UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEANDRE LARON WASHINGTON, a/k/a Monster, Defendant-Appellant.
No. 10-7013
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
August 9, 2011
PUBLISH
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:09-CR-00036-RAW-2)
Ryan Roberts, Assistant United States Attorney (Mark F. Green, United States Attorney; Linda A. Epperley, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee.
Before O‘BRIEN, SEYMOUR, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Following a jury trial, Defendant-Appellant Deandre Laron Washington was convicted of one count of witness tampering, in violation of
BACKGROUND
In February 2009, Lieutenant Bryan Stark—the head of the Muskogee Police Department‘s Special Investigations Unit (“SIU“)—received a handwritten note from a Muskogee County Jail inmate named Durrell Collins, which indicated that someone was trying to have him killed. The note read, in part: “I have someone in this jail trying to pay a guy I know out of Tulsa to have you killed because of the recent bust you did[.] I have the note he sent me askin [sic] me to set it up for 50,000.” R., Vol. I, at 41 (Resp. in Opp‘n to Mot. to Dismiss Indictment, filed Apr. 28, 2009) (internal quotation marks omitted). Mr. Collins was subsequently interviewed, and he told the law enforcement authorities that he had been contacted by Ronald Irving, a local drug dealer, about potentially arranging a “hit” on Lt. Stark. R., Vol. II, at 295–97 (Trial Tr., dated July 20–22, 2009). Mr. Irving, a frequent target of SIU investigations, had recently been incarcerated as a result of a narcotics sting orchestrated by Lt. Stark earlier that month (i.e., in February).
According to Mr. Collins, Mr. Irving first hatched this murder-for-hire plot in 2006, when he told a group of people at a party that he would pay $50,000 to anyone who would kill Lt. Stark.2 At that time, Mr. Collins, who was also at the party, indicated that he knew someone—namely, Mr. Washington—who might be willing to do this, but nothing ever materialized following the 2006 conversation.
However, while they were both in jail in February 2009, Mr. Irving sent a note to Mr. Collins suggesting that they move forward with the plan.
Mr. Collins then spoke directly to Mr. Irving regarding the plan through cell phones that had been smuggled into the jail. The cell phones were in the possession of Milton Warrior and Sean Warrior, cousin inmates who also were housed in the Muskogee County Jail. Sean Warrior was Mr. Irving‘s cell mate, and Milton Warrior was housed near Mr. Collins. “Milton Warrior called . . . Sean Warrior [on his cell phone] and got Ronald Irving on the phone[,] and [then Milton Warrior] called [Mr. Collins] into his cell [so he could] talk[] to Ron Irving.” Id. at 303. According to Mr. Collins, Mr. Irving asked him if he was “still cool on—you know
At the behest of federal investigators, Mr. Collins agreed to go along with Mr. Irving‘s plan. Shortly thereafter, he was bonded out of jail using money supplied by Mr. Irving. Once out, Mr. Collins contacted Mr. Washington. The two met for the first time on March 9, 2009, to discuss the details of the intended assassination. At that meeting, Mr. Collins was wearing an audio-visual recording devise provided by the FBI. With reference to Lt. Stark, Mr. Collins told Mr. Washington that “you got to lay the nigger down, be known.” Id. at 49.
Mr. Washington responded: “I‘m not going to sit there and wound the nigger, shit. Damn, there‘s 25,000 on the line. I‘m going to square him up. Shit, straight lace.” Id. at 50. Mr. Washington made several other statements reiterating his intent to kill Lt. Stark during the March 9 conversation, including that he was “[g]onna ride down there [i.e., to Muskogee] and . . . gonna boom him and come on back, nigga straight lace nigga. Shoot his ass up.” Gov‘t Ex. 36 at 8 (Tr., Audio Recording of Mar. 9, 2009 Meeting).
Mr. Washington ultimately agreed to travel down to Muskogee with Mr. Collins on March 11, 2009, to kill Lt. Stark. The plan was for Mr. Collins to acquire a gun upon their arrival in Muskogee, and for Mr. Washington to do the actual shooting later that same day.3 The FBI wired Mr. Collins with an audio-visual recording device prior to his departure for Muskogee and told him what to do when the arrest took place. As Mr. Collins and Mr. Washington were en route, they were stopped by the Oklahoma Highway Patrol as their vehicle crossed over the Arkansas River Bridge and entered into Muskogee. Mr. Washington was placed under arrest, and the ensuing search of his person revealed that he was
carrying a pair of surgical exam gloves in his shirt pocket. No weapon of any kind was recovered.
Mr. Washington was subsequently indicted, along with Mr. Irving, on one count of tampering with a witness, in violation of
Mr. Washington thereafter moved to dismiss the indictment, arguing, inter alia, that the charge was duplicitous. See id. at 30–31 (Mot. to Dismiss Indictment, filed Apr. 23, 2009) (arguing that the indictment “alleged two discrete
crimes[:] Conspiracy and Attempt, both under the rubric of
Mr. Washington and Mr. Irving were tried together. At trial, the government relied largely on the testimony of Lt. Stark, Mr. Collins, and Milton Warrior. Following the close of the government‘s case, Mr. Washington moved for dismissal of the charge against him, arguing that insufficient evidence existed to support a conviction because evidence of a defendant‘s “[m]ere intention to commit a . . . crime” was not sufficient to warrant a finding that he had committed a “substantial step” towards the completion of that crime, and
therefore he could not be found guilty of attempt. R., Vol. II, at 661–64. The district court denied the motion.
The defendant‘s case primarily rested on the testimony of Mr. Washington himself. Mr. Washington admitted being solicited by Mr. Collins to partake in a murder-for-hire plot. Mr. Washington claimed, though, that he never intended to kill Lt. Stark; he testified that his intention was to play along with the plan in order to get the up-front money, and then he planned to disappear. He acknowledged that he said numerous things that might invite a conclusion that he intended to kill Lt. Stark, but explained that he said them only to further the ruse. See, e.g., id. at 771 (“I was just coming out with everything I had to convince [Mr. Collins] that I was serious about whatever I was trying to do.“). Likewise, he equated the surgical gloves found on him to a “prop.” Id. at 777. He also testified that both he and Mr. Collins had accused each other of “bullshitting” about the plot, thereby indicating—at least according to Mr. Washington—that neither party necessarily believed the other would go through with it. Id. at 775–77.
The defense also called Anthony Evans, the Assistant District Attorney for Tulsa County, who testified to the fact that Mr. Collins was cooperating with the police in return for a new charge and an application to revoke being dropped. Mr. Irving also testified, claiming that he was set up in the murder-for-hire plot, and that it was not his voice on the numerous recordings played to the jury.
Following the summary denial of Mr. Washington‘s renewed Rule 29 motion for judgment of acquittal at the close of all evidence, the case was submitted to the jury. During deliberations, the jury expressed some confusion regarding the relationship between certain elements of the witness-tampering offense, as expressed in the indictment, and elements of the same offense, as embodied in the jury instructions.5 Mr. Washington, however, did not
The jury returned a guilty verdict against both Mr. Washington and Mr. Irving, and the district court subsequently sentenced Mr. Washington to 360 months’ imprisonment. This timely appeal followed.
DISCUSSION
As noted above, Mr. Washington raises four challenges to his conviction: (1) the indictment failed to charge a crime; (2) the indictment was duplicitous; (3) there was insufficient evidence produced at trial to support his conviction; and (4) the district court abused its discretion in excluding the testimony of a defense witness who was present in the courtroom during trial in violation of the Rule of Sequestration. Each claim is addressed in turn.
I. Whether the Indictment Sufficiently Charged a Crime
Mr. Washington first argues that the interplay between “attempt” and “conspiring” in the indictment resulted in the government‘s failure to charge a cognizable federal offense. However, despite the fact that the indictment uses both the terms “conspiring” and “attempt to kill” in charging that Mr. Washington “did attempt to kill Lieutenant Bryan Stark by conspiring to shoot him with the intent to prevent [his] attendance or testimony in federal court proceeding against [Mr. Irving],” R., Vol. I, at 24 (emphasis added), we conclude that the indictment sufficiently charged a crime—namely, witness tampering in violation of
A. Standard of Review
Both parties acknowledge that Mr. Washington failed to raise this issue before the district court. Mr. Washington argues that this claim is nevertheless subject to de novo review because it is “jurisdictional,” and thus can be brought at any time. Aplt. Opening Br. at 9 (citing United States v. Peter, 310 F.3d 709 (11th Cir. 2002)). The government, however, contends that Mr. Washington‘s “assertion that such a defect is jurisdictional and results in a void judgment . . . is simply no longer the law after the United States Supreme Court decision in United States v. Cotton, 535 U.S. 625, 631 (2002).” Aplee. Br. at 14–15. Instead, according to the government, Cotton dictates that Mr. Washington‘s claim is not jurisdictional and, therefore, it should be reviewed only for plain error.
In Cotton, the Supreme Court rejected the proposition that all “indictment defects are ‘jurisdictional.‘” 535 U.S. at 631. Although the Court acknowledged that “defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court,” it concluded that the petitioner‘s challenge in that case—a claim, raised for the first time on appeal, that the indictment was defective because it failed to charge a necessary element—was non-jurisdictional
In United States v. Sinks, we considered the issue of “whether [post-Cotton] appellants challenging their indictments for failure to charge an offense waive their claims by failing to object before trial.” 473 F.3d 1315, 1317 (10th Cir. 2007). We “conclude[d] [that] they do not.” Id.6 This conclusion was based largely upon
As noted above, Mr. Washington asserts that his claim is not subject to plain-error review, reasoning that an indictment challenge “based on the theory that the charge lies outside the scope of the applicable penal statute . . . is jurisdictional and may be reviewed [de novo] on appeal.” Aplt. Opening Br. at 9. He distinguishes Cotton and Sinks by pointing out that they involved only non-jurisdictional challenges to an omission in the indictment, which is not the situation in this case. See Peter, 310 F.3d at 714 (holding that an indictment charging “only . . . specific conduct that, as a matter of law, was outside the sweep of the charging statute” suffered from a jurisdictional defect that could be challenged at any time without incurring a more-rigorous standard of review). Even assuming, arguendo, that Mr. Washington correctly characterizes his claim as “jurisdictional,” and that application of the rigorous plain-error standard is therefore inappropriate, we still conclude that Mr. Washington‘s challenge cannot succeed.8
“An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Gama-Bastidas, 222 F.3d 779, 785 (10th Cir. 2000) (quoting United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997)) (internal quotation marks omitted); accord United States v. Barrett, 496 F.3d 1079, 1092 (10th Cir. 2007); see Russell v. United States, 369 U.S. 749, 763–64 (1962) (noting that the two principal criteria by which the sufficiency of an indictment is measured are, “first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense[,] whether the record shows with accuracy to what extent he may plead a former acquittal or conviction” (quoting Cochran & Sayre v. United States, 157 U.S. 286, 290 (1895)) (internal quotation marks omitted)); see also Hamling v. United States, 418 U.S. 87, 117 (1974) (“It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.‘” (quoting United States v. Carll, 105 U.S. 611, 612 (1882))).
“The test of the validity of the indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.” Gama-Bastidas, 222 F.3d at 785 (quoting United States v. Fitzgerald, 89 F.3d 218, 222 (5th Cir. 1996)) (internal quotation marks omitted). Further, when evaluating an indictment‘s sufficiency, we employ “practical rather than technical considerations.” Id. (quoting Dashney, 117 F.3d at 1205) (internal quotations marks omitted); accord United States v. Avery, 295 F.3d 1158, 1174 (10th Cir. 2002).
Moreover, when an appellant challenges an indictment for failure to state an offense for the first time on appeal, as is the case here, “the countervailing interest in judicial efficiency requires that tardily-challenged indictments be construed in favor of validity.” Gama-Bastidas, 222 F.3d at 786 (quoting United States v. Bullock, 914 F.2d 1413, 1414 (10th Cir. 1990)) (internal quotation marks omitted); see id. (“[A]fter a verdict or plea of guilty, every intendment must be indulged in support of the indictment . . . .” (alteration in original) (quoting Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963)) (internal quotations marks omitted)); see also United States v. Willis, 102 F.3d 1078, 1081 (10th Cir. 1996) (“Although we generally review the sufficiency of an indictment de novo, when a defendant fails to raise a timely challenge, ‘we will liberally construe an
In this instance, Mr. Washington does not assert that he was prejudiced by the alleged deficiency in the indictment. That is, he has not argued that he had no notice of the charge against him—namely, witness tampering through his attempted murder of Lt. Stark, in violation of
will read the indictment with maximum liberality and construe it in favor of validity. Under this approach, “[w]e will find the indictment sufficient unless it is so defective that by any reasonable construction, it fails to
Viewing Mr. Washington‘s indictment with maximum liberality, and construing it in favor of validity, we conclude that the indictment adequately pleaded the witness-tampering offense. First, the indictment sufficiently “sets forth the elements of the offense charged.” Barrett, 496 F.3d at 1092. The body of the indictment cites the statute,
Furthermore, the caption of the indictment recites the statute,
In addition, as discussed above, Mr. Washington does not dispute that the indictment put him “on fair notice of the charge[] against which he must defend.” Barrett, 496 F.3d at 1092. Lastly, we have no problem concluding that the indictment “enable[d] [Mr. Washington] to assert a double jeopardy defense.” Id. He makes no argument to the contrary, “nor could such an argument fairly be
made.” United States v. Boston, 718 F.2d 1511, 1515 (10th Cir. 1983). This is especially true because “the entire record, not just the indictment, may be referred to in order to protect against double jeopardy if a subsequent prosecution should occur.” Id.; accord United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir. 1988). In this regard, we note, for example, that the jury instructions clearly charged Mr. Washington with attempting to kill Lt. Stark to preclude his attendance at Mr. Irving‘s proceedings. See R., Vol. I, at 150–53; see also supra note 9 (explaining that the jury instructions provided notice as to the nature of the witness-tampering offense). Accordingly, viewing the indictment with maximum liberality and construing it in favor of validity, we hold that the indictment was sufficient to charge the offense for which Mr. Washington was convicted—viz., witness tampering through the attempted murder of Lt. Stark.
II. Whether the Indictment Was Duplicitous
Mr. Washington next contends that, even if the indictment does sufficiently
A. Standard of Review
We review a claim that an indictment is duplicitous de novo. United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998).
B. Analysis
An indictment is duplicitous if it “charges the defendant with two or more separate offenses in the same count.” United States v. Haber, 251 F.3d 881, 888 (10th Cir. 2001) (quoting Trammell, 133 F.3d at 1354) (internal quotation marks omitted). When this occurs, it “present[s] a danger that the jury may convict a defendant although not reaching a unanimous agreement on precisely which charge is the basis for the conviction,” United States v. Schneider, 594 F.3d 1219, 1228 (10th Cir. 2010), which would run afoul of “[t]he Sixth Amendment guarantee[] . . . to a unanimous jury verdict,” United States v. Linn, 31 F.3d 987, 991 (10th Cir. 1994). We also have identified both the fact that “[a] defendant may be prejudiced in a subsequent double jeopardy defense,” and that “[a] court may have difficulty determining the admissibility of evidence,” as other dangers that may stem from a duplicitous indictment. Trammell, 133 F.3d at 1354.
Mr. Washington claims that a single count of his indictment implicated the crimes of attempt and conspiracy, which he notes “are discrete charges, with their own set of elements.” Aplt. Opening Br. at 13; see United States v. Savaiano, 843 F.2d 1280, 1292 (10th Cir. 1988) (indicating that conspiracy and attempt are distinct crimes requiring proof of unique elements (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)))). Mr. Washington first raised this issue in his motion to dismiss the indictment, and he now suggests that a principal danger of duplicitous indictments (i.e., a jury verdict of guilt without unanimous juror agreement regarding the crime) was realized here. This was supposedly evidenced by the jury‘s request for “clarification . . . between the terms conspiracy to attempt to kill listed on the indictment versus the listed section, quote, ‘law, attempt to kill.’” Joint Resp. to Order of Feb. 2, 2011; see supra note 5.11
As support for his duplicitous-indictment argument, Mr. Washington relies heavily upon the Third Circuit‘s decision in United States v. Starks, 515 F.2d 112 (3d Cir. 1975). There, the government charged a Hobbs Act violation, see
The Hobbs Act proscribes a number of separate offenses: (1) robbery; (2) extortion; (3) attempted robbery or extortion;
and (4) conspiracy to commit robbery or extortion. Each such offense also requires the federal jurisdictional element of obstruction, delay, or effect on interstate commerce. The indictment charged two such offenses; conspiracy to extort and attempt to extort. Since both were improperly charged in a single count, the defendants’ pre-trial motions that the indictment be dismissed, or that the government be required to elect, should have been granted.
Id. at 116 (footnote omitted).
Starks, however, may be readily distinguished from the present case. The indictment in Starks charged the defendants in a single count with two distinct offenses prosecutable under
III. Sufficiency of the Evidence to Support the Witness Tampering Verdict
Mr. Washington next argues that there was insufficient evidence to support his witness-tampering conviction. More specifically, he contends that the evidence did not sufficiently demonstrate that he “perform[ed] a substantial step that was ‘an appreciable fragment’ of murder,” and that “[h]is actions went no further than ‘devising or arranging the means or measures necessary for the commission of the offense.’” Aplt. Opening Br. at 18. On the other hand, the government asserts that “[a] fair review of the evidence . . . reveals multiple, substantial steps taken toward commission of the crime, from phone calls and meetings to travel and sterile gloves.” Aplee. Br. at 29. We conclude that the evidence presented at trial was sufficient to sustain Mr. Washington‘s conviction.
A. Standard of Review
This circuit reviews sufficiency-of-the-evidence claims de novo, “ask[ing] whether a reasonable jury could find a
B. Analysis
In order to establish Mr. Washington‘s guilt of witness tampering under
“A substantial step must be something more than mere preparation,” Vigil, 523 F.3d at 1267, “yet may be less than the last act necessary before the actual commission of the substantive crime,” United States v. Manley, 632 F.2d 978, 987 (2d Cir. 1980); see also United States v. Prichard, 781 F.2d 179, 182 (10th Cir. 1986) (“[M]odern ‘attempt’ law allows criminal liability to attach at some point prior to the last proximate act.”). The fact that further, major steps remain “before the crime can be completed does not preclude a finding that the steps already undertaken are substantial.” Savaiano, 843 F.2d at 1297 (emphasis omitted) (citation omitted) (internal quotation marks omitted). Instead, a “substantial step” is appropriately found where the defendant undertook “an appreciable fragment of a crime . . . of such substantiality that, unless frustrated, the crime would have occurred.” Smith, 264 F.3d at 1016 (quoting DeSantiago-Flores, 107 F.3d at 1479) (internal quotation marks omitted). The act or acts “must be strongly corroborative of the firmness of the defendant‘s criminal intent.” United States v. Bunney, 705 F.2d 378, 381 (10th Cir. 1983) (quoting United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974)) (internal quotation marks omitted).
On appeal, Mr. Washington contends that he “did not perform a substantial
In arguing that his actions were merely preparatory, Mr. Washington relies heavily on United States v. Monholland, 607 F.2d 1311 (10th Cir. 1979). There, this court found insufficient evidence to support a conviction for attempting to receive an explosive in interstate commerce where there “was nothing more than preliminary discussion[s]” about the purchase of some dynamite. Id. at 1317. The defendants in that case had asked the government informant what the price of a box of dynamite would be, and had later, and more specifically, asked the informant “what [he] would . . . take for” the dynamite that he possessed. Id. A price was never indicated, as the informant told them the dynamite was not for sale, and there was no suggestion that the defendants actually had the money to pay for the explosives. Id. The panel concluded, therefore, that this evidence, “consisting as it does of mere abstract talk,” could not show a substantial step towards completion of the crime. Id. at 1318 (emphasis added). The court reasoned that
mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it, especially when made at a distance from the place where the substantive offense is to be committed, for there must be some act moving directly towards the commission of the offense after the preparations are made.
Id. (citation omitted) (internal quotation marks omitted).
“As courts invariably and correctly state, the question of when preparation ends and attempt begins is exceedingly difficult.” Prichard, 781 F.2d at 181; see also United States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950) (Hand, C.J.) (“The decisions are too numerous to cite and would not help much anyway, for there is, and obviously can be, no definite line [between preparation and attempt] . . . .”). In Monholland, although we held that “mere abstract talk” was not a substantial step, we also observed that “[i]f the activity had proceeded to a further length, that is, if a tangible act which constituted proximate and tangible evidence of a real effort had emerged, the government‘s [charge] would be more tenable.” Id. at 1317 (emphasis added).
The government contends that this presents just such a case. Specifically, it notes that the “talk” in this case was also accompanied by the fact that Mr. Washington was arrested while traveling to Muskogee, purportedly to perform the hit, with latex surgical gloves on his person. Mr. Washington, in contrast, downplays the significance of the trip, noting that he and Mr. Collins “were [not] driving to a location where Stark might have been.” Aplt. Opening Br. at 18. Claiming that “[t]he destination of the trip to Muskogee was to obtain the $25,000 which was to be paid up-front,” Mr. Washington suggests that his traveling to Muskogee was merely a “preparatory act” because “[w]ithout the money in hand there clearly would not be a murder.” Id. As he sees it, “[w]ith no gun, no up-front money, and no knowledge of Stark‘s location, [he] was several vital steps away from the commission of murder when he was stopped outside of Muskogee on the Arkansas River bridge.” Id. at 18-19.
We conclude that there was sufficient evidence before the jury to support Mr.
In this case—although several steps did remain before the planned murder would take place—we conclude that Mr. Washington‘s presence in a vehicle headed towards Muskogee (a city in which he had no apparent business beyond the planned hit), with Mr. Collins (the person who had facilitated the murder-for-hire agreement), on the very day that the hit was planned to take place (i.e., in close temporal proximity to the planned crime), combined with the extensive conversations he had with Mr. Collins about the planned killing, provide a very powerful indication that, but for the interference of the police, the planned criminal act would have come to fruition.
Indeed, a number of courts have considered traveling to a location as part of a planned crime important in their “substantial step” inquiry, and we see no reason why we should not do the same under these facts. See, e.g., United States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009) (finding that defendant took a substantial step towards committing the crime of enticing a minor to engage in sexual activities when he arranged to meet the minor at a certain time and place and then traveled to the designated meeting location); United States v. August, 835 F.2d 76, 78 (5th Cir. 1987) (“Certainly a reasonable jury could believe . . . that one who travels over three hundred miles to a pre-arranged rendezvous, bearing the agreed cash consideration for a cocaine buy, has taken a substantial step toward possessing the contraband.”).
Furthermore, as the government suggests, it is significant that Mr. Washington was arrested with a pair of latex surgical gloves on his person. Mr. Washington admitted at trial that gloves are often used to hide fingerprints. Although this is not necessarily the type of evidence which, on its own, indicates a substantial step, it does, when taken in context, provide additional, corroborating evidence of Mr. Washington‘s intent to commit the crime. See Model Penal Code § 5.01(2)(e) (stating that “possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances” is “strongly corroborative of the actor‘s criminal purpose”).
In light of the foregoing, we reject any suggestion that the evidence only established that Mr. Washington engaged in “mere abstract talk,” Monholland, 607 F.2d at 1311, regarding the killing of Lt. Stark, or that the jury‘s verdict rested on virtually nothing more than evidence of conspiring behavior, without an adequate substantial step. We are confident that there was sufficient evidence before the jury to support Mr. Washington‘s witness-tampering conviction.
IV. Whether the District Court Abused Its Discretion In Excluding Terry Warrior‘s Testimony
Mr. Washington‘s final claim is that the district court abused its discretion when it
The defense, who had previously been unaware of Ms. Warrior or her presence in the courtroom that day, subsequently sought to have her testify to the fact that no threat was made during the robbery, which would serve to undermine the government‘s suggestion that Sean Warrior‘s testimony was coerced. Noting that Ms. Warrior was present during her son‘s testimony—thereby violating the court‘s sequestration order—the district court judge excluded Ms. Warrior as a witness, stating that this was not “a situation where [he] w[ould] make an exception for a witness who is in the courtroom . . . in violation of the Rule of Sequestration.” Id. at 760. The defense then made an offer of proof, indicating that Ms. Warrior “would deny on the stand that there were any threats made concerning testifying . . . [and] deny that there were any statements made regarding [Mr. Washington]” during the break in. Id. at 760–61.
Later during trial, the defense again requested to call Ms. Warrior. Defense counsel reiterated that he “had no idea who the lady was sitting back there,” and noted, moreover, the he was unaware of the government‘s eventual line of questioning regarding Ms. Warrior, making it impossible for him to know that Ms. Warrior‘s presence would present any concerns. Id. at 826. The district court again excluded Ms. Warrior‘s testimony “because she was present for the testimony [of Sean] and that‘s a violation of the Rule of
A. Standard of Review
“We review for abuse of discretion a district court‘s sequestration decisions.” United States ex rel. Bahrani v. ConAgra, Inc., 624 F.3d 1275, 1296 (10th Cir. 2010).
B. Analysis
Some of our sister circuits have indicated that exclusion is appropriate primarily where the witness has remained in court with the “consent, connivance, procurement or knowledge” of the party seeking his testimony, Gibson, 675 F.2d at 836 (quoting United States v. Kiliyan, 456 F.2d 555, 560 (8th Cir. 1972)) (internal quotation marks omitted)—i.e., where such a party has knowingly or intentionally effectuated a violation of the order. See, e.g., Kiliyan, 456 F.2d at 560–61; Braswell v. Wainwright, 463 F.2d 1148, 1156 (5th Cir. 1972); Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967); United States v. Schaefer, 299 F.2d 625, 631 (7th Cir. 1962); cf. United States v. Diaz, 248 F.3d 1065, 1104 (11th Cir. 2001) (“[W]here counsel or the witness violate the rule intentionally, the court may strike testimony already given or disallow further testimony.” (emphasis added)).
Although we may not have formally adopted this rule, our precedent indicates that a party‘s culpability in the violation of a sequestration order is a significant factor in determining whether admission or exclusion of the witness is the proper remedy for the violation. See Johnston, 578 F.2d at 1355 (holding that the district court did not abuse its discretion in allowing testimony by a witness who had violated a sequestration order, in part, because “[t]here [was] no indication at all in the record that Government counsel intentionally permitted disregard of the rule”); United States v. Sluder, 457 F.2d 703, 711–12 (10th Cir. 1972) (finding no abuse of discretion in the district court‘s decision to allow testimony of a witness who had violated a sequestration order when the prosecutor “did not know that Martinez was to be a witness while the latter was in the courtroom”).
Furthermore, our circuit has made clear that “[p]robable prejudice should be shown for such exclusion to occur.” Burks, 81 F.3d at 980 (alteration in original) (quoting Holder, 150 U.S. at 92) (internal quotation marks omitted); accord Buchanan, 787 F.2d at 485 (“Probable prejudice should be shown for such exclusion [based on a violation of a sequestration order] to occur.”); see also 4 Weinstein‘s Fed. Evid. § 615.07[2][d] (“Most courts . . . require at least a showing of probable prejudice resulting from the violation [of a sequestration order] before authorizing exclusion of the witness‘s testimony.”).
“Under these standards,” Mr. Washington argues, “the trial court lacked a basis for exclusion of the testimony” because “[d]efense counsel did not know about the incident at Terry Warrior‘s house, which occurred just a month before trial,” and “did not even know who Terry Warrior was.” Aplt. Opening Br. at 24. Mr. Washington suggests that the district court abused its discretion in not “consider[ing] the lesser remedies”—including a contempt citation or a comment to the jury by reason of the violation, see Holder, 150 U.S. at 92—and in not “tak[ing] appropriate pause before imposing ‘the most serious sanction of excluding testimony.’” Aplt. Opening Br. at 24 (quoting United States v. Samuels, 493 F.3d 1187, 1191 (10th Cir. 2007)). The government argues, in contrast, only that Mr. Washington “has provided no reason to disturb th[e] District Court‘s exclusion of testimony in this case or to view the ruling as anything out of the ordinary for the Eastern District of Oklahoma.” Aplee. Br. at 34.
Although Ms. Warrior was unquestionably present for the testimony of her son, and, as the district court noted, this was the only testimony that would have had any relevance to her own statements, this does not in-and-of-itself warrant exclusion. See, e.g., Holder, 150 U.S. at 92. In this case, the record is devoid of any of the factors noted above that justify exclusion of a witness. There are no indicia of “consent, connivance, procurement or knowledge” of Ms. Warrior‘s violation by defense counsel, Gibson, 675 F.2d at 836, and the district court never paused to conduct even a semblance of a “probable prejudice” inquiry, Burks, 81 F.3d at 980 (alteration omitted). Consequently, we agree with Mr. Washington that the district court abused its discretion by “mechanistically exclud[ing] the testimony upon finding a violation of the Rule.” Aplt. Opening Br. at 24.
In determining whether a particular error was harmless, “the court should not consider the error in isolation, but rather should consider it in the context of the entire record.” 28 Moore‘s Federal Practice – Criminal § 652.03 (2010). “A non-constitutional error, such as a decision whether to admit or exclude evidence, is considered harmless ‘unless a substantial right of [a] party is affected.’” United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999) (alteration in original) (quoting
There is little on this record to suggest that the district court‘s erroneous decision to exclude Ms. Warrior affected the substantial rights of Mr. Washington. As the government pointed out, extensive and damning evidence existed of Mr. Washington‘s intent to kill Lt. Stark and of his attempt to do so, whether it be in the form of the recorded conversations he had with Mr. Collins, his presence in the car with Mr. Collins en route to Muskogee, or the testimony of Mr. Collins himself. Even if Ms. Warrior had been allowed to testify, she would have only discredited the government‘s coercion theory regarding Sean Warrior‘s testimony. However, she would not have been able to overcome the other inconsistencies that the government had already identified in his testimony—including, for instance, the inconsistencies in the total number of conversations that he claimed transpired between Mr. Collins and Mr. Irving in jail, and whether or not he had listened to them at all. That is, Sean Warrior‘s credibility with the jury was in doubt regardless of the government‘s coercion theory, and Ms. Warrior‘s testimony would not have been able to fully rehabilitate it. Given the strong evidence of guilt that exists in this instance, and the inconsistencies in Sean Warrior‘s testimony that had otherwise been highlighted by the government, we conclude that the district court‘s error was harmless.
For the foregoing reasons, we AFFIRM Mr. Washington‘s conviction.
Notes
(a)(1) Whoever kills or attempts to kill another person, with intent to—
(A) prevent the attendance or testimony of any person in an official proceeding;
. . . .
shall be punished as provided for in paragraph (3).
As previously noted, the indictment also charged Mr. Irving—but not Mr. Washington—with one count of possession with intent to distribute cocaine base, in violation of
The next instruction, which defines the “essential elements” of Count 2, states:
TAMPERING WITH A WITNESS
Id. at 151. The instructions also defined the law of attempt. See, e.g., id. at 153 (“[I]n order to prove attempt, the government must prove beyond a reasonable doubt that (1) the defendant intended to commit the crime; and that (2) the defendant took a substantial step towards commission of that crime.“).The defendants are each charged in Count Two of the Indictment with tampering with a witness in violation of
18 [U.S.C. §] 1512(a)(1)(A) .In order for a defendant to be found guilty of the charge in Count Two of the Indictment, the government must prove beyond a reasonable doubt each element of the crime. These elements are:
First: the defendant attempted to kill Bryan Stark; and
Second: the defendant acted with the intent to prevent the attendance or testimony of Bryan Stark in an official proceeding.
Mr. Washington does not argue on appeal that the jury instructions improperly set forth the elements of the witness-tampering offense. Nor did he voice surprise before the district court concerning the specific language used in the two elements noted above, or otherwise object to this language. This lends support to the conclusion that Mr. Washington was accurately apprised of the elements of the witness-tampering offense when he appeared before the district court, and that he was able to fashion his defense accordingly.
To be sure, Mr. Washington did lodge a notable objection that urged the court to instruct the jury on certain offense elements. However, he did so on the ground that the jury should have been instructed on the elements of the separate crime of conspiracy. See R., Vol. II, at 958–59. The impetus for this objection was Mr. Washington‘s view that the indictment charged more than one crime in a single count—i.e., it was duplicitous. See R., Vol. I, at 28 (“Conspiracy and attempt . . . are discrete charges, with their own elements. The jumbled mix of separate crimes cobbled together in a few lines [of the indictment] is duplicitous.“). Mr. Washington filed no objection, however, on the distinct ground that the witness-tampering instructions failed to apprise the jury of the elements of that crime—even if there was supposedly another crime (i.e., conspiracy) that warranted further instruction. Accordingly, we find no indication—either in Mr. Washington‘s arguments on appeal or in the record below—that Mr. Washington was prejudiced due to lack of notice by the alleged deficiency in the indictment.
(a)(1) Whoever kills or attempts to kill another person, with intent to—
(A) prevent the attendance or testimony of any person in an official proceeding;
. . . .
shall be punished as provided for in paragraph (3).