a de- got But jumped downtown.” Id. he as- Charris, fendant’s of medical signed gang member, refusal attention for a a stay victim strong he has beaten evidence of with Johnson and “watch” him. Trial Tr. Sarracino, (internal In proved quotation district court instructed malice. Id. at 1163 part: permitted “You also are omitted). quoted ap- The Tenth Circuit aforethought you find malice ... find proval closing both instruction and the death, person, while aware of serious risk of argument, finding “important” them to its having put failed to act after human another conclusion the Confrontation Clause vio- being position danger creating in a for lation was harmless. Id. at 1162-63. Similar- duty safeguard himself a to rescue or to ly, closing prosecutor argued here (inter- being.” other human 340 F.3d at 1162 request refusal of Williams's omitted). quotation closing, govern- nal “betrayal” medical attention was a that led to argued ment defendants had "created (Nov. 8, 2010). death. Trial Johnson's Tr. 38 duty for themselves to save” the victim but die,” him 'Te[ft] to his own devices to which Just so. in a (Oct. instructing homicide was not altruism. dence That “that he wanted said trial prosecution.

When Johnson first Caveat the bench. him hospital,” Charris “told go to to I from Accordingly, respectfully dissent him there that ... I take because couldn’t of Williams’s reversal got me to them how he way was no tell conviction, a conviction well war- murder In a him.” at 63. fateful the bruises on Id. his brutal ranted for role later, 20 phone minutes call about beating and death. taken Johnson not be directed that whole, Viewing the as hospital. evidence relief that the

I believe it shows stark assigned Charris watch

reason Williams would

Johnson was to ensure Johnson thereby

not seek care on own and beating That is

reveal the to outsiders.

malice on stilts. HOLDINGS, SECURITYPOINT recognize, inquiry, The I “is prejudice INC., Petitioner in sufficiency-of-the-evidenee ‘not a mere ” Maj. Op. (quoting quiry.’ United v. Smart, States F.3d TRANSPORTATION SECURITY 1996)). But neither does demand ADMINISTRATION, affirm, overwhelming evidence in order Respondent jury charge at least is correct where thorough as one here. No. 13-1068 Cf. 619, 639, Abrahamson, Brecht v. 507 U.S. Appeals, of United States Court (1993) 123 L.Ed.2d 353 S.Ct. Circuit. District Columbia (prosecutorial error harmless under Kotteakos standard “evidence where Decided September was, overwhelming, certainly if not guilt weighty”). unquestion evidence believe, (and,

ably strong enough over so) reject preju

whelmingly

dice claim.

[*] :¡: :¡: ^{[*] [*]} view, my prosecutor did not mis- did, And if she I am

state the law. even

confident that “error did not influence jury, very slight effect” in but evidence of compelling

view both jury charge,

malice especially every

which was correct and measured Kotteakos,

particular. 328 U.S. majority’s

S.Ct. The mischief the

holding likely to cause is neither theo- slight. My colleagues

retical nor experienced

found error in an reversible judge’s

and evenhanded trial refusal

single specific out irrelevant —evi- —and The notes “members issue, court tell- statement of law on same peatedly asked Johnson he wanted to responsibility “it the court’s ing was continue the initiation and testified with law”). as to the To com- apprise [them] they if he said stopped would have however, emphasize plete analysis, Maj. But after at- Op. no.” my awareness of the view “Williams’s him tackers lifted to his feet—at which majority risk” to was not—as the Johnson life,” point looked scared.for his Trial “[h]e concludes, Maj. erroneously Op. 15-16—a (Oct. 26, 2010) they stopped asking Tr. 46 — question. “close” continue, Tr. 47 him if he wanted to Trial majority observes that no serious The (Oct. 2010). 29, And there is no evidence— jump- earlier injuries had occurred Johnson, own, understandably on his —that Maj. jump-in But this was Op. ins. 15-16. continuing point. after that insisted on ways in crucial that would have different There were nine been obvious to Williams. majority says had no un- “Johnson complement the usual participants whereas signs major injuries mistakable outward Williams, ring- to six. had been four Maj. Op. 15. But he jump-in.” after the participant, about prime leader and a bleeding from the mouth and walked a foot taller than Johnson. When Williams away per- from the scene a drunk “[l]ike punched in the mouth at the out- Johnson (Oct. 2010). son.” Trial Tr. 31-32 Those set,- straight ... “Johnson went down signs major could of either minor or be (Oct. 2010). ground.” Trial Tr. 34 A physical gang trauma. leader who had punch fallen on the first No one had ever beating eight delivered a other severe hit before. Johnson the face minutes would not—un- men for over six several more times and Johnson went major out extremely less reckless-—rule “every- repeatedly. got up, down When he easily in- trauma. A reasonable could ... body” piranhas.” attacked him “like Id. injury fer that Williams intended serious Tri- eventually “stomped on” him. all, is, after the natural and because (Oct. 2010). That, too, al Tr. was not probable consequence beating. of a serious hap- of the rules” and had never “part Mejia, See United States pened gang Id. The other members before. 2010) (upholding jury in- Johnson, id., kicking suit” in “[f]ollow[ed] “[y]pu may struction that infer but are not ball,” curling up who “was id. at 31. person that a intends the required to infer kicking stopped, participant one When probable consequences natural and acts gang to his feet mem- lifted Johnson omitted”) knowingly knowingly done or At up punching held him while him. bers (internal omitted); supra see also quotation one witness “had never seen” that least (Oct. Finally, note 3. either. Trial Tr. 35

Case Details

Case Name: United States v. Rico Williams

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

Date Published: Sep 2, 2016

Citation: 836 F.3d 1

Docket Number: 12-3029

Court Abbreviation: D.C. Cir.